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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.

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The Nixon White House did not go down that road, however. And administration efforts to prosecute leakers Daniel Ellsberg and Anthony Russo were dismissed due to "prosecutorial misconduct."

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If they do decide to bring a case, US prosecutors today would likely charge Assange or WikiLeaks with violations of the Espionage Act, a broad 1917 law.

The language of this statute is sweeping. On its face it prohibits any person from communicating to anyone not authorized to receive it “any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States.”

The law says nothing about emails, but it was passed at the end of World War I, remember.

“The unclear language of the statute threatens to impinge upon rights protected by the first amendment,” wrote US Circuit Court judge Russell Winter in a 1980 opinion.

Court rulings in recent decades have indicated that to bring a case prosecutors might have to prove the communicator in question intended to injure the US. WikiLeaks founder Assange may have fulfilled this requirement by talking in interviews about his desire to undermine with his actions what he sees as corrupt aspects of US policy.

“He’s gone a long way down the road of talking himself into a possible violation of the Espionage Act,” said Floyd Abrams, an attorney who represented the New York Times in the Pentagon Papers case, in a recent National Public Radio broadcast interview.

It’s still possible that judges could rule that the First Amendment protects WikiLeaks’ actions, of course. Freedom of speech is a basic US constitutional right. What Assange and WikiLeaks may have done, however, is set up a lawyer's dream of a case which would allow the Supreme Court to resolve a conflict between two basic rights – the right to speak, and the right of the US to hold close its secrets.

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