Monday, December 20, 2010

Assange is not protected by Freedom of Speech

It’s a provocative headline but accurate. Freedom of Speech only covers what one says and extrapolating to a minor degree what one does. For instance one can’t burn the American Flag on public property and then claim that you can’t be prosecuted because of the First Amendment’s Freedom of Speech clause.

Among things we’re missing in today’s political discourse, aside from civility, is clarity in political thought: Roe v Wade is not synonymous with being pro-abortion; Congress did not just pass a tax-cut (aside from a temporary payroll modification which was not a focal point of the debate); Assange is not protected by Freedom of Speech.

Freedom of Speech applies to what one personally says; that you cannot, within reason, be prosecuted for expressing political thought. (Advocating political assassination and outright insurrection are excluded.) Freedom of speech is, to a limited degree, expanded to non-political thought and applies to even a lesser degree to forms of political activity. It would be useful to start identifying how political activities are protected by the US Constitution. I would say, for example, that burning the American flag is NOT permitted by the Freedom of Speech clause. If burning a piece of cloth on public property is not permitted then the fact that the cloth that’s being burned was manufactured as a US flag does not, by the Freedom of Speech clause of the First Amendment, give you immunity from prosecution for burning that piece of cloth. It would, I would argue, protect you from added penalties for burning the US Flag – but it would not protect you from the liabilities involved in burning a piece of cloth on public property and “endangering” the lives of the people around you.

Regarding Assange, he is protected by the Freedom of the Press clause of the First Amendment, not the Freedom of Speech clause. This is not a matter of semantics. It is important in how we view the issues involved. Freedom of the Press expands Freedom of Speech, not only to the printed word (and by extension radio, TV and the internet) but also means that the ideas in question need not be ones’ own. A publisher is protected by the Freedom of Press clause.

How does that apply to Assange? Does it mean that he, like any other publisher cannot be prosecuted for publishing the ideas and thoughts of anyone else? Yes and no. Yes, he is protected as any other publisher, and no – a publisher may not publish the ideas and thoughts of anyone else. If The New York Times received a stolen manuscript of J. K. Rowling’s Harry Potter and the Deathly Hollows and published it would they be protected by the Freedom of the Press clause? No. We have copyright laws that protect ideas from being published without the owner’s approval.
Assange KNOWINGLY published stolen material. Why would he be any less liable than the NYTs in the above scenario? Does the fact that he did or didn’t make any money off publishing the material matter? No. Does the fact that Assange published classified material make him less liable than someone publishing a work of fiction where the only damage done is to the author and publisher’s bank account? No.

Without a doubt there is a societal benefit to exposing the activities of the government; we know that transparency is an important counter-measure to government power; and we know that reporters often get and then report on classified information from their sources. Therefore how do we balance these conflicting priorities – that some information needs to be private, and the people’s right to know?

The issue isn’t particularly about Assange. It is: How do we deal with the national security; criminal investigations and other issues if, at any time this information can be published without consequences? How do we deal with an arrangement between an Assange and a traitor / thief / spy who takes and then, through Assange, publishes information. This makes Assange, and others like him, part of a shadow-government, power-brokers who choose what information will be and will not be made public.

Lastly I find that the argument - made by many on the left - praising increased transparency to be deceptive at best. If one is concerned about an over-reaching government then the best thing to do is to limit government power to the bare minimum. I don’t find the transparency argument convincing by those who want to increase government’s power – especially by those who seem to find no limit in what the government can force its citizens to do.

UPDATE: May 4, 2011

"Wikileaks released a set of leaked Guantanamo prisoner files to the public last week. Among them is a document dated from 2008, which mentioned both Osama's trusted courier's name and Abbottabad, the city in which Osama had been hiding. There are speculations that, fearing al-Qaida realized their courier may have been tracked and move Osama, the US administration accelerated their plan and attacked the target site over the weekend. This link highlights the relevant section of the document."

UPDATE: November 18, 2011

Just found out that the USSC has ruled on flag burning.
Texas v. Johnson did not strike down fire codes, or even set out an exception to them for expressive purposes. It said the government may not penalize the specific act of burning a flag because of that act's symbolic meaning.

4 comments:

rctlfy said...

"Chief Justice Burger wrote: 'The Court has not yet squarely resolved whether the Press Clause confers upon the ‘institutional press’ any freedom from government restraint not enjoyed by all others.”358

Your argument is interesting but I am confused as to whether this matter is truly resolved.

The Classical Liberal said...

RCTLFY,

This argument may well have been resolved. I'm not a constitutional scholar and I'm still exploring the issues. I think that if sensitive classified information was being displayed that the server would be shut down immediately. If Federal Marshalls would show up at a pilot's house because of him posting disparaging youtube videos about TSA policy -- which is appalling by the way -- then the government's response would be quick and vicious to a future Assange who disseminates truly valuable information.

This does not make me feel safer or better. It horrifies me, which is why this issue needs to be clearly defined BEFORE the above scenario takes place.

rctlfy said...

Interesting case but I have not followed it completely. I suspect he will be protected under the Whistleblower Protection Act http://www.fas.org/sgp/crs/natsec/RL33918.pdf but in the meantime they are trying to control a situation with reactive measures instead of proactively handling these security issues. I heard the latest concern was coffee thermoses. I could be dangerous myself if they withhold my coffee!

The Classical Liberal said...

LOL. I'm a coffee addict as well.

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