MMC 5206
Assignment on Oct. 12th
Jing Jin
TOPIC: What Happens When the First Amendment and Free Speech Collide?
A Look at the WikiLeaks Case
Jing Jin MMC 5206
Section I
The 45 words began to protect our freedom of speech since it was adopted in 1791.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a redress of grievances.”1
The collision in New York Times Co. v. United States case and the WikiLeaks case is
between the freedom of speech, which is guaranteed by the First Amendment, and the secrecy of
government to maintain national security. In New York Times Co. v. United States the newspaper
claimed for the right to publish secret documents on Viet Nam War, while the government asked
for a prior restraint to ban the newspaper from publishing those articles for the reason that they
were a threat to national security. In the WikiLeaks case, Julian Assange claims for the right to
reveal government’s secrets while United States wants to prosecute him for releasing secret
information which may bring injuries to the nation.
Section II
New York Times v. United States also known as Pentagon Papers case was a remarkable
case in the American legal history because it guaranteed the right of the press’s political speech.
In this case, New York Times published an article entitled “History of U.S. Decision-Making
Process on Viet Nam Policy” after a three-month analysis of 7,000-page documents including
top-secret articles. And the Washington Post published the article too. The United States required
a prior restraint on the publish of these articles because the government believed that publishing
1
The First Amendment to the United States Constitution
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these secret articles would harm national security and bring bad effects to the ongoing Viet Nam
War. The New York Times case and the Washington Post case were decided together.
The Supreme Court of the United States reversed the Court of Appeals for the Second
Circuit in the New York Times case and affirmed the Court of Appeals for the District of
Columbia Circuit in the Washington Post case. The Court held that the Government had not met
the burden of showing justification for a prior restraint. The votes are 6:3.
Justice Black and Justice Douglas concurred with the Court’s decision. Near v. Minnesota,
283 U.S. 697 (1931) was cited to support their view. In Near v. Minnesota case, the Supreme
Court ruled that the statute in Minnesota “imposes an unconstitutional restraint upon
publication.”2 That case made clear that no prior restraint can be put upon speech.
Justice Brennan concurred but cited Schenck v. United States, 249 U.S. 47, 52 (1919) to
state that this case “may not be taken to indicate the propriety, in the future, of issuing temporary
stays and restraining orders to block the publication of material sought to be suppressed by the
Government.”3 In the case Schenck v. United States, the Court stated in the opinion that “When a
nation is at war many things that might be said in time of peace are such a hindrance to its effort
that their utterance will not be endured so long as men fight and that no Court could regard them
as protected by any constitutional right.”4
Justice Stewart and Justice White believed that the government had not met the heavy
burden of proving that a prior restraint was a must in this situation. Justice Marshall discussed
the power of the Congress, the President and the Court. He stated that, “It (The Constitution) did
2
Near v. Minnesota, 283 U.S. 697 (1931)
New York Times Co. v. United States, 403 U.S. 713 (1971)
4
Schenck v. United States, 249 U.S. 47, 52 (1919)
3
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not provide for government by injunction in which the courts and the Executive Branch can
‘make law’ without regard to the action of Congress.”5 Thus the government did not have the
power to require a prior restraint which was against the First Amendment.
Chief Justice Burger, Justice Harlan and Justice Blackmun dissented with the Court’s
decision. Justice Harlan cited Mr. Justice Holmes’s dissenting opinion in Northern Securities Co.
v. United States to state that the decision was made in haste and many questions should be well
considered before ruling including the question of “whether the Attorney General was authorized
to bring these suits in the name of United States, which involved the construction and validity of
the Espionage Act, 18 U. S. C. §793 (e).”6
In conclusion, the Court ruled that no prior restraints can be issued to ban the press from
publishing classified information.
Section III
Not long ago, a case brought a heated discussion about the conflict of the First
Amendment and free speech, which is the famous WikiLeaks case. WikiLeaks is “a non-profit
media organization dedicated to bringing important news and information to the public”.7 It was
founded by Julian Assange in 2006 and publishes documents revealing governments’
confidential information as well as corporations’ secrets. In December 2011, WikiLeaks released
250,000 diplomatic cables which infuriated officials around world including the U.S. Department.
The United States was trying to prosecute Julian Assange under the Espionage Act.
5
New York Times Co. v. United States, 403 U.S. 713 (1971)
New York Times Co. v. United States, 403 U.S. 713 (1971)
7
Website: wikileaks.org
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The similarities of New York Times Co. v. United States case and the WikiLeaks case are
as follows. First of all, they are both caused by the release of National Defense Information
which is classified as secret documents. Secondly, they both involve publishers and sources who
are officials or employees of the United States. Thirdly, the United States wants the publishers to
stop releasing secret documents.
By applying the decision in New York Times Co. v. United States, we may bring forward
following thoughts on the WikiLeaks case. “Both the history and language of the First
Amendment support the view that the press must be left free to publish news, whatever the
source, without censorship, injunction, or prior restraints.”8 Justice Black wrote. On one hand,
according to Justice Black’s opinion, WikiLeaks has every right to publish information without
any prohibition. On the other hand, considering Justice Stewart and Justice White’s opinion, if
United States wants to stop WikiLeaks from releasing secret documents the government has to
meet the burden of proving the releasing information will bring harm to security of this nation
and its people, which is the case with United States v. The Progressive, Inc. when government
met the burden of justifying the imposition of prior restraints.
However, the situation in WikiLeaks case is a bit different from that in the New York
Times Co. v. United States case or the United States v. The Progressive, Inc. case. To begin with,
the government of the United States is not requiring a prior restraint to ban WikiLeaks from
publishing but charging WikiLeaks for releasing classified information under the Espionage Act.
The fact is the secret information has already been published. What is more, with the
complication brought by technology makes the case even more difficult. As Jack Balkin, a First
Amendment expert at Yale law said, “It would likely be difficult for the Department of Justice to
8
New York Times Co. v. United States, 403 U.S. 713 (1971)
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gain jurisdiction against a foreign entity like WikiLeaks.”9 And also Daniel Ellsberg in the New
York Times Co. v. United States held some extremely important documents from publishing, but
WikiLeaks is different. They do not edit news. And as Floyd Abrams said, “It (WikiLeaks) has
sometimes served the public by its revelations but it also offers, at considerable potential price, a
vast amount of material that discloses no abuses of power at all.”10
Since the similarities and differences have been discussed, it is the time to look closer into
the WikiLeaks case. Chief Justice Burger in the New York Times Co. v. United States case
mentioned some questions which should have been considered. The first one was “Whether the
Attorney General is authorized to bring these suits in the name of the United States. This
question involves as well the construction and validity of a singularly opaque statute—the
Espionage Act, 18 U. S. C. §793 (e).”11 To see if United States can successfully bring down
Julian Assange and his WikiLeaks under the Espionage Act, a thorough consideration about this
act is a necessity.
The Espionage Act was passed on June 15, 1917. As Chief Justice Burger described in his
opinion, the Espionage Act was a “singularly opaque statue.” Until now, there was only one
American government official who convicted for giving classified information to the press,
whose name is Samuel Morison, a former American intelligence professional.12 Bradley
Manning, who leaked secret information on Afghan War to Julian Assange in this case, clearly
can be charged under the Espionage Act. However, the press and the journalists have never been
9
The Wall Street Journal Law Blog, Pentagon Papers II? On WikiLeaks and the First Amendment, 07/26/10 website:
http://blogs.wsj.com/law/2010/07/26/pentagon-papers-ii-on-wikileaks-and-the-first-amendment/
10
The Wall Street Journal Opinion, Why WikiLeaks Is Unlike the Pentagon Papers, 29/12/10 website:
http://online.wsj.com/article/SB10001424052970204527804576044020396601528.html?
11
New York Times Co. v. United States, 403 U.S. 713 (1971)
12
New York Times, Anthony Lewis, Abroad at Home; The Pardons in Perspective, March 3, 2001
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punished before for releasing classified information. In the case United States v. Truong the
Circuit Court wrote about the Espionage Act that, “This ambiguity is particularly disturbing
because government information forms the basis of much of the discussion of public issues and,
as a result, the unclear language of the statute threatens to impinge upon rights protected by the
first amendment.”13 The Espionage Act is used primarily for government officials. And that’s
why the situation in the United States v. Rosen case was specially. But the government stopped
the prosecution after being required to prove the two lobbyists Rosen and Weissman acted with a
“bad purpose”, which gave the press a relieve for fearing the prosecution of journalists may be
followed after this case.14 However, the history brought us again the dilemma.
On a broad scale, I believe that the United States can prosecute Julian Assange under the
Espionage Act. But no former case can be referred to because it is almost a common
acknowledge that the protection of the First Amendment overrides the charge under the
Espionage Act. What is more, it is hard for the government to meet the burden of proving the
releasing information can do harm to national security. It will be difficult to take down the
WikiLeaks. Since the ambiguity of the Espionage Act, Congress is considering to amend it with
the Securing Human Intelligence and Enforcing Lawful Dissemination Act, which is known as
the SHIELD Act.
The SHIELD Act makes it clear that publication of classified information is criminal,
which put the press in a dangerous place that the government can prosecute the press for
publishing secret documents. I agree with Stone that,
13
United States v. Truong Dinh Hung, 629 F.2d, 908 (1980)
WikiLeaks and the Espionage Act of 1917, Can Congress make it a crime for journalist to publish classified
information, Emily Peterson, website: http://www.rcfp.org/news/mag/353/wikileaks_and_the_espionage_act_of_9.html
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“Although this Act may well be constitutional as applied to a government employee who
unlawfully ‘leaks’ such material to persons who are unauthorized to receive it, it is
plainly unconstitutional as applied to other individuals or organizations who might
publish or otherwise disseminate the information after it has been leaked. With respect to
such other speakers, the Act violates the First Amendment unless, at the very least, it is
expressly limited to situations in which the dissemination of the specific classified
information at issue poses a clear and present danger of grave harm to the nation.”15
Also, there exists another problem in the SHIELD Act. The act is too broad to be specific
in the definition of a crime made by publishing or transmitting classified information, which is a
similar or even bigger problem as that in the Espionage Act. It includes too many people and
these people’s freedom of speech is protected by the First Amendment. The court will be still
facing the dilemma that they have to decide which right comes to the first, the national security
or the First Amendment right. If the SHIELD Act is to be enacted, we might lose a lot of great
journalism work.
Section IV
WikiLeaks case, as far as we have discussed above, is a truly comprehensive one and that
is why it have raised heated debate in the field of law.
In my opinion, it will be unconstitutional to prosecute Julian Assange and WikiLeaks. On
one hand, I think the Espionage Act is constitutional. In the Schenck v. United States case, Justice
Holmes sets out the “clear and present danger” test:
“The most stringent protection of free speech would not protect a man in falsely shouting
fire in a theatre and causing a panic. [...] The question in every case is whether the words
used are used in such circumstances and are of such a nature as to create a clear and
15
WikiLeaks and the First Amendment, Geoffrey R. Stone, January 4, 2011, website:
http://www.huffingtonpost.com/geoffrey-r-stone/wikileaks-and-the-first-a_b_804381.html
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present danger that they will bring about the substantive evils that Congress has a right to
prevent.”16
This statement made it clear that the First Amendment does not protect a certain kind of
speech which may create danger. The kind of information forbidden to be transmitted in the
Espionage Act is classified information which is of great important to national security. It
protects the security of this nation and its people. It overrides the First Amendment rights when a
serious injury may be brought to this country, like the situation in the Schenck v. United States
case and the United States v. The Progressive, Inc. case. On the other hand, WikiLeaks is just a
medium for the leakers to post things and it does nothing to the classified information. Moreover,
if the government prosecuted Julian Assange under the Espionage Act, then it will face an
extremely heavy burden, which I think they may not meet, to prove that information exposed on
WikiLeaks will injure national security.
If it is unconstitutional to prosecute Julian Assange and WikiLeaks, then of course it is
unconstitutional to prosecute the New York Times. The reasons are mostly the same stated above.
In fact, for the New York Times, it is exactly the same thing happened in Pentagon Papers. They
received secret documents, researched on it, edited it and published it. They did nothing actively
to obtain the secret information. The press should have the right to speak as the First Amendment
guaranteed. They are doing the same thing just as their predecessors did.
As far as I see this case, WikiLeaks and the New York Times should not receive the same
level of First Amendment protection. Firstly, the content showed on WikiLeaks and the New
York Times was surely different because the New York Times has done some journalism work
before publishing. And like in the Pentagon Papers case, not only the articles published did not
16
Schenck v. United States, 249 U.S. 47, 52 (1919)
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harm national security but they let people know what they deserved to know and thus guarantee a
democratic government. However, things may be different with WikiLeaks because Julian
Assange and his coworkers do not edit documents they receive. For instance, it revealed a lot of
names in Afghan War which may make them in danger. WikiLeaks is not a publisher as I see it
because it does no journalism work like verifying the truth by research or limiting the probable
harm to the minimum. WikiLeaks and the New York Times are two different roles. The New York
Times is a responsible publisher while WikiLeaks is just a platform on which information gathers.
And also, WikiLeaks is a foreign organization and the New York Times is a domestic newspaper.
They are playing different roles here and therefore share different kind of protection by the First
Amendment.
The proposed SHIELD Act is unconstitutional as I stated before, agreeing with Geoffrey
Stone. It is constitutional to regulate the government officials but unconstitutional to regulate
publishers or journalists. In the Landmark Communication v. Virginia case and the Bartnicki v.
Vopper case, though they are not cases related to the Espionage Act, they can provide us a view
of the protection given by the First Amendment. In the Bartnicki v. Vopper case, the Court held
that “the radio station not liable because the radio station itself did nothing illegal to obtain the
tape. The case stands for the rule that media defendants are not liable even if a third party
violated the law.”17 If the SHIELD Act is constitutional, then it is constitutional to prosecute
Julian Assange as well as the New York Times. Because they all participated in publishing or
transmitting classified information. However, the government still has the burden of proving the
information exposed will bring injuries to the nation.
17
Bartnicki v. Vopper, 532 U.S. 514 (2001)
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If I were the government, I may investigate deeper into Julian Assange to see if there is
any conspiracy in the process of getting the information. If the government can prove that Julian
Assange has an intention to harm the nation from the beginning, then it may succeed in
prosecuting Julian Assange under the Espionage Act. And also, the government can find another
statute that may bring down Julian Assange and WikiLeaks for example the Computer Fraud
and Abuse Act. It is a law passed in 1986 intending “to reduce cracking of computer systems and
to address federal computer-related offenses.”18 Or as suggested in Emily Peterson’s article on
WikiLeaks and the Espionage Act of 1917, “statues that punish the theft of knowing receipt or
retention of stolen or converted government property or records and on that protects information
concerning the identity of covert intelligence agents” may apply this WikiLeaks case.19
18
Wikipedia, website: http://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act
WikiLeaks and the Espionage Act of 1917, Can Congress make it a crime for journalist to publish classified
information, Emily Peterson, website: http://www.rcfp.org/news/mag/353/wikileaks_and_the_espionage_act_of_9.html
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