Abrams on Wikileaks

by Shannen W. Coffin

The Wall Street Journal carries an excellent piece by noted First Amendment litigator Floyd Abrams, in which Mr. Abrams condemns in no uncertain terms the recklessness of Julian Assange and the damage that his publication of government secrets has done to American security and American friends around the world. A few examples:

  • In Zimbabwe, the attorney general has announced that leaders of his country that spoke with the U.S. embassy, as revealed by State Department cables, could be prosecuted for treason.
  • Wikileaks released a four-page, single-spaced secret cable listing facilities all over the world that the U.S. considers vital to its national security. 
  • Hundreds of confidential sources around the world were revealed. 

Mr. Abrams suggests that, if prosecuted, Assange should assert a First Amendment defense. He doesn’t quite suggest that such a defense would prevail, and I have little doubt that it should not. In the Pentagon Papers litigation, the Supreme Court concluded that the First Amendment prohibits prior restraints on speech in all but the narrowest and most critical circumstances, but several justices noted that post-release prosecution might very well be proper. 

But putting aside the legal issues, Mr. Abrams — who could never be confused with a free-speech relativist — has little doubt that Assange can never be absolved of his recklessness. “Whatever the legal result, it would not absolve Mr. Assange of conduct that has put many people at great risk, or indeed, may have already cost some of them their lives.”

I would go a step further than Mr. Abrams, and he might very well disagree with me on this point. Mr. Abrams points out that several of the news outlets, including Der Spiegel and the New York Times, that published Wikileaks-purloined documents have since denounced the release of documents. Perhaps those publications took some steps to redact names and other information they might have deemed sensitive or secret. But that scrubbing was never enough. Nor were those publications qualified to make the decision of what is and what isn’t safe to publish. The Times and their ilk fed the Wikileaks beast and are no less responsible for the damage that was done than that little toad, Assange. And though they will doubtlessly hide behind First Amendment exhortations, the very publications that now condemn Assange share in the fault. 

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