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WikiLeaks: Would First Amendment protect Julian Assange?

The First Amendment shields the publication of truthful information, legally acquired. But what if the information is gotten illegally? If prosecutors go after Wikileaks founder Julian Assange, it could be under the 1917 Espionage Act.

By Staff writer / December 3, 2010

Wikileaks founder Julian Assange takes his seat during a news conference at the Geneva press club Nov. 4.

Martial Trezzini/AP/File

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Washington

WikiLeaks founder Julian Assange and his organization have made lots of people in the US government angry. The Justice Department is threatening to prosecute them for publishing online a vast trove of secret US diplomatic documents.

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But isn’t there such a thing as free speech in America? Wouldn’t the First Amendment protect Mr. Assange and WikiLeaks from Washington’s threats?

Maybe not. The WikiLeaks document dump in fact appears to fall into an unresolved area of US law. The First Amendment strongly shields the publication of truthful information, legally acquired. But what if the information is gotten illegally? That’s another issue entirely.

You’d think that the Supreme Court would have settled this question long ago, given all the years that have passed since the First Amendment was adopted. But it hasn’t.

Supreme Court justices have not resolved the question of “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well,” concludes a Congressional Research Service analysis of the issue [PDF] published on October 10.

The closest the high court has come to ruling on this issue may have been the famous 1971 Pentagon Papers case, in which justices rejected a Nixon administration plea that they stop the New York Times and the Washington Post from printing a leaked top secret study of the history of US policy in Vietnam.

It was a landmark ruling in regards to US press freedoms. But what the ruling rejected was the government’s efforts to enjoin publication. A majority of justices appeared to indicate that it would have been possible for the administration to prosecute the two big US papers after they had printed the material. (Many of the judges weighed in with separate opinions, so it’s not entirely clear what they would have agreed upon in regards to this particular issue.)

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