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Ever since WikiLeaks and its controversial leader Julian Assange first caught the eye of the U.S. Department of Justice several years ago, we and others — including NYU journalism professor Jay Rosen — have been arguing that the organization is effectively a journalistic entity, and therefore deserving of all the protections that the First Amendment and freedom of the press entail. Now it seems as though that message has finally gotten through to the DoJ.
According to a piece in the Washington Post that quotes unnamed officials close to the Obama administration, the department has decided not to pursue charges against Assange for releasing classified documents that were given to WikiLeaks because “government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists.” Justice officials apparently referred to this as their “New York Times” problem, according to the Post.
The Post story also quotes a former Department of Justice spokesman on the same point, saying the problem has always been that “there is no way to prosecute him for publishing information without the same theory being applied to journalists.” I tried to make the exact same argument in a number of posts three years ago, including one arguing that WikiLeaks was a media entity (Rosen called it “the world’s first stateless news organization”) and that it should be subject to the same kinds of protections. As I put it at the time:
“What makes WikiLeaks different from the New York Times? There are the obvious things, of course — the latter publishes a print newspaper, is a member of a variety of self-regulatory bodies involving the media, and is a venerable institution with a long history of journalistic integrity. WikiLeaks, meanwhile, is a shadowy organization with an uncertain history, opaque motivations and publishes only online. That said, why are we so eager to protect one and not the other?”
Last year, there were rumblings that some members of Congress were trying to come up with a way to launch a case against media outlets that carried leaked documents, and I argued that their eagerness to do this was likely linked to their belief that WikiLeaks and Assange were guilty of espionage or some related offence. And if they were guilty, why not the New York Times? I asked why the Times itself wasn’t doing more to protest this kind of activity, and got a response from former executive editor Bill Keller, who said that despite his somewhat tense relationship with Julian Assange, he believed WikiLeaks was enough of a media entity that it should be protected:
“I’ve said repeatedly, in print and in a variety of public forums, that I would regard an attempt to criminalize WikiLeaks’ publication of these documents as an attack on all of us, and I believe the mainstream media should come to his defense. You don’t have to embrace Julian Assange as a kindred spirit to believe that what he did in publishing those cables falls under the protection of the First Amendment.”
Despite the Washington Post story, not everyone believes that Julian Assange and WikiLeaks are out of the woods just yet: whoever runs the WikiLeaks account on Twitter went through several reasons why the organization is sceptical that the government has given up on its attempts, including the fact that the grand jury remains in place and has not been struck. But for now, it seems, cooler heads — with a better understanding of the First Amendment — appear to have prevailed.