Tuesday, January 4, 2011


For some time now, Julian Assange, founder and editor of the website WikiLeaks, has been publishing U.S. government secrets that he allegedly received from an army private employed at the Pentagon. See article from Wall Street Journal. The army private allegedly downloaded thousands of secret and classified documents from his Pentagon computer and, thereafter, delivered the documents to WikiLeaks and its editor. Now people are calling for Mr. Assange to be prosecuted under the Espionage Act. See article from Wall Street Journal.

If you have not seen it, this is what the Wikileaks website looks like.  You can currently reach Wikileaks at

The Espionage Act makes it a crime for a person to be in possession of a U.S. government secret and transmit that secret to another party who is not entitled to receive it. Certainly in this case Mr. Assange is in possession of U.S. government secrets and has transmitted it, via the web, to the world. Therefore, at first glance there appears to be some justification for investigating further whether the Espionage Act applies to these acts.

The rub here is that the First Amendment right to free speech possibly trumps the Espionage Act. This blog post is not to make an opinion about whether or not Mr. Assange has violated the Espionage Act and/or is protected by the First Amendment. Rather it is to point out the similarities between the case of New York Times vs. the United States, aka the Pentagon Papers case, and let you determine whether Mr. Assange is protected by the First Amendment right to free speech.

In the Pentagon Paper case, the U.S. government sought to enjoin (or stop) the New York Times and other newspapers from publishing a classified study entitled, “History of U.S. Decision-Making Process on Vietnam Policy” and other government secrets. Just as in the Wikileaks matter, in the Pentagon Papers case a government informer revealed top secret papers to a third party, journalists. Thereafter, the Journalists sought to publish the secrets.

When the government learned of the Pentagon Papers leak, it sued to stop the publication on the theory that the publication would violate the Espionage Act. Lower courts enjoined the publication of the secret papers. However, when the injunction made its way to the Supreme Court, the Supreme Court ruled that the U.S. Government was not entitled to stop the publication of the confidential report.

Justice Black delivered the opinion of the court denying the injunction against the New York Times. In the opinion, Black states, “I believe that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.” Justice Black further states that the continued injunction “would make a shambles of the First Amendment.”

As if these words were not clear enough, Black went on to write the following:
Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: "Congress shall make no law . . . abridging the freedom . . . of the press . . . ." Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In 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.
Justice Black’s elegant words showed unequivocal support of a newspapers’ right to publish government secrets. Mr. Assange has published government secrets and for that there have been calls to prosecute him as a criminal. However, given the ruling of the U.S. Supreme Court in the Pentagon Papers case, is there any room to doubt that the press may publish a government secret? If Justice Black was writing the decision, what would he say about Wikileaks? Now that you have read the words of the constitution and the opinion of the Supreme Court, you make up your mind whether or not Julian Assange is a criminal or deserving of First Amendment protection.

No comments: