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The Ashley Biden Problem
It used to be called the “New York Times Problem.” It asks at what point does the First Amendment stop protecting journalists against the receipt of stolen property, particularly classified documents. It stems originally from the Pentagon Papers, a classified history of the Vietnam War stolen by Daniel Ellsberg and handed over to the Times and later others. The government sought prison time for reporters and editors but failed. What once threatened the New York Times has now been turned directly against Project Veritas, Ashley Biden’s diary, and perhaps Julian Assange.
The goal out of the tangled case outlined below is to create two standards for applying the 1A, one for journalists and one for “journalists” ostensibly based on skill and reputation but in reality based on politics. It is a direct challenge to freedom of the press by Biden’s DOJ.
In June 2020, a woman and a man moved into a Delray Beach, Florida house where Ashley Biden, President Joe Biden’s daughter, previously resided and where she’d left several items, including a diary. The diary mentioned, among other things, “inappropriate” showers taken together by daughter Ashley and Joe (whom Hunter Biden at one point appeared elsewhere to refer to as “Pedo Pete.”) Potentially important stuff, though the woman who found them failed to interest the Trump campaign. She then tried Project Veritas. Veritas paid for the diary holder to meet with their staffers in New York, inspected the diary and paid for it, only to ultimately decide not to publish it. Veritas turned the diary over to law enforcement as unverified (the diary was eventually published by a less-well known site.)
Though Veritas never published the diary, the New York Times Problem came into play — does the 1A protect media outlets who receive or even pay for stolen property, i.e., the Pentagon Papers and Ashley Biden’s diary? Obviously taking in stolen goods, say a diamond watch or purloined car, is a crime. But with snatched or stolen documents of public interest, in steps the First Amendment, which has been held to protect journalists in these cases. This is also why the New York Times Problem has more recently been called the Julian Assange Problem in that Assange never stole any documents himself — that was Chelsea Manning — and only published what he was handed. Any prosecution of Assange would be as a publisher, a clear rub against the 1A and the key issue in any trial that someday may be held.
That’s where the Veritas case should have ended, with the feds doing nothing. Plenty of stolen documents (there is also the open question about whether finding Biden’s diary left behind in an rental house constitutes theft at all) are published all the time by American media outlets, including Trump’s tax returns in the Times and Edward Snowden’s bombastic NSA source materials in the Washington Post. It is an essential part of a free press and protected by the 1A.
But DOJ did not stop with Veritas, who after all did not even publish any of the allegedly stolen documents. The FBI instead conducted a predawn search in November 2021 against Project Veritas founder James O’Keefe’s home and similar raids on two associates to take possession of their cell phones and journalistic notes. The raid warrants cited concerns over the stolen Biden diary. In response, University of Minnesota law professor Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press, said “I’m not a big fan of Project Veritas, but this is just over the top. I hope they [the FBI] get a serious reprimand from the court because I think this is just wrong.”
O’Keefe’s lawyers complained the raid unfairly denied him the legal protections afforded to journalists. “The Department of Justice’s use of a search warrant to seize a reporter’s notes and work product violates decades of established Supreme Court precedent,” O’Keefe’s lawyer wrote. The search also appears to violate the Privacy Protection Act, prohibiting searches and seizures of “any work product materials possessed by a person [person is undefined which gets around the issue of who is a “journalist”] reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”
Court papers provided to the Project Veritas founder when his phones were seized indicate that his devices were taken as part of an investigation that prosecutors are conducting into potential conspiracy to traffic stolen goods across state lines — the Biden diary. This should send chills through First Amendment advocates because the Supreme Court ruled in 2001 that media outlets cannot be held liable for publishing information that may have been obtained illegally, as long as they themselves obtained the material legally.
The Supreme Court case in question is 2001’s Bartnicki v. Vopper. A person intercepted and recorded a cell phone conversation between a union negotiator and the union president. Vopper, a radio commentator, played a tape of the intercepted conversation on his public affairs talk show. Petitioners filed a damages suit under wiretapping laws, alleging their conversation had been surreptitiously intercepted by an unknown person and the radio station repeatedly published the conversation even though they had reason to know that it had been illegally intercepted. The court ultimately held the First Amendment protected the disclosures and the radio station did not violate the law. “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” concluded Justice John Paul Stevens in Bartnicki v. Vopper. So why not the same with Project Veritas?
Loose in the Veritas case is a charging Department of Justice, who said the two people who tried to sell Veritas the diary were guilty of moving stolen property across state lines. More importantly the DOJ a) got the two to plead guilty to moving stolen property and b) contended Veritas paid them $40,000 and told them to go back into the house and look for more Ashley Biden materials (Veritas says they did not do this.) The latter point is key, because the protections of Bartnicki v. Vopper require the media to be passive. It cannot help “steal” things to later publish. FYI, the latter could form the bulk of any prosecution against Julian Assange, i.e., the claim he assisted Chelsea Manning by providing technical advice in stealing (“procurement”) all the classified documents she did. Such assistance, as alleged in the Veritas case, could eliminate the 1A protections (see Peavy v. WFAA-TV.)
What does it all mean? Project Veritas is being punished for practicing journalism and its 1A rights are being violated. Veritas met with sources who had obtained Ashley Biden’s diary. It was irrelevant whether they did so legally. Veritas’ journalists’ homes were searched, its sources charged with an interstate federal crime, and Veritas itself is being set up for procuring “stolen” material. If DOJ is successful in its efforts, this would see a double-standard emerge for the New York Times Problem, one liberal standard that allows major new outlets like the Times and Post the freedom to publish stolen documents and one more conservative which restricts that type of publishing when the outlet is more amateur and less well know, like Veritas.
As James O’Keefe’s lawyer stated a“ journalist’s lawful receipt of material later alleged to be stolen is routine, commonplace, and protected by the First Amendment.” This all has the makings of a clear First Amendment violation by the Biden Administration and in light of the pending case against Julian Assange, also has long-reaching consequences.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Julian Assange Will Die Alongside Your 1st Amendment Rights
(Reprinted from December 2018 following Assange’s arrest in London April 11, 2019)Accidentally disclosed information confirms the U.S. is actively planning to prosecute Julian Assange. What happens to Assange will almost certainly change what can be lawfully published in our democracy. This threat to our freedoms is being largely ignored because the Assange, once a progressive journalist, is now regarded as a hero-turned-zero. At stake? The ability of all journalists to inform the public of things the government specifically wants to withhold.
A clerical error revealed the Justice Department secretly has filed criminal charges against Assange. Court papers in what appears to be an unrelated case used cut-and-pasted language from documents prepared previously against Assange.
Though the new information makes clear prosecution is planned if Assange can be delivered to American custody, no further details are available. Assange is under scrutiny at a minimum for unauthorized possession of classified material going back to at least 2010, when Wikileaks burst on to the international stage with evidence of American war crimes in Iraq, and exposed years worth of classified State Department diplomatic cables. More recently, Assange has been accused of trying to manipulate the 2016 U.S. presidential election with his release of emails from the Democratic National Committee server. The emails, some believe, came to Wikileaks via hackers working for the Russian government (Assange denies this) and are deeply tied to the claims of collusion between the Trump campaign and Moscow otherwise known as “Russiagate.” Less publicized in the media but of critical concern inside the U.S. government is Wikileaks’ publication of the so-called Vault 7 materials, CIA hacking and malware tools, which revealed American technical intelligence skills and methods. Assange has hinted on at least one occasion he may have “Vault 8” materials as yet unreleased.
When Assange is prosecuted, on trial with him will be a key question concerning the First Amendment: do journalists actually enjoy special protection against national security charges? Can they publish classified documents because the national interest creates a 1A shield to do so? Or only when the government allows it?
Under the current “rules,” you get caught handing me a SECRET document, you go to jail. Meanwhile, I publish to millions, including any Russian intelligence officers with Internet access, and end up on Kimmel next to Taylor Swift. I whisper “I’m a freedom fighter, you know” into Taylor’s moist ear and she sighs.
Ask Edward Snowden, in dark exile in Moscow. Talk to Chelsea Manning, who spent years in Leavenworth while journalists for the New York Times and the Washington Post won accolades for the stories they wrote based on the documents she leaked. See how many stories today cite sources and reports, almost all of which are based on leaked classified information, stuff the government doesn’t want published yet accepts as part of the way journalism and the 1A work.
Yet despite widespread practice, there is no law rendering journalists immune from the same national security charges their sources go to jail for violating. There is no explicit protection against espionage charges written between the lines of the First Amendment. It is all based on at best an unspoken agreement to not prosecute journalists for revealing classified data, and it appears it is about to be thrown away to nail Julian Assange.
In 1971 Daniel Ellsberg leaked the Pentagon Papers, a classified history of the Vietnam War, to the New York Times. Reporters at the Times feared they would go to jail under the Espionage Act but published anyway, even as the Washington Post wimped out. The Nixon administration quickly found a court to order the Times to cease publication after initial excerpts were printed, the first time in U.S. history a federal judge censored a newspaper.
The Supreme Court then handed down New York Times Company v. United States, a victory for the First Amendment which allowed the Papers to be published, but an opinion which sidestepped the larger question about whether the 1A protects journalists publishing classified in favor of simply affirming the government couldn’t censor the news in advance. The Court left the door open for the government to prosecute both the leakers (by dismissing Ellsberg’s leaker case on technical grounds and ignoring his public interest defense) and the journalists who publish them (by focusing narrowly on prior restraint.) The Justices avoided saying the 1A offered a specific shield to journalists in matters of national security.
The Pentagon Papers case has governed everything about national security journalism from that day until the moment the U.S. government finally gets Julian Assange into an American courtroom.
On the source side, the Obama administration was especially virulent in prosecuting leakers. Trump continued the policy by throwing the book at Reality Winner. Both administrations made clear there was nothing to distinguish between taking classified documents to inform the public and taking them say with the intent to hand over secrets to the Chinese. On the other side of the equation, the journalists, the government (including, to date, Trump despite all the noise about attacking the press) has chosen not to prosecute journalists for publishing what leakers hand over to them.
The closest step toward throwing a journalist in jail over classified information came in 2014, when Obama Attorney General Eric Holder permitted subpoenaing New York Times reporter James Risen regarding a former CIA employee. After much legal muscle tussle, the Supreme Court turned down Risen’s appeal, siding with the government in a confrontation between a national security prosecution and infringement of press freedom. The Supreme Court refused to consider whether the First Amendment includes an unwritten “reporter’s privilege” in the free press clause. The Court instead upheld existing decisions finding the Constitution does not give journalists special protections. The door was w-a-y open to throwing Risen in jail.
But instead of becoming the first president to jail a journalist for what he published, Obama punted. Happy with the decision affirming they could have prosecuted Risen, with no explanation prosecutors asked the U.S. District Court to simply leave Risen alone. Risen’s alleged source went to jail instead for leaking classified. The unspoken rules stayed intact.
Unspoken rules are useful — they can be read to mean one thing when dealing with the chummy MSM who understands where the unspoken lines are even if they need the occasional brush back pitch like with Risen, and another when the desire is to deep-six a trouble-maker like Assange. Julian Assange poked the Deep State — he exposed the military as war criminals in Iraq (ironically in part for gunning down two Reuters journalists), the State Department as hypocrites, laid bare the CIA’s global hacking games in the Vault 7 disclosures, and showed everyone the Democratic primaries were rigged. None of those stories would have come to light under the MSM alone. And if Assange does know something about Russiagate (did he meet with Manafort?!?), what better place to silence him than a SuperMax.
The government is likely to cite the clear precedent from the Obama years it damn well can prosecute journalists for revealing classified information, and keep the established media happy by offering enough thin exceptions (natsec journalism groupies have already started making lists) to appear to isolate Assange’s crucifixion from setting broad precedent. Say, start with the fact that he wasn’t covered by the 1A outside the U.S., that his sources were Russian hackers seeking to harm the U.S. instead of misguided chaps like Ellsberg and Manning. Assange had no national interest in mind, no sincere desire to inform the public. He, a foreigner no less, wanted to influence the 2016 election, maybe in collusion!
Shamefully, those stuck in journalism’s cheap seats are unlikely to side with Assange, even though they wrote stories off what he published on Wikileaks. They’ll drift along with the government’s nod and wink this is all a one-off against Julian, and those who play by the government’s unspoken rules are still safe.
They’ll self-righteously proclaim Assange going to jail a sad but unfortunately necessary thing, claiming he just took things too far dealing with the Russkies, ignoring while the door to prosecute a journalist for national security has always been carefully left open by administrations dating back to Nixon, it is only under their watch that it may be slammed on the hands of one of their own whom they refuse to see, now, for their own misguided self-preservation, as a journalist. The Daily Beast’s take on all this, for example, is headlined a TMZ-esque “Unkempt, Heavily Bearded Julian Assange No Longer Has Embassy Cat For Company.”
They will miss where previous cases avoided delineating the precise balancing point between the government’s need to protect information, the right to expose information, and the media’s right to publish it, an Assange prosecution will indeed create a new precedents, weapons for the future for clever prosecutors. It will be one of those turning points journalists someday working under new press restrictions will cite when remembering the good old days.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Why I Support Julian Assange (And Why You Should Too)
This weekend I joined a number of people in an online vigil in support of Wikileaks’ Julian Assange.
People ask why I did it; Assange is at best imperfect in who he is and what he does. But supporting him transcends him, because the battle over the prosecution of Assange is where the future of free speech and a free press will be decided. Even if you think Assange doesn’t matter, those things do.
Assange is challenging to even his staunchest supporters. In 2010 he was a hero to opponents of the wars in Iraq and Afghanistan. Others called him an enemy of the state for working with whistleblower Chelsea Manning. Now most of Assange’s former supporters see him as a enemy of the state and Putin tool for releasing the Democratic National Committee emails. Even in the face of dismissed charges of sexual assault, Assange is a #MeToo villain. He a traitor who hides from justice inside the Ecuadorian embassy in London, or a spy, or some web-made Frankenstein with elements of all of the above. And while I’ve never met Assange, I’ve spoken to multiple people who know him well, and the words generous, warm, or personable rarely are included in their descriptions. But none of that really matters.Support is due because Assange ends up being the guy standing at a crossroads in the history of our freedoms – specifically, at what point does the need for the people to know outweigh laws allowing the government to keep information from view? The question isn’t new, but becomes acute in the digital age, where physical documents no longer need to be copied one-by-one, can be acquired by hackers from the other side of the world, and where publishing is far removed from the traditions, obstacles, safeguards, and often-dangerous self-restraint of traditional journalism.
A complex history precedes Assange. In 1971 Daniel Ellsberg leaked the Pentagon Papers, a secret U.S. government-written history of the Vietnam War, to the New York Times. No one had ever published such classified documents before, and reporters at the Times feared they would go to jail under the Espionage Act. A federal court ordered the Times to cease publication after an initial flurry of excerpts were printed, the first time in U.S. history a federal judge censored a newspaper. In the end the Supreme Court handed down a victory for the First Amendment in New York Times Company v. United States and the Times won the Pulitzer Prize.But looking at the Times case through the lens of Wikileaks, law professor Steve Vladeck points out “although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause… The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”
The Supreme Court left the door open to prosecute journalists who publish classified documents by focusing narrowly on prohibiting the government from exercising prior restraint. Politics and public opinion, not law, has kept the government exercising discretion in not prosecuting journalists, a delicate dance around this 800 pound gorilla loose in the halls of democracy. The government meanwhile has aggressively used the Espionage Act to prosecute the whistleblowers who leaked to those same journalists.
The closest things came to throwing a journalist in jail was in 2014, when the Obama administration subpoenaed New York Times reporter James Risen. The government accused former CIA officer Jeffrey Sterling of passing classified information to Risen, information it said appeared in his book State of War. After a lower court ordered Risen under threat of jail to testify and disclose his source, the Supreme Court turned down Risen’s appeal, siding with the government in a confrontation between a national security prosecution and an infringement of press freedom. The Supreme Court refused to consider whether there existed a gentlemen’s agreement under the First Amendment for “reporter’s privilege,” an undocumented protection beneath the handful of words in the free press clause.In the end the government, fearful of setting the wrong precedent, punted on Risen. Waving the flag over a messy situation, then-Attorney General Eric Holder announced “no reporter who is doing his job is going to go to jail.” Risen wasn’t called to testify and was not punished for publishing classified material, even as the alleged leaker, Jeffrey Sterling, disappeared into jail. To avoid the chance of a clear precedent that might have granted some form of reporter’s privilege under the Constitution, the government stepped away from the fight. The key issues now wait for Julian Assange.
Should the government prosecute Julian Assange, there are complex legal questions to be answered about who is a journalist and what is publishing in the digital world. There is no debate over whether James Risen is a journalist, and over whether a book is publishing. Glenn Greenwald has written about and placed online classified documents given to him by Edward Snowden, and has never been challenged by the government as a journalist or publisher. Both men enjoy popular support, and work for established media. The elements of fact checking, confirming, curating, redacting, and in writing context around the classified information, were all present in the New York Times’ case with the Pentagon Papers, and are present with American citizens Risen and Greenwald. Definitions and precedent may be forming.Assange is an easier target. The government has the chance to mold the legal precedents with such certainty that they may seize this case where they have backed away from others in the long-running war of attrition against free speech and the press.
Assange isn’t an American. He is unpopular. He has written nothing alongside the millions of documents on Wikileaks, has done no curating or culling, and has redacted little information. Publishing in his case consists of simply uploading what has been supplied to him. It would be easy for the government to frame a case against Assange that set precedent he is not entitled to any First Amendment protections simply by claiming clicking UPLOAD isn’t publishing and Assange isn’t a journalist. The simplest interpretation of the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization, would apply. Guilty, same as the other canaries in the deep mineshaft of Washington, DC before him, no messy balancing questions to be addressed. And with that, a unique form of online journalism would be squashed.
And that really, really matters. Wikileaks sidesteps the restraints of traditional journalism. Remember in 2004 the New York Times held the story of George W. Bush’s illegal warrantless eavesdropping program until after his reelection. In 2006 the Los Angeles Times suppressed a story on wiretaps of Americans when asked by the NSA. Glenn Greenwald said it plainly: too many journalists work in self-censoring mode, “obsequious journalism.” Meanwhile Assange has made mistakes while broadly showing courage, not restraint, under similar circumstances. The public is better informed because of it.Wikileaks’ version of journalism says here are the cables, the memos, and the emails. Others can write about them (and nearly every mainstream media outlet has used Wikileaks to do that, some even while calling Assange a traitor), or you as a citizen can simply read the stuff yourself and make up your own damn mind. That is the root of an informed public, through a set of tools never before available until Assange and Internet created them.
If Assange becomes the first successful prosecution of a third party, as a journalist or not, under the Espionage Act, the government can turn that precedent into a weapon to attack the media’s role in any national security case. On the other hand, if Assange can leave London for asylum in Ecuador, that will empower new journalists to provide evidence when a government serves its people poorly and has no interest in being held accountable.
Freedom is never static. It either advances under our pressure, or recedes under theirs. I support Julian Assange.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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