WikiLeaks: Would First Amendment protect Julian Assange?

WikiLeaks founder Julian Assange and his organization have made lots of people in the US government angry. The Justice Department is threatening to prosecute them for publishing online a vast trove of secret US diplomatic documents.

But isn’t there such a thing as free speech in America? Wouldn’t the First Amendment protect Mr. Assange and WikiLeaks from Washington’s threats?

Maybe not. The WikiLeaks document dump in fact appears to fall into an unresolved area of US law. The First Amendment strongly shields the publication of truthful information, legally acquired. But what if the information is gotten illegally? That’s another issue entirely.

You’d think that the Supreme Court would have settled this question long ago, given all the years that have passed since the First Amendment was adopted. But it hasn’t.

Supreme Court justices have not resolved the question of “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well,” concludes a Congressional Research Service analysis of the issue [PDF] published on October 10.

The closest the high court has come to ruling on this issue may have been the famous 1971 Pentagon Papers case, in which justices rejected a Nixon administration plea that they stop the New York Times and the Washington Post from printing a leaked top secret study of the history of US policy in Vietnam.

It was a landmark ruling in regards to US press freedoms. But what the ruling rejected was the government’s efforts to enjoin publication. A majority of justices appeared to indicate that it would have been possible for the administration to prosecute the two big US papers after they had printed the material. (Many of the judges weighed in with separate opinions, so it’s not entirely clear what they would have agreed upon in regards to this particular issue.)

The Nixon White House did not go down that road, however. And administration efforts to prosecute leakers Daniel Ellsberg and Anthony Russo were dismissed due to "prosecutorial misconduct."

If they do decide to bring a case, US prosecutors today would likely charge Assange or WikiLeaks with violations of the Espionage Act, a broad 1917 law.

The language of this statute is sweeping. On its face it prohibits any person from communicating to anyone not authorized to receive it “any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States.”

The law says nothing about emails, but it was passed at the end of World War I, remember.

“The unclear language of the statute threatens to impinge upon rights protected by the first amendment,” wrote US Circuit Court judge Russell Winter in a 1980 opinion.

Court rulings in recent decades have indicated that to bring a case prosecutors might have to prove the communicator in question intended to injure the US. WikiLeaks founder Assange may have fulfilled this requirement by talking in interviews about his desire to undermine with his actions what he sees as corrupt aspects of US policy.

“He’s gone a long way down the road of talking himself into a possible violation of the Espionage Act,” said Floyd Abrams, an attorney who represented the New York Times in the Pentagon Papers case, in a recent National Public Radio broadcast interview.

It’s still possible that judges could rule that the First Amendment protects WikiLeaks’ actions, of course. Freedom of speech is a basic US constitutional right. What Assange and WikiLeaks may have done, however, is set up a lawyer's dream of a case which would allow the Supreme Court to resolve a conflict between two basic rights – the right to speak, and the right of the US to hold close its secrets.