The Public Professor occasionally makes room for esteemed guest writers. Today we feature guest blogger Scott Pilutik, J.D. on the legal and journalistic issues surrounding the WikiLeaks controversy.
The latest WikiLeaks story is occupying an inordinate amount of my recreational reading time. But referring to the ongoing WikiLeaks “story” in the singular sense underscores its importance to freedom of speech, the press, and the internet. It’s less a story, really, than an epic opera cycle – Der Ring des Assangelum – the final act of which will impact us all, for good or ill, but probably for ill if recent history is our guide.
On the surface, there are the leaks themselves, which have received scant coverage, at least relative to their import. Did you know the United States is conducting a secret war in Yemen? Me neither. There are also the on-again, off-again, on-again rape allegations by two Swedish women against Julian Assange and his subsequent arrest by Interpol (Special Victims Unit). There is the breathless, apoplectic response from American politicians jockeying to be seen out-damning Assange to hell. Of course there is Assange himself: high-minded saint of whistle blowing or narcissistic asshole motivated by infamy and martyrdom? It seems as if he relishes the niche he has created for himself, but to what 
degree should that even matter? And then there are the third party financial intermediaries: Visa, Mastercard and Paypal have practically tripped over each other accommodating government requests to prevent their customers from donating to WikiLeaks. And finally there are WikiLeaks’ vigilantes, collectively known to the media as Anonymous, some of whom have taken down, by denial-of-service attacks, the websites of Wikileaks’ adversaries, including the aforementioned financial groups, Joe Lieberman, Swiss bank Post Finance, and Assange’s Swedish prosecutors.
But perhaps the most compelling act in the cycle will be the issue of WikiLeaks’ legal liability in the United States. Attorney General Eric Holder has apparently acceded to the political winds and empaneled a grand jury in Virginia to indict Assange under the 1917 Espionage Act (18 U.S.C. § 793), which criminalizes the “willful” disclosure of “information relating to the national defense.” As many have already pointed out Holder will have to tread across thin legal ice in order to successfully prosecute Assange.
The most obvious hurdle is the lack of precedent. The Espionage Act has never been successfully used to convict a media entity. Furthermore, the rarely used statute is poorly 
written. In the seminal New York Times Co. v. United States (the Pentagon Papers case), Justice John Harlan described it as “singularly opaque,” and other legal commentators have described it as both “incomprehensible,” “impenetrable,” and “vague.” Consequently, judges have tended to interpret it as narrowly as possible, finding that defendants must not only commit the acts prohibited by the statute, but that they must have intended to violate the law. So the government has its work cut out for it, even before Assange gets to his First Amendment defense.
Prior to publishing the State Department leaks, Assange sent letters to the U.S. ambassador in London inviting the United Sates to suggest redactions. This laid the foundation for his defense by demonstrating his intent to not violate the law. Indeed, he stated his intent in a second letter: “WikiLeaks has absolutely no desire to put individual persons at significant risk of harm, nor do we wish to harm the national security of the United States.” U.S. prosecutors 
will have a difficult time portraying these overtures as bad faith. Given the rhetorical tenor thus far, the government will likely respond that it doesn’t negotiate with terrorists.
Aside from arguing the inapplicability of the Espionage Act to himself and/or WikiLeaks, Assange will find significant support in the First Amendment, which states “Congress shall make no law . . . abridging the freedom of speech, or of the press.” The Supreme Court has declined multiple invitations to define the press clause as distinct from the speech clause, most notably in the Pentagon Papers case, which would nevertheless serve as a blueprint for Assange’s defense (despite being a case about the prior restraint of classified material; Assange would be prosecuted for having already published classified material).
The Pentagon Papers case involved ex-U.S. military analyst Daniel Ellsberg leaking thousands of pages of an internal study prepared by the U.S. Defense Department on the Vietnam War. The government attempted to enjoin both the New York Times and 
Washington Post, to whom Ellsberg had leaked the study, and the case quickly found its way to the Supreme Court. Though the Supremes ultimately found that the government failed to meet its “heavy burden” to restrain publication, the six concurring justices did not fully agree on the extent of the First Amendment’s protection for the institution of the press. Justice Hugo Black was most supportive, reasoning that, “[o]nly a free and unrestrained press can effectively expose deception in government,” and “[i]n revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.”
At the time the Constitution was drafted, the press we know today barely resembled an institution. Although newspapers existed, they carried little content of any import, and so it seems unlikely that the drafters of the Constitution considered newspapers the bulwark of this so-called “press.” Rather, big ideas were published in books and in pamphlets, one of the most famous of which, Thomas Paine’s Common Sense, was first published in 1776. 
More than half a million copies were distributed throughout colonial America. An interesting contextual note: Paine’s Common Sense was first published anonymously. Perhaps more importantly, the Federalist Papers, a series of pamphlets written by founders James Madison, Alexander Hamilton, and John Jay, were also published anonymously. These two major works both served as primary influences for the Constitution, and the conditions from which they sprung most likely were on Madison’s mind when he drafted the Bill of Rights guaranteeing press freedom.
This should help explain why the government has trained its rhetoric on Assange as opposed to WikiLeaks. The case in the court of public opinion will be over before it starts if WikiLeaks is considered, as it should be, a press institution and thus afforded the attendant First Amendment protections. Conversely, to an alarming number of public officials, Assange is a terrorist; his most strident critics have even called for his assassination. To be sure, much of the government’s rhetoric is meant for public consumption, and winning the debate means being the party to define the issue. If the issue is Assange, as opposed to the leaks, the government not only controls the debate, but is not called to account for the content of the leaks.
Of course, there’s a limit to responsible journalism, and to what constitutes the public interest. But I’ve yet to see an argument based in factual evidence that demonstrates how WikiLeaks has crossed that line. Nevertheless, perhaps the most alarming aspect of this 
drama is how the media, even the allegedly liberal media, wasted so little time in lock-stepping behind the government’s demonization of Assange, helping turn the debate on the fulcrum of Assange’s motives as opposed to the actual leaks. It goes well beyond Fox News anchors sarcastically pronouncing Assange’s name with a comically-thick French accent. For example, on NPR last week, the New York Times’ David Sanger took great pains to distinguish the Times – which has published information leaked by Assange – from WikiLeaks:
TERRY GROSS: Do you consider Julian Assange a journalist?
DAVID SANGER: I don’t, and the reason is that I believe what journalists do is not only dig out information but filter it, explain it, put it in context, do those things that you’ve come to expect of the New York Times and other great American newspapers and other media organizations for many decades. That’s a very different thing from simply downloading a computer system and throwing it out onto the World Wide Web.
He’s coming to this with a political motivation. As journalists at the Times and elsewhere, we are not. We are coming at this to explain the world. He was trying, to use his own words, to embarrass the United States and make clear that America’s actions are different than its rhetoric.
I believe this characterization of Assange’s motivation is somewhat unfair. Sanger is thoroughly disingenuous in his attempt to paint the Times as a responsible “digger” and “filter,” and WikiLeaks as a reckless internet document dumper. WikiLeaks approached the government before publishing, redacted information on their own, and ultimately published little more than the Times did; of the more than 250,000 documents received, it has published only 1,269. WikiLeaks also “explained it,” and “put it in context,” though not to the sneering satisfaction of Sanger or the rest of the media. WikiLeaks has repeatedly been characterized as indiscriminate, though the facts suggest the opposite.
But even playing devil’s advocate and accepting the motives Sanger ascribes to Assange, it would ultimately be irrelevant to a court charged with determining whether Assange should be afforded the same protections enjoyed by Sanger’s employer decades earlier in the Pentagon Papers case. And inasmuch as Sanger represents the press as an institution ultimately reliant on the First Amendment, his comments insidiously betray that institution, in deference to his employer’s myopic goals.
By endorsing a narrow and self-serving view of which entities constitute “the press,” Sanger and his ilk undermine and even threaten their own existence. Because if WikiLeaks is guilty under the Espionage Act, then so too is the Times, and indeed many others. Even Geraldo Rivera pointed out that if WikiLeaks is guilty, so is his employer, Fox. Sanger’s short-sightedness is also remarkable in that WikiLeaks has only become relevant, and indeed necessary, as a result of the traditional media failing in its gatekeeper role. It was the Grey 
Lady, after all, which helped pave the road into Iraq: star reporter Judith Miller’s coziness with government sources led her to inaccurately assess the credibility of serial liar Ahmad Chalabi, the government’s inside source on the subject of WMDs. The Miller debacle should have served as a wake up call for the Times, but here again the Times forgets that its constitutional protections derive from its role as an adversary to the government, not as its protector.
The overreaction to WikiLeaks, for both its hysteria and reliance on myth over fact, is another example of how little the rule of law has come to be respected in America. We have become a deeply paranoid nation whose reaction to each perceived threat is to create new, even unconstitutionally retroactive laws and regulations grounded in exceptionalism, without regard to core values. Instead of placing the incident in historical context, we too often say to ourselves: This time it’s different — there oughta be a law!
Some have argued that WikiLeaks differs from the New York Times’ publication of the same documents because WikiLeaks was not passive in its pursuit of classified documents. But if 
this distinction is to matter in any legal sense, we will all suffer because the door will have been opened to scrutinize the motivations of all journalists. And isn’t the pursuit of classified documents a core function of investigative journalism? Perhaps what we really want are less nosy journalists, like David Sanger. The old canard has it that we get the government we deserve. But if we’re not careful, the government will make sure to limit us to the press we deserve too. And I’d like to think we deserve more.
Scott Pilutik is a New York City-based attorney with a background in art, who enjoys writing on the intersection of law, religion, and speech, when time allows.