Please Explain the WikiLeaks Situation Re: 1st Ammendment

December 10, 2010 3:26 PM

Julian Assange is going to be charged with spying for publishing the leaked WikiLeaks documents. How is this possible? Wouldn't the newspapers that published the documents be charged as well? What about the first ammendment? If I were to publish the leaked cables on my blog could I be charged as well? I guess I am trying to find out the legalities of this whole situation.
posted by MsKim to Law & Government (27 answers total)

If Bradley Manning has committed a crime, then in theory Assange could be charged with aiding and abetting that crime.
posted by Cool Papa Bell at 3:35 PM on December 10, 2010

Or perhaps conspiracy to commit that crime.
posted by Cool Papa Bell at 3:35 PM on December 10, 2010

Manning committed a crime (if what he is charged with he actually did): he downloaded and passed on classified documents though he had been told that to do so was illegal, a security crime, and punishable.

All else just jabber jabber at this point. The papers have the right to use what is out there in the public domain. (first Amendment). They did not steal anything etc. (in passing : my impression from exploring a bit, is that the American media is much more cautious in what they are publishing than are some European sources.
The two young women accusing Assange seem to have met and discussed things before making charges; now one of them, I have read, might have fled to the West Bank or Gaza, fleeing Sweden rather than testifying.
posted by Postroad at 3:41 PM on December 10, 2010

You can be charged with anything. His First Amendment defense might (or might not) have merit, but that doesn't necessarily stop the government from charging him with a crime. And even if newspapers could also be charged, that doesn't mean that they have to be-- that would be in the prosecutor's charging discretion.

If anyone had a link to the actual charges (the criminal complaint or some kind of charging document) that would be helpful for answering the question.
posted by J. Wilson at 3:42 PM on December 10, 2010

Among other reasons, not if Manning had the docs (or even intent, probably) before Assange knew about them. I'm very curious how they plan to sever this from NY Times.
posted by rhizome at 3:43 PM on December 10, 2010

I think the theory is going to be that Assange is not a journalist. A journalist writes stories, provides opinion, and gives their take on events.

Assange just dumps the documents on to the web. The problem is this, if everyone can "publish" to the web, then how about a Russian spy who just "publishes" his results to the web with no metadata or tags so it is so far down in google nobody notices? When he gets tried for espionage, voila, he's a "publisher."

There has to be a common-sense line where it is plain illegal to just place classified information on the web in bulk.

Also the conspiracy charges are an important aspect of this. Manning is a 19-year old kid, who may or may not have the hacking skills to get the information he did--remember it wasn't all just taking stuff he had access to, he used password guessing and packet-sniffing too and took stuff via hacking that he was not entitled to.

Assange is an experienced hacker, who plead guilty to 24 counts of hacking in 1992. So did Assange provide any assistance to Manning in hacking? This is a question that has yet to be answered. If the answer is yes, I really do not see how he gets out of this. The US will put out an extradition request and boom!

Remember also that there are no absolute constitutional rights. The government may take our rights to freedom or anything else, but only with due process of law. So there are some things that the government may ban from being published or spoken. And it has won a case or two in these areas.

If I were to publish the leaked cables on my blog could I be charged as well?

The actual contents of the cables, not summaries or analyses? I'd consult with competent counsel before ever, ever doing something like that.

Among other reasons, not if Manning had the docs (or even intent, probably) before Assange knew about them. I'm very curious how they plan to sever this from NY Times.

The case is inapplicable. That's a civil case regarding prior restraint. These are criminal matters. Many have thought for years that the NY Times could have been charged criminally in the case. The prosecutions of the two leakers failed due to prosecutorial misconduct.
posted by Ironmouth at 3:59 PM on December 10, 2010

The two young women accusing Assange seem to have met and discussed things before making charges; now one of them, I have read, might have fled to the West Bank or Gaza, fleeing Sweden rather than testifying.'

They've already provided the statements they need. They both have an attorney who is representing them in Sweden. Only Assange's lawyers are saying she "fled" Sweden.
posted by Ironmouth at 4:01 PM on December 10, 2010

What about the first ammendment?

The First Amendment is not absolute. No right is absolute.

Over the years, the Supreme Court has carved out a number of limited exceptions to free speech and free press: child porn, fighting words, direct incitement to violence, and certain others.

Releasing government secrets is also not necessarily protected by the First Amendment. It looks like he's going to be charged under the Espionage Act of 1917. Wikipedia says:

The Espionage Act of 1917 (USC 18, Pt 1, Ch 37)[1] is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I.

It prohibited any attempt to interfere with military operations, to support America's enemies during wartime, to promote insubordination in the military, or to interfere with military recruitment. In 1919, the U.S. Supreme Court unanimously ruled in Schenck v. United States that the act did not violate the free speech rights of those convicted under its provisions.

posted by Chocolate Pickle at 4:03 PM on December 10, 2010

Apparently, its pretty complicated and unclear.

Your question seems to loosely assume that since clearly the New York Times or your blog didn't couldn't possibly have committed a crime, then WikiLeaks didn't either, but that doesn't appear to hold, meaning it doesn't seem clear that the media haven't violated the letter of the Espionage Act. I don't know jack about this but I've been wondering about it too and trying to get people who might understand it better to explain it. What I've got back:

Back when the Pentagon Papers were leaked, the US Government did charge the NYT with a crime for publishing stuff from them, see New York Times Co. v. United States. The case went to the Supreme Court, and while the NYT was found not guilty, it was a 6-3 decision, and even the concurring opinions used different rationales to exonerate the Times. On the issue of the first amendment:

The Justices' opinions included different degrees of support for the clear superiority of the First Amendment and no Justice fully supported the government’s case. Because of these factors, no clear and exclusive verdict appears to have come out of this case. Nevertheless, the significance of the case and the wording of the Justices’ opinions have added important statements to the history of precedents for exceptions to the First Amendment, which have been cited in numerous Supreme Court cases since.

A lawyer friend pointed to this blog post. Relevant to your question's invocation of the first amendment:

Let me say at the outset that I wholeheartedly agree with Kevin as a pure matter of law — if the dissemination of these cables by WikiLeaks violates the letter of the Espionage Act, I have a hard time seeing how the dissemination of the same by major media outlets (or, dare I say, us) wouldn’t also fall within the terms of the statute. Indeed, 18 U.S.C. § 793(d) and (e) prohibit even the wrongful retention of national defense information, whether one disseminates it or not. The question is whether there might be some other way to legally distinguish between Assange and WikiLeaks, on one hand, and “beneficent” news outlets, on the other. And lest we put too fine a point on it, this is a very big deal; the principal restraint on the scope of the Espionage Act vis-à-vis the media has historically been prosecutorial discretion, not the Constitution [strong tag mine]. After all, the Supreme Court has steadfastly refused to give the Press Clause of the First Amendment any meaning separate from the Speech Clause, as a result of which it is virtually impossible to say that the First Amendment distinguishes between materials published by a Wiki as compared to by the Paper of Record.

You should probably just read the whole post, though.
posted by jeb at 4:14 PM on December 10, 2010

I second jed, but for the Cliff Notes version:

How is this possible?

He violated the Espoinage Act.

Wouldn't the newspapers that published the documents be charged as well?

Prosecutors could certainly choose to do so.

What about the first ammendment?

Well, what about it? That's kind of the crux, here. First Amemdment rights are not absolute. They can be trumped by other rights and obligations. Oliver Wendell Holms, the Supreme Court justice, famously used the example of shouting "Fire!" in a crowded theater as a situation where's the speaker's right to free speech would be subserviant to the need to protect the safety of the public --- you're not free to use your speech to cause a riot/stampede in which people could be hurt or killed. They can arrest you for that.

By extension, the government has historically been held to have the right to keep certain information secret, in order to perform its duty of defending the country and protecting its citizens --- the location of troops and military bases during war is an obvious example.

The Wikileaks case would come down to a judge deciding whether the paper's and Wikileaks right to free speech does or does not outweigh the government's right to protect information in this instance.


If I were to publish the leaked cables on my blog could I be charged as well?

Sure, if prosecutors wanted to.
posted by Diablevert at 4:26 PM on December 10, 2010

Two things that I think are relevant and make this different from a standard first amendment journalism case:

1- There is the accusation out there that Assange/Wikileaks didn't just receive the information from Manning, but helped or guided him in the gathering of that info. That is completely different than the traditional news-printing-secrets case, where the information just shows up in an envelope and the news org pretty much has no (ethical) choice but to publish it.

2- There is the view that Assange/Wikileaks has been releasing the information in a non-journalistic way. A typical news organization receives information like this and immediately begins processing and disseminating, because there are two complimentary motivations going on: the public's right to know, and the news org's desire to "scoop" the other orgs. Wikileaks seems to have organized the distribution of the info with some other motivation in mind.

(I'm not saying this is what actually happened, but that I believe it is the motivation for charging him with spying and not the other newspapers.)

In other words, they believe that Assange/Wikileaks did more than receive and expeditiously publish.

And yes, you can look at this as a test case: how far can a news organization go before "gathering" information turns into "taking" information. Maybe the facts will show that he broke no laws. Maybe they will show that the laws are too strict. Who knows.
posted by gjc at 4:29 PM on December 10, 2010

By publicizing the idea that he's going to be charged with spying, they're producing a chilling effect on other people (such as yourself, who might now be reluctant to republish this stuff on your blog.) Everything beyond that, stand by to see what the lawyers will come up with, but as Chocolate Pickle mentions, there's a law tailor-made for cases like this (that is, cases where someone does something the government doesn't like.)
posted by davejay at 4:31 PM on December 10, 2010

>I think the theory is going to be that Assange is not a journalist. A journalist writes stories, provides opinion, and gives their take on events.

Legally irrelevant. The Press Clause of the First Amendment has never-- not once-- been interpreted to offer any protection beyond the confines of the Speech Clause.

Also, New York Times v. United States was a prior-restraint case. Prior restraints of speech are more dubious under the First Amendment than criminal prosecutions for past speech.
posted by J. Wilson at 4:33 PM on December 10, 2010

After all, the Supreme Court has steadfastly refused to give the Press Clause of the First Amendment any meaning separate from the Speech Clause, as a result of which it is virtually impossible to say that the First Amendment distinguishes between materials published by a Wiki as compared to by the Paper of Record.

I just wanted to point this specific piece out. Because I think it is good law and good policy, and could be good for Assange.

The court can't make a distinction between speech and "the press" because everyone has the right to both. To say that "the press" has any different rights than speech necessarily restricts one or the other. You shouldn't have to start a newspaper to be able to engage in some kind of speech, nor should being a member of the press restrict one's right to free speech. They are the same thing, really.

Which is good for Assange, because if the case hinges on whether he is a journalist or not, precedent says that doesn't make a difference.

Where it might be seen as bad for Assange is through the eyes of someone who believes the press DOES enjoy some greater freedom than a schlub with a blog.
posted by gjc at 4:39 PM on December 10, 2010

I think it is important for people to understand that, historically, what we're talking with the Espionage Act of 1917 is a broad law which historically was used to prosecute for what we would call sedition. Eugene Debs was jailed for it, various Socialist politicians and the like were jailed for anti-war activities under this law, and Ellsberg and Russo were indeed charged under the Espionage Act. That ended in a mistrial, not an acquittal.

But let me reiterate: historically, the Espionage Act has been a tool to silence political enemies and to jail "subversives" and evil types like antiwar activists and socialists. Prosecuting someone like Assange under this statute is like digging up the Alien and Sedition Acts, or Dred Scot or something.
posted by Justinian at 4:57 PM on December 10, 2010

This is all coming from his lawyer. I'd take it with a chunk of salt until we see actual charging documents. She really doesn't know what the US DOJ is going to do. My best guess is that this charging decision is being briefed/debated at the top of DOJ & the White House at this point and they very well may decide not to charge Assange, or not to charge him under the Espionage Act.
posted by semacd at 5:00 PM on December 10, 2010

Strange, I thought this question had a link in it. Did it? It was a link to someone's diary entry in Daily Kos, which gave commentary on a link to a speculative article in the Daily Mail.

The Daily Mail is not a very credible news source, but it does talk about the Espionage Act and all the ways that the writers at the Daily Mail believe this might happen someday.
posted by Houstonian at 5:45 PM on December 10, 2010

I've been a bit fascinated by this. Since I'm not a lawyer, this is just what I've come to understand from reading various articles and asking some folks who were former prosecutors. It seems that there are lots of decisions that have to be made including which crimes he may have committed, the extent to which he is soley liable and the ultimate likelihood of the legal strategy in containing damage to US interests.

In an aggressive strategy they may seek to present Assange and other key members of the Wikileaks group as a kind of cyber criminal gang. This would let them use tools like RICO to go after a number of leaders in the organization. They could also seek to pursue him as an enemy combatant and Wikileaks as a foreign terrorist organization. This would subject the defendants to military tribunals.

Right now it seems like they have adopted a much less aggressive strategy than I expected. There are talks of investigations, and arrests of a few token members of anonymous over the DDOS attacks. Yet today the DOJ and Whitehouse denied any pressure on visa, MC or Paypal. That doesn't mean that Leibermans staff isn't sending out nastygrams.

I suspect they are looking to find evidence that Assange Played some kind of accessory Crome
in the data thefts. Was Manning executing crawler and cracking scripts provided b wikileaks. Did WL spy or just get tue data.
posted by humanfont at 7:34 PM on December 10, 2010

I think the theory is going to be that Assange is not a journalist. A journalist writes stories, provides opinion, and gives their take on events. Assange just dumps the documents on to the web.

No, Wikileaks practices what they call scientific journalism where the sources are publishing alongside their opinion pieces to achieve "maximum political impact". This means describing the content (e.g. "Collateral Murder") as well as editing, giving context, opinion, in typical journalist fashion:

One constant criticism of Wikileaks' helicopter video has been that its heavy editorial slant clashed with the supposed objectivity of the material they presented. Colbert challenged Assange on this point: "You have edited this tape, and you have given it a title called 'collateral murder.' That's not leaking, that's a pure editorial." Assange responded that Wikileaks promises their sources that they will "try and get the maximum possible political impact for the material the give us." According to Assange's formulation, Wikileaks is essentially an advocacy group whose strength lies in its ability to secure incriminating documents. (gawker)

posted by holloway at 8:25 PM on December 10, 2010

It doesn't matter whether Assange is a journalist or not, because journalists are not special in the eyes of the law. Journalists like to pretend otherwise, but it ain't so.
posted by Chocolate Pickle at 10:21 PM on December 10, 2010

As for whether or not you can be charged for republishing cables, as the others have all mentioned above, it depends on what the prosecutor decides. But then, a friend of mine in Montreal (a 23-year-old grad student), Canada, has just been added to a civil case simply for reading the documents, so I would be very careful.
posted by Phire at 2:41 AM on December 11, 2010

Jeb is wrong. The New York Times was not charged with a crime in the Pentagon Papers case. It was sued in a civil action by the government, with a request that the court issue an injunction against further dissemination of the documents. The government cited the Espionage Act as justification for its request for relief. The case is most prominent for its confirmation that prior restraints are highly disfavored in First Amendment cases. It does not tell us anything about sanctions that can be applied after publication. This article is cited on the Wikipedia page cited by Jeb and provides some detailed analysis.
posted by yclipse at 5:45 AM on December 11, 2010

In the US if you say sell something or buy something that you knew was stolen its also a crime. NOw I do not know how international law is on that subject.
posted by majortom1981 at 6:25 AM on December 11, 2010

But then, a friend of mine in Montreal (a 23-year-old grad student), Canada, has just been added to a civil case simply for reading the documents, so I would be very careful.

Phire - the latest updates on your friend's Twitter feed show that the call was a prank.
posted by Gortuk at 6:33 AM on December 11, 2010

Uh.... Assange is not a US Citizen. The Constitution, its amendments are for US Citizens and subjects, not Saudis, the Chinese, Germans, or anybody else who is not a citizen and/or within the USA.

How, exactly, in the hell is the US Gov. going to prosecute him for doing something that isn't in their jurisdiction? Do we rule the world now?

Every time I drink a beer, I am sure I violate a law in Dubai regarding alcohol. Ditto pot. Am I at risk of arrest by a foreign power?
posted by FauxScot at 2:53 PM on December 11, 2010

FauxScot: "How, exactly, in the hell is the US Gov. going to prosecute him for doing something that isn't in their jurisdiction?"

Extraterritorial jurisdiction.
posted by lex mercatoria at 4:39 PM on December 11, 2010

Uh.... Assange is not a US Citizen. The Constitution, its amendments are for US Citizens and subjects, not Saudis, the Chinese, Germans, or anybody else who is not a citizen and/or within the USA.

Yeahhhh.... you should probably retake Civics or whatever. The Constitution protects and recognizes the rights of both citizens and non-citizens, although there are certain specific rights which it limits to citizens. Secondly, since the Constitution protects rights mostly by limiting what the government can do, whether a particular person is a citizen or not is immaterial.

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.

Your theory would be that the government could make it illegal for non-citizens in the USA to be Muslims, or Jews, or Christians but not do the same for citizens. That is not the case.
posted by Justinian at 6:16 PM on December 11, 2010