Andy on the Road

11 December 2010

Wikileaks and the First Amendment

Filed under: Berkman,freeasinspeech,soapbox — Andy @ 5:31 pm

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.

Background: Free Speech vs. Free Press, and Protection for Aliens

Before diving into this, there’s two odd rumors out there that need clearing up.

First, there seem to be many out there that think that Wikileaks is not protected because they are not “journalists” or a “news” organization.  True, Julian Assange is not Sy Hersh and Wikileaks is not the New York Times, but that doesn’t mean he is not entitled to First Amendment protection.  To the extent that the press gets constitutional protections as an institution, it is only above and beyond the standard right to speak and disseminate information to which all are entitled.  And it is this general right, and not the special protections of the press, that will save Assange from an Espionage Act prosecution.

Constitutional protections afforded only to the “press” appear limited to certain specific tax provisions (Minneapolis Star v. Minn. Comm’n of Revenue), and (maybe) the right for reporters to protect their sources from judicial discovery in some cases (Branzburg v. Hayes).  The Supreme Court has consistently held that the press does not get other special protections, such as exemptions from antitrust laws (Associated Press v. United States), labor laws (Associated Press v. NLRB), or the laws of contract (Cohen v. Cowles Media).  It’s possible that these commentators are confusing the First Amendment with state laws that do protect “news organizations” above others from time to time, but no such distinction is found in the Constitution.  Indeed, there are scholars that suggest that the Framers intended “press” and “speech” to be used interchangeably.

Second, there are those who would suggest that because Assange is Australian the United States could punish him in a way that would not be permissible if done to an American.  I have never seen a case that suggests that the government can criminally punish a noncitizen speaker in a circumstance where they couldn’t punish a similarly situated citizen.  Professor Volokh has a nice summary of the law on point, but one can generally state that, absent a few specific considerations related to immigration and deportation, the government cannot criminally punish the speech of a noncitizen if it could not do so for a citizen.  (Citizens United could be contorted to state that the protections for campaign contributions weigh less for foreign contributors, but that is only in dicta and in this strange world of money-as-speech.)  Even if the government could punish Assange under some sort of citizens-only theory, the right to speak protects both the speaker and the recipient of information (Bd. of Educ. v. Pico, PG&E Co. v. Pub. Utils. Comm’n, Va. State Bd. of Pharm. v. Va. Citizens Consumer Council).  Thus, it is both the rights of Wikileaks to disseminate and our collective right to receive what Wikileaks is disseminating that dictates application of the First Amendment here.

With these two points aside, we can turn to the substance of protection.

1. Prior Restraint

The First Amendment, above all else, protects against laws which restrain speech before the speech is made.  The Supreme Court has consistently held that prior restraint on speech will virtually never be tolerated.  This was most famously articulated in the Pentagon Papers Case (a frequent guest in discussions of this nature).  There, the United States attempted to stop the New York Times from releasing the Pentagon Papers, a classified military study of the Vietnam War.  In the per curiam decision, the Supreme Court vacated an injunction against publication, stating that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” (Quoting Bantam Books, Inc. v. Sullivan.)  How heavy is that “heavy presumption?”  In short, quite heavy.  National security interests in an ongoing war weren’t enough to overcome it (Pentagon Papers).  It was not overcome when disclosure threatened to impact a criminal defendant’s right to a fair trial (Nebraska Press Ass’n v. Stuart).  Indeed, a naked prior restraint never been found permissible by the Supreme Court, absent some other factor which undermined First Amendment protection.

When might a prior restraint be allowed?  The oft-cited speculative language of Near v. Minnesota proposes such a case.  There, Justice Hughes suggested that the “sailing dates of transports or the number and location of troops” – i.e. present dangers of life and limb in the context of war – might rise to that level.  Professor Chemerinsky in his esteemed treatise on constitutional law suggests that the government could stop the press from reporting that we broke the Enigma Cipher in World War II.  We almost saw another close case in 1979, when the instructions for making a hydrogen bomb were going to be published in Progressive Magazine, but the United States dropped its criminal case before it reached federal appellate court. So we don’t know for sure, but we know it is this caliber of danger – the present location of troops, the disclosure of a secret that directly changed the outcome of the Second Word War, or the instructions for making the most powerful bomb in human history – that might allow for prior restraint.

But, of course, Wikileaks was not restrained from publishing before they had a chance to do so.  The cables got out there.  So why does the prior restraint doctrine matter?  I would argue that the principles of prior restraint are equally applicable to Wikileaks and thus warrant the same extreme judicial caution.  Content posted on the Internet stands in a unique state of constant republication.  Any order which commanded the removal of content from the Internet would prevent all from accessing the documents unless they had the foresight to download them, even those that had viewed them previously.  This has the effect of taking the information out of the public’s mind, as it is nearly impossible to engage in dialogue around information if that information can no longer be cited.  Had the Pentagon Papers come out today the Times would surely publish them online, and I believe the Supreme Court would find ordering the web takedown of that information equally repugnant to the First Amendment.  Indeed, the New Hampshire Supreme Court in Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. found exactly that, vacating an order which restrained a website from posting formerly-posted material as equally offensive to free speech as prior restraint, and subject to the same scrutiny.

2. Heightened Protection of Speech After Publication

The Supreme Court has consistently defended those that seek to disseminate true facts on a matter of public concern, even after sensitive information is published.  While the Court has been quite careful to not articulate a categorical rule,  there is a general principle that comes from a series of cases that if a source “lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.”  (Smith v. Daily Mail Publ’g Co.)  Under this holding the Supreme Court has shielded speakers from civil damages under anti-wiretapping laws (Barnicki v. Vopper), criminal prosecution for publishing the name of a juvenile offender (Daily Mail), and punishment from disclosure of confidential information related to a judicial disciplinary proceeding (Cox Broad. Corp. v. Cohn).

And so the question we had in prior restraint we ask again for subsequent punishment: What is a state interest “of the highest order?”  Once again, it’s unclear.  Certainly if the speech is adjudicated to be in one of the unprotected classes of speech (obscenity, imminent incitement of crime, “fighting words,” etc.) it can be punished, but that presupposes that the speaker is not simply disclosing facts on matters of public concern, as all of those classes would permit such disclosure absent some other bad act.  The Court has seemingly held that some level of personal privacy could be a state interest of the highest order, but not when that information is published after being obtained from public records (Florida Star v. B.J.F.).  Even when personal privacy or due process of law is at stake, the court has found in favor of the speaker when the remedy sought was not narrowly tailored to the specific state interest.

Turning to government secrets, we have seen a few cases that impose a duty not to disclose truthful information when placed in a confidential relationship by virtue of a government position (such as a CIA Agent, in Snepp v. United States, or a federal judge in United States v. Aguilar, or the ranking member of the House Ethics Committee in the D.C. Circuit opinion Boehner v. McDermott).  But these positions of governmental authority suggest an affirmative, contractual waiver of rights, which has always been held to be binding notwithstanding free speech implications (Cowles Media).  As with prior restraint, it is hard to think of an exception that would apply here, as the Court has never found it.

3. Subsequent Dissemination of Unlawfully Disclosed Information

So assuming here that it was unlawful for Assange’s source to disclose these to Assange as he or she was likely in a governmental position imposing a duty not to disclose, do we let that poison Assange’s own disclosure of information?  The Supreme Court seems to suggest, at least in many cases, that we cannot.  The case on point here is Bartnicki again.  In Bartnicki a local radio personality was sued by members of a teachers union after he broadcast a surreptitiously recorded cell phone conversation between the plaintiffs.  The recording was made by an unknown third party, in violation of state and federal wiretapping laws.  The Court held that even though the source of the information obtained it unlawfully, subsequent disclosure of the tapes could not subject the broadcaster to liability, at least where the subjects disclosed were on matters of public concern and the broadcaster did not induce the unlawful behavior (the second restriction emanates from Justice Breyer’s concurring opinion).  Quoth the court, “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”

Two subsequent Circuit Court cases have colored the Bartnicki opinion.  The first I mentioned earlier – Boehner v. McDermott – which declined to find free speech protections when, among other things, the person disclosing the unlawfully recorded information held a duty of confidentiality as ranking Democratic member of the House Ethics Committee.  But the other, Jean v. Mass. State Police, more clearly supports Wikileaks.  In Jean, the First Circuit rejected criminal punishment for a person who disclosed an unlawfully recorded video on a website, even when the source violated wiretapping laws when recording the video and the disclosing party had reason to know of that violation.  The First Circuit thus held that Bartnicki was not limited to the innocent speaker who did not know that a piece of information was disclosed to her unlawfully.  So long as the speaker was not the one that broke the law, it seems, you cannot punish the speaker.

Applying the Doctrines

With these three doctrines in mind, some general statements can be made about Wikileaks. First, one can look at Snepp, Aguilar, and Boehner and find grounds to punish Bradley Manning, as Manning assumed a confidential relationship by virtue of being in the Army (if indeed he did leak the documents as is alleged).  This can be characterized as either contractual or by virtue of a special duty-bound relationship to the government.  Manning waived some rights when becoming a member of the Army with access to confidential information, and that waiver is enforceable against him.  (Again, I’m not commenting one way or the other on the merits of what Manning did.  I’m simply predicting how the First Amendment plays out here.)

But we can see from Bartnicki (and more clearly from the First Circuit in Jean) that Manning’s unlawful act may not mean that we can find Assange liable for subsequent disclosure. Assange was not the one that breached a duty of confidentiality, Manning was.  This is admittedly a closer relationship than either Jean or Bartnicki, as the unlawful act is the disclosure itself and Assange quite certainly knew of the action’s illegality.  But if we take Bartnicki and Jean to hold that so long as the reporter is not inducing disclosure they cannot be prosecuted for a source’s bad actions, then clearly Assange is still protected.  Thus the theory for punishment of Wikileaks here cannot be tied to Manning’s bad behavior, it must be due to the harm of disclosing the information itself.

This is where characterizing the actions of the government as subsequent punishment or prior restraint could change the outcome of the case, as the latter holds a much higher protection than the former.  But based on what we know about these cables, it seems pretty certain that it does not implicate a “state interest of the highest order” as that term is understood in Daily Mail, and almost certainly fails the nearly-insurmountable standard of prior restraint from Pentagon Papers.

One can invent up a set of facts that might rise to that level.  Say the cables disclosed the identity of CIA agents operating in these countries, the battle plans in Afghanistan for the next month, or perhaps the cryptography key that allows soldiers to control Predator drones.  Based on the commentary of courts and scholars one can presume that these sorts of secrets might meet the standard.  But embarrassing details and gossip from diplomatic channels?  Hardly.  Even information related to the prosecution of the “War on Terror” and after-the-fact revelations about bad actions taken by the United States and her allies pale in comparison to the magnitude of information at risk in the Pentagon Papers.  Absent something far more more shocking and overwhelming, or something more directly tied to the life and limb of soldiers and other government agents, we simply are not there yet.

Of course, this is frontier law at its finest.  We don’t necessarily know what state interests will allow for prior restraint or subsequent punishment.  We don’t know if the Court will distinguish this case from Bartnicki, and find that Assange was just too close to the unlawful disclosure to not be held responsible.  These are once-in-a-decade cases that necessarily call our entire system of beliefs into question.  But the case law as it stands today strongly suggests that because Wikileaks did not actively induce the unlawful disclosure, and because the disclosure was over a mater of public concern, the government is almost certainly prevented from completely restraining publication of the information, and likely cannot penalize Wikileaks or Assange in any other way.

Update 8:45PM: Jonathan Zittrain, Tim Hwang, Ethan Zuckerman, Jillian York, Dan Gillmor – all Berkman folk, all very brilliant, and all with interesting perspectives on Wikileaks. All worth reading. Plus, I just learned that Media Berkman ran a special installment on Wikileaks, with these folks and more. I’m just starting it, but it sounds excellent.


  1. Thoughtful and well-informed as usual!

    Here’s an IANAL question: In a case like Bartnicki, could the radio personality conceivably be required to disclose the source’s identity? If not, how do we know that the recording was made by an “unknown third party”? Could someone like Assange unlawfully obtain diplomatic cables but claim that they were provided by a third party? And if the radio personality is required to disclose the source’s identity, doesn’t that contradict the Court’s ruling in Bartnicki?

    Comment by Joey Mornin — 13 December 2010 @ 12:46 pm

    • Hey Joey,

      Thanks! IANAL too, but here’s my take: generally speaking, raising a First Amendment defense will require you at some point to make a sworn statement regarding the factual circumstances around the event in question. So at some point Vopper (the defendant in the Bartnicki case) stated under oath how he received it. (There it was given to him by a man named Yocum, after Yocum received it in a non-addressed envelope in his mailbox, so I don’t think Vopper could have revealed the source even if he wanted to.)

      What I think you’re getting at with your question is could a “reporter” ever be required to reveal a “source,” by subpoena or other circumstance. That is a question of reporters’ privilege, which is a particularly messy chunk of law. The First Amendment may or may not afford some privilege for reporters to guard their sources, but if it does it’s most certainly a qualified privilege, which can be overcome by showing a particular need. This comes from the Branzburg v. Hayes opinion I cited above, where four Justices found no privilege, four Justices found a privilege, and lonely Justice Powell finding a qualified privilege, which was overcome by the facts of that particular case. So protection under the First Amendment is far from clear.

      Several circuits (including the D.C. Circuit, a likely home for a Wikileaks case) have followed Powell and found a qualified privilege emanating from the Constitution. Most states have also acted to pass their own laws regarding reporters’ privilege. This is one of those areas where whether we consider Wikileaks a “news” organization or an organization engaged in “newsgathering activity” might make all the difference. States often require the entity be a news organization before finding privilege. For much, much more, check out the CMLP Legal Guide.

      Comment by Andy — 13 December 2010 @ 2:27 pm

    • As you can see, this is not a reply to your comment, but is intended as a comment on the entire article. Simply I do not know how to send it in to the author. Will you oblige me either sending it to him or advising me of a simple way to send this to him? Thanks. — WDT

      What can we learn from WikiLeaks imbroglio? – III
      by Winthrop Drake Thies, J.D., LL.M. 1-27-11

      “Gentlemen do not read other gentlemen’s mail.” Thus Robert L Stimson explained his earlier action as Secretary of State in closing down State’s cypher bureau.

      “Congress shall make no act…abridging freedom of speech, or of the press…”. First Amendment to U.S. Constitution.

      The Espionage Act of 1917 ( which does not contain an injunction provision) cannot be used to enjoin the New York Times from publishing the Pentagon Papers. New York Times Co. v. U.S., 403 U.S. 719 (1971) This was a 6-3 per curiam decision in which nine opinions were written. All of such opinions are thus dicta: nice essays on the supposed law, but not holdings proper on the law. They have no precedental force.

      Much ink has been spilled over WikiLeaks’ dissemination of U.S. State Department cables, many of them classified, thereafter published in redacted form by NY Times, the Guardian and other world papers. (But apparently none were classified “Top Secret” or higher.) The alarums have subsided. With some two months’ perspective can we soberly decide what this incident has and has not done?

      Some claim this “Changes Everything”: journalism, diplomacy, our societies. And yet the Republic has not perished. And the work of the world and its governments appears to go on much as before. Oh, perhaps there will be less foolish attempts to classify great masses of routine documents. Perhaps those not having a bona fide “need to know” will be blocked from rummaging through the Republic’s papers. And diplomats will be more circumspect in the opinions they memorialize. But we have had big leaks before–witness the Pentagon Papers–and life goes on. Indeed, it fairly appears that this imbroglio has changed very little. (Meanwhile, Stimson’s words are dismissed as quaintly naive.)

      Will the young private who, it is charged, leaked the documents to WikiLeaks be prosecuted? Most assuredly–and if the facts widely released be true–he’ll be sentenced to a severe term.

      Will WikiLeaks and its officers be charged with serious violation(s) of U.S. law? It fairly appears so. If WikiLeaks has done anything of deep value, it has caused us to revisit the Pentagon Papers case and the entire First Amendment-free press area.

      The Pentagon Papers case does not stand for the proposition that one who has not participated in stealing or unlawful converting government documents but thereafter publishes them knowing them to have been unlawfully converted is not guilty of violation of the law. As noted above, the only charge to which the Supreme Court there responded was supposed violation of the Espionage Act. And the only remedy sought by the government was an injunction to restrain publication of the Papers.
      But the Espionage Act of 1917 does not contain an injunction provision: it is a criminal statue. And the hornbook law is that an injunction will not lie to restrain commission of a crime.

      All the beautiful opinions in the Pentagon Papers case, invoking Holmes and Brandeis and other supporters of free speech and freedom of the press–these are stirring essays. They are not, however, statements of settled law. In sum, the issue stated in the first sentence of the prior paragraph remains open.

      Meanwhile, however, the Department of Justice is looking for ways to prosecute WikiLeaks and its officers. It has many routes open it. First, the Espionage Act. Then criminal violation of copyright: copyright protections attach to documents prior to publication (Harper & Row Publishers, Inc. v Nation Enterprises, 471 U.S. 579 (1985).

      But the most direct route of attack is the simple statue making it a crime to steal government property, including “any record”, or receiving such contraband, knowing it to have been stolen or unlawfully converted. 18 U.S. Code 641. Penalty: up to 10 years imprisonment plus a fine. Notice that this theft statute does not even touch on free speech issues.

      That there has never been a successful government prosecution of an “innocent” third-party for publishing documents which came into its hands lawfully is not conclusive on whether a case may well lie. The advisers to the NY Times who have reportedly opined that there is no risk to the Times are rather whistling in the dark. The government may well refrain from indicting the Times on prudential bases: that it would look bad. There are no such concerns in going after an organization which has been equated with terrorists: WikiLeaks and its officers.

      That those to be charged are not U.S. persons and that the acts complained of all occurred without the U.S–these are not barriers to an effective prosecution. The U.S. routinely (and properly) prosecutes and jails foreigners whose actions impinge adversely on the U.S., whether they be bombers of our embassies or those attempting to fix ocean
      freight rates in the North Atlantic or the price of vitamin C.

      As Reuters noted on Dec. 21, 2010: “There is little question that the release of government documents by WikiLeaks was unlawful. The real debate is elsewhere: whether the benefits of leaking the recent State Department documents are larger than the costs; and, more broadly, whether the ideals of free speech [and press are] worth breaking the laws to uphold. In other words, this is a debate over civil disobedience.”

      Courts will seldom set aside clear criminal statutes on such prudential grounds. Dr King, after all, went to Birmingham jail. The draft resisters of World War Ii ended up in Danbury prison. Thoreau was in Concord jail for not paying his poll tax. Those who engage in civil disobedience must be prepared to pay the price. While we debate the laws challenged.

      But what should not be permitted is that shoddy and incomplete scholarship put forward erroneous statements on the law.

      Mr Thies is a retired attorney and student of history and economics.

      Comment by Winthrop Drake Thies — 27 January 2011 @ 9:45 am

  2. Thanks!

    In the first section, you kind of sidestep the question of whether Wikileaks is a “news” organization, noting that everyone is entitled to basic level of First Amendment protections. But it seems that when it comes to the protection of sources, it matters quite a bit whether the Powers consider it a “news” org or not. What do you think? What about someone who sets up a Wikileaks mirror?

    Comment by Joey Mornin — 13 December 2010 @ 2:39 pm

    • Yeah, in some states protection of sources can turn on whether the “reporter” is some form of institutional newsgatherer. As a matter of policy, I’m definitely in the camp of those that believe that we should protect anyone, provided they are engaged in newsgathering activity. In short, look at “reporting” as a verb instead of “reporters” as a noun. The argument on the other side is usually rooted in the fear that people will assert privilege frivolously, anytime they are trying to protect someone from prosecution. Limiting protection to reporters as we all understand the term guards against frivolous assertion.

      Note, though, that the usual context for being forced to reveal a source is not a lawsuit or indictment against the reporter directly. It’s usually a “John Doe” lawsuit against the actual leaker, with a subpoena served on the reporter to reveal the source. All that reporters’ privilege laws dictate is whether Wikileaks would have to reveal the source’s identity under such subpoena or other formal request. I think it’s fair to say that protecting Wikileaks from civil or criminal liability directly (such as an Espionage Act claim) is a question of First Amendment law that applies equally to all. I think Assange’s defense under any form of Espionage Act prosecution is equally strong if he is acting alone or with the New York Times.

      There are, of course, practical consequences for being forced to disclose sources. The next leaker will be far more hesitant to talk to Wikileaks, or will prefer to disclose to someone like an institutional journalist, a much better candidate for protection under any privilege regime. That damages the ability of Wikileaks to operate, albeit indirectly.

      Comment by Andy — 13 December 2010 @ 3:02 pm

  3. This is a helpful article with a nice summary of some of the law. The documents released, when read broadly and analyzed, are troubleing in what they reveal. In some cases, it is not the opinions or thoughts of the embassy staffs in what they are writing or even the documents noted as secret for their actual content. It is more what learns about the structure of our intelligence and drug enforcement community, their methodologies, personnel (by name) and the damage being done to our ability to confer with foreign leaders confidentially, which is absolutely necessary to get things done. It is these issues and some others which, in my mind weigh against the First Amendment issues in this situation. I was not so convinced until I began to read the actual cables and then it became apparent that this cannot and should not be allowed for our own preservation. Do we need more transparency in what we are doing? Yes. Just read today’s NYTimes concerning the massive DEA structure which is now worldwide. Should that transparency derive from leaks like this? No. The damage being done is too great and the outcome does not justify the means.

    Comment by jeffreynewmanlaw — 26 December 2010 @ 12:18 pm

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