Abstract

This Note uses the prosecution of Julian Assange as a lens to interrogate the uneasy intersection of national security secrecy and press freedom in a borderless information economy. Part I situates the case against the backdrop of WikiLeaks’ disclosures. Part II first sets out the taxonomy of jurisdiction, accepted bases for prescriptive reach, and reasonableness and comity restraints. It then analyzes the Espionage Act’s text and architecture as applied to publishers abroad. This section confronts extraterritoriality: it maps territoriality, nationality, protective, and effects principles and proposes a limiting framework that requires (1) a substantial, foreseeable, and direct U.S. effect, and (2) a tight nexus between the defendant’s conduct and that effect. Part III brings comparative and international human rights law to bear, particularly ICCPR Article 19’s necessity and proportionality tests, to articulate a speech-protective baseline for transnational prosecutions. How do we ensure that we are comity-sensitive in tailoring where speech rights of non-nationals are implicated? Part IV advances a functional “public-interest journalism” test and a narrow, administrable public-interest defense that protects publication absent proof of specific, imminent, and grave harm, coupled with a heightened mens rea. This section looks forward, recommending a publisher carve-out or safe-harbor amendment to the Espionage Act, DOJ charging guidelines that operationalize the proposed tests, and institutional channels for secure disclosures. The Note’s central claim is that prosecuting non-U.S. publishers for publication under the Espionage Act, without the proposed limits, threatens core First Amendment values and undermines the United States’ speech commitments in the transnational arena.

Keywords: Julian Assange, WikiLeaks, Espionage Act, borderless information economy, national security, press freedom