Goldsmith on Assange, WikiLeaks, the First Amendment & Press Freedoms

by on February 11, 2011 · 4 comments

There’s a sharp piece in today’s Washington Post from Jack Goldsmith, currently with Harvard Law but formerly an assistant attorney general in the Bush administration, about “Why the U.S. Shouldn’t Try Julian Assange.”  Goldsmith points to the sticky First Amendment / press freedom issues at stake should the U.S. try to go after Assange and WikiLeaks:

A conviction would also cause collateral damage to American media freedoms. It is difficult to distinguish Assange or WikiLeaks from The Washington Post. National security reporters for The Post solicit and receive classified information regularly. And The Post regularly publishes it. The Obama administration has suggested it can prosecute Assange without impinging on press freedoms by charging him not with publishing classified information but with conspiring with Bradley Manning, the alleged government leaker, to steal and share the information. News reports suggest that this theory is falling apart because the government cannot find evidence that Assange induced Bradley to leak. Even if it could, such evidence would not distinguish the many American journalists who actively aid leakers of classified information.

One reason journalists have never been prosecuted for soliciting and publishing classified information is that the First Amendment, to an uncertain degree never settled by courts, protects these activities. Convicting Assange would require courts to resolve this uncertainty in a way that narrows First Amendment protections. It would imply that the First Amendment does not prevent prosecution of American journalists who seek and publish classified information. At the very least it would render the First Amendment a less certain shield. This would – in contrast to WikiLeaks copycats outside our borders – chill the American press in its national security reporting.

Quite right, and it’s a point bolstered by another editorial that also appeared in the Post a few weeks ago by Adam Penenberg of New York University, in which he made the case for treating Assange as a journalist. Penenberg asks: “What constitutes “legitimate newsgathering activities”? How do you differentiate between what WikiLeaks does and what the New York Times does?”

Importantly, Goldsmith correctly notes that, practically speaking, a prosecution of Assange probably wouldn’t do much to put the genie back in the bottle. “A successful prosecution, on the other hand, would not achieve the desired deterrent effect,” Goldsmith says. “WikiLeaks copycats are quickly proliferating around the globe, beyond the U.S. government’s effective reach. A conviction would make a martyr of Assange, embolden copycat efforts and illustrate the limits of American law to stop them.”  Again, quite right. It’s a point I’ve stressed in my recent essays about the challenges faced by information control regimes.

Anyway, Goldsmith’s entire piece here.

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  • Larry

    I offer no opinion on whether or not a prosecution would be sensible or productive. But I am confused by the assumption (here made by Jack Goldsmith, who I know knows what he’s talking about) that there is a First Amendment issue here. Assange is not a U.S. citizen, and WikiLeaks is not a U.S. organization. I can’t find any Supreme Court cases that suggest the First Amendment applies to foreign journalists and foreign publications no matter what their pedigree. (As John Perry Barlow once said, “In cyberspace, the First Amendment is a local ordinance.”)

    Do Jack or anyone else concerned with First Amendment implications of a prosecution have any cases or or other authority to the contrary that I”m missing? Or do we just assume that in a global marketplace of ideas, the First Amendment extends to anything read by or concerning U.S. citizens? While that would certainly be a great development, I’m doubtful that the U.S. Supreme Court would agree.

  • Catherine Ann Fitzpatrick

    Assange doesn’t gather the news; he hacks the news. You should read the Wired chat logs between Lamo and Manning, it looks as if Assange in fact colluded on the hack.

    I agree with Floyd Abrams, First Amendment attorney for the Times during the Pentagon papers: Assange is a source, not a journalist.

    Should sources be tried? I’m less worried about the “chill” the left keeps invoking on free speech implied with attempting to revive old espionage laws to try Assange — and I’m even less interested in whether or not Assange is tried. What matters is whether we can morally and ethically bless this form of anarchism as the way to create a transnational stateless entity that takes over our lives (and already has encroached considerably). It’s really about whether a weak state can challenge this powerful new state actor which, if totally in power, would care not a wit for the rule of law and private property.

  • Catherine Ann Fitzpatrick

    John Perry Barlow apparently never read the Universal Declaration of Human Rights and Art. 19, which, while less free than the First Amendment, is still an affirmation of free speech. The US has signed the UN International Covenant on Civil and Political Rights and so we affirm at least that level of free speech abroad — but indeed Art. 19 has exceptions for reasons of “public order” — and this case might be a perfect example of a violation of such a notion.

    We all get it that Assange is not a citizen and nothing applies to him — in fact we can’t even be sure the espionage law will stick. So what? These are international principles we can debate.

    The U.S. does not recognize UN convenants as self-acting and don’t enforce them in many respects, believing that U.S. law is a higher standard.

    The question is really about whether the U.S. could convince another country — the UK or Sweden — to extradite Assange. That seems unlikely. When John Bolton travels to the UK, there are groups urging that he be arrested for war crimes in Iraq. And the UK is not going to turn over anyone to the US if there is any question of the application of the death penalty.

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