Medium: In 2013, you wrote a book about your experiences leading the New York Times’s legal defense in the Pentagon Papers case, and you prefaced the book with a warning to the public about the dangers of the Justice Department prosecuting WikiLeaks. What was the reaction at the time?

James Goodale: When I wrote the book pointing out the dangers to the First Amendment if Assange was prosecuted, I made it my business to see if I could gin up support within the media/press community to stick up for his rights, since his rights would affect everyone else’s. I had occasion to speak to many groups in connection with the promotion of my book. Every time I mentioned the fact that establishment press should advocate for Assange’s rights, I heard hoots of laughter or people shouting at me that I didn’t understand the journalism profession.

I was dismayed that I got very few converts in the journalistic community that would take my position that it was necessary to support Assange — not for Assange himself, but for the First Amendment.

To that point, you don’t need to like Assange — or you could even actively hate him — to support his First Amendment rights and realize the danger prosecution poses to all journalists, or journalists at the New York Times, for example.

At the time, the facts concerning Assange with respect to publication of material that he made with the New York Times, Guardian, etc, presented a classic First Amendment case of someone who was very unpopular, disliked, but nonetheless has First Amendment rights. It’s classic First Amendment theory that you separate the First Amendment from the personality and the activities and rights of the person you’re defending.

Right now, we know Assange has been secretly charged by the Justice Department, but we don’t know the charges. Do you see any difference in the facts of the last couple of years — if you compare the publication of the hacked DNC emails vs. the publication of the Manning files or other publications of classified material — as far as First Amendment protections?

I see no difference in terms of First Amendment protection in terms of what he published, whether Assange is publishing hacked DNC emails or material leaked to him concerning activities in Iraq and Afghanistan. The information in the DNC emails was certainly embarrassing at the time of an election. The timing is very unfortunate from the Democrat’s point of view and it’s obvious why many people were upset. But from the First Amendment point of view, the publication of stolen materials, as long as the publisher did not actively participate in the actual theft, is still protected activity under the Constitution.

Does it matter if Assange knew the information was coming from Russia, a foreign government?

I also don’t think it makes any difference if he knew it came from foreign government. First, I think the mistake everyone is making is that they assume he knew. We don’t know what he knew. It’s better if he didn’t know…but from a First Amendment point of view, superficially at least, I don’t think it makes any difference if he did.

There’s speculation on what Assange could be charged with. There’s a possibility that he could be outright charged under the Espionage Act for the act of publishing classified information. Then there’s the “conspiracy” theory — that Assange was engaged in a conspiracy with his sources by asking them or soliciting more information from them that the sources may have gathered illegally. Do you find that type of charge would be just as dangerous as a charge for publishing information?

I do find that that charge would be just as dangerous. As a matter of fact, a charge against Assange for “conspiring” with a source is the most dangerous charge that I can think of with respect to the First Amendment in almost all my years representing media organizations.

The reason is that one who is gathering/writing/distributing the news, as the law stands now, is free and clear under the First Amendment. If the government is able to say a person who is exempt under the First Amendment then loses that exemption because that person has “conspired” with a source who is subject to the Espionage Act or other law, then the government has succeeded in applying the standard to all news-gathering.

That will mean that the press’ ability to get newsworthy classified information from government sources will be severely curtailed, because every story that is based on leaked info will theoretically be subject to legal action by the government. It will be up to the person with the information to prove that they got it without violating the Espionage Act. This would be, in my view, the worst thing to happen to the First Amendment — almost ever.

I’ve been on the soapbox for this for over 10 years trying to wake everyone up to the dangers that exist with this approach. Therefore, the stories we’ve read with respect to government’s present action against Assange, it’s blood-curdling. It appears the government may try to adopt this “conspiracy” theory to apply to news-gathering.

What about the argument that Assange “hates” the U.S. and was trying to inflict damage in publishing information, essentially targeting his state of mind? Are there dangers to figuring out a state of mind with regards to legality and publishing?

Generally speaking, a journalist’s state of mind is totally irrelevant for deciding whether such journalists have protection under First Amendment. A journalist publishes what he or she publishes, and they should be judged on what they publish rather than what they think. If, in fact, we end up with a system where we’re looking at the journalist’s state of mind, that is a huge incursion upon the First Amendment.

A journalist, or anybody else, should be free to think about what they want to think about — it’s his or her private business, no one should be judged criminally by inner thoughts, only by what they publish.

In the past decade, multiple administrations have significantly increased the use of the Espionage Act to go after the sources of journalists. How does that play into all of this?

Within legal and press communities, there used to be a belief that there was no general law that applied to leaks of classified information, and indeed Congress has passed no law. But through the last few decades — and particularly the last few years — the courts have fashioned such a law through a series of decisions (which, by the way, have never gone to Supreme Court). They’ve therefore created an “Official Secrets Act” — like the type they have in the UK — through judicial interpretation.

In practice, in the U.S. there has never been an “Official Secrets Act” that has been passed into law. In fact, one that was somewhat comparable to it two decades ago was vetoed by President Clinton. At the time of the drafting of the Espionage Act in 1917, there were many members of Congress, particularly senators, that were very careful not to create an Official Secrets Act. Yet it is now being used like one all the same.

The general issue of press freedom has been in the news quite a bit, mostly around Trump’s hostile relationship with reporters. But coverage of the Trump administration’s leak investigations haven’t gotten similar coverage. Should journalists be interpreting leak prosecutions as a direct threat to their own rights?

Press coverage of leak prosecutions with respect to under both Obama and Trump has been inferior, terrible, generally not useful. With respect to Obama, it took a long time for everyone to realize what he was doing, and that’s the press’ fault — they paid little attention to it at first.

With respect to Trump, he’s already prosecuted five sources of journalists so far. The news stories on those leakers have been totally inferior, and the punishments given to those leakers has been outrageous. The press has sort of covered them saying “well if you leak you’ll be thrown in jail, and that’s that.” That’s bad.

The second thing that is bad is that many in the press don’t seem to realize that every leak case presents jeopardy to them — as the “leakee” to the leak. That should be an incentive to cover these cases more comprehensively. Certainly it should be in the back of every journalist’s mind as these prosecutions go forward. The journalist community should be vigilant with respect to future prosecutions of sources. And we must remember the just-departed Attorney General, Jeff Sessions, said he would make it a priority to prosecute leaks.

But the prosecution of Assange goes a step further. He’s not a source, he is a publisher who received information from sources. The danger to journalists can’t be overstated.

While the Pentagon Papers Supreme Court case is famous, many people forget after the case was decided, the Nixon Administration convened grand jury to try to indict Neil Sheehan, the New York Times journalist that broke the story. You were the general counsel at the New York Times, and you talk about in your book how you were convinced at the time that he would be indicted. What happened then, and is that episode a good warning for reporters to stay vigilant today?

Reporters’ first responsibility is to cover current events and we can’t necessarily expect them to have a full knowledge of the entire history of the First Amendment. However, they should know and they should be aware that following the Pentagon Papers Supreme Court case, Nixon convened a grand jury in Boston to criminally investigate the gathering of the information and the distribution of the Pentagon Papers before they were published. More importantly, the purpose of the grand jury was to indict Neil Sheehan, the reporter who broke the Pentagon Papers story in the New York Times.

So when we think of sealed charges of Assange, this is not the first time the government has tried to go down this road. The government tried to do almost exactly the same thing to Sheehan. At the time, I — and others involved at the New York Times — thought the government was going to succeed.

We even drafted press releases for the public, in anticipation of an indictment, which strongly supported Neil Sheehan in his fight. So the idea that “they’ll never go after us, they’re going after Assange and Assange is not us” is belied by the history of the Pentagon Papers.

You can just look at Fox News reporter James Rosen a few years ago, where the government said in a leak case that Rosen should be considered a “co-conspirator” in helping his alleged source violate the Espionage Act. So if you follow the Justice Department carefully, it is consistent. The government, often times, wants to get reporters, and they want to use the cockamemy theory of “conspiracy” to geth them. So coming back to Assange, the press has got to fight the use any use of a “conspiracy” prosecution as applied to news-gathering, and not let the government get away with it.

In light of the news that there are secret charges against Assange, what do you think journalists should be doing now? If you were to give advice to the journalism and press freedom community, what would it be?

My advice to the journalism community is to follow the recent lead of the New York Times and their journalist Charlie Savage. Mr. Savage published one of the great First Amendment expositions I’ve seen — particularly great under the circumstances where much of the establishment press haven’t wanted to support Assange’s rights.

Particularly, Savage’s article points out reasons why Assange’s rights should be supported. The journalistic community should jump on board and support Assange with respect to his exercising his First Amendment rights — even if they intensely dislike him personally.

Now, if the journalistic community says that there may be other possible facts that make Assange less pure from a First Amendment perspective, that’s fair comment, but they don’t know that. Until they know that, they ought to support Assange’s First Amendment rights, since his rights are also theirs.