Q: Why is the Espionage Act being used to punish whistleblowers and journalists?

A: You are correct that the Espionage Act of 1917 has been used to punish whistleblowers but not journalists – yet. No member of the press has been prosecuted for publishing leaked classified information, but the 100-year-old law has been called a “loaded gun pointed at newspapers and reporters.”

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First, some background. The Espionage Act was passed two months after the U.S. entered World War I and intended to punish spies and anyone who aided and abetted the enemy. Much to the delight of President Woodrow Wilson though, it also silenced critics of the war by making it a crime to share any information that interfered with the war effort and giving federal authorities broad powers to prohibit people from “expressing or publishing opinions deemed harmful” to the country.

In fact, more than two thousand anti-war activists were prosecuted during World War I in cases that today would be considered violations of their First Amendment rights. This politically motivated crackdown on U.S. citizens is a stain on Wilson’s record, and some legal scholars blame the Espionage Act, calling it “a paroxysm of wartime hysteria.”

In perhaps the Act’s most infamous case, prosecutors used it to convict Julius and Ethel Rosenberg in 1951 for sharing classified information on nuclear weapons with the Soviet Union.

The Espionage Act is still used against spies or anyone assisting an enemy of the United States, but beginning with the Obama administration, it has also been employed quite aggressively against government leakers. Since 2009, the law has been used 16 times to charge federal employees like Chelsea Manning and Edward Snowden with leaking classified information to journalists.

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And now, the World War I era statute is back in the news as the Trump administration tries to extradite Wikileaks founder Julian Assange from the United Kingdom to face 17 charges under this law for publishing military and diplomatic secrets back in 2010. A trial is underway and a final decision by the home secretary is expected in early October.

Although journalists who publish classified information have not been targeted in the past, legal experts are concerned the Assange case may set a dangerous precedent that will allow the Justice Department to use the broader interpretation of the law against members of the press. “Trump’s administration is moving to explicitly criminalize national security journalism, and if this prosecution is allowed to go forward, dozens of reporters at the New York Times, Washington Post and elsewhere would also be in danger,” says Trevor Timm of the Freedom of the Press Foundation.

This move to target publishers of illegally obtained classified information has alarmed other press freedom advocates like the Reporters Committee for Freedom of the Press, which issued this statement:

“Any government use of the Espionage Act to criminalize the receipt and publication of classified information poses a dire threat to journalists seeking to publish such information in the public interest, irrespective of the Justice Department’s assertion that Assange is not a journalist.”

Most legal scholars believe prosecuting journalists for publishing classified information would run afoul of the First Amendment, but some members of Congress are not waiting to find out. Senator Ron Wyden and Representative Ro Khanna have introduced legislation to protect members of the press who disseminate classified information. “In America, we don’t prosecute journalists for what they write,” Wyden said. “The Espionage Act currently provides sweeping powers for a rogue attorney general like Bill Barr or unscrupulous president like Donald Trump to target journalists and whistleblowers who reveal information they’d rather keep secret. This bill ensures only personnel with security clearances can be prosecuted for improperly revealing classified information.”

The proposed legislation will significantly limit the scope of the Act as it relates to journalists and prohibit prosecutors from charging them with a crime for receiving or publishing government secrets, but the Department of Justice opposes any amendment to the Espionage Act, noting that classified leaks have surged during the Trump administration to more than 100 criminal leak referrals per year. The National Security Council says these actions “betray the trust of the American people.. and endanger our national security.”

Although the Wyden-Khanna bill was introduced in March 2020, it is stuck in Congress with members divided on whether the law should be changed. That means the case to watch is the Assange prosecution if the Trump administration’s request for his extradition to the U.S. succeeds. Legal scholar Jonathan Turley agrees and says that the Assange indictment under the Espionage Act could be “the most important press freedom case in the U.S. in 300 years.”

So the stakes could not be higher. Under the oft-maligned Espionage Act, the public’s right to access leaked government secrets and other information could be at risk if the work that journalists do every day is criminalized and no longer protected under law.