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Finding WikiLeaks or journalists liable could prove difficult, WUSTL law professor says

The WikiLeaks controversy raises a number of important legal issues about national security and freedom of the press under U.S. law, says Neil Richards, JD, professor of law at Washington University in St. Louis.

Journalists and government officials have suggested that either WikiLeaks or The New York Times (NYT) might face legal liability for publishing the contents of diplomatic cables and other leaked documents.

“In order to find either WikiLeaks/Julian Assange or the NYT liable, the government would need to prove two things — first that a law had been broken, and second that enforcement of the law was constitutional under the First Amendment,” Richards says.

“In terms of finding a law that has been violated, the question is harder than might appear at first. This is mostly because our tradition of free press makes it hard to punish people for publishing the truth.”

Sen. Joseph Lieberman and Attorney General Eric Holder have suggested a number of possibilities, including the Espionage Act and state secrets statutes, which punish the disclosure of national security information harmful to the United States.

“These are broad statutes that correctly single out the sorts of damaging disclosures (defense codes, military plans, identities of secret agents, etc.) that the state should have the power to restrict, but they sweep very broadly and punish lots of disclosures that are protected by the First Amendment,” Richards says.

He says that another possibility, if WikiLeaks discloses stories about banking, might be trade secret law, though this would be inapplicable to the diplomatic cable disclosures.

“In general, it’s hard to find laws that have been violated here, which might be why the world’s governments are pursuing Mr. Assange for his sexual indiscretions rather than his journalistic ones.”

Richards says that in terms of the First Amendment, the media can be punished for the contents of its articles if one of four things are met: the material is false, not newsworthy, illegally obtained, or if there is a state interest of the highest order.

“The first two exceptions aren’t relevant here because the WikiLeaks cables are both true and newsworthy — indeed, this is exactly because people want to know the embarrassing truth contained in the cables that the government wants to restrict it,” he says.

“But if the information is illegally obtained by trespassing, computer hacking, inducing government officials to breach confidential agreements, etc., the government can restrict it.

“The Supreme Court held in the Bartnicki (Bartnicki v. Vopper) case in 2001 that where the press merely received illegally obtained information, the First Amendment protects its publication of the story. This would seem to immunize The New York Times, but if WikiLeaks had illegally induced the leaks or hacked government computers to obtain it, then it could be punished.”

The final ground: government interest

Richards says that the government can restrict the publication of really damaging government secrets, particularly ones that lead directly to the deaths of civilians, soldiers or government agents, but the Supreme Court suggested in the Pentagon Papers case in the 1970s that this category is very narrow, and includes things like the details of ongoing military plans or government secret access codes.

“From what has been disclosed by WikiLeaks to date, it seems unlikely that a court would hold WikiLeaks and especially The New York Times liable for publishing true facts on matters of undeniable public concern,” Richards says.
 

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Neil M. Richards
Professor of Law
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nmrichards@wulaw.wustl.edu