Wikileaks and the First Amendment

-- By RonMazor - 01 May 2012

Wikileaks as Journalism

One could paint Wikileaks as an irresponsible peddler of secret gossip. Yet, back in 2010, their initial video reveal spoke to a higher goal—to shed light on perceived abuses of US conduct in a war which held great public relevance but was shielded from public view. The “CollateralMurder” controversy made the major news cycles because its import was that, on a daily basis, our military was behaving with a callousness to life that departed from the laws of war—conduct that the US public would abhor but for their ignorance. The knife twist: that US investigators failed to censure conduct that appeared little more than casual slaughter, and government secrecy meant that the public was incapable of calling the military to task or grasping the pervasiveness of the problem.

The video Wikileaks released was a powerful suggestion that the internal checks and balances of the US military were broken—a scary thought of national and international significance. It purportedly dealt with the 2007 death of two Reuters employees and a number of civilians in Iraq. The bulk of the release came in the form of US Army gun camera footage from a patrol of Apache helicopters. However, Wikileaks exerted a measure of editorial control, introducing background for the footage via narrative slides, highlighting certain visual cues to demonstrate that the dead and wounded may have been reporters and civilians, replaying impactful audio and visual segments for emotional impact, and cutting down the length of the original video for a tighter presentation. While the actual encounter involves a level of nuance and uncertainty that helps explain why the military investigation cleared the personnel involved, the Wikileaks video pushes the notion that the incident is a stark example of wrongdoing. Still, Wikileaks does not fabricate its narrative—its story remains true to the facts of the event. In this respect, Wikileaks' production looks a lot like opinionated investigative journalism.

Despite your first sentence, I don't see anyone who is arguing that WikiLeaks isn't journalism. Whether journalists may knowingly distribute classified material, and beyond that, may conspire with others to distribute classified material, are quite different questions.

Wikileaks as Protectible

Whether or not a massive infodump of classified material is protected behavior bears questioning. It can be argued that Wikileaks' initial reveal presented a level of narrative and journalistic sensibility that was absent from later releases. But is “narrative” really the essential test for constitutional protection? Though “the press” has become synonymous with journalism in modern parlance, on a basic level, a press reproduces documents. If a publisher cannot print damning secret information of the government—of secret government surveillance, torture, or killing—then the core adversarial nature of the press is defanged. Indeed, this was the very thrust of the controversy in New York Times v. United States—where the government failed in its attempt to enjoin the New York Times from reproducing the classified “Pentagon Papers” they had obtained. The “Pentagon Papers” seem particularly analogous to Wikileaks' later dealings with diplomatic cables—both involved extensive classified material whose release carried a degree of harm to national security interests—the two differ mainly in scope. However, the size of a release was not a factor the Supreme Court considered relevant in New York Times.

Again, why the point about the volume of material? That's not relevant to the conspiracy to distribute classified material, if a prosecution should be brought. It may be relevant to the degree of public harm resulting from the release, but I have read no one who supposes, let alone argues, that First Amendment protection is altered by the volume of material.

I probably shouldn't be surprised in a piece written hastily to get graduation clearance, but there's no clear theme here. If the material involved hadn't been subject to security classification, no one doubts that the First Amendment would have protected its publication. If the First Amendment alone sufficed to immunize its publication, on the other hand, security classification would cease to be meaningful at all. New York Times v. United States is irrelevant: this is not a prior restraint question. Punishment post-publication for criminal violation of classification does not raise the same First Amendment issues, and is relatively routine.