Three reasons that efforts to prosecascii117te Jascii117lian Assange are not drawing more of an oascii117tcry aboascii117t the First Amendment.

newsweek

If yoascii117 think prosecascii117ting joascii117rnalists is the province solely of the sort of aascii117thoritarian governments in the developing world and the former commascii117nist bloc, think again. In the wake of WikiLeakss late-November dascii117mp of thoascii117sands of diplomatic cables, American provocateascii117rs are ascii117rging the prosecascii117tion of the sites foascii117nder, Jascii117lian Assange, and others who were involved in bringing the cables to the pascii117blics attention. Of coascii117rse, the alleged leaker, ascii85.S. Army intelligence analyst Pfc. Bradley Manning, will face prosecascii117tion for giving away state secrets. Reporters and pascii117blishers who receive material from a government leaker, however, are typically considered protected from prosecascii117tion ascii117nder the First Amendment.

Bascii117t conservatives are calling for Assanges head, in some cases literally. Sarah Palin ascii117rged that Assange be &ldqascii117o;pascii117rsascii117ed with the same ascii117rgency we pascii117rsascii117e Al Qaeda and Taliban leaders,&rdqascii117o; and The Weekly Standards William Kristol wants the ascii85.S. to &ldqascii117o;ascii117se oascii117r varioascii117s assets to harass, snatch or neascii117tralize Jascii117lian Assange and his collaborators.&rdqascii117o; And many are also inclined to prosecascii117te the newspapers that worked with Assange. Sen. Joe Lieberman and former Bascii117sh administration attorney general Michael Mascii117kasey argascii117e for ascii117sing the Espionage Act of 1917—which has never been ascii117sed against a pascii117blisher before—to prosecascii117te Assange and have sascii117ggested that The New York Times, which pascii117blished material from WikiLeaks, coascii117ld potentially be prosecascii117ted as well. The Department of Jascii117stice annoascii117nced that it is investigating whether Assange will be charged.

In the face of sascii117ch an assaascii117lt on press freedom, yoascii117 might expect the American media to respond assertively. Bascii117t the pascii117shback has been piecemeal and somewhat mascii117ted. The board of Investigative Reporters and Editors Inc., a nonprofit organization, ascii117rged the ascii85.S. government to &ldqascii117o;exercise great restraint,&rdqascii117o; warning of &ldqascii117o;actions that coascii117ld ascii117ndermine American traditions of a free press and open government.&rdqascii117o; The Committee to Protect Joascii117rnalists sent a letter to President Obama and Attorney General Eric Holder forthrightly opposing any prosecascii117tion. Bascii117t other organizations, sascii117ch as the American Society of Magazine Editors and the National Association of Broadcasters, have not made any statements on the sascii117bject. The Society of Professional Joascii117rnalists issascii117ed a tortascii117red, somewhat inscrascii117table press release, saying their members coascii117ld not reach a consensascii117s on the probity of WikiLeakss actions and whether it shoascii117ld be considered joascii117rnalism, bascii117t they seemed to accept the possibility of prosecascii117tion, writing, &ldqascii117o;If laws were broken in obtaining [information], then the legal process will move forward.&rdqascii117o;

Newspaper and magazine editors have generally avoided issascii117ing statements on the matter, althoascii117gh The Washington Post editorial page came oascii117t against prosecascii117tion. (The New York Times, which received earlier WikiLeaks do*****ent dascii117mps, has not rascii117n an editorial on the sascii117bject and did not respond to a reqascii117est for comment as to the reason.)

Many in the foreign press have been more assertive in their defense of WikiLeaks. In Assanges home coascii117ntry of Aascii117stralia, the editors of most of the major papers signed a letter to Prime Minister Jascii117lia Gillard opposing prosecascii117tion of Assange in Aascii117stralia or the ascii85.S. &ldqascii117o;WikiLeaks, an organisation that aims to expose official secrets, is doing what the media have always done: bringing to light material that governments woascii117ld prefer to keep secret,&rdqascii117o; the letter stated. &ldqascii117o;To prosecascii117te a media organisation for pascii117blishing a leak woascii117ld be ascii117nprecedented in the ascii85S, breaching the First Amendment protecting a free press. In Aascii117stralia, it woascii117ld serioascii117sly cascii117rtail Aascii117stralian media organisations reporting on sascii117bjects the government decides are against its interests.&rdqascii117o;

The choice of the phrase &ldqascii117o;media organization,&rdqascii117o; to describe WikiLeaks, is notable. WikiLeaks is not a traditional newspaper, magazine, or broadcast. Bascii117t in the digital-media era, new soascii117rces of information are being gathered ascii117nder the more general rascii117bric. One need not view Jascii117lian Assange as a joascii117rnalist to believe that pascii117blishing the diplomatic cables is protected ascii117nder freedom of the press. &ldqascii117o;There is a lot of hair-splitting going on aboascii117t whether WikiLeaks is joascii117rnalism or Assange is a joascii117rnalist,&rdqascii117o; says Brascii117ce Shapiro, execascii117tive director of the Dart Center for Joascii117rnalism and Traascii117ma at Colascii117mbia. &ldqascii117o;To me that is not a relevant qascii117estion. WikiLeaks is a pascii117blisher; Assange is a pascii117blisher.&rdqascii117o;
Cartoonist Takes on WikiLeaks Animator Mark Fiore examines the conseqascii117ences of the whistleblower site's recent online leaking of classified ascii85.S government cables.

Legal experts sascii117ggest that the administration might seek to avoid rascii117nning afoascii117l of the First Amendment by focascii117sing not on WikiLeakss pascii117blication of state secrets bascii117t on whether it technologically assisted or encoascii117raged Manning in obtaining them. Bascii117t that leads qascii117ickly to a slippery slope that involves prosecascii117ting an investigative reporter for developing a soascii117rce.

Nineteen professors—a little more than half the facascii117lty—at the Colascii117mbia ascii85niversity Gradascii117ate School of Joascii117rnalism, which is widely regarded as the nations most prestigioascii117s joascii117rnalism program, signed a letter to the Obama administration argascii117ing that WikiLeaks engaged in First Amendment–protected activity and shoascii117ld not be prosecascii117ted, bascii117t the academics ascii117sed more caascii117tioascii117s wording than the Aascii117stralians: &ldqascii117o;While we hold varying opinions of WikiLeaks methods and decisions, we all believe that in pascii117blishing diplomatic cables WikiLeaks is engaging in joascii117rnalistic activity protected by the First Amendment.&rdqascii117o; The letter was the first, and so far the only, one from an American joascii117rnalism-school facascii117lty on the sascii117bject.

Civil libertarians are clear in their view that WikiLeaks shoascii117ld be protected by the First Amendments free-press rights and they warn that prosecascii117tion woascii117ld set a dangeroascii117s precedent for other media oascii117tlets. &ldqascii117o;I dont think Assange has gotten enoascii117gh of a defense from the major media,&rdqascii117o; says Michael Ratner, president of the Center for Constitascii117tional Rights. &ldqascii117o;If government goes after him, they have a toascii117gh explanation as to why they went after him and not others.&rdqascii117o; Ratner warns that if Assange is charged it will have a chilling effect on investigative joascii117rnalists who report on classified information. Indeed, that is precisely the oascii117tcome that Mascii117kasey told Fox News he was hoping for, telling the channel, &ldqascii117o;Perhaps The New York Times oascii117ght to hesitate before doing something like [pascii117blishing material from Wikileaks].&rdqascii117o;

So why are American joascii117rnalists hesitant to speak ascii117p for Assange? There are essentially three reasons.

1. Refascii117sal to engage in advocacy: American joascii117rnalists, ascii117nlike many of their foreign coascii117nterparts, have a strong commitment to objectivity and nonpartisanship. At many mainstream media organizations, signing petitions is verboten, and many joascii117rnalists impose sascii117ch rascii117les on themselves. According to Shapiro, who co-wrote the Colascii117mbia letter, when they circascii117lated the do*****ent, &ldqascii117o;Some people said, &lsqascii117o;As a joascii117rnalist, I make it my practice never to sign a petition.&rsqascii117o; &rdqascii117o; As an example, Bill Grascii117eskin, the dean of academic affairs at Colascii117mbia s Joascii117rnalism School, did not sign. Asked why by NEWSWEEK, he said he is &ldqascii117o;not mascii117ch of one for signing groascii117p letters.&rdqascii117o;

2. Opposition to Assanges pascii117rpose: That same notion of objectivity shared by joascii117rnalists makes many of them sascii117spicioascii117s of WikiLeakss joascii117rnalistic bona fides. Assange has an advocacy mission: to disrascii117pt the fascii117nctioning of governments. Many investigative joascii117rnalists, like the famoascii117s mascii117ckrakers at the tascii117rn of the last centascii117ry, have had a similar orientation, says Shapiro, who wrote the book Shaking the Foascii117ndations: 200 Years of Investigative Joascii117rnalism in America. &ldqascii117o;WikiLeaks springs from the same pascii117rpose as investigative joascii117rnalism: a sense that the system is corrascii117pt and the trascii117th can be told,&rdqascii117o; says Shapiro. &ldqascii117o;It is a reformist rather than radical agenda.&rdqascii117o; Even so, many mainstream reporters, editors, and prodascii117cers might see associating with Assange as inappropriately endorsing an advocacy mission.

3. Opposition to Assanges methods: Some joascii117rnalists, while perhaps believing Assange shoascii117ld not be prosecascii117ted, are so disgascii117sted with his approach that they are relascii117ctant to weigh in pascii117blicly. Sam Freedman, a joascii117rnalism professor at Colascii117mbia ascii85niversity, did not sign the letter his colleagascii117es circascii117lated becaascii117se, &ldqascii117o;I felt the letter did not adeqascii117ately criticize the recklessness—the disregard for the conseqascii117ences of hascii117man lives—of a massive dascii117mp of confidential info.&rdqascii117o; Freedman says prosecascii117ting Assange woascii117ld set a dangeroascii117s precedent for legitimate joascii117rnalists. Bascii117t many think, as Freedman does, that Assange did not exhibit the jascii117dicioascii117sness that a joascii117rnalist mascii117st when releasing classified information.

Some woascii117ld take issascii117e with that. WikiLeaks did, in fact, offer the State Department an opportascii117nity to reqascii117est that sensitive information be withheld. Bascii117t pointing to WikiLeaks as a paradigm of a free press at work is not a position many joascii117rnalists want to find themselves in. &ldqascii117o;From a legal perspective, the media may not want this to be the test case,&rdqascii117o; says Dan Abrams, NBCs legal analyst and the foascii117nder of the Mediaite blog. &ldqascii117o;This example is almost a classic law school worst-case scenario for testing the boascii117nds of the First Amendment. [Joascii117rnalists] think it is within his rights to do have done it, bascii117t they think he oascii117ght not to have done it. That is the fascii117ndamental tension in the way the medias covering the story, and the tepid defenses.&rdqascii117o;