Spy or journalist? Why not both? The Trump administration recently unveiled a new set of charges against Julian Assange, the founder of WikiLeaks, and is seeking to extradite him from the United Kingdom and try him for espionage. Whereas the previous charge from March was narrowly focused on “computer fraud,” a number of journalists have aptly pointed out that the new indictment poses a threat to the First Amendment.

The argument is that the recent indictment could criminalize investigative journalism, as it implies that anyone who merely obtains, solicits, or publishes “national defense” information has committed a crime.

The new indictment is grounded in the Espionage Act of 1917, which makes it a crime for anyone to access, publish, or seek information that they are “not entitled to receive,” regardless of whether or not someone is a journalist.

This creates a problem for the press, because every journalist who has ever covered national security has tried to obtain information they’re “not entitled to receive,” published that information, and a whole host of other actions that the Espionage Act criminalizes.

The only reason journalists publishing stories on Bush’s use of torture, Obama’s targeted killing program, or warrantless electronic surveillance by the National Security Agency (NSA) haven’t ended up in prison is that previous administrations haven’t wanted to muzzle the press. If the new Assange indictment is any indication, that commitment to freedom of the press may be changing under Trump.

The missing component of current discussions

While the countless op-eds outlining the threat to freedom of the press posed by the Assange indictment are largely correct, there’s an important missing piece: The indictment, legally speaking, is probably lawful.

The reality is that the Espionage Act probably does criminalize journalism, and Trump’s Department of Justice is likely correct in its interpretation of the law. Whether or not a court would invoke the First Amendment to strike down an Assange conviction (thereby blowing a hole in the Espionage Act) is an open question.

The Espionage Act is over a century old, yet no previous president in recent memory has used the law to target those responsible for publishing classified information. Trump is the first to use the law to target the publisher, rather than the leaker. Obama’s Justice Department spokesman Matthew Miller explained in 2013 why that administration chose to target leakers, not publishers:

The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists. And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.

Put simply, previous administrations have realized that prosecuting a non-journalist (like Assange) couldn’t be done without conventional journalists also ending up in the crosshairs.

For this reason, Obama chose to prosecute those leaking information (such as Edward Snowden) rather than journalists who published classified information (the Guardian journalists who published the Snowden leaks).

Thus, dropping the charges against Assange (or the UK denying extradition) isn’t enough to protect the press from future attacks. Even without prosecuting Assange, the Espionage Act will still exist. And as long as the law continues to be on the books, there will always be the danger of a future administration succeeding in censoring the press where Trump may fail. Thus, a more comprehensive solution is needed.

A possible solution

To prevent an ongoing threat to freedom of the press, large portions of the Espionage Act could be repealed and amended. Most importantly, Section 793, which is what the charges against Assange fall under, may need to be completely scrapped to satisfy civil libertarians.

Section 793, among other things, criminalizes a host of actions regarding national defense information, including directly obtaining, copying, taking, and indirectly obtaining (or attempting to) from a third party. Moreover, Section 793 makes it illegal for someone with unauthorized access to national defense information (a journalist) to communicate such information to someone else without authorized access (the public).

Thus, repealing Section 793 of the Espionage Act would make it much more difficult to prosecute journalists for publishing classified information. However, two additional changes to the law are needed.

First, Section 794 (which prohibits sending national defense information to foreign governments) could be amended. It’s possible to argue that by making documents publicly accessible, Assange inadvertently transmitted them to hostile foreign governments.

This same argument could be made of journalists who published information about the NSA’s surveillance and encryption-breaking capabilities in 2013. Foreign governments could access the Snowden documents made publicly available, therefore the journalists were transmitting information to foreign governments and committing a crime.

Thus, Section 794 could be amended to draw some kind of distinction between publishing national security secrets for public use, and directly transmitting information solely to a foreign government. At minimum, it must be made clear that publishing information for the public is different from, say, a foreign spy in the US government sending classified information back to their intelligence chiefs.

Second, Section 798 (which deals with classified information related to communications intelligence, i.e., the NSA) could be amended. Currently, the law criminalizes both the transmission and publication of classified information related to communications intelligence.

The law could be amended to strike publication from the list of punishable offenses – in other words, it would still be illegal for people like Snowden or Manning to leak documents to journalists, but it would be legal for the receiving journalists to publish the information.

Language would also have to be written in to clarify that, ironically, those unauthorized to view the information (journalists) are allowed to publish the information once they receive it, but those authorized to view the information (leakers within the intelligence community) can still be held criminally responsible if they publish the information directly.

This change would hopefully stop someone from circumventing the prohibition on leaking by just directly publishing it themselves. However, it’s worth admitting that some of these reforms could theoretically create loopholes for leakers to publish information in a way that could allow them to avoid prosecution. Any change to the law would need to be carefully designed to avoid such a scenario.

Two objections, two answers

It’s worth dealing with the most obvious objections to these proposed remedies. First, why can’t we just amend the Espionage Act to specifically protect journalists from prosecution? That way, we could prosecute Assange for putting lives in danger without it spilling over to normal journalism. Second, won’t repealing large portions of the Espionage Act harm national security by encouraging leaks?

The problem with the first objection is relatively simple. We shouldn’t trust the government to define who is and isn’t a journalist. Creating a protected class with a definition that can be changed by future administrations only opens the door to legal arguments that someone doesn’t count as a journalist, and can, therefore, be prosecuted. Even more concerning, future governments could simply pass changes to the definition before prosecuting their target.

The First Amendment guarantees freedom of the press – it doesn’t let the government pick who counts as the press. Government control over who the “real” journalists are isn’t freedom of the press at all, it’s a hop, skip, and a jump away from authoritarian state-run media systems where the government controls what news outlets are (and aren’t) allowed to operate.

The second objection is also incorrect. These changes to the Espionage Act would simply clarify the existing language of the law to guard against attempts to prosecute journalists – not much would change. Prohibitions on leaking classified information or sending information to foreign governments would still exist. In other words, potential leakers would still be deterred by the threat of prison time.

As a result, the new version of the Espionage Act could actually strike an ideal middle ground. Perhaps the number of leaks would increase slightly, due to leakers perceiving that journalists would be less scared of publishing information. However, because potential leakers would know that they themselves would be prosecuted, they’d likely choose to leak information only in cases where their conscience overwhelmed their material self-interest.

No one would risk prison time to leak minor, unimportant information, but in cases like the Snowden revelations or Chelsea Manning revealing US operations that had killed two Reuters journalists, Snowden and Manning thought that leaking was so important to the public interest that it trumped personal considerations.

Revising the Espionage Act would make possible these kinds of groundbreaking revelations that surely serve the public interest, while also using the threat of prosecution of leakers (not journalists) to ensure national security would not be substantially impacted.

Conclusion

Ultimately, it’s worth stressing that while these reforms would have to be carefully implemented to avoid possible harms to national security, the Espionage Act shouldn’t have existed in the first place. The law was used to crack down on the press during World War I, and the fact that it’s fallen out of fashion to silence the press doesn’t mean we should keep the problematic provisions of the Espionage Act on the books.

The Espionage Act is analogous to the government having a weapon pointed at the press and saying, “look, we haven’t used this for decades, so what’s the point of taking away the weapon?”

President Trump wants to use the weapon on Julian Assange. Regardless of whether or not he succeeds, the solution isn’t to tell him not to use the weapon – it’s taking it away entirely.