By Matthew L. Schafer
In the past week, Senator Joseph Lieberman [I-CT] called for investigations into both WikiLeaks, The New York Times, and other news organization that choose to publish information on the classified documents. More chilling, is a comment made by incoming Representative Allen West [R-FL], advocating censorship. Moreover, the House Judiciary panel is meeting today to discuss legal options against WikiLeaks in a meeting titled “Hearing on the Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks.” (See witness list here.)
Unfortunately, this rhetoric does nothing but hurt democracy and the world’s perception of the United States with regards to the freedom of the press. Before there was a government in the United States, there was a press. It’s fitting then, that the press is safeguarded against government intervention. These safeguards were tested in a 1971 Supreme Court case, The New York Times v. United States, where the press’ right to publish secret and top-secret documents was upheld.
“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy,” Justice Hugo Black wrote in a concurring opinion. “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.”
Lieberman and West’s hope for action against publishers on some level are likely unable to pass constitutional muster. Moreover, the calls for investigations and censorship are vapid threats in the Internet age. Once the information is on the Web, a fight to remove it is futile. Two years ago, one federal district court ordered WikiLeaks’ domain name pulled. WikiLeaks remained online, using mirror sites. Indeed, there was little actual disturbance in WikiLeaks’ access to the Internet community. Both the judge and the Swiss bank seeking the injunction, however, garnered significant criticism from advocacy organizations.
Despite the techinal challenges that censoring WikiLeaks or any other publisher poses, a few politicians have suggested that some degree of action should be taken to prevent the spread of the WikiLeaks cables. Lieberman, before suggesting that the Justice Department should investigate The New York Times and others, conceded that whether or not news organizations should be investigated “is very sensitive stuff, because it gets into America’s first Amendment.”
“I believe that WikiLeaks has violated the Espionage Act, but what about the news organizations like the Times that have accepted it and then distributed it,” Lieberman said. “I know they say that they deleted some of it, and I’m not here to make a final judgment on that. But, to me, The New York Times has committed at least an act of bad citizenship. …Whether they have committed a crime, I think that bears a very extensive inquiry by the Justice Department.”
Lieberman recently introduced the SHIELD Act (Securing Human Intelligence and Enforcing Lawful Dissemination), which would amend the 1917 Espionage Act, making it a crime to publish classified human intelligence. Lieberman has also introduced legislation that would prevent any photos of detainees captured after September 11, 2001 not subject to the Federal Freedom of Information Act (FOIA). FOIA requests allow individuals access to previous unreleased government documents.
Incoming Florida Rep. Allen West’s comments were even more extreme than Lieberman’s. In a conversation with a conservative talk radio show, West suggested that the United States should censor news organizations publishing WikiLeaks’ content
“I think that we also should be censoring the American news agencies which enabled him to do this and also supported him and applauding him for the efforts,” West said. “So that’s kind of aiding and abetting of a serious crime.”
He later posted to his Facebook wall that he did not say “censor,” but “censure.” Nonetheless, audio of the incoming Congressman seems to indicate otherwise. In an effort to clarify what West said the media “missed,” he posted, “The confusion comes with the word censor…when I meant censure- in context that the media should be harshly criticized for printing the damaging documents Assange has released which so clearly puts our soldiers and country at risk.”
Despite several politicians’ admonitions (See Sarah Palin’s view here), Rep. Ron Paul [R-TX] defended WikiLeaks. In a five-minute speech on the floor of the House of Representatives, Paul asked how an Army private could gain access to so many secret documents, and why more anger wasn’t directed at the government for failing to protect the diplomatic cables and not at WikiLeaks.
“If WikiLeaks is to be prosecuted for publishing classified documents, why shouldn’t the Washington Post, the New York Times, and others also published these documents be prosecuted? Actually, some in Congress are threatening this as well,” Paul said during his speech in support of Wikileaks.
Many reporters have also come to Wikileaks defense. Glenn Greenwald, a contributor to the online magazine Salon, recently wrote an impassioned defense of WikiLeaks in a letter to Citizens for Responsibility and Ethics in Washington. In the letter, Greenwald resigned from the Board of Directors of CREW, after CREW’s Anne Weisman wrote an article criticizing WikiLeaks.
Weisman argued, “At first blush, WikiLeaks’ disclosure to newspapers of hundreds of thousands of State Department cables seems like a win for transparency and accountability in government. …But upon closer inspection, WikiLeaks’ document dump illustrates the perils of going outside the system, and is likely to result in less transparency in the long run.”
Greenwald, taking the opposite view, wrote, “I believe defense of WikiLeaks has become one of the greatest and most important political causes that exists–certainly one to which I intend to devote myself–and I do not want to be affiliated with any group which works to undermine it.”
In short, it would be unfair to say that the fight over WikiLeaks is free from real and complex ethical, political, and journalistic questions. The questions–at their most basic–that WikiLeaks poses, however, are not entirely new questions. The United States has long defended one’s right to publish, and scoffed at any notion that prior restraint has ever been the answer. Thus, making suggestions that WikiLeaks or The New York Times or any publisher should be censored or brought up on criminal charges only casts a dark shadow on a rich tradition of freedom of the press in the United States.
The freedom of the press is even more important when the speech that is on the line is controversal in nature. It is at those times that the press needs constitutional protections the most–not charges of treason. As Justice Black said in AP v. United States, the First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.”