By Dan Kennedy • The press, politics, technology, culture and other passions

WikiLeaks and the First Amendment

President Obama’s emerging strategy to prosecute WikiLeaks and its founder, Julian Assange, over the leaked State Department cables amounts to a potentially dangerous assault on freedom of the press. Or so I argue in the Guardian.

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  1. BP Myers

    I can understand going after Assange and the others for copyright infringement, but if they’re looking to prosecute someone for the leaks themselves, he’s sitting in a prison cell somewhere in Kansas.

    • Dan Kennedy

      @BP: The idea of going after Assange for copyright infringement is novel, to say the least. Government documents have always been considered uncopyrightable (to coin a word), as they were produced at taxpayer expense. For instance, I could take the deficit commission’s report, publish it as a book and sell it at a profit if I wanted to.

  2. BP Myers

    @Dan: You’re right, of course.

    Just spitballin’.

  3. Marc Larocque

    Hey, Dan. Just wanted to bring up a point by Glen Greenwald on Democracy Now! today.

    Last time you blogged on this you said Assange is not a journalist because he criticizes the mainstream media and disparages journalists. Greenwald argues that Assange acts as a journalist who is not reckless. Check it out:

    “[T]here’s really no way to prosecute Julian Assange and WikiLeaks without criminalizing the very essence of investigative journalism. WikiLeaks has done nothing that every good investigative journalist doesn’t do all the time. There are multiple journalists in the United States who have Pulitzer Prizes sitting on their shelf for having obtained and then published very serious classified information that the government insisted posed grave national security harm. And so, in order to get around this, they’re trying to distinguish WikiLeaks from other journalists.

    And what they first tried to do was to say, well, WikiLeaks just recklessly publishes, indiscriminately publishes, everything. And, of course, that’s totally false, because WikiLeaks has published only a tiny sliver of the cables that it has received and has worked closely with these newspapers around the world to decide what ought to be published. And what they’re trying to do now is to say that WikiLeaks, unlike journalists, isn’t merely a passive recipient of classified information but is actively trying to induce the leak of classified information the way that a spy would.

    But as you just pointed out, and as cannot be emphasized enough, whenever journalists are aware or become aware of classified information that they want to publish, they take all kinds of affirmative steps to encourage more documents to be given to them, to encourage the source to allow their publication, to contact other people in government to try and get even more classified information to confirm what they’ve learned or to elaborate on it. Journalists are very rarely mere passive recipients of classified information—one day you just sit there, and it shows up in your email box. Journalists, good journalists, always take affirmative and active role in trying to get more classified information and secure the right to publish classified documents. And if this is the theory that they’re going to use to try and criminalize WikiLeaks, that’s at least as much of a threat, if not more so, to investigative journalism as simply charging them under the Espionage Act for publishing classified information standing alone.”

    • Dan Kennedy

      “Last time you blogged on this you said Assange is not a journalist because he criticizes the mainstream media and disparages journalists.”

      @Marc: I did? What did I write that leads you to that conclusion? I criticize the mainstream media and disparage journalists, but I consider myself a journalist. I do consider Assange more an activist than a journalist because most of the time WikiLeaks simply puts the documents out there without any synthesis or analysis.

  4. Bob Gardner

    “The Justice Department errs egregiously and risks profound damage to the First Amendment, however, when it insists that private citizens — academics, journalists, think tank analysts, lobbyists and the like — also are legally bound to keep the nation’s secrets. The prosecution in effect criminalizes the exchange of information.”
    –from the Washington Post 3/11/09

  5. Bill Dedman

    We have a roundtable discussion of legal specialists online at, discussing the First Amendment aspects of a possible indictment of Assange:

    Dan, you ask in your piece for the Guardian: “Holder is working on the theory that WikiLeaks ‘colluded’ with Manning, acting not as a passive recipient, but as an active participant in persuading Manning to give up the goods. The problem is that there is no meaningful distinction to be made. How did the Guardian, equally, not “collude” with WikiLeaks in obtaining the cables? How did the New York Times not ‘collude’ with the Guardian when the Guardian gave the Times a copy following Assange’s decision to cut the Times out of the latest document dump?”

    Isn’t there a substantive difference? The theory, as laid out in Charlie Savage’s story in The Times, is that WikiLeaks may have conspired with Bradley Manning to steal the government information. You’re equating that with WikiLeaks, once the information has been released to it (possibly by Manning), working with the Guardian to get a copy. I’m no lawyer, but I’d think courts would recognize that those are not at all the same. One or both or none might be criminal.

    • Dan Kennedy

      @Bill: Agreed that the facts are different. It seems to me that Holder is torturing those facts for the sole purpose of supporting a theory that would allow the government to prosecute WikiLeaks but not the Times. The difference may be substantive, but it’s not meaningful, in my view.

  6. Marc Laroque

    Dan, I thought that’s what you meant by this: “No, Assange isn’t a journalist. He himself has made it clear that that’s the last thing he considers himself.”

    Sorry for the confusion. I read some letter to the editor written by Assange in which he invokes the ideal of journalism. And I noticed before that he has disparaged journalists and says that they are scum and so forth. I thought that’s what you were referring to.

    • Dan Kennedy

      @Marc: There are also Assange’s shifting statements to consider. When someone says he’s not a journalist, as Assange has, I say take him at his word. Lately, though, he’s embraced the label, even going so far as to claim that WikiLeaks engages in “scientific journalism.” In any case, since I (and the Supreme Court) don’t believe in special privileges for journalists, it doesn’t make much difference one way or the other.

  7. Neil Sagan

    Does Wikileaks publish information? Do they have information that they publish directly or as the basis for stories in the Guardian, The New York Times, Der Speigel or el Pias? If so, would you describe these published stories as news?

    This is how it matters: If he’s a journalist and publisher then he assumed to have protections and if he is not a journalist or publisher then he may just be what Joe Biden called him on nationwide TV Sunday, a ‘high-tech terrorist’.

    I don’t remember Wikileaks or Assange ever threatening violence, do you?

  8. Mike Benedict

    Given your past statements where you clearly advocate for a shield law, it’s understandable that some might be confused when you say you “don’t believe in special privileges for journalists.”

    “In any case, since I (and the Supreme Court) don’t believe in special privileges for journalists, it doesn’t make much difference one way or the other.”

    –Dan Kennedy, Dec. 15, 2010

    “At a moment when journalists behaving badly is a recurring theme, this is not an auspicious moment to be pushing for increased protections for newsgathering. Nevertheless, more than 30 states have some type of shield law on the books. It’s time for Massachusetts to join those ranks.”

    –Dan Kennedy, Oct. 31, 2005

    “Still, some form of federal shield law would be welcome. Every state except Wyoming either has a shield law or a state court decision recognizing a limited right by reporters to shield their sources. The questions, then, remain: Who’s covered and who isn’t? And what about the bloggers?”

    –Dan Kennedy, Oct. 13, 2005

    • Dan Kennedy

      @Mike: I’ve been absolutely consistent in arguing that shield laws should be limited and should cover certain acts of journalism, not journalists. In fact, I’ve been quite disparaging of proposed shield laws that attempt to define journalists as a class. I thought you knew that.

  9. Mike Benedict

    Dan: Therein lies the rub. You can’t define “journalism”
    without defining “journalist.”

    • Dan Kennedy

      @Mike: You can grow food without being a farmer. And you can do journalism without being a journalist. There are some activities that deserve First Amendment protection, and it has nothing to do with being a journalist.

  10. Mike Benedict

    @Dan: I would argue that engaging in the act itself is what makes you a journalist, or a farmer, or whatever. You are attempting to split a hair few others can see.

    • Dan Kennedy

      @Mike: Far from splitting hairs, the argument over whether to protect professional journalists or specific acts of journalism goes to the heart of the debate over shield laws, and has been the primary issue in cases ranging from Vanessa Leggett to Josh Wolf.

      Here is my take on shield laws, in full. The two most important points:

      1. “I am dubious of shield laws, and believe an absolute law would likely be ruled unconstitutional.”

      2. “But whatever is protected, it ought to be journalism, not journalists. If an amateur blogger is engaging in journalism, then she should have just as much protection as a press-pass-wielding reporter.”

      How consistent have I been about this? My very first published piece of media criticism, a column for Editor & Publisher in the mid-1980s, was anti-shield law, a position I took on the grounds that there are no special First Amendment protections for professional journalists.

      Now that anyone can do journalism, I’ve modified my views.

  11. Mike Benedict

    “If an amateur blogger is engaging in journalism, then she should have just as much protection as a press-pass-wielding reporter.”

    Exactly. You’re saying what I’m saying. Anyone who engages in an act of journalism is a journalist. Amateur, perhaps, but still a journalist. And that’s why when you write, “But whatever is protected, it ought to be journalism, not journalists,” you (inadvertently) confuse your own point.

    • Dan Kennedy

      @Mike: I would disagree that anyone who does journalism at any level should be considered a journalist. Other than that, it sounds like we agree.

  12. Mike Benedict

    @Dan: If practicing journalism doesn’t make you a journalist, what does?

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