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.