Schenck lives! UK high court skeptical that Assange's rights would be protected in US trial

Time after time, federal courts have deferred to the administration's
invocation of national security interest -- whether in peacetime or in war
-- outweighs liberty that Americas not only expect to enjoy but is a
civil right in constitutional law.

Except when it's not.

The government has a nasty history with this, going back almost to the
founding with the disgraceful Alien and Sedition Acts at the end of the
one-term John Adams administration that were used to punish members of
Jefferson's political party. Adams' party was so well aware of what
they were doing that the laws sunsetted with the end of the
administration so they couldn't be used against them.

Wilson, who ran on a political promise to keep America out of what would
become WWI, almost immediately reversed course. The war was so unpopular
that Congress passed a series of measures restricting Wilson's enemies
from criticizing the war. This was the Espionage Act of 1917, together
with amendments in the next year called the Sedition Act.

Mr. Schenck leafletted, telling men to "know their rights" with respect
to the draft. He was arrested and convicted of violating the Espionage
Act for what anyone else would see as an ordinary act of freedom of the
press, a right all Americans are supposed to enjoy.

In one of the Supreme Court's most disgraceful opinions, Oliver Wendell
Holmes wrote a much-quoted opinion that tended to be self contradictory
but in the end upheld the constitutionality of the criminal conviction
with respect to Schenck's actions.

Now, this notorious opinion is no longer constitutional law with respect
to freedom of the press (and I assume free speech) but the Espionage Act
has never been found to be unconstitutional.

Julian Assange is an enemy of the state, same as Schenck. He's been
indicted under the Espionage Act. (I've never read that he's indicted
under other acts.)

While there can be much argued that the leaks he's responsible for had
legitimate national security implications, a great deal of it was
overclassification to avoid embarassment to the military and State
Department and, in a few instances, cover up actual wrongdoing.

Typically with classified documents, we don't actually know what our
enemies already know but we absolutely want to keep Americans from
finding out even if our enemies are known to have the information.

Assange wants to argue freedom of the press as a defense.

He was scheduled to be extradicted to the US later today but the UK
highest court finally gave him the right to a hearing to challenge his
extradition on the basis that he won't be treated fairly in US court
because he's an Australian and not a US citizen, and courts won't grant
him his First Amendment rights.

I don't buy the argument. The High Court chose not to accept assurances
from the US government that his First Amendment claims would be fairly
considered because anything a prosecutor says will not bind  a court and
that he won't be discriminated against as a foreign national.

But if the government wants to use a criminal proseuction to scare
anyone thinking about causing official embarassment, it doesn't give a
damn about nationality. Where's the equal protection argument?

What is Assange's argument?

The US government doesn't have world-wide jurisdiction (despite the tax
code requiring worldwide income be reported whether it's ulimately
taxed). The First Amendment applies to publishing in the United States
and no where else. Foreign nationals have the right to publish in the
United States regardless of physical presence in the United States at
time of publishing. There are literally foreign publishers without
editorial offices in the United States that publish here.

But if Assange has the right to publish in the United States, can he
claim the right to publish outside the United States under US law if
he's being prosecuted for having published in violation of US criminal
law?

I have no idea if the government gets to pick and choose that a criminal
law applies to acts of publishing outside the United States but basic
liberty to publish does not. Here, the United States government claims
criminal jurisdiction over US government material has given it the right
to follow what became of this material outside of the country. Under
this circumstance, does the First Amendment follow?

It's so very hypocritical of UK courts to take the right to publish
under US law so very seriously given centuries of history of prosecuting
publishers and issuing writs against publishing as prior restraint.

https://www.reuters.com/world/wikileaks-julian-assange-faces-us-extradition-judgment-day-2024-05-19/