By Elliot Cohen
It’s curious that Sweden, the most sexually liberal nation in the world enlisted Interpol to hunt down Julian Assange on sexual charges stemming from a broken or unused condom. It’s curious indeed, especially since Assange is founder of Wikileaks, which has recently released hundreds of thousands of leaked government documents, many of which have been less than favorable to the image of the Obama Administration. Assange’s attorneys initially claimed that the charges were politically motivated, and given the circumstances, this is not an unreasonable hypothesis.
So what if the Obama administration is taking aim at the messenger in order to manipulate and distract the public away from the message? Could we really blame the Obama administration if it tried to protect its image by resorting to such tactics?
The answer to this question is an unequivocal yes. The purveyors of news should be free to speak without fear of being branded criminals. Otherwise these vanguards of democracy may be less likely to speak truth to power.
The Obama Justice Department is allegedly considering whether to charge Assange with criminal activity pursuant to the Espionage Act of 1917 and possibly other laws regarding conspiracy and trafficking in stolen property. This may again be smoke and mirrors aimed at further discrediting of Assange and Wikileaks.
But suppose such charges are actually lodged, and suppose further that Assange is extradited, tried, and found guilty . If this were to happen, then a dangerous precedent would be set. For then, whenever the government declared that the release of information by a news organization was “classified” or otherwise contrary to “national security,” it would have the legal authority to place the editors of the news organization under arrest. The result would be the chilling off of the exercise of the First Amendment right to freedom of speech. News editors would accordingly live in fear that, if the next story they published was less than flattering to the powers that be, they might wind up behind bars.
So the matter of Wikileaks is less about Wikileaks itself and more about the survival of a free press in America. If a nation were not legally permitted to publish leaked information it received, then the New York Times would not have been permitted to publish or report on the Pentagon Papers or, more recently, on the Bush administration’s illegal, mass, warrantless spying program. Indeed, insofar as the Times has also printed descriptions of the leaked cables attained by Wikileaks, it too, no less than Wikileaks would be guilty of a crime.
However, there is a fundamental difference between hacking into a computer and stealing government documents, on the one hand, and publishing them, on the other hand. If the publisher aids the hacker in securing the documents for purposes of publishing them, then the publisher may be complicit in a crime. On the other hand, if the publisher simply publishes the documents, then no crime has been committed because there is a First Amendment that protects this activity under freedom of the press.
Indeed, the press has an obligation to exercise discretion in what it publishes. But this is largely a matter of professional ethics , not criminal law. Thus when Robert Novak wrote in his column in the Washington Post that “Valerie Plame… is an agency operative on weapons of mass destruction,” he arguably exercised indiscretion by exposing the identity of a CIA agent, thereby jeopardizing her operation and endangering the lives of those working with her. But Novak was not prosecuted for a crime; nor should he have been, even though he may have exercised poor judgment. The basis of such immunity from prosecution is the need of a Fourth Estate whose purpose it is to keep watch on government and to inform the people when there is a breach of trust. In a democracy, the government is a trustee answerable to the people; and the press is the people’s watchdog.
With all its campaign promises about maintaining transparency, the Obama administration appears to have hypocritically morphed into the wily and clandestine antics of the Bush administration. In the least, instead of openly declaring the freedom and necessity of the press as our Fourth Estate, it appears to have perceived the press (in the form of Wikileaks) to be its enemy to be shut down.
Today the mainstream corporate media is largely engaged in quid pro quo with government. These giant corporations cooperate with government because they seek military contracts, tax breaks, relaxed antitrust laws, and other incentives. So it is largely left to independent media like Wikileaks to fill the void. In this sense, such independent online news sources are the most vital and reliable part of our Fourth Estate. To the extent that they are free of conflict of interest with government, they can most realistically be counted on to fulfill the job of people’s watchdog, standing guard against government corruption and vigilantly keeping the people informed.
Accordingly, we, the people, should draw a firm line in the sand. The government needs to know that the people will not tolerate abridgements of its right to a free press.
The author Elliot D. Cohen, Ph.D. (www.elliotdcohen.com) is a political analyst and media critic. His most recent book is Mass Surveillance and State Control: The Total Information Awareness Project. He is the first prize winner of the 2007 Project Censored Award.
Originally appeared as First Amendment Right to Free Press Not a Crime
Published on December 12, 2010 in Psychology Today