The First Amendment Doesn't Care If Wikileaks Is A Media Organization

from the either-way... dept

Fri, Apr 29th 2011 7:08am — Mike Masnick

One of the big debates over Wikileaks in the last few months was whether or not Wikileaks really was a media organization. Of course, as some people are finally realizing: it doesn't matter. The First Amendment should protect the organization no matter what kind of organization 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."

This seems like an important reminder for those still arguing over how to classify Wikileaks.

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Filed Under: first amendment, free speech, media, wikileaks
Companies: wikileaks

30 Comments

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Anonymous Coward, 29 Apr 2011 @ 7:14am

If the first amendment can protect big corporations from unlimited political ad contribution restrictions, why can't it protect Wikileaks from exercising their freedom of the press?

Oh, I get it now, the first amendment only applies when it's convenient to big corporations. Since the government usually represents industry interests, then protecting those who leak damaging information against our government isn't protected.
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Anonymous Coward, 29 Apr 2011 @ 7:16am

'Cept one thing - Wikileaks is not a US entity of any sort. Which means they are OUTSIDE of our laws entirely.
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- Anonymous Coward, 29 Apr 2011 @ 7:27am
  
  Re:
  Then you agree that they did nothing illegal (in the US, at least)?
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- Nathan F (profile), 29 Apr 2011 @ 7:27am
  
  Re:
  So then why are they trying to apply ANY of our laws to them hrm? If the First Amendment doesn't apply to them then I would argue that none of the offenses they are trying to charge them with apply either.
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- Squirrel Brains (profile), 29 Apr 2011 @ 7:43am
  
  Re:
  This isn't exactly true. There could be some arguments that the U.S. has some jurisdiction over some of the acts of Wikileaks. As long as the prominent members stay outside the US, they are probably ok. But if they were ever to step foot within the borders of the US, the courts would then have personal jurisdiction.
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  - Bengie, 29 Apr 2011 @ 9:01am
    
    Re: Re:
    " But if they were ever to step foot within the borders of the US, the courts would then have personal jurisdiction."
    
    At which point the First Amendment kicks in.
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- Dark Helmet (profile), 29 Apr 2011 @ 8:12am
  
  Re:
  I'm confused as to where the first amendment descriptively demonstrates it only applies to citizens of the United States. Can you point that qualifier out to me?
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  - taoareyou, 29 Apr 2011 @ 9:00am
    
    Re: Re:
    The First Amendment is part of the U.S. Constitution and cannot apply rights to citizens in other countries. Otherwise people in countries such as China and Iran could claim they have Freedom of Speech because the U.S. said so.
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    - Hephaestus (profile), 29 Apr 2011 @ 9:10am
      
      Re: Re: Re:
      Apple and oranges. He is arguing people in the US (citizen or not), you are arguing about people outside the US.
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      - Dark Helmet (profile), 29 Apr 2011 @ 9:23am
        
        Re: Re: Re: Re:
        "Apple and oranges. He is arguing people in the US (citizen or not), you are arguing about people outside the US."
        
        No, what I'm arguing is simply that the US Constitution states that OUR congress will make no law abridging the rights to free speech of ANYONE. It does apply to people in China as far as OUR CONGRESS is concerned. That doesn't mean they have free speech, only free speech in the eyes of the United States. I still see nothing in the first amendment that claims it only applies to US citizens....
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        Anonymous Coward, 29 Apr 2011 @ 12:35pm
        
        Re: Re: Re: Re: Re:
        I wrote the original comment above.
        
        Your point is ENTIRELY accurate. Part of the foundation of this country was and is that people have certain unalienable rights. Although that is the Declaration of Independence, its still a valid foundation point. One which the Constitution is at least nominally based upon.
        
        So, insofar as this discussion is concerned, they are indeed subject to the Constitution in that the US may not infringe upon the rights of Wikileaks [and it's employees] regardless of their citizenship, or lack thereof, and also regardless of their location in the world.
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- danfinger, 29 Apr 2011 @ 4:26pm
  
  Re:
  Okay, you're right! WL isn't an American organization. But guess what?
  
  It doesn't matter.
  
  Any prosecution pursued will be by � wait for it � AMERICANS! Just because someone or some entity isn't of American origin does NOT mean we can ignore our own laws! That's why judges, DA's, soldiers and a myriad of other sworn officers representing the US government swear to "uphold and defend the constitution of the United States of America". They have never said "uphold and defend the constitution of the United States of America, unless they're furners"
  
  So sad that this very important lesson never got drilled into so many kids skulls in tenth grade civics class.
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  - Anonymous Coward, 29 Apr 2011 @ 6:03pm
    
    Re: Re:
    "Just because someone or some entity isn't of American origin does NOT mean we can ignore our own laws or Constitution!
    
    FTFY.
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Chris-Mouse (profile), 29 Apr 2011 @ 7:42am

The First Amendment doesn't apply to Wikileaks
It's not that Wikileaks is not a US organization that makes the first Amendment not apply, it also doesn't apply to US corporations, foreign citizens or even US citizens. Read the words of the amendment, "Congress shall make no law... " The First Amendment, and the rest of the United States Constitution, applies only to the United States government.
whether or not a censorship law would apply doesn't matter, Congress is forbidden from creating the law in the first place.
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Brent Ashley (profile), 29 Apr 2011 @ 7:50am

Congress shall make no law...
As Congress is demonstrably no longer a necessary element to enter into wars, is it unreasonable to think that "Congress shall make no law..." might possibly someday become irrelevant if an administration, present or future, decided to assert unitary lawmaking authority?
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- Michael, 29 Apr 2011 @ 8:00am
  
  Re: Congress shall make no law...
  and we clearly don't care about the laws when it comes to censoring speech in the ICE domain debacle.
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- Josh in CharlotteNC (profile), 29 Apr 2011 @ 8:22am
  
  Re: Congress shall make no law...
  might possibly someday become irrelevant if an administration, present or future, decided to assert unitary lawmaking authority?
  
  Lawmaking authority is not granted to the executive branch in the executive powers section of the Constitution.
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  - Brent Ashley (profile), 29 Apr 2011 @ 8:31am
    
    Re: Re: Congress shall make no law...
    "Lawmaking authority is not granted to the executive branch in the executive powers section of the Constitution"
    
    My point was that neither was warmaking, but it didn't seem to matter when it came down to it.
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Rich Fiscus (profile), 29 Apr 2011 @ 8:12am

The discussion about whether Wikileaks should be considered "the press" is entirely ridiculous. The press, as referenced in the US Constitution, isn't limited to 20th century media organizations. In fact, if we limit it to that definition we also have to conclude that there was no press when the Constitution was written. Since it's specifically referenced in the 1st Amendment we can safely say that's incorrect.

The same definition of the press which would exclude Wikileaks from 1st Amendment protection would likewise exclude Benjamin Franklin. His publications had more in common with blogs and issue advocacy websites than modern newspapers. That, in and of itself, tells me it's a faulty definition. What freedom of the press is supposed to mean is freedom of publication. It refers not to a privileged group of people and organizations, but literally to a printing press, which was synonymous with publication when the US Constitution was written.

By extension, any prosecution of Julian Assange for assisting in leaking secret information while allowing newspapers, television broadcasters, and the like to publish classified information they've collected by interviewing government officials without similar action amounts to granting special legal status to The Press which was never intended by the Founding Fathers.

Whether the government has the right to take action over the publication of a particular state secret is something we should certainly discuss and debate. But any answer which relies on whether it was a media outlet or journalist who did the publishing has no legitimate constitutional basis. Likewise, if it was a crime for Wikileaks to assist in leaking US government secrets, it's ridiculous to say mainstream media outlets shouldn't be prosecuted for convincing government officials to leak other secrets.

Sadly, it's primarily The Press themselves I blame for our modern misunderstanding of the 1st Amendment. More than anyone else, they are responsible for the myth that a handful of words in the middle of an amendment enumerating the rights of the people are actually meant only to apply to them, and not to the public at large. They are the first to declare that an individual who isn't part of their fraternity isn't afforded the same protection they enjoy under the 1st Amendment and the last to criticize journalist shield laws which apply only to them. The fact is, there are no rights of The Press enumerated in the Constitution. Only rights of the people which also extend to The Press.
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- Anonymous Coward, 29 Apr 2011 @ 8:42am
  
  Re:
  You worded what I wanted to say better than I could.
  
  Freedom of the press does not refer to some elite group of people who call themselves "the press". It refers to anyone's freedom to publish what they please as they please.
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- Anonymous Coward, 2 May 2011 @ 12:10am
  
  Re:
  This post deserves to be voted one of the most insightful posts of the week. Mike, maybe you can put this one up under one of next weeks most insight comments. This comment definitely deserves more attention.
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  - Anonymous Coward, 2 May 2011 @ 12:10am
    
    Re: Re:
    (put it up as an editors choice).
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ComputerAddict (profile), 29 Apr 2011 @ 8:29am

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The Press Mentioned in the First Amendment is not talking at all about media organizations. The Definition of Press at the time would be any written article. Its a Freedom of Spoken word and Written word.
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- Anonymous Coward, 29 Apr 2011 @ 8:45am
  
  Re:
  Exactly!
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chuck, 29 Apr 2011 @ 8:47am

Advice: If you are going to do something that's "secret" don't document it. Pretty simple if you think about it.
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Frost, 29 Apr 2011 @ 9:50am

Citizenship is also irrelevant
For many of the constitutional amendments and (especially) the bill of rights, citizenship is completely irrelevant - nowhere is it mentioned that it applies only to US citizens, rather the opposite - it explicitly states it applies to all persons everywhere. Even the brown ones in nations ending with "stan"...
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- anonymous, 17 Nov 2012 @ 11:24am
  
  Re: Citizenship is also irrelevant
  Where explicitly does any framer state the Constitution applies to non citizens?
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tm, 29 Apr 2011 @ 12:40pm

press = printing press
The press in "freedom of the press" means printing press not news media. The misconception that "the press" = "the news media" is promoted by the news media.
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Travis, 29 Apr 2011 @ 1:15pm

Congress Shall Make No Law
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.

Well then, I guess we will just have to put together an Executive Agreement to punish them. Maybe there is still time to sneak something into ACTA?
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Gene Cavanaugh, 30 Apr 2011 @ 12:56pm

Wikileaks
Excellent article!

Our Constitution has been so eroded lately that it is no longer recognizable to those of us who love(d) Constitutional Law (in law school, but no longer in practice, I fear).

Even so, if we as a nation were willing to follow our own rhetoric, we would propose a Nobel prize (or equivalent) for both Assange and Manning.
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