Now that Julian Assange is in British custody in connection with Swedish allegations that he committed “sex by surprise” (pickle surprise?), the Justice Department has begun investigating whether he can be tried under the Espionage Act of 1917 for his publication of secret State and Defense Department documents. Adam Serwer frets that this is a quick and slippery slope to tyranny:
If WikiLeaks is prosecuted under the Espionage Act as it currently exists, then no journalistic institution or entity is safe. The idea that anytime that a journalist obtains a document that has “information related to the national defense” that could be used “to the injury of the United States” they could be subject to prosecution would destroy national-security journalism as it currently exists. Also frightening is the reality that government officials looking to skew public debates one way or another regularly leak information to the press, so the government would really only be prosecuting people for publishing leaked information they didn’t want leaked.
I can see two issues with this argument:
First, it presumes that Wikileaks and “legitimate” press organizations are exactly analogous under the law. Thanks to the Internet’s dispersion of dispersal technology, basically anyone can publish information and get it widely read. However, there is not yet sufficient case-law (I presume, please correct me if I am wrong) to determine whether all of these new entities, most of which are in effect private citizens acting independently, are covered to the same extent by the protections of the First Amendment as traditional media outlets. If the Lure, for example, were to use its minimal access to secret information to start violating Federal statutes, could we claim freedom of the press to shield ourselves from prosecution? Serwer tried to solve this issue by differentiating between “leakers” and “publishers” and claims only leakers should be held liable, while publishers, of any stripe, should be protected under the First Amendment. However, this seems intuitively incorrect. If Nick were to let some secret information slip to me privately (notice to NSA: this has not happened yet, despite my best efforts) and I publish it to the world on the Lure, it seems that I, and not he, is most culpable of indiscretion. So I think the leaker/publisher dichotomy is an inadequate solution to the Internet’s democratization of publication and some distinction must be made between different degrees of “pressdom.” In addition, the press recipients of the illegally obtained information do so passively: they do not actively seek out this information and instead receive it unsolicited. Wikileaks, by its very nature, distinguishes itself from other news organizations by actively soliciting secret documents and information, which Geoff Stone argues weakens their claim to protection under the First Amendment.
However, even assuming that Assange and Wikileaks are considered members of the press under full protection from the First Amendment, it still does not follow that their prosecution under the Espionage Act would threaten all journalistic investigations of privileged information. During the New York Times warrantless wiretapping scandal, some exasperated commenters wondered whether the freedom of the press is sacrosanct; whether the Times could publish whatever secret or illegally obtained information they wanted (nuclear secrets? wiretapped conversations?) so long as they were not the ones who broke the law obtaining it. The response was no, of course not; the Times was technically in violation of federal statutes and the Espionage Acts by possessing and disseminating privileged information, but were exempted from prosecution under the First Amendment so long as the information revealed involved matters of public concern or some public need to know, which the warrantless wiretapping information fell into. This assessment of the limits of the freedom of the press has been upheld by the Supreme Court in both Bartnicki v. Vopper and New York Times Co. v. The United States (the Pentagon Papers case).
But here we are, with a media outlet (such as it is) revealing secret information wantonly, without concern for its pertinence to the public debate, for the expressed purpose of embarrassing and frustrating the United States government, rather than informing the public, and Adam Serwer, amongst others on the American left, are arguing that even now we should not prosecute. They advocate for a seemingly limitless interpretation of the freedom of the press, as if any impingement thereof would crumble the whole edifice of protection. In the end, it will be this absolutist vision of everything or nothing (and not reasonable limitations on what some smug little anarchist can publish) which will dismantle press freedoms in America, for, if you make a state choose between a liberal people and its own survival, it will pick the latter every time.