I’ve been meaning to write up a few thoughts on Wikileaks, but finals have kept me fairly busy. I have a bit of a break before round two of finals, so I wanted to take a couple hours to put some thoughts up here. I’m not especially interested in engaging on a broad-strokes merits argument of Julian Assange, the so-called “Cablegate” leak, Operation Payback, or the Interpol warrant. Instead I want to focus on the question that seems to be coming up in the press all month but has not been answered cleanly: How exactly does the First Amendment play out here?
I’ve spent a great deal of time considering the First Amendment implications of leaking confidential sources on the Internet. A lot of this analysis comes from the two amicus briefs I worked on while at the Berkman Center’s Cyberlaw Clinic, both dealing with websites that disclosed confidential information. (And to that end I owe thanks to the Clinic and the CMLP for helping me develop this analysis over two summers.) There are three discrete sub-doctrines of First Amendment law that inform my conclusion here, but I believe that, at least under the facts as they are currently understood, Assange and Wikileaks could not be punished in the United States for their actions.