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.

Assange, Freedom of Speech and Neo-Imperialist America

It's hard to take seriously the crap that's being printed in the New York Times. Do people really believe the nonsense quoted below?

First, for the record, I think that for the United States to prosecute Assange would be idiotic, un-American and a threat to the future health of investigative journalism. Second, the New Republic piece by John Judis that I linked to above is well worth reading. Judis emphasizes, as I do, the possible virtues of WikiLeaks exposing secret deals with other countries, but he situates his analysis in a different context: the history of imperialism, and the periodic disruption of imperialist schemes by revelation of the secret deals they involve. In this view, America’s alliances with dubious regimes — whether to secure oil, cooperation against terrorism, whatever — are a form of neo-imperialism, and WikiLeaks is anti-imperialist. Judis himself doesn’t necessarily embrace the characterization of American foreign policy as neo-imperialist, but I’m pretty sure Assange would ...

Julian Assange: Neocon Tool? by Robert Wright

Here's the salient point: Mr. Assange was dealing with stolen goods. He did not have a right to the information. All governments at all times have secrets. Who decides which information is to be kept secret and which is to be revealed, and at which time? Our elected officials that's who. If you don't like what they're doing elect new ones that do. If that doesn't work what do you propose Mr. Wright: rebellion? civil war? anarchy?

Are we now to believe that leftists, those that want to increase the size of government; those people who have contempt and disdain for those who want limited, smaller government are advocating that governments have no secrets: that we the people should have access to all the information? No. There is nothing but hypocrisy and lies coming from Mr. Wright, The New York Times' and The New Republic' editorial boards.

EDIT: See Assange Is Not Protected by the Freedom of Speech Clause of the First Amendment