Earlier quoted context omitted.
At the same time, this convergence of equivocation on First Amendment protections provides the perfect opportunity for a simple yet effect filter. 1. Start with the set of all potentially serious journalists. 2. Filter out the ones who put forth arguments which downplay the dangers to the press of prosecuting Assange. 3. Filter out the ones who don't explicitly argue against prosecuting Assange on 1st Amendment groun…
Most of the cries about 1st Amendment ignore the fact that the grand jury proceeded with the indictment because they have Jabber records of WikiLeaks discussing cracking the password of a Department of Defense database. The next time I get caught trying to hack the government I'm going to try the "but it was for journalism" defense. In fact, why can't I hack companies and claim I was just trying to get information to…
> The Justice Department has been enamored of this conspiracy approach since the time of the Pentagon Papers. In that case, Richard Nixon’s DOJ attempted to enjoin the New York Times and, later, the Washington Post from publishing a forty-seven-volume Defense Department study of the history of US relations with Vietnam from 1945 to 1967, which had been classified top secret. I led the team of lawyers who defended the Times in that case.
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> Should Trump’s Justice Department succeed in prosecuting Assange, the only safe course of action for a reporter would be to receive information from a leaker passively. As soon as a reporter actively sought the information or cooperated with the source, the reporter would be subject to prosecution. National security reporting, however, is not done by receiving information over the transom. It is naïve to think that reporters can sit around waiting for leaks to fall into their laps. In a recent interview, the longtime investigative reporter Seymour Hersh told me that he obtains classified information through a process of “seduction” in which he spends time trying to induce the source into giving up the information. If he isn’t allowed to do that, he says, “It’s the end of national security reporting.”
> It’s clear that the Justice Department believes such “seduction” creates a conspiracy between the leaker and the reporter. In its prosecution of the State Department employee Stephen Jin-Woo Kim for leaking classified information about North Korea to a Fox News reporter, James Rosen, the DOJ stated, in a sealed affidavit, that it considered Rosen a “co-conspirator.” The DOJ filed the affidavit with the D.C. District Court in 2010 to gain access to Rosen’s email, which showed him persuading Kim, asking for the leak time and time again until Kim finally relented. The affidavit was unsealed three years later, to the shock of Rosen and many other journalists. When Fox News angrily protested that Rosen’s First Amendment rights prevented him from being a co-conspirator, the Obama Justice Department assured Fox that it would not prosecute him. If this type of conspiracy theory were to be applied in a criminal trial, a court would end up examining every effort by a reporter to obtain information. It would criminalize the reporting process. Reporters and their publishers would argue that the First Amendment protected news-gathering efforts such as Rosen’s, but the result would be in doubt in every case.
> If reporters can be indicted for talking to their sources, it will mean that the government has created the equivalent of a UK Official Secrets Act—through judicial fiat, without any legislative action.