< Wikileaks, the Law and the Press


Friday, December 10, 2010

BOB GARFIELD: In the showdown of WikiLeaks versus the U.S. government, the war of words didn't even last a week before the law was invoked. On December 2nd, a mere four days after Cablegate began, Senator Joseph Lieberman introduced the SHIELD Act, an acronym for Securing Human Intelligence and Enforcing Lawful Dissemination. The bill would amend the Espionage Act of 1917 to make disseminating leaked information a crime. Meanwhile, the Justice Department has reportedly been weighing creative ways it might use the long arm of the law to prosecute Julian Assange. Both efforts, according to Geoffrey Stone of the University of Chicago Law School, would also impair the legal rights of journalists who publish leaked information. The reason, says Stone, is that the legal language being employed by Lieberman and the Justice Department doesn't distinguish between WikiLeaks and, say, The New York Times.

GEOFFREY STONE: The SHIELD Act would make it a crime for any person to publish or disclose or disseminate any classified information that might be harmful to the national security that involves intelligence activities and participants operating on behalf of the United States. It would definitely change the legal landscape for not only WikiLeaks but for standard publishers and media organizations in the United States.

BOB GARFIELD: Constitutionally, isn't this kind of like attacking a mosquito with an M1 tank?

GEOFFREY STONE: It’s clearly an unconstitutional proposal. We generally hold that the government can restrict public employees from releasing any classified information that might conceivably damage the national security. On the other hand, if a public employee with access to such information decides to disclose that information publicly, then the Supreme Court has held that organizations, like The New York Times and the Pentagon Papers case, for example, cannot constitutionally be restricted in their publication of that information unless the government can prove a clear and present danger of a very grave harm. We have two very distinct rules, one that governs public employees, which gives the government a great deal of power, and the other, which governs anybody else, whether it be WikiLeaks or The New York Times, which gives the government almost no power except in the most striking of emergencies. That’s why the SHIELD Act is unconstitutional. In the absence of a SHIELD Act at the moment, Attorney General Eric Holder has made it clear that there are some statutory tools in his toolbox that may enable him to prosecute WikiLeaks and Julian Assange - the notion of stolen government property and so on. Do you think that existing law will enable the government to prosecute Julian Assange without being an extremely thin legal ice?

GEOFFREY STONE: The problem is from the Attorney General’s perspective that you have issues in between those two extremes of the public employee on the one hand and the newspaper, who passively receives the information, publishing it on the other. For example, suppose that a newspaper reporter or an agent of WikiLeaks solicits a public employee to release classified information. Well, there the government would argue that it can punish them for soliciting a crime. It doesn't matter whether a journalist is doing it or anybody else is doing it. The other argument the Attorney General might make is that possession and knowing use of stolen property is a crime. The argument is that the information that the government, quote, “owns” is really no different from a computer or a typewriter or a car that someone steals from the government and gives to someone else who then chooses to use it.

BOB GARFIELD: Although the government still has the property, the secrets that were stolen remained in the government’s hands; copies were taken out and disseminated. So is there any legal precedent for government information being regarded by the law as intellectual property?

GEOFFREY STONE: No, but that’s not an incoherent argument, and similarly, on the solicitation, if that’s what WikiLeaks engaged in. My guess is courts would reject that these prosecutions could be pursued, but I can't say that with certainty, the way I can say with certainty that the SHIELD Act would be held unconstitutional.

BOB GARFIELD: Is what we're seeing here political posturing by Senator Joseph Lieberman and others, in order to score points without any real hope of fundamentally changing the law?

GEOFFREY STONE: Well, it’s either ignorance of the First Amendment or political posturing. It can't be regarded as informed, intelligent, serious legislating.

BOB GARFIELD: Let's just say the bill gets passed and on its way to being eventually declared unconstitutional. Should we fear that journalists are going to be in some substantial jeopardy in that interim?

GEOFFREY STONE: If the legislation passes, then there will be a time lag before courts are able to resolve its constitutionality. And if I were general counsel to a media organization giving advice, I would say unless you want to run the risk of a prosecution, you probably should be a little careful here. It does create a disincentive for publishing certain information that I believe the First Amendment would protect.

BOB GARFIELD: Do you think this is leading to some sort of a showdown of the sort of classic ACLU type where civil libertarians have to hold their nose and defend the rights of people who they don't necessarily admire in order to protect the Bill of Rights?

GEOFFREY STONE: Well, yeah, but it shouldn't be only people in the ACLU. I mean, the truth is American citizens should be educated and informed in a way that enables them to understand that adopting legislation like the SHIELD Act would be seriously threatening to the basic system of freedom of expression and democracy that we have.

BOB GARFIELD: Okay. Geoff. As always, thank you very, very much.

GEOFFREY STONE: My pleasure Bob, anytime.

BOB GARFIELD: Geoffrey Stone is a law professor at the University of Chicago and author of Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism.