First Amendment
New York Times: Assange Indicted Under Espionage Act, Raising First Amendment Issues
By Charlie Savage
Justice Department officials did not explain why they decided to charge Mr. Assange under the Espionage Act – a step also debated within the Obama administration but ultimately not taken. Although the indictment could establish a precedent that deems actions related to obtaining, and in some cases publishing, state secrets to be criminal, the officials sought to minimize the implications for press freedoms…
“Some say that Assange is a journalist and that he should be immune from prosecution for these actions,” John Demers, the head of the Justice Department’s National Security Division, said at a briefing with reporters. “The department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the department’s policy to target them for reporting.”
But Mr. Assange, he said, was “no journalist.” Mr. Demers accused him of conspiring with Ms. Manning to obtain classified information. “No responsible actor, journalist or otherwise, would purposefully publish the names of individuals he or she knew to be confidential human sources in a war zone, exposing them to the gravest of dangers,” he said.
For the purposes of press freedoms, what matters is not who counts as a journalist, but whether journalistic activities – whether performed by a “journalist” or anyone else – can be crimes in America. The Trump administration’s move could establish a precedent used to criminalize future acts of national-security journalism, said Jameel Jaffer of the Knight First Amendment Institute at Columbia University.
“The charges rely almost entirely on conduct that investigative journalists engage in every day,” he said. “The indictment should be understood as a frontal attack on press freedom.”
Reason (Volokh Conspiracy): Theory of Revised Julian Assange Indictment Could Apply to Ordinary Reporters
By Eugene Volokh
The revised indictment, just handed down [yesterday], contains three sets of charges.
1.Count 18, which was the one charge in the initial indictment, alleges that Assange tried to help then-Bradley Manning crack a computer password; had the crack succeeded, the leaker would have been harder to identify. I think this poses little by way of First Amendment problems: Journalists and other speakers don’t have the right to help others break into offices, safes, or computers, even when the break-in would help reveal important information. And as a practical matter, I suspect that very few reporters actively help their sources crack passwords…
2.Most of the other counts focus on Assange’s urging Manning to illegally leak information. Manning did commit a crime by leaking the information in violation of the duty that Manning had voluntarily assumed when going to work handling confidential government data. The government’s theory is that Assange himself commited a crime by essentially soliciting Manning’s crime.
This is a plausible theory: Usually, soliciting a specific crime … is itself criminal, and unprotected by the First Amendment…
3.But the most striking counts are counts 15-17, which allege, in relevant part:
“From in or about July 2010 …, [Assange], having unauthorized possession of, access to, and control over documents relating to the national defense [such as leaked Afghanistan and Iraq war activity reports and State Department cables], willfully and unlawfully caused and attempted to cause such materials to be communicated, delivered, and transmitted to persons not entitled to receive them.”
Nothing in this count turns on Assange’s having helped or solicited Manning’s leaks. Rather, it relies simply on Assange having published (in violation of 18 U.S.C. § 793(e)) material that he knew was improperly leaked and was related to the national defense within the meaning of the statute. To convict on these counts, a jury wouldn’t have to find any complicity by Assange in the initial leak.
Washington Post: WikiLeaks founder Julian Assange charged with violating Espionage Act
By Devlin Barrett, Rachel Weiner and Matt Zapotosky
Noted media lawyer Floyd Abrams said that Assange may be a “singularly unattractive defendant in a lot of ways” but added that the indictment “does raise deeply threatening First Amendment issues for journalists who cover national defense, intelligence activities, and alike.”
Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, said in a statement that the indictment was “a dire threat to journalists.” …
“This just became one of the most important test cases for press freedom, even if we all agree that Assange isn’t the press,” said Steve Vladeck, a professor at the University of Texas School of Law. “Factually, there’s a world of difference between what Assange is accused of and what professional journalists do. The tricky part is the theory on which he’s being prosecuted doesn’t draw that much of a legal distinction between them. One does not need to be sympathetic to Assange to be worried about a sort of precedent whereby it is not just unlawful but routinely prosecuted for third parties to publish classified information.” …
U.S. Attorney G. Zachary Terwilliger said Assange was “not charged simply because he is a publisher” but rather for “publishing a narrow set of classified documents in which Assange also allegedly published the unredacted names of innocent people who risked their safety and freedom to provide information to the United States and its allies.” …
Matt Miller, a spokesman for the Justice Department when Eric H. Holder Jr. was attorney general and was weighing the WikiLeaks case, said officials in that administration debated intensely whether Assange could be charged for publishing classified information but ultimately decided that doing so would be “dangerous and untenable.”
In their view, Miller said, there was “no way to apply the legal theories in this case to Julian Assange in a way that they could not also be applied to a reporter for The Washington Post or another outlet.”
The Hill: Julian Assange indictment endangers press freedom
By Alan Dershowitz
The New York Times, the Washington Post, and other mainstream media outlets have published stolen classified information without having been indicted. Wikileaks is not mainstream, but the First Amendment draws no distinction between the nature of the medium for publishing. If Assange were to be successfully prosecuted and his conviction affirmed on appeal, that precedent would lie around like a loaded gun ready to be aimed at any newspaper or television station that published any stolen classified material. In an age when political leaders of both parties are weaponizing the criminal laws for their partisan advantage, this would be an especially dangerous precedent, allowing selective prosecution of media enemies…
Regardless of the ultimate outcome, it was a mistake in my view to bring this indictment. In light of the earlier indictment, this one serves only to chill freedom of the press and to empower the government to selectively prosecute its media critics.
Those who seek to justify the indictment argue that Assange did more than merely publish materials stolen by Chelsea Manning and Edward Snowden. They claim that he worked closely with these sources and was, therefore, an accessory to their crimes. First, the government need not prove that in order to prevail on this current indictment. All it needs to prove is that he published the stolen classified material. Second, many mainstream journalists work closely with their sources, sometimes even encouraging them to go back and get additional information to publish.
If Congress wants to make it a crime to work with sources who have stolen classified material, it ought to articulate the criteria and elements required to prove such a crime. Leaving it to the “accessory” statutes threatens to stifle legitimate information gathering by journalists acting in the public interest.
The Courts
National Review: Death, Taxes, and Campaign-Finance Restrictions
By Ed Whelan
In an en banc ruling [Tuesday] in Libertarian National Committee v. FEC, the D.C. Circuit rejected First Amendment challenges to the Federal Election Commission’s application of political-contribution limits to a bequest of $235,000 made by a deceased donor, Joseph Shaber, in his will. The decision was by a vote of seven to three, along ideological lines, though the dissenters differed on their objections to the majority’s ruling. (The case was argued before Neomi Rao joined the court, and she did not take part in the decision.)
In his dissent, Judge Gregory Katsas addresses how the challenged contribution limits apply to “three nested categories” of contributions (from broadest to narrowest): bequests generally, “uncoordinated” bequests, and Shaber’s request. On an admittedly very quick review, I’m inclined to think that the limits fail the Supreme Court’s First Amendment tests at least as to the narrowest of these categories.
As Katsas explains, the only legitimate government interest served by the limits on political contributions is the prevention of quid pro quo corruption and of the appearance of such corruption. But Shaber never even informed the Libertarian National Committee of his intended bequest. He attached no conditions or requests to his bequest. He received nothing in exchange for his bequest. And, apart from modest gifts to the LNC over a period of 24 years (averaging less than $150 per year), he had no other relationship with the LNC. So how could anyone be concerned that Shaber’s bequest might involve quid pro quo corruption?
Free Speech
The Hill: The slippery slope of trying to curb ‘extremist’ speech
By Daniel Ortner
The leaders of New Zealand and France have drafted the “Christchurch Call to Action,” a nonbinding resolution that urges greater restriction of “extremist” speech and content. Many of our closest allies, such as Canada, Germany and the United Kingdom, signed on to this resolution, as have tech companies such as Amazon, Google and Microsoft.
But there was one notable hold-out: The United States government refused to sign on…
Even though the Christchurch Call is nonbinding, it represents a dangerous step towards more heavy-handed government censorship. The problem is that the concept of “extremism” is highly subjective and malleable. Policies attempting to ban “extreme” speech will almost always lead to censorship. Even if it stems from good intentions, any effort to ban speech will be infected with bias.
We tend to see things we agree with as normal and desirable, and the things we disagree with as abnormal, crazed or even threatening. During the 1950s, the U.S. government engaged in an inquisition against Americans with left-wing political views that could be labeled “pro-communist.” Today, some argue that the opposition to gay marriage or the denial that climate change is a crisis are similarly extremes. Others argue that some kinds of speech critical of the state of Israel is anti-Semitic hate speech. In other words, be careful what you wish for because chances are that what you hold dear eventually will be labeled as “extremism” by someone else…
There is also little evidence that government action to censor “extremist” speech works. To the contrary, Europe has long banned “extremist” speech, such as Holocaust denial. But this has only driven such speech further underground and created a martyr complex among the adherents of these ideas. Thus, the censorious urge is as counterproductive as it is contrary to civil liberties.
ScottRasmussen.com: White House Rejects International Agreement Due To Free Speech Concerns- Us Voters Place High Value On Free Speech
By Scott Rasmussen
The White House said it supports the goals of the accord, but has legitimate concerns about limitations on free speech. On that, they are likely to find solid support. Last fall, ScottRasmussen.com polling showed that 64% of voters believe it is more dangerous to let government to define hate speech than to allow inappropriate hate speech. Other data found that 76% believe freedom of speech includes the right to say things that others find offensive.
Additionally 74% establish a high standard for defining hate speech-it is speech that encourages violence against a group of people.
Earlier surveys showed that freedom of speech is seen by voters as the most important right confirmed in the Bill of Rights.
Online Speech Platforms
The Guardian: Facebook refuses to delete fake Pelosi video spread by Trump supporters
By Jim Waterson
Facebook says it will continue to host a video of Nancy Pelosi that has been edited to give the impression that the Democratic House Speaker is drunk or unwell, in the latest incident highlighting its struggle to deal with disinformation…
Despite the apparently malicious intent of the video’s creator, Facebook has said it will only downgrade its visibility in users’ newsfeeds and attach a link to a third-party fact checking site pointing out that the clip is misleading. As a result, although it is less likely to be seen by accident, the doctored video will continue to rack up views. Facebook only took the action following inquiries from the Washington Post, which first reported the story…
A Facebook spokesperson said: “There’s a tension here: we work hard to find the right balance between encouraging free expression and promoting a safe and authentic community, and we believe that reducing the distribution of inauthentic content strikes that balance. But just because something is allowed to be on Facebook doesn’t mean it should get distribution. In other words, we allow people to post it as a form of expression, but we’re not going to show it at the top of News Feed.”
FEC
Miami Herald: Spurred by Cindy Yang reports, watchdog group wants FEC probe of Trump donations
By Caitlin Ostroff, Sarah Blaskey, and Nicholas Nehamas
The complaint, filed Wednesday by the Washington, D.C.-based Campaign Legal Center, cites concerns that the foreign money is coming into the campaign through a burgeoning online industry selling campaign fundraising event tickets to wealthy Chinese individuals hoping to gain access to the president.
The little-known industry of access peddling gained a national spotlight after the Miami Herald exposed one such operation, operated by Li “Cindy” Yang…
The complaint draws on Herald reporting about how two of Yang’s guests, Chinese-born Ryan Xu and Lucas Lu, both got their pictures taken with the president at a December 2017 event, a privilege that required that someone pay $50,000 per picture. Neither appears to have paid in their own names for the photos, though Lu has a green card and would therefore have been able to donate legally…
The Herald and other news media have documented how Yang and others brought dozens of guests to Trump fundraisers. At least one of those guests had to have reimbursed someone for the cost of the ticket, which can be as much as $50,000, the CLC said in the complaint.
The FBI has already opened a public corruption investigation into Yang, focusing on whether she illegally funneled money from China into the president’s re-election effort or committed other potential campaign-finance violations.
The complaint goes beyond the scope of the FBI’s investigation and beyond Yang’s business, outlining other similar ventures that were selling tickets to Trump campaign events.
Fundraising
Bloomberg: Democrats Cozy Up to Wall Street While Shunning Corporate Cash
By Max Abelson
In February, Pete Buttigieg stepped into the Manhattan office of Wall Street veteran Charles Myers to talk politics over deli sandwiches. Citigroup Inc. Managing Director Yann Coatanlem hosted a fundraiser in March for Kamala Harris at his Fifth Avenue apartment, where she shook the paw of the banker’s labradoodle. Three days later, former Goldman Sachs Group Inc. partner Bruce Heyman raised more than $100,000 for Amy Klobuchar at his home in Chicago. He’s planning an event for Joe Biden this fall.
The mayor of South Bend, Ind., the senators from California and Minnesota, and the ex-vice president are among the Democratic presidential candidates disavowing corporate cash, lobbyist checks, or the super PAC system. They’re trying to outdo each other with promises to finance their campaigns with grassroots contributions. But while they play down the role of money and influence, longtime Wall Street donors who have both say little has changed. “I’ve talked to about half of them, and I have not run into a single one who said, ‘Hey, you worked at Goldman Sachs, I can’t take your money,’ ” says Heyman, who helped elect Barack Obama by collecting checks from friends, and later became his ambassador to Canada. “I’ve not heard that-ever.” …
As the presidential race gears up, almost the entire Democratic field is hitting up the industry’s donors, according to money manager Marc Lasry, who says he’s already met with about 10 Democrats…
To critics, accepting money from Wall Street executives and investors but not corporate political action committees or lobbyists has the whiff of hypocrisy. “It’s hard to believe that they think that campaign contributions from wealthy Wall Street donors might not also be a liability,” says Ann Ravel, a former chairperson of the Federal Election Commission.
Trump Administration
Wall Street Journal: Trump Gives Barr Authority to Declassify Information About Russia Probe’s Origins
By Michael C. Bender and Rebecca Ballhaus
President Trump empowered the U.S. attorney general to declassify information about the origins of the investigation into Russia’s election meddling, escalating a probe that the president has said would show crimes were committed by his political opponents.
“Today’s action will help ensure that all Americans learn the truth about the events that occurred, and the actions that were taken, during the last presidential election and will restore confidence in our public institutions,” the White House said in a statement on Thursday.
Mr. Trump’s order also directed leaders of the U.S. intelligence community to “quickly and fully” cooperate with the investigation, being led by Attorney General William Barr. The memorandum also directs Mr. Barr to consult with the heads of the intelligence agencies where the classified documents originated before releasing the information…
The memorandum, which has little precedent, marks a dramatic escalation in power for the attorney general, whom Mr. Trump has repeatedly praised in recent months. Mr. Trump said he was directing intelligence agencies to cooperate with the attorney general at Mr. Barr’s “request and recommendation.” A Justice Department official said Mr. Barr also requested the authority to declassify the information.
