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Is WikiLeaks A Media Organization? The First Amendment Doesn't Care

This article is more than 10 years old.

WikiLeaks has taken pains, over the last several months, to cast itself as a journalism outfit. Julian Assange refers to himself as a publisher or editor-in-chief. He recently wrote an essay in the British magazine the New Statesman on WikiLeaks' place in the history of the radical press. The "about" page on its website uses the words "journalism" or "journalist" 19 times.

But when it comes to WikiLeaks' legal liability for the troves of classified documents it's published over the last year, the first amendment doesn't much care whether WikiLeaks is a reputable news outlet, a gang of black-hat hackers, or a traveling circus. The group's free speech protections depend on what WikiLeaks publishes, not what it is.

That's one argument in an article that appeared Wednesday in the Harvard Law and Policy Review by Jonathan Peters, a lawyer and research fellow at the Missouri School of Journalism. The First Amendment, Peters argues, protects both free speech and freedom of the press, and neither of those protections is any more or less powerful in protecting an organization that publishes classified documents. The amendment, after all, reads "Congress shall make no law...abridging the freedom of speech, nor of the press," and doesn't make a distinction between the level of protection on either one of those two clauses.

"The First Amendment does not belong to the press," Peters writes. "It protects the expressive rights of all speakers, sometimes on the basis of the Speech Clause and sometimes on the basis of the Press Clause. To argue that the First Amendment would protect Assange and WikiLeaks only if they are part of the press is to assume (1) that the Speech Clause would not protect them, and (2) that there is a major difference between the Speech and Press Clauses."

Peters goes on to dig up several points in legal literature that show that the speech clause is actually just as powerful as the press clause. Even in the landmark Pentagon Papers case, Peters points out, the New York Times' right to publish the top secret documents leaked by Daniel Ellsberg was ruled by the Supreme Court to be protected by freedom of speech just as much as the freedom of the press.

If Peters' argument holds water, that's good news for WikiLeaks. But it's bad news for the mainstream press whose mantle it has lately tried to share. Unless the Supreme Court decided to wipe away decades of precedents and weaken the First Amendment's speech clause while maintaining the strength of its press clause, WikiLeaks and the New York Times are in the same boat. Which is not a very politically popular boat to be in.

That may be why New York Times Executive Editor Bill Keller has publicly argued against prosecuting WikiLeaks and Assange, even as he and Assange have feuded publicly. As Keller said at a Columbia event in February, "It’s very hard to conceive of a prosecution of Julian Assange that wouldn’t stretch the law in a way that would be applicable to us. American journalists . . . should feel a sense of alarm at any legal action that tends to punish Assange for doing essentially what journalists do."

WikiLeaks, of course, has reasons beyond its potential legal troubles to cast itself as a reputable media organization. The group needs donations to continue its mission, and is more likely to attract them as a legitimate news outlet than a cypherpunk rebel group. And it continues to face extra-legal mistreatment from those who have found a way to skirt the first amendment: companies like PayPal, Bank of America, Visa and MasterCard still block payments to the group, Amazon has exiled WikiLeaks from its servers, and WikiLeaks volunteer Jacob Appelbaum has been repeatedly detained at the country's borders, where constitutional protections don't apply.

But if that extra-legal persecution transforms into full-blown legal prosecution, expect to see news organizations like the New York Times and the Washington Post stand together with WikiLeaks--whether the leaking group is considered one of their ranks or not.