WikiLeaks and the First Amendment

I don’t have enough knowledge about the contents of the Afghan War Diaries to engage in informed commentary about their contents, so what I’m saying here is more a way of striving discussion about some of the questions raised by the leaks as opposed to a definitive conclusion.

Since we were speaking recently of the right-wing’s most recent Greatest Monster Hugo Black, I’m reminded that when thinking about national security and freedom of the press, I always return to his concurrence in the Pentagon Papers case. Because it involved prior restraint, N.Y. Times was a very easy case and its holding isn’t directly relevant here, but some of Black’s broader analysis remains relevant:

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.

A few points in the spirit of applying these principles to the current controversy:

• A clear distinction should be drawn between the leakers and people who publish leaked material (in whatever forum.)    Although I think Ellsburg was a hero and I’m glad that the Nixon administration’s authoritarianism prevented him from being convicted, prosecuting him was defensible.   Trying to suppress the Pentagon Papers or punish people for publishing them would not have been.     Based on what we know, I can’t imagine any scenario under which prosecuting Assange would be consistent with contemporary First Amendment values.
• Prosecuting Assange under vague, authoritarian laws passed under the Wilson administration definitely doesn’t count.
• Whether as a legal or pragmatic argument, I’m very leery of arguments that leakers have done something wrong based on threats to “national security.”     As Black went on to say, “[t]he word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”    This isn’t to say that such arguments are always wrong, but — especially when they’re self-serving claims made by state officials — they should be treated with a very substantial degree of skepticism.
• This is particularly true in cases like this because arguments from “national security” have a strong tendency to treat secrecy and the shielding of both decision-making processes and the costs of war as ends in themselves.  As Stephen Holmes has argued in persuasive detail, the last decade has been most unkind to assumptions that secrecy and unilateral decision-making enhance national security.

As we learn more about the Afghan Diares, I think these principles should be kept in mind.