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Westlake Legal Group > Posts tagged "First Amendment (US Constitution)"

Split 5 to 4, Supreme Court Rejects Nevada Church’s Challenge to Shutdown Restrictions

Westlake Legal Group split-5-to-4-supreme-court-rejects-nevada-churchs-challenge-to-shutdown-restrictions Split 5 to 4, Supreme Court Rejects Nevada Church’s Challenge to Shutdown Restrictions Supreme Court (US) Roberts, John G Jr Nevada Freedom of Religion First Amendment (US Constitution) Decisions and Verdicts Coronavirus (2019-nCoV)
Westlake Legal Group 24dc-scotuschurch-facebookJumbo Split 5 to 4, Supreme Court Rejects Nevada Church’s Challenge to Shutdown Restrictions Supreme Court (US) Roberts, John G Jr Nevada Freedom of Religion First Amendment (US Constitution) Decisions and Verdicts Coronavirus (2019-nCoV)

The Supreme Court on Friday rejected a request from a church in Nevada to block enforcement of state restrictions on attendance at religious services.

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four more liberal members to form a majority.

The court’s brief order was unsigned and gave no reasons, which is typical when the justices act on emergency applications. The court’s four more conservative members filed three dissents, totaling 24 pages.

Calvary Chapel Dayton Valley in Dayton, Nev., argued that the state treated houses of worship less favorably than it did casinos, restaurants and amusement parks. Those businesses have been limited to 50 percent of their fire-code capacities, while houses of worship have been subject to a flat 50-person limit.

Justice Samuel A. Alito Jr., in a dissent joined by Justices Clarence Thomas and Brett M. Kavanaugh, wrote that the distinction made no sense.

“The Constitution guarantees the free exercise of religion,” he wrote. “It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance. But the governor of Nevada apparently has different priorities.”

“A public health emergency does not give governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists,” Justice Alito wrote.

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Updated 2020-07-24T23:36:17.007Z

In a second dissent, Justice Neil M. Gorsuch said the case was simple.

“The world we inhabit today, with a pandemic upon us, poses unusual challenges,” he wrote. “But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”

In his own dissent, Justice Brett M. Kavanaugh agreed that the case was straightforward.

“Nevada’s 50-person attendance cap on religious worship services puts praying at churches, synagogues, temples and mosques on worse footing than eating at restaurants, drinking at bars, gambling at casinos or biking at gyms,” he wrote. “In other words, Nevada is discriminating against religion.”

The church, which said it sought to conduct services with 90 people present — with appropriate social distancing — included a photograph of a large, closely packed and unmasked crowd in Las Vegas in its Supreme Court brief. It said that discriminating against churches violated the First Amendment.

“This is a straightforward case,” lawyers for the church wrote. “If the governor deems it acceptable for secular assemblies to occur at 50 percent capacity at casinos, restaurants, bars, gyms and fitness facilities, indoor and outdoor theme parks, bowling alleys, water parks, pools, arcades and more, he must apply the same 50 percent capacity rule to constitutionally protected worship services.”

In response, state officials wrote that comparable mass gatherings — which they said included those at concerts, movie theaters, museums and trade schools — were treated “the same as or worse than houses of worship.”

“Public attendance is prohibited for all musical performances, live entertainment, concerts, competitions, sporting events and any events with live performances,” the brief by state officials said.

Judge Richard F. Boulware II, of the Federal District Court in Las Vegas, rejected the church’s challenge, noting that the state had imposed similar or more stringent restrictions on concerts, sporting events and musical performances.

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“Whether a church is more like a casino or more like a concert or lecture hall for purposes of assessing risk of Covid-19 transmission is precisely the sort of ‘dynamic and fact-intensive’ decision-making ‘subject to reasonable disagreement’ that the court should refrain from engaging in, Judge Boulware wrote, quoting from a concurring opinion issued by Chief Justice Roberts when the Supreme Court rejected a similar challenge in May from a California church by a 5-to-4 vote.

The United States Court of Appeals for the Ninth Circuit, in San Francisco, also cited the Supreme Court’s order in the California case in denying the Nevada church’s request for an injunction while its appeal moved forward.

In his concurring opinion in the California case, Chief Justice Roberts said state officials must have flexibility to make judgments about public health.

“Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the free exercise clause of the First Amendment,” he wrote at the time.

“Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports and theatrical performances, where large groups of people gather in close proximity for extended periods of time,” the chief justice wrote. “And the order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”

Justices Thomas, Alito, Gorsuch and Kavanaugh noted dissents in the California case.

“The church and its congregants simply want to be treated equally to comparable secular businesses,” Justice Kavanaugh wrote in a dissenting opinion joined by Justices Thomas and Gorsuch. “California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices.”

“The state cannot,” Justice Kavanaugh wrote, quoting from an appeals court decision in a different case, “‘assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.’”

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Secret F.B.I. Subpoenas Scoop Up Personal Data From Scores of Companies

The F.B.I. has used secret subpoenas to obtain personal data from far more companies than previously disclosed, newly released documents show.

The requests, which the F.B.I. says are critical to its counterterrorism efforts, have raised privacy concerns for years but have been associated mainly with tech companies. Now, records show how far beyond Silicon Valley the practice extends — encompassing scores of banks, credit agencies, cellphone carriers and even universities.

The demands can scoop up a variety of information, including usernames, locations, IP addresses and records of purchases. They don’t require a judge’s approval and usually come with a gag order, leaving them shrouded in secrecy. Fewer than 20 entities, most of them tech companies, have ever revealed that they’ve received the subpoenas, known as national security letters.

The documents, obtained by the Electronic Frontier Foundation through a Freedom of Information Act lawsuit and shared with The New York Times, shed light on the scope of the demands — more than 120 companies and other entities were included in the filing — and raise questions about the effectiveness of a 2015 law that was intended to increase transparency around them.

“This is a pretty potent authority for the government,” said Stephen Vladeck, a law professor at the University of Texas who specializes in national security. “The question is: Do we have a right to know when the government is collecting information on us?”

The documents provide information on about 750 of the subpoenas — representing a small but telling fraction of the half-million issued since 2001, when the Patriot Act expanded their powers.

The credit agencies Equifax, Experian and TransUnion received a large number of the letters in the filing. So did financial institutions like Bank of America, Western Union and even the Federal Reserve Bank of New York. All declined to explain how they handle the letters. An array of other entities received smaller numbers of requests — including Kansas State University and the University of Alabama at Birmingham, probably because of their role in providing internet service.

Other companies included major cellular providers such as AT&T and Verizon, as well as tech giants like Google and Facebook, which have acknowledged receiving the letters in the past.

Albert Gidari, a lawyer who long represented tech and telecommunications companies and is now the privacy director at Stanford’s Center for Internet and Society, said Silicon Valley had been associated with the subpoenas because it was more willing than other industries to fight the gag orders. “Telecoms and financial institutions get little attention,” he said, even though the law specifically says they are fair game.

The Federal Bureau of Investigation determined that information on the roughly 750 letters could be disclosed under a 2015 law, the USA Freedom Act, that requires the government to review the secrecy orders “at appropriate intervals.”

The Justice Department’s interpretation of those instructions has left many letters secret indefinitely. Department guidelines say the gag orders must be evaluated three years after an investigation starts and also when an investigation is closed. But a federal judge noted “several large loopholes,” suggesting that “a large swath” of gag orders might never be reviewed.

According to the new documents, the F.B.I. evaluated 11,874 orders between early 2016, when the rules went into effect, and September 2017, when the Electronic Frontier Foundation, a digital rights group, requested the information.

“We are not sure the F.B.I. is taking its obligations under USA Freedom seriously,” said Andrew Crocker, a lawyer with the foundation. “There still is a huge problem with permanent gag orders.”

ImageWestlake Legal Group merlin_161091351_4febfb63-cfee-4950-8433-3645e630b508-articleLarge Secret F.B.I. Subpoenas Scoop Up Personal Data From Scores of Companies Yahoo! Inc Western Union Company Verizon Communications Inc USA PATRIOT Act USA Freedom Act T-Mobile US Inc. Surveillance of Citizens by Government subpoenas Microsoft Corp Google Inc Freedom of Information Act First Amendment (US Constitution) Federal Bureau of Investigation Facebook Inc Experian PLC Espionage and Intelligence Services Equifax Inc Electronic Frontier Foundation Bank of America Corporation

Richard Salgado, Google’s director of law enforcement and information security. The company has been public about the secret subpoenas it has received from the F.B.I.CreditTom Williams/CQ Roll Call, via Getty Images

The Justice Department declined to comment.

National security letters, which the F.B.I. has issued since the 1980s, have long been a point of contention in the debate over privacy and security. Initially, the bureau had to show “specific and articulable facts” indicating that the target was an agent of a foreign power. Now, the F.B.I. must certify that the information is “relevant” to a terrorism, counterintelligence or leak investigation.

“NSLs are an indispensable investigative tool,” the Justice Department argued in the Freedom of Information Act case. The department has said in legal documents that the information gleaned from the letters is important to identifying subjects and their associates, while helping to clear the innocent of suspicion.

According to a 2007 report from the Justice Department inspector general, the F.B.I. didn’t track how often information from the letters was used in criminal proceedings. But the report also said the letters had led to guilty pleas for arms trading, at least one conviction for material support of terrorism, and multiple charges of fraud and money laundering. The tool was also cited in efforts to investigate Russian meddling in the 2016 election.

Much of the concern about the letters has focused on the gag orders, which accompany nearly every request and prevent the recipient — typically indefinitely — from disclosing even the existence of the letter. The federal government has argued that the secrecy is necessary to avoid alerting targets, giving would-be terrorists clues about how the government conducts its surveillance or hurting diplomatic relations.

After a series of court rulings found that the gag orders violated First Amendment protections, Congress enacted the review requirements.

The documents obtained through the lawsuit include the number of orders reviewed, as well as redacted copies of 751 letters from the F.B.I. informing companies and organizations their gag orders had been lifted. These so-called termination letters do not reveal the contents of the original national security letters, but indicate which entities received them.

Because so few gag orders have been reviewed and rescinded, it isn’t possible to say whether the companies that received the most termination letters also received the most national security letters. But given the overall secrecy around the program, the termination letters offer a rare glimpse into these subpoenas.

Equifax, Experian and AT&T received the most termination letters: more than 50 each. TransUnion, T-Mobile and Verizon each received more than 40. Yahoo, Google and Microsoft got more than 20 apiece. Over 60 companies received just one.

The underlying national security letters were not included in the documents, and it is unclear when most of them were issued and who the individual targets were.

Tech companies have disclosed more information about the letters they received than the major phone providers, which included general information about them in transparency reports.

“We have fought for the right to be transparent about our receipt” of national security letters, Richard Salgado, Google’s director of law enforcement and information security, said in a 2016 statement explaining why the company was releasing the subpoenas. “Our goal in doing so is to shed more light on the nature and scope” of the requests, he added.

Other companies have generally remained mum. In response to inquiries, a TransUnion spokesman would say only that the company “has not disclosed the receipt of any national security letters.” An spokesman for Equifax said it was “compliant with the national security letters process.”

Mr. Gidari, the former tech lawyer, attributed some of that lack of reporting to differences in company culture, noting that tech firms were more predisposed to openness, and financial institutions less likely to discuss any outside access to customer data. And most small companies, he said, don’t have the resources to keep long-term track of or challenge the subpoenas.

“That’s the problem with the Freedom Act: It procedurally pretended to solve the problem,” he said. “But the whole structure of this involves presumption in favor of the government for perpetual sealing.”

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Supreme Court Won’t Rule on Clash Between Another Bakery and a Gay Couple

Westlake Legal Group 00dc-scotus-cake-facebookJumbo Supreme Court Won’t Rule on Clash Between Another Bakery and a Gay Couple Supreme Court (US) Same-Sex Marriage, Civil Unions and Domestic Partnerships Masterpiece Cakeshop (Lakewood, Colo) Homosexuality and Bisexuality Freedom of Religion First Amendment (US Constitution) discrimination

WASHINGTON — The Supreme Court on Monday declined to hear an appeal from the owners of an Oregon bakery who were fined for refusing to create a wedding cake for a gay couple. In a brief order, the justices instead returned the case to lower courts in Oregon “for further consideration” in light of a decision last year in which the court ducked a similar issue in a case concerning a baker from Colorado.

The court’s action on Monday left still unresolved the question of whether many kinds of businesses, including florists, photography studios, calligraphers and tattoo artists, may discriminate against same-sex couples on religious grounds.

[Here’s how other battles over serving same-sex couples have played out in court.]

Lower courts have generally sided with gay and lesbian couples who were refused service, ruling that they are entitled to equal treatment, at least in parts of the country with laws forbidding discrimination based on sexual orientation. The owners of businesses challenging those laws have argued that the government should not force them to choose between the requirements of their faiths and their livelihoods, citing constitutional protections for free speech and religious liberty.

The new case started in 2012 when the owners of a bakery called Sweetcakes by Melissa refused to make a wedding cake for a lesbian couple, Rachel Bowman-Cryer and Laurel Bowman-Cryer. The owners, Melissa Klein and Aaron Klein, said doing so would violate their religious principles.

The state labor bureau ruled against the Kleins, saying they had violated an Oregon law barring discrimination based on sexual orientation and ordering them to pay $135,000 in damages. A state appeals court affirmed the bureau’s decision and rejected arguments from the Kleins that two parts of the First Amendment, its protections of free expression and religious freedom, allowed them to turn the couple away.

The Oregon Supreme Court declined to hear their appeal, and the bakery went out of business.

The Colorado case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, involved similar facts. The Supreme Court’s ruling last year left open the question of whether a business can discriminate against gay men and lesbians based on rights protected by the First Amendment. Instead, Justice Anthony M. Kennedy’s majority opinion turned on the argument that the Colorado Civil Rights Commission, which originally ruled against the baker, had been hostile to religion, based on the remarks of one of its members.

Justice Kennedy retired last year. His successor, Justice Brett M. Kavanaugh, is thought to be more receptive to arguments like the ones made by the bakery’s owner.

In their petition seeking review in the Oregon case, the bakery’s lawyers said hearing their appeal would allow the justices to answer the question left open last year. “It squarely presents the constitutional questions that the court did not answer in Masterpiece Cakeshop,” they wrote.

The state countered that its anti-discrimination law merely “requires petitioners to provide to same-sex couples the same service that petitioners would provide to heterosexual couples — a cake for their wedding.”

The Oregon case was in one way broader than the one from Colorado, as it asked the justices to overrule an important precedent from 1990, Employment Division v. Smith. In a majority opinion written by Justice Antonin Scalia, the Supreme Court ruled that neutral laws of general applicability could not be challenged on the ground that they violated the First Amendment’s protection of the free exercise of religion.

That decision, arising from a case involving the use of peyote in Native American religious ceremonies, is unpopular among conservative Christians, who say it does not offer adequate protection to religion, and with some justices. In January, the court’s four most conservative members — Justices Kavanaugh, Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — signaled that they were open to reconsidering the decision.

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Free Speech Puts U.S. on ‘a Collision Course’ With Global Limits on Big Tech

Westlake Legal Group 00techspeech-facebookJumbo Free Speech Puts U.S. on ‘a Collision Course’ With Global Limits on Big Tech United States Politics and Government Social Media Rumors and Misinformation Regulation and Deregulation of Industry News and News Media Law and Legislation Hate Crimes Freedom of Speech and Expression First Amendment (US Constitution) Facebook Inc Computers and the Internet

WASHINGTON — When Mark Zuckerberg of Facebook called for regulating harmful internet content in an opinion column last month, Republicans in Washington expressed outrage that he was calling on the government to regulate speech.

Within hours, the company’s top lobbyists started spreading another message to conservatives: Don’t take his suggestion too seriously.

In a flurry of calls and emails to regulators, consumer groups and think tanks — as well as in person, at a weekly breakfast gathering of influential conservatives — the operatives said Mr. Zuckerberg was not encouraging new limits on speech in the United States. His target was mostly overseas regulators, they said, and he has other ideas for Washington.

“Mark believes that by updating the rules for the internet, we can preserve what’s best about it — the freedom for people to express themselves and entrepreneurs to build new things,” one Facebook lobbyist wrote in an email widely distributed to conservative groups. The lobbyists’ actions were described by two people who encountered the outreach and shared the emails with The New York Times but would speak only on the condition of anonymity.

Mr. Zuckerberg’s call for action, and his lobbyists’ response, encapsulate why the United States is on an island of its own when it comes to managing violent and racist speech online.

Britain, Germany, Australia, New Zealand and India have adopted or are considering laws that require stricter content moderation by tech platforms. But none of them need to work around free speech protections like the First Amendment in the United States.

For tech businesses like Facebook, that means navigating fraught political terrain — and trying to play on both sides of the issue.

The companies face increasing pressure, particularly from Democrats but also from some Republicans, to stem the spread of messages that can lead to real-world violence. But many Republicans, including President Trump, complain that tech companies like Facebook and Google already curtail too many voices — and that any new limits would only make matters worse. The two parties recently had dueling congressional hearings to help make their case.

“American law and judges are united, but all the cultural and social pressures around the world are in the opposite direction,” said Jeffrey Rosen, president of the National Constitution Center in Philadelphia. “The protections of the American Constitution and the demands of countries and consumers around the world are on a collision course.”

Navigating the various approaches to speech will require different solutions, said Kevin Martin, Facebook’s head of lobbying in the United States.

“Mark and Facebook recognize, and support, and are strong defenders of the First Amendment,” Mr. Martin said. That nuance was lost because the opinion piece, which ran in The Washington Post, The Independent in Britain and elsewhere, was written to speak to a global audience, he said.

Tech companies, as private businesses, have the right to choose what speech exists on their sites, much as a newspaper can pick which letters to the editor to publish.

Their online sites do already pull some content for breaking their rules. Facebook and Google have tens of thousands of content moderators to root out hate speech and false information on their sites, for example. The companies also use artificial intelligence and machine learning technology to identify content that violates their terms of service.

But many recent events, like the mosque shootings in New Zealand, show the limits of those resources and tools, and have led to more demands for regulation. A live video by a gunman in the New Zealand massacre was viewed 4,000 times before Facebook was notified. By then, copies of the video had been uploaded on several sites like 8Chan, and Facebook struggled to take down slightly altered versions.

“For the first time, I’m seeing the left and right agree that something has gotten out of control, and there is a lot of consensus on the harms created by fake news, terrorist content and election interference,” said Nicole Wong, deputy chief technology officer for the Obama administration.

Getting consensus on basic definitions of what constitutes harmful content, though, has been difficult. And American lawmakers have been little help.

In his opinion column, Mr. Zuckerberg outlined several ideas to rid sites of harmful content. He noted that the company was putting together a group of outsiders who would evaluate harmful speech on its services and whether it should be removed. He also suggested that the government help define harmful speech.

“Regulation could set baselines for what’s prohibited and require companies to build systems for keeping harmful content to a bare minimum,” he wrote.

Brendan Carr, a Republican commissioner at the Federal Communications Commission, which oversees the telecommunications, broadband and television industries, responded on Twitter that such regulation would be a direct violation of the First Amendment.

“They are trying to pass the buck,” Mr. Carr said in a later interview. “But he is asking for the government to censor speech.”

Brad Parscale, President Trump’s 2020 campaign manager, wrote on Twitter: “Every single regulatory measure Zuckerberg is calling for would benefit his company, his political allies, and himself personally.”

Some civil rights groups also raised concerns. “It is extremely difficult to define ‘harmful content,’ much less implement standards consistently and fairly for billions of users, across the entire spectrum of contemporary thought and belief,” wrote Corynne McSherry and Gennie Gebhart of the Electronic Frontier Foundation, a nonprofit group that advocates open and free expression online. Their article was headlined “Mark Zuckerberg Does Not Speak for the Internet.”

So far, Facebook has stood alone in its call for regulations of harmful speech. Google, Amazon, Twitter and Apple did not comment for this article but have been stalwart in their support of free speech online.

With a limited appetite for the government to step in and ban certain content online, regulators and some lawmakers have increasingly warned they will crack down on the internet companies for doing a poor job of policing their own policies. To do that, the government would most likely need to take away a legal immunity for internet companies, established in 1996, that shields them from liability for content posted by users.

The law, Section 230 of the Communications Decency Act, is often held up as central to the tech industry’s growth in the last three decades. But lawmakers have begun to weigh whether the legal protection extends too far. Last year, Congress passed a law that weakened it by holding social networks and other websites liable for knowingly hosting sex trafficking ads, the first time that an exception was written for the law.

Senator Ron Wyden, a Democrat from Oregon and an author of Section 230, said it allowed sites to better moderate content without fear.

But even Mr. Wyden says the law was not intended to protect tech giants. Senator Joe Manchin III, Democrat of West Virginia, has warned that he would pursue a carve-out of Section 230 for sites that hosted the sale of opioids.

“If these platforms don’t fix their problems, you bet I’m looking at 230,” Mr. Manchin said. “Everything is on the table.”

The building frustration in Washington is being watched with anxiety by both big and small tech companies, as well as investors. Some are warning that any new regulations would hurt start-ups, because many don’t have resources like Facebook and Google to hire staff to enforce the rules.

“Be mad at tech, that’s understandable,” Alex Feerst, head of legal policy for the online publishing site Medium, said at a recent event on the “unintentional harms” of speech regulations.

But adding restrictions to online speech laws or liabilities for platforms would come with downsides, he warned.

“Companies will simply over-remove out of risk aversion,” he said.

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Press Freedoms and the Case Against Julian Assange, Explained

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WASHINGTON — Charges against Julian Assange, the founder and leader of WikiLeaks, that were unsealed on Thursday brought to a head a long-running debate about whether his actions construed a crime and what prosecuting him would mean for American press freedoms.

Mr. Assange vaulted to global fame in 2010, when his anti-secrecy website began posting archives of secret American military and diplomatic documents leaked by Chelsea Manning, an Army intelligence analyst who had downloaded them from a classified computer network she worked on at her outpost in Iraq. His image became more complicated in 2016, when WikiLeaks published stolen Democratic emails that the Russian government had hacked as part of its covert operation to damage Hillary Clinton and help Donald J. Trump win the presidency.

Throughout that saga, national security and law enforcement officials in both the Obama and the Trump administrations have weighed whether they could charge Mr. Assange with a crime. That debate has raised concerns by press freedom advocates about what any precedent established by his case would mean for First Amendment rights and the future of investigative journalism in the United States.

Mr. Assange is not a traditional journalist, but most of what he does at WikiLeaks is difficult to distinguish in a legally meaningful way from what traditional news organizations, like The New York Times, do every day: seek out and publish information that officials would prefer to be kept secret, including classified national security matters, and take steps to protect the confidentiality of sources.

In recent years, prosecutors have begun far more regularly charging officials with leaking information to reporters under the Espionage Act, a World War I-era law. It criminalizes the disclosure of potentially damaging national security secrets to someone not authorized to receive them. On its face, the Espionage Act could also be used to prosecute reporters who publish government secrets.

While many legal scholars believe that prosecuting reporters for doing their jobs would violate the First Amendment, the prospect has never been tested in court because the government has never charged a journalist under that law. The rumblings about prosecuting Mr. Assange raised the possibility that prosecutors could violate that norm and try to establish that publishing government secrets can be a crime.

No. When the indictment was unsealed on Thursday, it showed that a grand jury had instead charged Mr. Assange with conspiring with Ms. Manning to illegally hack a government computer to obtain national security information.

Specifically, the indictment said, on March 8, 2010, Mr. Assange agreed to help Ms. Manning try to crack part of an encoded password that would have let her gain access to more information than her own account provided. Prosecutors also cited a chat log from two days later that they said indicated that Mr. Assange had taken steps to act on that conspiracy: He said he had “no luck so far” in trying to crack the password.

Not quite. For now, the case significantly reduces such concerns because it is outside traditional investigative journalism to help sources try to break passcodes so they can illegally hack into government computers.

But some press freedom advocates say they remain concerned. For one thing, the Justice Department could file a superseding indictment, so there is no guarantee that Espionage Act charges will stay out of the case. Under extradition procedures, however, any additional charges would most likely have to come soon — before Britain decides whether to transfer custody of Mr. Assange.

For another, prosecutors cited details that expanded beyond a narrow focus on cracking the passcode and that sounded like typical activities of a journalist. For example, the indictment talks about efforts to conceal conversations by using a special chat service and deleting certain chat logs. It also says Mr. Assange took a step to help Ms. Manning send him the files, by making a special folder for her to upload files.

And it quotes a purported exchange midway through Ms. Manning’s leaks in which she wrote, “After this upload, that’s all I really have got left,” but Mr. Assange replied, “Curious eyes never run dry in my experience.” Several weeks later, according to the indictment, Ms. Manning copied and sent WikiLeaks the diplomatic cables.

The Justice Department’s inclusion of those details as relevant to the case was cause for worry, said Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University.

“The indictment and the Justice Department’s press release treat everyday journalistic practices as part of a criminal conspiracy,” he said. “Whether the government will be able to establish a violation of the hacking statute remains to be seen, but it’s very troubling that the indictment sweeps in activities that are not just lawful but essential to press freedom — activities like cultivating sources, protecting sources’ identities and communicating with sources securely.”

It would not be easy.

The Espionage Act does not cover the disclosure of unclassified emails like the Democratic messages, so prosecutors would have to come up with a theory in which publishing them violated some other law. Even if they could find one, a 2001 Supreme Court ruling held that the First Amendment did not permit prosecutors to charge someone with a crime for publishing or broadcasting information so long as no law was broken in acquiring it — even if the source who provided it did something illegal to obtain it.

No one has suggested that the Russians needed or had any help from Mr. Assange in hacking Democrats’ emails. And Mr. Assange has denied knowing who his source was; at the time, Russian military intelligence officers created the fictitious online persona of a hacker calling himself Guccifer 2.0 to disseminate and call attention to the files, although evidence that it was most likely a front for Russian intelligence was broadly discussed.

Normally, the statute of limitations prevents prosecutors from charging people with a crime for actions that took place more than five years ago. However, a hacking provision cited in the indictment — intruding into a government computer to obtain national security secrets — has an eight-year limit. A grand jury returned the indictment of Mr. Assange on March 6, 2018, just before the eighth anniversary of the day that Mr. Assange is accused of entering into a conspiracy with Ms. Manning to violate that law.

There is an oddity: As part of the USA Patriot Act after the Sept. 11 attacks, Congress added that provision to a list of crimes that get an eight-year limit under a separate law titled “extension of statute of limitation for certain terrorism offenses.” While Mr. Assange’s case involves national security, it is not about terrorism. The “terrorism” heading most likely makes no legal difference, however — just as prosecutors can use the words of the Espionage Act to charge leakers, not just spies.

No. Mr. Assange is widely expected to fight extradition to the United States by arguing in British court that his prosecution is politically motivated. That fight and inevitable appeals could take years to play out.

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