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Expert Nonsense

The First Amendment does not bar prosecution in every instance.

10:10 AM, Jul 27, 2010 • By GABRIEL SCHOENFELD
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Could WikiLeaks and its organizer, the shadowy Australian Julian Assange, be prosecuted for publishing classified information? As a practical matter, the idea is a non-starter. Since Assange lives abroad, prosecutors would find it difficult to gain jurisdiction. And if he were charged in absentia—or if WikiLeaks were enjoined from further publication by a restraining order—how could any such ruling be enforced? In any event, the politics of such a move would be a disaster. Even though some liberals are discomfited by what WikiLeaks is doing, a prosecution would only serve to bolster Assange’s standing by turning him into a martyr, as he himself recognizes.

How about American newspapers that publish secrets, are they vulnerable to prosecution? Today’s Wall Street Journal quotes one expert:

It is clearly protected by the First Amendment to publish documents obtained illegally as long as the publisher has not been involved in illegality," said Frederick Schauer, a law professor at the University of Virginia. "That is the lesson of the Pentagon Papers." In 1971, the U.S. Supreme Court ruled that the First Amendment allowed the New York Times and Washington Post to publish sections of the Pentagon Papers, a classified study of U.S. involvement in Vietnam.

This is expert nonsense. The issue in the Pentagon Papers case was prior restraint – could the government step in and block publication of classified information in advance? The Court ruled that unless there was imminent harm to the lives of Americans from publication, the answer would be no.

But five of the nine Justices (six if we count the vague formulation of Thurgood Marshall) also wrote in their opinions that if the government chose to prosecute the Times after publication under the espionage statutes, some of which (like Section 798 of title 18) explicitly make it a crime to publish certain kinds of classified information (like secrets pertaining to cryptography), they would have no trouble voting to convict (assuming the disclosed information in question was deserving of classification).

It is notable that the New York Times says that before publishing any material from the WikiLeaks data dump, it scrubbed it for sensitive material, the very kinds of things that might open it up to prosecution. Of course, prosecution in this instance, and in almost every instance in which classified information is published, is not in the offing. But as the Supreme Court has made plain, the First Amendment does not bar prosecution in every instance.

Nonetheless, the mythology surrounding the Pentagon Papers grows and grows.  I offer an extended analysis of the case in the summer issue of National Affairs, and also in my recently published book, Necessary Secrets: National Security, the Media, and the Rule of Law

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