Friday, July 30, 2010

WikiLeaks and the First Amendment

By Mike Dorf

The Pentagon Papers Case is remembered mostly for what it held--that the govt was not entitled to enjoin publication of the Pentagon Papers, even though they were illegally divulged by Daniel Ellsberg, because the govt's general assertions of a national security interest did not justify a prior restraint.  Yet implicit in that holding was the possibility that in a case in which the govt did make a sufficient showing of a particularized national security risk, it could get an injunction.  Here I want to consider the application of that tacit principle to WikiLeaks.

To begin, the internet/offshore nature of WikiLeaks means that, as a practical matter, injunctive relief would be pointless.  The operators of WikiLeaks would not obey an injunction and they may be beyond the jurisdiction of U.S. courts.  However, suppose that someone connected with WikiLeaks were to come into U.S. custody.  Would the First Amendment bar his prosecution or civil liability?

In a recent WSJ blog post on this topic, Jack Balkin is quoted as saying that although the standard for criminal punishment is unsettled, he "assumes the standard is going to be very very high too."  Very very high, but perhaps not quite as high as the standard for getting a prior restraint (at issue in Pentagon Papers), because that's the toughest standard to meet.  To be sure, this is a double-edged sword: For post-publication sanctions, the harm has already been done, so while the risk to free speech is lessened, so is the benefit to the govt.  Of course, in the Pentagon Papers Case itself this was true: By the time the Supreme Court heard the case, the information had been published.  Accordingly, it's probably fair to say--as Balkin does--that it's not much easier for the govt to subject someone to retrospective (criminal or civil) liability for publishing true information unlawfully divulged than it is to get an injunction--at least where the publisher did not participate in the illegality leading to its being divulged.

Interestingly, the two most relevant post-Pentagon Papers cases seem to lend further support to the idea that in a proper case, retrospective liability (or an injunction if it would be obeyed) might be permitted.  In Landmark Communic. Inc. v. Virginia, the Court declined to adopt a general rule holding " that truthful reporting about public officials in connection with their public duties is always insulated from the imposition of criminal sanctions by the First Amendment. "  Instead, as in The Pentagon Papers Case, the Court in Landmark simply held that the showing necessary (for criminal liability there) had not been made.  And then again in Bartnicki v. Vopper, the Court refused to give a fully categorical answer to the question whether information obtained innocently by the publisher but through illegal means by the party who brings it to the publisher may be the basis for a prosecution; the Court found the govt interests in the particular case did not justify infringing free speech.

Thus, the Court has left itself some wiggle room in the doctrine, but if the First Amendment does allow (civil or criminal) liability for WikiLeaks, it seems likely that is for one or both of two reasons:  1) Unlike the NY Times, the Guardian, and Die Spiegel, perhaps WikiLeaks was not only involved in disseminating the information but also in illegally removing it from DoD; 2) The damage done by the WikiLeaks Afghan files exceeds what was done by Ellsberg's leak.

I have no way of knowing whether 1) is true and I am highly dubious about 2).  I've heard one analyst say that a sophisticated enemy could put the pieces together from raw data in the leaks to learn the identities of informants and agents, but that same analyst also said things that struck me as plainly lacking credibility.  The biggest revelation--that Pakistan's ISI or elements therein have been supporting the Taliban--is not really news.  Seymour Hersh has been reporting more or less the same thing for years.  Although I've hardly read the whole trove, my impression is that the leaked material is much like the Pentagon Papers: Their release is bad for an administration that has been trying to sell its troop buildup as a winning strategy but not directly harmful to national security.   The Pentagon Papers Case and subsequent cases could be read to require, as a basis for permissible injunctive or retrospective relief, that the disclosure be of the form "the 101st Airborne is dropping on Hill X at time T."  If so, then the WikiLeakers would appear to be safe for now.