Why the First Amendment won't necessarily protect WikiLeaks.

The law, lawyers, and the court.
Dec. 2 2010 4:04 PM

See You in Court, Mr. Assange

Why the First Amendment won't necessarily protect WikiLeaks.

Julian Assange. Click image to expand.
Julian Assange

Besides providing the public with unprecedented access to classified government documents, Julian Assange and his WikiLeaks enterprise may provide an answer to a question left open since the Supreme Court decided the Pentagon Papers case almost 40 years ago: Can a publisher be prosecuted for disseminating truthful information illegally obtained by a source without offending the First Amendment?

Like many complex questions of constitutional law pitting competing interests of the highest order against one another, the answer is:  It depends. But based on precedent—and, almost as relevant, on the current composition of the Supreme Court—it seems likely that the court would allow a case against Assange. The problem would be getting him to court.

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The Supreme Court has never addressed this issue head on in the years since the Pentagon Papers case. But in related cases it has found that holding the publishers of  illegally obtained information legally accountable violated the First Amendment, most recently in 2001 in Bartnicki v. Vopper.  In that case, the stakes were relatively low and any potential damage from publication of the information illegally obtained by the source was localized. The case concerned a conversation between the president of a Pennsylvania teachers' union and the union's chief negotiator illegally intercepted by a union opponent and turned over to the host of a local radio show. When the radio host broadcast the conversation, the union president and negotiator sued him for civil damages under a federal law that made it unlawful for any person to "willfully disclose ... to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained" illegally.

The Supreme Court assumed for the purposes of the case that the actions of the radio host (and other media) violated the law. Still, it found that the First Amendment prohibited the lawsuit. So what does Bartnicki tell us about the government's chances against Assange?

The first question is whether Assange violated any federal law. Justice and Defense Department officials have focused on a section of the 1917 Espionage Act that makes it a crime punishable by up to 10 years in prison for anyone "having unauthorized possession of ... any document ... 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 or to the advantage of any foreign nation," either to "willfully communicate ... the same to any person not entitled to receive it," or to "willfully retain the same and fail to deliver it to the officer or employee of the United States entitled to receive it."

Recognizing that good defense lawyers would put up a fight on each of them, let's assume Assange meets the elements of the crime:  1) he had unauthorized possession of classified documents; 2) they related to the national defense; 3) he had reason to believe the documents could be used to injure the United States or advantage a foreign nation, and 4) he willfully communicated the cables to people not entitled to receive them.  Let's also assume the government can get Assange into a U.S. court. 

Any First Amendment analysis concerning publication of classified documents must start with the Pentagon Papers case. In that 1971 case, the Supreme Court rejected the government's plea for an order prohibiting the New York Times and the Washington Post from publishing a leaked top secret study on America's policy in Vietnam. While it was a landmark victory for the press, the six justices in the majority agreed on very little except the result. (Each of them issued his own written opinion in addition to the half page per curium opinion they all joined.) The result was that, in the absence of a law passed by Congress, the courts could not take the drastic step of imposing a pre-publication restraint on the press. They disagreed, for example, on whether publication of the documents qualified as "communicat[ing]," "deliver[ing]," or "transmit[ting]" as those terms were used in the Espionage Act.  Thus, the court expressed no opinion on whether the First Amendment prevented post-publication prosecution of the publishers. 

As we know, with their Supreme Court victory in hand, the Times and Post went ahead publishing portions—but not all, and arguably not the most controversial parts—of the 7,000-page Defense Department report.  The government never tried to prosecute the publishers.  And the courts were never called on to answer the questions left open by the Pentagon Papers case.

Thirty years later, in Bartnicki, the court inched closer to resolving "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."  While the six-member majority once again sided with the media, a close examination of the court's rationale indicates the First Amendment shield might not be available to Assange.

The court began its analysis by accepting as true the following three assertions:

1) The disseminators (publishers and broadcasters) played no part in illegally obtaining the information.
2) No law prohibited the disseminators' receipt of the illegally obtained information.
3) The subject matter of the conversation was of public concern.

Then the court balanced the interest in promoting public discourse and the free flow of information about matters of public concern, on the one hand, against the interests in promoting private speech and in discouraging illegal interception of private conversations, on the other. The great public interest in the information tipped the scales, the court said.

A potential Assange prosecution would differ in several important respects. First, it would be a criminal case, and instead of monetary damages a prison sentence would hang in the balance. Next, the second Bartnicki court assumption—that there is no law against the receipt of illegally obtained information—doesn't hold for Assange: The Espionage Act prohibits that very thing. In addition, the first Bartnicki assumption—that Assange played no part in obtaining the information—is less clear: Did the leaker receive assistance or encouragement from Assange? Finally, the balance of interests is different—while the matters covered by the WikiLeaks disclosures might be of more monumental public concern, the potential damage to national security and foreign policy prerogatives is far more grave than the personal reputational injury alleged by a union president and negotiator. 

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