How the Assange Indictment Could Chill Free Speech Without Ever Being Tested in Court

Julian Assange
WikiLeaks founder Julian Assange gestures from the window of a prison van as he is driven out of Southwark Crown Court in London on May 1. Daniel Leal-Olivas/AFP/Getty Images

Last month, the Department of Justice entered a superseding indictment against Julian Assange for violations of the Espionage Act, a centuries-old law that prohibits the solicitation and dissemination of national defense secrets. First Amendment scholars were outraged, arguing that the prosecution would violate the Constitution. The whole enterprise of investigative journalism, they say, is under threat.

Whether the prosecution violates the First Amendment is an important question, and those on both sides have so far assumed that the courts will eventually answer it. The assumption is that if the government is trying to suppress free speech in this case and others, courts can step in to protect it. But what if government officials could find ways to chill free speech without subjecting themselves to court supervision? The Trump administration may have found a way to do just that in the Assange case.

For hundreds of years, Anglo-American courts have applied something called the “fugitive disentitlement doctrine,” which basically says that if a defendant flees a jurisdiction, then a court is not obligated to rule on that fleeing defendant’s petitions for relief. So, for example, you cannot jump bail but have your lawyer ask the court to dismiss the case against you.

In recent years—going back to before the Trump administration—the Justice Department has been aggressively using this doctrine to deny individuals their day in court. For example, a little more than a decade ago, the DOJ tried to use the doctrine against Ali Hijazi, a Lebanese national living in Kuwait charged with conspiring with a military contractor to defraud the U.S. government. The indictment alleged offenses occurring entirely outside the United States, and Hijazi had only ever been to the United States once, years before the events in question. When Hijazi’s lawyers challenged the indictment, the judge agreed with the government that Hijazi must appear in person to get a hearing. To make matters worse, one of Hijazi’s claims was that stretching American law to cover events that took place wholly outside the United States violated due process, yet the court demanded that he surrender his liberty in order to vindicate that claim. Eventually a court of appeals reversed this decision, but the U.S. government has continued to invoke this doctrine in similar circumstances. There is also evidence that the government is increasingly pressing fugitive disentitlement in immigration and Freedom of Information Act cases.

That brings us back to the Assange case. Assange’s lawyers seemingly could challenge his indictment based on the First Amendment. The argument would be that the charged conduct—an alleged conspiracy to “obtain, receive and disclose national defense information” as part of the 2010 Chelsea Manning leak—was journalistic and therefore protected by the First Amendment. If past performance predicts future results, however, then we should expect the government to try to duck this challenge altogether. Instead of having to show that the prosecution is legal, DOJ lawyers would argue that Assange cannot challenge the case until he is in court in person—a prospect that, as a result of this new indictment, may not be in the cards anytime soon. (Assange has been arrested in London, but the British extradition treaty with the United States does not cover political offenses and he will likely argue that he is protected under this provision.)

If Assange isn’t extradited and also not allowed to contest the Espionage Act charges because of the fugitive disentitlement doctrine, it could have damaging affects for the free speech of everyone. Indicting someone who cannot defend his free speech rights in court is the perfect way to chill the free speech of others. While Assange’s case is on indefinite hold, the specter of similar prosecutions will likely instill fear in journalists. Unless some journalists are willing to risk their own necks, then there isn’t a good way to figure out whether they would be constitutionally protected. In particular, this chilling effect might discourage journalists from publishing government secrets about issues of public concern that have a possible nexus to national security.

These issues are not reasons to abolish the fugitive disentitlement doctrine altogether. It seems right that we don’t automatically let defendants flee the country but also continue to engage with the legal system on equal footing. Instead, the right response requires more scrutiny of when this doctrine is used.

To begin with, the Justice Department should announce publicly what standard it applies to decide whether to ask a court to disentitle a defendant. If it does not, then Congress should demand an answer.

Perhaps more importantly, it would been wholly inappropriate for the department to have treated the possibility of fugitive disentitlement as a factor weighing in favor of indictment. Maybe it was the right choice to indict Assange for Espionage Act violations while he was out of the country, but it would have been inappropriate to have done so because he could not fight back. The Justice Department should formally and publicly disavow this approach.

Furthermore, there are at least two legal contexts in which fugitive disentitlement claims should be scrutinized closely. First, as in Hijazi’s case, we should be wary of fugitive disentitlement for prosecutions arising out of foreign acts and against foreign residents. At a minimum, if the territorial reach of a statute is in question, a court should think twice before dismissing such an objection on fugitive disentitlement grounds. Second, as in Assange’s case, we should be wary of fugitive disentitlement when the unchallengeable indictment itself offends the fundamental rights and liberties of third parties. Public policy favors allowing challenges to these potentially chilling indictments.

It may be that the Espionage Act constitutionally criminalizes exactly the behavior of which Assange is accused. It is critical, though, that the courts allow us to find out for sure.