The Trump Administration’s charge of violating the Espionage Act against Julian Assange is reminiscent of a number of efforts by a sitting administration to shut down the press’ ability to report the news.
The example that first occurs to me is the case against porn producer Larry Flint. We have the much more serious Pentagon Papers, among many efforts, but Flint and Assange both fit this description from First Amendment lawyer Theodore J. Boutrous Jr.: ““The calculation by the Department of Justice is that here’s someone who people don’t like. There’s a real element of picking the weakest of the herd, or the most unpopular figure, to try to blunt the outcry.”
No, we don’t like Assange. He’s likely a sexual predator and a man who can be blamed for elevating Donald Trump to the presidency. But that’s not the point. He’s also a publisher–as was Flint, though his “sin” was porn–and is in the big mix of a profession that includes Fox News and the New York Times, as well as Bob Guccione’s entire empire that included both Penthouse magazine and Omni (the great science mag edited by my friend Keith Ferrell, a true and fine journalist).
In 1983, Flint’s Hustler magazine parody of Jerry Falwell Sr., led to a lawsuit by the Moral Majority leader from Lynchburg, but the Supreme Court decided in Flint’s favor in 1988. The First Amendment Encyclopedia writes, “The decision demonstrated that the adult entertainment industry is frequently in the vanguard of free speech court battles that affect the wider culture.” If porn is legit, I suspect so is political tale-telling, which is one of the primary reasons journalism exists at its highest levels.
You might also remember that Flint offered $1 million to any woman who would come forward with tales of sexual encounters with members of Congress, during the lead-up to the Clinton impeachment. That led to the resignation of a powerful Republican legislator named Robert Livingston. Flint later, unsuccessfully, challenged a military ban on interviewing combat troops, citing press freedom.
So, is Flint a Hero of the Revolution and, more important at this moment, is Assange?
This one sticks in my craw. Neither Flint nor Assange is a hero in the small book I keep, but there’s a good case to be made for both in keeping the press free and effective, especially in light of the Trump Administration’s full-on effort to destroy the press (“enemy of the people”) in general and press freedom in particular. The case against Assange would have been a certain defeat before Trump’s courts were packed with far right-wing Republican activists, but it is, maybe, 50-50 now, if that close.
Former Justice Department (under Obama) spokesman Matthew Miller is quoted by the NYTimes as saying, “The Espionage Act doesn’t make any distinction between journalists and non-journalists. If you can charge Julian Assange under the law with publishing classified information, there is nothing under the law that prevents the Justice Department from charging a journalist.”
A dangerous time for the American public just became more so and the defenders of the flame are hardly role models.