Wrapping himself in the First Amendment, Julian Assange recently told "60 Minutes" that "our founding values are those of the American Revolution," those of Jefferson and Madison. Assange may not know that our Constitution was written in secret in Philadelphia, behind closed doors; there were no leaks. But the most imminent First Amendment question confronting WikiLeaks is whether it or Assange can successfully be prosecuted for violation of the Espionage Act. Sen. Dianne Feinstein, in an op-ed piece in The Wall Street Journal, aggressively interpreted the 1917 Act and demanded prosecution. The act's virtually unintelligible provisions arguably make it a felony not just to collaborate with a spy, but to publish information "relating to the national defense." However, prosecuting a publisher raises serious First Amendment issues. In the 1971 Pentagon Papers case, the Supreme Court decided that the government could not prevent The New York Times from publishing classified Defense Department documents. The Nixon administration then tried to prosecute the leaker, Daniel Ellsberg, but not the newspaper. In fact, no publisher has ever been prosecuted under the act.
We don't know whether WikiLeaks was simply the passive recipient of classified documents that came in "over the transom" as we used to say. If it was, that's like the Pentagon Papers case. To be sure, publicizing documents that demonstrate high-level official lying and duplicity, as Ellsberg did, is different from the wholesale dumps that WikiLeaks threatens. Disclosing government secrets just because you can is not necessarily in the public interest.
In recent months, WikiLeaks seems to be moving away from anarchism toward journalism, perhaps motivated by the wish to seek shelter under the First Amendment umbrella. The WikiLeaks site has changed its tune somewhat, now repeatedly emphasizing that its "journalists" review leaked material and exercise some judgment about what it puts in the public domain. It has not foresworn indiscriminate dumping or doctrinaire hostility to any government secrecy, but using responsible judgment would give it a better chance at First Amendment protection.
In deciding whether WikiLeaks would have a First Amendment defense, one question is whether it actively solicited the leaks, perhaps paying the leaker or providing software assistance to facilitate the leaks. Another is whether the information is of legitimate public interest. And whether a disclosure actually caused harm ought to be relevant. (No harm ever resulted from the publication of the Pentagon Papers; the government has not yet identified any specific harm from WikiLeaks disclosures.)
Actively engineering leaks of sensitive information of no legitimate public concern (e.g., the identity of a mole in another country's government), causing actual harm, would subject WikiLeaks to a charge of conspiracy (always a prosecutor's favorite). The government could avoid the First Amendment contention that mere publication can't be made a crime. But a successful prosecution under the messy Espionage Act would remain problematical.
In a sense, WikiLeaks owes its existence to two gaps in First Amendment protection for speech and press freedoms, gaps created by unfavorable Supreme Court decisions.
First, the court decided, in a case that I lost (Houchins v. KQED, 1978), that there is no First Amendment right of access to government information. That is, unlike in some countries in which government transparency is constitutionally mandated, American citizens have no constitutional right to know what their government is up to. All we have is a not very strong statute, the Freedom of Information Act, with a lot of exceptions, including a broad exemption for documents relating to national security. To the extent that WikiLeaks informs us citizens what the government is doing in our name, it partially repairs this flaw in our constitutional protection for speech and press. With better access to government information, there would be less point to WikiLeaks.
Second, the court decided in 1972, in another case on which I worked for the losing side (Branzburg v. Hayes), that reporters have no First Amendment protection against compelled disclosure to a grand jury of their confidential sources. While many states have enacted "reporters shield" laws, Congress has thus far declined to act, and the latest WikiLeaks disclosures seem to have antagonized enough senators to torpedo any chance of enactment soon. The result is that reporters can't honestly promise confidentiality to would-be whistleblowers. A source with sensitive information about government malfeasance can't trust that a reporter will not be subpoenaed to spill the beans about who leaked the information. To the extent that WikiLeaks provides complete anonymity (as it promises on its web site, representing to prospective leakers that it has "never" revealed a source), it again partially repairs a gap in our First Amendment protection. If there were a meaningful shield law that reporters and would-be sources could rely on, WikiLeaks might be superfluous.
However the First Amendment issues play out, let's hope our government's hands are clean. We now know that President Richard Nixon's "plumbers unit" burglarized Ellsberg's psychiatrist's office while he was on trial for violating the Espionage Act. An outraged federal judge dismissed the prosecution because of the government's misconduct.
We have no evidence that the Obama administration was complicit in developing sexual misconduct charges against Assange after WikiLeaks made public thousands of classified military communications about the wars in Iraq and Afghanistan and sensitive State Department cables. It may be just a coincidence that, following upon the disclosures, friendly Sweden issued an extraordinary international arrest warrant seeking Assange's extradition on a charge of failing to use a promised condom; there can't have been many instances of using such heavy legal artillery for such a charge. Companies that supported the WikiLeaks site, like PayPal, Amazon and Visa, may have decided independently, without any government prompting, to withdraw their support. And hacker attacks on WikiLeaks servers may have been orchestrated by freelancers without any government encouragement. It would be really distressing to learn that our government was involved in any of this. Imagine the irony if any government complicity were established by secret government documents some day to be leaked through WikiLeaks.
