Whose First Amendment is it? Floyd Abrams champions free speech for corporations, but not for WikiLeaks

From James Goodale:

The Wall Street Journal
Letters to the Editor
Tuesday, December 20, 2011
We Should Support Julian Assange
Floyd Abrams speculates as to the damage caused by publication of classified information by WikiLeaks. He concludes such publication may have already cost lives (“Don’t Cry for Julian Assange,” op-ed, Dec. 8. See article below).
Mr. Abrams’s article reminds me of Justice Byron White’s speculation about the leaked Pentagon Papers: “Revelation of these documents will do substantial damage to public interests. Indeed, I am confident that their disclosures will have that result.”
It is now 40 years later, and no one has offered any proof that publication of anything in the Pentagon Papers damaged national security. Claims of damage to national security are routinely made when classified information is leaked and published. Yet, to the best of my knowledge, no such claims have ever been substantiated.
Mr. Abrams particularly excoriates WikiLeaks for publication of cables covering Zimbabwe, Mexico and Ecuador. In fact, these cables were first brought to light in El País and The Guardian. These newspapers and WikiLeaks are entitled to the same protection under the First Amendment because they have published the same information.
It is important for the First Amendment community to support Mr. Assange. If Mr. Assange can be successfully prosecuted, other publishers can be too.
James C. Goodale
New York
Mr. Goodale was counsel to the New York Times in the Pentagon Papers case.
Floyd Abrams’ Op-Ed

DECEMBER 8, 2011

Don’t Cry for Julian Assange
Julian Assange put many people at risk, which may have already cost lives.


The fall of WikiLeaks has come with startling swiftness. A year ago millions viewed it as a vibrant, swashbuckling, hi-tech, anti-establishment revealer of secrets. Now WikiLeaks has suspended publication, and its founder and publisher, Julian Assange, has been ordered extradited from England to Sweden to respond to questions about alleged sexual assaults on two Swedish women.

The five newspapers to which WikiLeaks furnished hundreds of thousands of confidential State Department and U.S. military documents jointly announced they “deplored” its conduct in releasing the names of vulnerable confidential sources of information.

There has been much to deplore.

Earlier this year the American ambassador to Mexico, Carlos Pascual, was obliged to resign under Mexican pressure because his candid and quite correct cables to Washington released by WikiLeaks had observed that the Mexican army had been “risk averse” in pursuing drug traffickers. Ecuador expelled U.S. Ambassador Heather Hodges for her candid assessment of the political situation there in cables released by WikiLeaks. In Zimbabwe, the attorney general of Robert Mugabe’s despotic regime has stated that those leaders of his nation who spoke with the U.S. embassy, as revealed by WikiLeaks, could face prosecution for “treason.”

In 2010, WikiLeaks released more than 77,000 confidential U.S. military reports from Afghanistan, which included the names of over 100 Afghan sources of information, placing them at risk of retaliation by the Taliban. This was followed, just a few months ago, by WikiLeaks’ release of the full texts of over 251,000 confidential U.S. diplomatic cables, many containing the names of individuals who had sought and been promised confidentiality.

As summarized in London’s Guardian newspaper, “several thousand [documents were] labeled with a tag used by the U.S. to mark sources it believes could be placed in danger, and more than 150 specifically mentioned whistleblowers.” References were, as well, made to “people persecuted by their governments, victims of sex offenses and locations of sensitive government installations and infrastructure.”

This was the conduct that caused the five publications (Der Spiegel, El Pais, Le Monde, the Guardian and the New York Times) that had published WikiLeaks documents—but which had redacted them to avoid reference to individuals who could be harmed by revealing their identities—to denounce WikiLeaks. Joel Simon, the executive director of the Committee to Protect Journalists, warned that even a reference to a journalist “in one of these cables can easily provide repressive governments with the perfect opportunity to persecute or punish journalists and activists.”

There is, of course, another side to WikiLeaks. It released the cables of American diplomats in Tunisia commenting on the high level of corruption there that is often credited with igniting the “Arab Spring.” It exposed a string of extrajudicial killings in Kenya, and much more.

But no amount of such revelations can justify or excuse WikLeaks’ persistent recklessness.

There was no justification for WikiLeaks’ release of a four-page, single-spaced cable, classified as secret, listing facilities around the world, ranging from specified undersea communication lines to a laboratory that makes smallpox vaccine, that the U.S. considers vital to its national security. The same may be said of WikiLeaks’ release of a classified report describing the radio-frequency jammers used in Iraq by American soldiers to cut off signals to remotely detonated explosives.

None of this means that if WikiLeaks or Mr. Assange were brought to trial in this country that they would have no basis for claiming First Amendment protection. They would and should. Whatever the legal result, it would not absolve Mr. Assange of conduct that has put many people at great risk, or indeed, may already have cost some of them their lives.

“When delicate information is at stake, great prudence is demanded so that the information doesn’t fall into the wrong hands and so that people are not hurt,” the German newspaper Die Welt commented upon WikiLeaks’ bulk release of unredacted State Department cables. That such self-evident language seems alien to Julian Assange and to WikiLeaks says it all.

Mr. Abrams is the author of “Speaking Freely: Trials of the First Amendment” (Viking Penguin, 2005) and a senior partner in the firm of Cahill Gordon & Reindel LLP.

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