Does Wikileaks Have a First Amendment Case Against Joe Lieberman?

by on December 7, 2010 · 15 comments

Amazon made headlines last week when it abruptly cut off service to Wikileaks, allegedly on the grounds that the site had violated Amazon’s terms of acceptable use. However, Amazon’s supposedly “voluntary” decision came less than 24 hours after Amazon received a phone call from Senate Homeland Security Committee staff (at the behest of Sen. Joe Lieberman) inquiring about the firm’s relationship with Wikileaks. According to a report in The Guardian, Amazon’s decision to terminate service to Wikileaks was a “reaction to heavy political pressure.”

That’s not all. Glenn Greenwald reported last week on Salon.com that another Internet company, Tableau Software, also decided to disable service to Wikileaks because of pressure from Joe Lieberman. Unlike Amazon, Tableau admitted that its decision was directly prompted by pressure from Lieberman. From Tableau’s statement:

Our decision to remove the data from our servers came in response to a public request by Senator Joe Lieberman, who chairs the Senate Homeland Security Committee, when he called for organizations hosting WikiLeaks to terminate their relationship with the website.

It’s difficult to see Joe Lieberman’s “public request” as anything but a thinly-veiled threat. Case in point: In addition to his staffers’ phone calls, Lieberman went on MSNBC last week, stating bluntly, “we’ve got to put pressure on any companies … which provide access to the Internet to Wikileaks.”

As Chairman of the Senate Homeland Security Committee, Lieberman is in a uniquely powerful position to push for legislation that might harm private firms like Amazon. He can also hold Congressional hearings, which frequently turn into public spectacles and garner massive media coverage. A company’s CEO enduring a congressional grilling on Capitol Hill can significantly impact that firm’s public image — and, in some cases, its stock price as well. While no individual Senator has the power to enact laws, promulgate rules, or enforce regulations, a single crusading politician can arguably cause cognizable harm to any U.S. company that pushes back against “requests” to suppress unfavorable content.

How does this implicate the First Amendment? As EFF’s Rainey Reitman and Marcia Hofmann pointed out on the DeepLinks blog, “The First Amendment to the Constitution guarantees freedom of expression against government encroachment — but that doesn’t help if the censorship doesn’t come from the government.”

There’s an important caveat to this point, however: When government coerces private entities into suppressing protected speech, it can trigger First Amendment scrutiny. Via my colleague (and First Amendment guru) Hans Bader:

In First Amendment cases, not only the party bound by a settlement or regulation, but also people whose speech or access to information is affected by it, have the right to challenge its restrictions.  (See Korb v. Lehman, 919 F.2d 243 (4th Cir. 1990) (A private employee could sue a government official under the First Amendment for pressuring his private employer to fire him for his speech, even though private employers can voluntarily terminate employees for their speech when the employer is not operating under government pressure); and Truax v. Raich, 239 U.S. 33 (1916) (The Supreme Court held a state government liable under the Constitution for pressuring a private employer to fire a private employee based on his being an alien, even though his employer could have voluntarily dismissed him without violating any law)).

Of course, as an elected legislator, Lieberman enjoys fairly broad First Amendment rights to express his own political views. As the Supreme Court ruled in Bond v. Floyd:

The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy.

While Lieberman’s tirade against Wikileaks was certainly related to matter of public policy, was he actually expressing an opinion on policy? Or was he simply threatening private firms for facilitating the dissemination of speech he didn’t like? Legislators rightly enjoy broad leeway to speak their minds about legislative matters and criticize their political opponents, but should a legislator’s own First Amendment rights enable him to trample the First Amendment rights of private citizens engaged in political discourse?

If the First Amendment doesn’t protect Sen. Lieberman’s attack on Wikileaks, he may still be immune from suit. Under the doctrine of qualified immunity, government officials including legislators cannot be held personally liable or forced to stand trial for committing unlawful actions in their official, non-legislative capacity unless they violate “clearly established law.” Legislators also enjoy absolute immunity for actions they undertake in a legislative capacity.

As the former Connecticut Attorney General, Sen. Lieberman should have known full well that his actions were directly antithetical to Wikileaks’ First Amendment rights. As such, a court might find that his conduct is not covered by qualified immunity. Consider, for instance, this excerpt from a ruling by the Eighth Circuit in Zilich v. Longo (34 F.3d 359):

We also agree with the findings of the district court that Zilich’s First Amendment right of free speech was “clearly established” for qualified immunity purposes. The law is well settled in this Circuit that retaliation under color of law for the exercise of First Amendment rights is unconstitutional, and “retaliation claims” have been asserted in various factual scenarios.

Even if Lieberman is covered by qualified immunity, however, Wikileaks might still be able to obtain an injunction to prevent Lieberman from making any further statements pressuring private companies to terminate service to Wikileaks. While this wouldn’t undo the harm the site has already suffered on account of Lieberman’s “public request,” it would still mark an important symbolic victory for Wikileaks — and for the First Amendment.

A crucial question in determining whether Wikileaks has grounds for a First Amendment claim against Lieberman is whether the site’s ongoing dissemination of the 250,000 leaked cables is protected by the First Amendment. On one hand, Julian Assange may be guilty of violating the Espionage Act of 1917, as Sen. Dianne Feinstein argues forcefully in an op-ed in today’s The Wall Street Journal. On the other hand, the Wikileaks website may well enjoy the same First Amendment protection that the publication of the Pentagon Papers was found by the Supreme Court to enjoy in New York Times Co. v. United States. Via the WSJ Law Blog, which recently interviewed Jack Balkin of Yale Law School:

On the First Amendment question, Balkin said most First Amendment lawyers would say that preventing the publication of material “is justified only where absolutely necessary to prevent almost immediate and imminent disaster. It’s an extremely high standard.”

Balkin said that the standard for exacting criminal punishment or winning a civil injunction after publication, as might be the situation in the WikiLeaks case, is less settled. “But one assumes the standard is going to be very very high too.”

An interesting 2005 opinion from the Eighth Circuit (Dossett v. First State Bank, 399 F.3d 940) suggests that Wikileaks might even have a case against Amazon as well, depending on the specific nature of the interactions between Amazon and Sen. Lieberman’s office. Under 42 U.S.C. § 1983, private entities may face civil action if they conspire with government to deprive anybody within U.S. jurisdiction of their constitutional rights. Under Dossett, if Amazon “willfully participated with state officials and reached a mutual understanding concerning the unlawful objective of a conspiracy,” Wikileaks may be able to collect damages for harm it incurred due to Amazon’s termination of its service.

Whether Lieberman’s actions are legal or not — and whatever you think about Wikileaks in general — his efforts to coerce private companies to terminate service to Wikileaks should deeply concern anybody who cares about free speech. As Glenn Greenwald put it:

That Joe Lieberman is abusing his position as Homeland Security Chairman to thuggishly dictate to private companies which websites they should and should not host — and, more important, what you can and cannot read on the Internet — is one of the most pernicious acts by a U.S. Senator in quite some time.

Unfortunately, this is just the latest instance of a politician “thuggishly” pressuring a private firm to stifle speech. A few months ago, I wrote about a group of state attorneys general successfully bullying Craigslist into terminating its legal “adult services” section. And back in 2008, I wrote about former New York Attorney General Andrew Cuomo strong-arming Usenet providers into shutting down dozens of newsgroups in their entirety simply because they contained a handful of illegal files.

A victory for Wikileaks against Joe Lieberman would set a powerful precedent discouraging thuggish politicians from campaigning against Internet sites protected by the First Amendment.

http://www.tableausoftware.com/blog/why-we-removed-wikileaks-visualizations

  • http://srynas.blogspot.com/ Steve R.

    It only gets worse. The New York Times has now reported that “In an interview with Fox News on Tuesday, Sen. Joe Lieberman suggested that the U.S. Department of Justice should charge Julian Assange with espionage and said that federal prosecutors should conduct a “very intensive inquiry” into the question of whether or not news organizations had committed a crime by publishing leaked documents obtained and distributed by WikiLeaks.

    According to a transcript of the interview, Mr. Lieberman, the chairman of the Senate’s Homeland Security Committee, was asked by the Fox anchor Jenna Lee, “are other media outlets that have posted what WikiLeaks has put out there also culpable in this, and could be charged with something?”

    Seems that Lieberman is following the footsteps of Joseph McCarthy and resurrecting the specter of McCarthyism. Will there soon be a new House Senate Committee on Un-American Activities”?

  • Larrry

    Is Wikileaks a U.S. entity? That is, does it even have U.S. Constitutional rights?

  • Ryan Radia

    That’s a very good question, and I’m not sure a definitive answer exists. Given that Wikileaks used to be hosted on a U.S.-based server (Amazon AWS) and may continue to receive U.S.-based hosting services, does that make the site subject to U.S. jurisdiction?

    This essay by Steven Aftergood is the most informative I’ve found so far on this question: http://www.firstamendmentcoalition.org/2010/09/wikileaks-congressional-research-service-says-publishing-afghan-war-diaries-not-criminal/

    An excerpt:

    “Could it be that the First Amendment provides protection to foreign publishers? There doesn’t seem to be a crisp yes or no answer to this question. But the CRS report, written by national security law specialist Jennifer K. Elsea, turned up a 1964 district court decision which suggested that foreign publishers do enjoy First Amendment rights, if only because American readers have a right to the information that they publish. “The essence of the First Amendment right to freedom of the press is not so much the right to print as it is the right to read,” that court ruled. Therefore, “the rights of readers are not to be curtailed because of the geographical origin of printed materials.”

    But what about the publication of materials that have been illegally acquired? That seems to be an open question. The CRS report cited a 1989 case (Florida Star v. BJF at footnote 8) where the U.S. Supreme Court said that the question of “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well” is “not definitively resolved.”

  • FrankAuto

    I think Lieberman is so pissed off because Wikileaks has a lot of info about how his beloved Israel is running America.

  • http://srynas.blogspot.com/ Steve R.

    My take, foreign entities may not have an explicit first amendment right, as Ryan, discussed; but then the US government would NOT have a right to assert “take down” or censorship authority in a foreign country. So can you be stopped from getting information from a foreign source?

  • Larrry

    Being subject to U.S. personal jurisdiction–which may or may not be the case depending on the extent of the business dealings with U.S. entities–isn’t really the question. Even if Wikileaks is subject to U.S. jurisdiction for a civil lawsuit (a question that can’t be answered in the abstract–personal jurisdiction over a defendant is determined based on the nature of the particular lawsuit), from a legal standpoint that doesn’t really help answer the question of whether the same party would have First Amendment (or other Constitutional) rights they can enforce by way of a lawsuit against a U.S. Senator (or any other government entity).

    In the hypothetical lawsuit you proposed, I think it would be very very very unlikely a foreign entity would be able to establish standing to initiate litigation claiming its First Amendment rights had been denied. (That’s long before we’d even get to the question of immunity.) Suing for the denial of civil rights (e.g,, Section 1983 of the Civil Rights Act) is different, by the way, than, say, the ACLU bringing a facial challenge to a statute like the Communications Decency Act. There are all kinds of procedural hurdles to overcome–standing, jurisdiction, mootness, sovereign immunity, etc.

    District Court opinions aren’t even citable as precedent, but I’m not surprised that’s the closest someone could find to dicta that even points in the right direction. The footnote from Florida Star isn’t even dicta, in that it doesn’t even suggest an answer! (That case involved publication of police reports regarding sexual assault, and the Court held that the victims could not stop publication.)

    Which isn’t to say it isn’t an interesting idea–but I don’t think the First Amendment would take Wikileaks very far.

  • Mwendy

    Good point.

  • Mwendy

    Ryan, your post could just as easily be applied to the net neutrality debate. Isn’t that what the FCC has proposed in re non-discrimination of content without the ability to charge what the market would bear?

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