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On May 23, 2019, Several Media Outlets Reported That A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | SUMMER 2019 Federal Prosecutors Charge Julian Assange With Seventeen Counts Under the Espionage Act, Prompting Renewed Concern for Journalists n May 23, 2019, several media outlets reported that Following Assange’s arrest by British offi cials, U.S. the U.S. Department of Justice (DOJ) had released prosecutors unsealed charges of conspiracy to “access a an indictment alleging 17 additional charges against [government] computer without authorization” under the WikiLeaks founder Julian Assange, all of which Computer Fraud and Abuse Act (CFAA). 18 U.S.C. § 1030. The were under the Espionage Act, 18 U.S.C. § 793. charges alleged that Assange assisted Manning in cracking a OThe charges prompted signifi cant concern from journalists password to gain access to the classifi ed documents published and press advocates that the indictment was the next step in by WikiLeaks. The indictment was fi led on March 6, 2018 in the prosecuting traditional journalists under the statute. Meanwhile, U.S. District Court for the Eastern District of Virginia and was on July 30, 2019, a federal judge dismissed a lawsuit fi led by the kept secret until prosecutors mistakenly mentioned charges in Democratic National Committee (DNC) against WikiLeaks and an unrelated case’s court fi lings. Assange, fi nding that their publication of stolen DNC emails and Following the charges under the CFAA, some observers documents was protected by the First Amendment. attempted to differentiate Assange from traditional journalists. WikiLeaks gained notoriety in 2010 after publishing thousands David A. Schulz, a First Amendment lawyer who advised The of classifi ed U.S. military documents on its website, including Guardian when it published documents leaked by Edward a video from a U.S. military helicopter as it shot and killed Snowden, told Vice News on April 11, “If you break into a Reuters photographer in Baghdad in July 2007, as well as someone’s home to get information, you don’t have legal operating manuals for the Guantanamo Bay prison. (For more protection under the guise of sharing the news.” (Schulz background on WikiLeaks, see “WikiLeaks’ Document Dump delivered the 29th Annual Silha Lecture, titled “See No Evil: Sparks Debate” in the summer 2010 issue of the Silha Bulletin.) Why We Need a New Approach to Government Transparency” On Aug. 21, 2013, thenArmy Pvt. Bradley Manning was on Oct. 16, 2014. For more information on the lecture, see “29th sentenced to 35 years in prison for violating the Espionage Act. Annual Silha Lecture Examines the Right to Access Government On Jan. 17, 2017, thenPresident Barack Obama commuted Information in the Wake of National Security and Privacy Manning’s sentence to seven years. In 2013, Manning publicly Concerns” in the Fall 2014 issue of the Silha Bulletin.) announced she is a transgender woman and changed her name However, other observers still expressed concern. In an to Chelsea. (For more information on Manning, see “President article for Harper magazine’s April issue, James Goodale, Obama Commutes Chelsea Manning’s Sentence, Pardons Gen. former defense counsel for The New York Times in New York James E. Cartwright, Takes No Action on Edward Snowden” in Times v. United States , 403 U.S. 713 (1971), which arose after the Winter/Spring 2017 issue of the Silha Bulletin and “Manning the Times published excerpts from the Pentagon Papers, Sentenced to 35 Years in Prison for Leaks” in the Winter/Spring highlighted how investigative reporters often obtain classifi ed 2015 issue.) information through a process of encouraging sources and On April 11, 2019, British police arrested Assange after helping them remain anonymous. If they are no longer allowed to Ecuador’s President Lenin Moreno revoked political asylum use such techniques, Goodale asserted, “investigative reporting and evicted Assange for “repeated violations [of] international based on classifi ed information will be given a near death conventions and dailylife protocols.” Assange had been granted blow.” In an April 12 oped for The Hill, Goodale added, “Can diplomatic asylum in the Ecuadorian embassy in 2012 after a journalist instruct his source in a manner which will permit losing an appeal against extradition to Sweden, where he faced the source to escape identifi cation? The answer is, generally two sexual assault allegations. Assange was also found guilty speaking, yes — but whether it applies to newsgathering in the in Westminster Magistrates’ Court of breaching his 2012 bail Digital Age, using the computer, will be the question in this case.” conditions. On May 1, 2019, he was sentenced to 50 weeks in (Goodale was the 2013 Silha lecturer. For more information prison on the breached bail charges, and on July 18, he dropped on the lecture titled “The Lessons of the Pentagon Papers: Has his appeal against the jail term. Obama Learned Them?,” see “Silha Lecturer Links Pentagon Assange, continued on page 3 Inside This Issue Summer 2019: Volume 24, No. 3 1 Federal Prosecutors Charge Julian Assange With Seventeen 33 Minnesota Supreme Court, Sixth Circuit, and Eastern Counts Under the Espionage Act, Prompting Renewed District of Kentucky Rule in Notable Defamation Cases Concern for Journalists Defamation Cover Story 40 Judge Allows Media and Public to Make Copies of Evidence 6 Police Raid Freelance Journalist’s Home and Offi ce, from Trial of Former Minneapolis Police Offi cer, Restricts Prompting Criticism and Legal Action Live Streaming of Noor Sentencing Hearing Searches and Seizures Access 10 Second Circuit Rules President Trump Violated the First 43 U.S. Customs and Border Protection Continues to Raise Amendment By Blocking Twitter Users Privacy Issues Amid Data Breach, Searches and Seizures of First Amendment Electronic Devices Searches and Seizures 12 White House Revokes and Suspends Hard Press Passes Under New Rules 47 The New York Times Discontinues Editorial Cartoons in Its Access International Edition; Canadian Publisher Ends Contract with Editorial Cartoonist 15 FTC Reaches $5 Billion Settlement with Facebook, Editorial Control Prompting Praise and Criticism Data Privacy 50 Federal Judge Rules Controversial Undercover Video Maker Protected from Certain Damages by First Amendment 18 Debates Continue Over a Federal Data Privacy Law or First Amendment Framework Data Privacy 52 Attorney Kelli L. Sager to Deliver 34th Annual Silha Lecture: “In Defense of Public Trials: Access to Court 23 Supreme Court Rulings Address First Amendment and FOIA Proceedings in the Internet Age” Questions Silha Center Events Supreme Court News 30 Former Supreme Court Justice John Paul Stevens Passes Away; Authored Notable First Amendment Majority and Dissenting Opinions Supreme Court News This is the fi rst issue of the Silha Bulletin to be posted online only. The Bulletin will continue to be published three times a year: late fall, late spring, and late summer. It will be available at: www.silha.umn.edu and the University of Minnesota Digital Conservancy at: http://conservancy.umn.edu/discover?query=Silha+Bulletin. If you would like to be notifi ed when a new issue of the Silha Bulletin has been published online, or receive an electronic copy of the Bulletin, please email us at [email protected]. Please include “Silha Bulletin” in the subject line. You may also call the Silha Center at (612) 6253421. SILHA C ENTER S TAFF JANE E. KIRTLEY SILHA C ENTER D IRECTOR AND S ILHA P ROFESSOR OF M EDIA E THICS AND L AW SCOTT M EMMEL SILHA BULLETIN E DITOR SARAH W ILEY ERIC A RCH SILHA R ESEARCH A SSISTANT SILHA R ESEARCH A SSISTANT ELAINE H ARGROVE SILHA C ENTER S TAFF 2 Assange, continued from page 1 Finally, the indictment alleged 17 counts under the Espionage Papers and Obama Administration’s Treatment of Linkers” in the Act, including multiple counts of “Conspiracy to Obtain, Receive, Fall 2013 issue of the Silha Bulletin.) and Disclose National Defense Information,” “Unauthorized In an April 11 interview with the HuffPost, Silha Center Obtaining and Receiving of National Defense Information,” and Director and Silha Professor of Media Ethics and Law Jane “Unauthorized Disclosure of National Defense Information.” The Kirtley warned that the CFAA charges could be an “incremental 18th count against Assange in the indictment was the original step” towards charging journalists under the Espionage Act. (For charge under the CFAA. The full indictment is available online at: more information on the arrest of Assange and indictment under https://assets.documentcloud.org/documents/6024848/52319US the CFAA, see “WikiLeaks Founder Julian Assange Arrested AssangeSupersedingIndictment.pdf. on Computer Hacking Charges, Fueling Concerns Over Press According to Vice News on May 24, 2019, Assange remained Freedom” in the Winter/Spring 2019 issue of the Silha Bulletin.) in a highsecurity prison in London, noting that on May 13, On May 23, 2019, U.S. prosecutors announced 17 additional Swedish authorities had reopened its investigation into sexual charges against Assange under the Espionage Act. The 37page assault accusations against Assange and wanted him extradited indictment fi led in the Eastern District of Virginia fi rst argued to Sweden. As the Bulletin went to press, it was unclear whether that Assange and WikiLeaks had “repeatedly sought, obtained, Assange would be extradited to the United States or Sweden, or and disseminated information that the United States classifi ed remain in the United Kingdom (UK). due to the serious risk that unauthorized
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