Harvard Law & Policy Review 1

WIKILEAKS, THE FIRST

AMENDMENT, AND THE PRESS

Jonathan Peters1

Recommended citation: Jonathan Peters, WikiLeaks, the First Amendment,

and the Press, HARVARD LAW & POLICY REVIEW (Online: April 18, 2011).

I. INTRODUCTION ………………………………………...…….……...…1
II. THE CONSTITUTIONAL STANDARDS ………………………………...... 3
A. STRICT SCRUTINY ……………………………….……......…...5
B. THE CLEAR-AND-PRESENT DANGER STANDARD ....………....…7
III. ARE WIKILEAKS AND ASSANGE PART OF THE PRESS?
DOES IT MATTER? …………………………………………………...10
IV. CONCLUSION …………………………………………....……….......14

I. INTRODUCTION

Using a high-security online drop box and a well-insulated website,

WikiLeaks has published 76,000 classified U.S. documents about the war
in Afghanistan,2 nearly 400,000 classified U.S. documents about the war
in Iraq,3 and more than 2,000 U.S. diplomatic cables.4 In doing so, it has
collaborated with some of the most powerful newspapers in the world,5

1
Jonathan Peters is a lawyer and the Frank Martin Fellow at the Missouri
School of Journalism, where he is working on his Ph.D. and specializing in the First
Amendment. He has written on legal issues for a variety of newspapers and magazines,
and now he writes regularly for PBS MediaShift about new media and the law. Email:
[email protected].
2
Noam N. Levey & Jennifer Martinez, WikiLeaks Emerges as Powerful Online
Whistle-Blower, L.A. Times, July 27, 2010.
3
The Iraq Archive: The Strands of a War, N.Y. Times, Oct. 23, 2010, at A1.
4
How Many Documents Has WikiLeaks Published?, NPR, Dec. 28, 2010.
5
Noam Cohen, A Renegade Site, Now Working With the News Media, N.Y.
Times, Aug. 2, 2010, at B3; see also, N.Y. Times, Open Secrets: WikiLeaks, War and
American Diplomacy (Alexander Star ed., 2011).
2 Peters

and it has rankled some of the most powerful people in the world.6
President Barack Obama said in July 2010, right after the release of the
Afghanistan documents, that he was “concerned about the disclosure of
sensitive information from the battlefield.”7 His concern spread quickly
through the echelons of power, as WikiLeaks continued in the fall of 2010
to release caches of classified U.S. documents.
Secretary of State Hillary Clinton condemned the slow drip of
diplomatic cables, saying it was “not just an attack on America’s foreign
policy interests, it [was] an attack on the international community.” 8
Director of National Intelligence James Clapper wrote in an e-mail to
intelligence agencies that the “actions taken by WikiLeaks are not only
deplorable, irresponsible, and reprehensible—they could have major
impacts on our national security.”9 Members of Congress scrambled to
respond to the website and its founder, Julian Assange, calling variously
for a criminal prosecution,10 for an overhaul of the Espionage Act of
1917,11 and for a law that would make it illegal to publish the names of
military and intelligence informants.12
For his part, Attorney General Eric Holder announced in late
November that the Justice Department and the Pentagon were
investigating the circumstances surrounding the leaks to determine if
criminal charges would be filed. 13 Holder declined to say whether
WikiLeaks or Assange were targets of the investigation. He said that
anybody, regardless of citizenship or place of residence, could be a target,
adding, “Let me be very clear . . . to the extent that we can find anybody
who was involved in the breaking of American law . . . they will be held
responsible.”14 Holder also said it would be a “misimpression” to think he

6
See, e.g., Charlie Savage, U.S. Prosecutors Study WikiLeaks Prosecution, N.Y.
Times, Dec. 8, 2010, at A10; Scott Shane, Accused Soldier Stays in Brig as WikiLeaks
Link Is Sought, N.Y. Times, Jan. 14, 2011.
7
Obama on WikiLeaks: ‘I’m Concerned,’ ABC News, July 27, 2010.
8
David Jackson, Obama Aides Condemn WikiLeaks; Obama Orders Review,
USA Today, Nov. 29, 2010.
9
Dianne Feinstein, Prosecute Assange Under the Espionage Act, Wall St. J.,
Dec. 7, 2010.
10
Id. See also, Dan Lungren, WikiLeaks Actions Are Damaging and Should Be
Prosecuted, The Hill, Dec. 1, 2010; Michael O’Brien, Graham: Prosecute WikiLeaks,
The Hill, July 28, 2010.
11
See, e.g., Espionage Act and the Legal and Constitutional Issues Raised by
WikiLeaks: Hearing Before the H. Comm. on the Judiciary, 111th Cong. (2010)
[hereinafter WikiLeaks Hearings].
12
Gautham Nagesh, Rep. King Introduces Anti-WikiLeaks Bill,, The Hill, Dec. 9,
2010; Kevin Poulsen, Lieberman Introduces Anti-WikiLeaks Legislation, Wired, Dec. 2,
2010.
13
Ellen Nakashima & Jerry Markon, WikiLeaks Founder Could Be Charged
Under Espionage Act, Wash. Post, Nov. 30, 2010.
14
Mark Landler & J. David Goodman, Clinton Says U.S. Diplomacy Will
Survive ‘Attack,’ N.Y. Times, Nov. 30, 2010, at A14.
Harvard Law & Policy Review 3

was studying only the Espionage Act.15 Then, in early January 2011, the
Justice Department subpoenaed records from Twitter about the account
activity of several people connected to WikiLeaks.16 A federal grand jury
reportedly has been meeting in Virginia to weigh the government’s
evidence against WikiLeaks and Assange, 17 in connection with the
military’s case against Pfc. Bradley Manning, the Army intelligence
analyst accused of leaking classified information to WikiLeaks.
This is largely unfamiliar territory for the Justice Department. As a
result, the legal and constitutional issues are challenging and varied. This
article focuses on one of them: When can the government, consonant with
the First Amendment, punish the publication of classified information
related to national security? 18 To that end, Part II outlines the
constitutional standards that could apply to such a prosecution of Assange
or WikiLeaks. Part III discusses whether Assange and WikiLeaks are part
of the press and whether that matters for constitutional purposes. Part IV
concludes by urging the Justice Department to proceed with caution.

II. THE CONSTITUTIONAL STANDARDS

The first thing to do is briefly to inventory the statutory provisions

that could be used to prosecute WikiLeaks or Assange. Notably, there is
no one law or provision that generally criminalizes the disclosure of
classified information—no catchall that simply says, “Thou shalt not
disclose.”19 There is, rather, a patchwork of laws and provisions serving
that function, each applying in different circumstances.20 For our purposes,
one law and three of its provisions take center stage.
Passed in 1917, the Espionage Act applies broadly to national
defense information and prohibits, in pertinent part: (1) the transmitting of
such information with the intent or reason to believe it will be used against

15
Sarah Ellison, The Man Who Spilled the Secrets, Vanity Fair, Feb. 2011.
16
Scott Shane & John F. Burns, U.S. Subpoenas Twitter Over WikiLeaks
Supporters, N.Y. Times, Jan. 9, 2011, at A1.
17
Kim Zetter, Report: Federal Grand Jury Considering Charges Against
WikiLeaks’ Assange, Wired, Dec. 13, 2010.
18
For this article, I am assuming that proper jurisdiction lies in federal court.
There is reason and room for others to challenge that assumption. And, again, I am
focusing on criminal liability for publishing classified information, rather than criminal
liability for gathering or possessing or eliciting it. Accordingly, I am not addressing some
issues that are worthy of consideration (e.g., Are the charging statutes intended to apply
extraterritorially? Would extradition be allowed for the offense(s) charged?).
19
Baruch Weiss, Why Prosecuting WikiLeaks’ Julian Assange Won’t Be Easy,
Wash. Post, Dec. 5, 2010.
20
Jennifer K. Elsea, Criminal Prohibitions on the Publication of Classified
Defense Information, Cong. Res. Service, Dec. 6, 2010.
4 Peters

the U.S. or to the benefit of a foreign nation;21 (2) the disclosure of such
information to any person not entitled to receive it, with reason to know it
could be used to harm the U.S. or to benefit a foreign nation;22 and (3) the
knowing and willful disclosure, prejudicial to the national security or to
U.S. interests, of information related to communications intelligence
specially designated by a federal agency for “limited or restricted
dissemination or distribution.”23
Based on these provisions, there appears to be statutory authority
to punish WikiLeaks for publishing a number of the classified U.S.
documents, “as long as the intent element can be satisfied and potential
damage to national security can be demonstrated.”24 These provisions are
the most likely to be used in these circumstances because of their scope
and because they apply to all people (other provisions in the Act apply
only to government employees or those authorized to access classified
information).25
However, any prosecution would have to comport with the First
Amendment. It is critical to keep in mind a distinction that has played a
central role in the Supreme Court’s analysis of the Speech and Press
Clauses, the distinction between content-neutral and content-based
restrictions. The constitutional standard to be applied depends on which
type is at issue. Content-neutral laws restrict expression without regard to
the message conveyed (e.g., laws banning noisy speeches near a hospital),
while content-based laws restrict expression because of the message
conveyed (e.g., laws banning the display of the swastika). 26 Criminal
statutes prohibiting the publication of classified information fall into the
latter category.
For content-based restrictions, the Supreme Court primarily has
applied strict scrutiny or some version of the clear-and-present danger
standard. It is difficult to predict which one would apply in a criminal
21
18 U.S.C. § 793(a)–(c) (2010), available at Cornell University Legal
Information Institute.
22
18 U.S.C. § 793(e) (2010), available at Cornell University Legal Information
Institute.
23
18 U.S.C. § 798(a)–(b) (2010), available at Cornell University Legal
Information Institute.
24
Elsea, supra note 20, at 8.
25
Other language in those provisions would be used if criminal liability were
based on gathering, receiving, or possessing the information. Likewise, other laws would
take center stage if liability were based on fraud in connection with computers, a
violation of 18 U.S.C. § 1030(a)(1), available at Cornell Legal Information Institute;
theft or conversion of government property or records, a violation of 18 U.S.C. § 641,
available at Cornell Legal Information Institute; or disclosing the identities of certain U.S.
undercover intelligence officers, agents, informants and sources, a violation of 50 U.S.C.
§ 421 available at Cornell Legal Information Institute. Again, for this article, I am
focusing on liability for publishing the information.
26
Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet,
Pamela S. Karlan, The First Amendment 16–17 (2008).
Harvard Law & Policy Review 5

prosecution of WikiLeaks or Assange, because the Supreme Court has

applied each standard to a wide range of First Amendment issues.27 It
seems that historically the Court has preferred to use the clear-and-present
danger standard in cases involving speech that creates some sort of hazard.
Recently, however, it seems the Court has preferred in general to use the
strict scrutiny standard. Each standard is examined in the following
subparts of this article, and for now it is enough to say that either one
could apply in a case against WikiLeaks or Assange.

A. STRICT SCRUTINY

A content-based restriction on expression can be upheld if (1) it is

“narrowly tailored to serve a compelling state interest,”28 and (2) it is the
“least restrictive means to further the articulated interest.” 29 The
government bears the burden to show that the interest is sufficiently
compelling. The standard requires the courts to make a normative
judgment about the ends (Is the interest important enough to justify a
speech restriction?) and an empirical judgment about the means (Does it
further the interest? Is it too broad, too narrow? Is it unnecessarily
burdensome?).30
The Supreme Court has set forth some general principles to inform
those judgments. First, regarding the ends: a restriction’s
underinclusiveness can be evidence that the interest is not truly compelling
(i.e., the government does not consider it compelling enough to justify a
broader statute). An interest itself can also be impermissibly
underinclusive, even if the restriction is narrowly tailored to it (i.e.,
asserting an interest to fight one ill while ignoring other ills that are
indistinguishable). Further, the government has no compelling interest in
privileging one type of high-value speech (i.e., economic, social, and
political) at the expense of another, or in restricting expression simply
because society would find the expression offensive or bad.31
Second, regarding the means: the government must show that the
restriction actually advances its interest. A restriction is not narrowly
tailored if it covers a large amount of expression that does not implicate
the interest, or if other less-restrictive means are available and would
adequately serve the interest. Courts also will strike down a restriction if it

27
See, e.g., Frank Strong, Fifty Years of Clear and Present Danger: From
Schenck to Brandenburg–and Beyond, 1969 Sup. Ct. Rev. 41 (1969); Eugene Volokh,
Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa.
L. Rev. 2417 (1996).
28
Volokh, supra note 27, at 2417.
29
Sable Commc’ns of Cal. v. FCC, 492 U.S. 115, 126 (1989) available at
FindLaw.
30
Volokh, supra note 27, at 2418–19.
31
Id. at 2419–21.
6 Peters

fails to cover a large amount of expression that harms the interest to the
same degree as the expression actually being restricted.32
It is unclear exactly how the strict scrutiny standard would apply in
a case against WikiLeaks or Assange. Neither the Justice Department nor
the Pentagon has released factual findings from their investigations, and
we do not know enough at this point to conduct a comprehensive analysis.
That said, if the government decided to prosecute WikiLeaks or Assange,
it would likely argue that punishing the publication of classified defense
information promotes its interest in national security and that “no
governmental interest is more compelling than the security of the
Nation.”33 For support, the government might point to the ongoing wars in
Iraq and Afghanistan: “When a nation is at war, many things that might be
said in time of peace are such a hindrance to its effort that their utterance
will not be endured so long as men fight . . . .”34
Of course, even if national security is a compelling interest, it
remains an open question whether the charging statute is the “least
restrictive means to further the articulated interest.” 35 Consider, for
example, the following views of the Espionage Act. Jack Goldsmith, a
former head of the Office of Legal Counsel at the Justice Department, said
in February 2011 that the Act is “famously overbroad.”36 Abbe David
Lowell, a former special assistant to the Attorney General, said in
December 2010 that, “[b]ecause of its breadth and language, [the Act] can
be applied in a manner that infringes on proper First Amendment activity,”
such as “newsgathering to expose government wrongdoing.” 37 Judson
Littleton, now a trial attorney at the Justice Department, said in 2008 that
the Act has “vagueness and overbreadth problems.”38 And Bruce Fein, a
former U.S. Associate Deputy Attorney General, said in 2006 that the Act
is “unconstitutionally overbroad because it makes no distinction between
genuine and contrived dangers.”39
To make sense of these comments, it helps to review the vagueness

32
Id. at 2421–24.
33
Haig v. Agee, 453 U.S. 280, 307 (1981) (citations omitted), available at
FindLaw.
34
Schenck v. United States, 249 U.S. 47, 52 (1919), available at FindLaw. This
case, of course, involved the clear-and-present danger standard, rather than the strict
scrutiny standard.
35
Sable, 492 U.S. at 126, available at FindLaw.
36
Jack Goldsmith, Why the U.S. Shouldn’t Try Julian Assange, Wash. Post, Feb.
11, 2011.
37
WikiLeaks Hearings at 30 (statement of Abbe David Lowell).
38
Judson O. Littleton, Note, Eliminating Public Disclosures of Government
Information from the Reach of the Espionage Act, 86 Tex. L. Rev. 889, 904 (2008).
39
Bruce Fein, A More Secret Government?, Wash. Times, Aug. 21, 2006.
Harvard Law & Policy Review 7

and overbreadth doctrines. 40 The vagueness doctrine requires that a

criminal statute state clearly and explicitly what is prohibited. This is to
provide fair warning and to preclude arbitrary enforcement of the statute.
The vagueness doctrine often overlaps with the overbreadth doctrine,
which is used to invalidate statutes so broadly written that they cover both
unprotected and protected speech. The concern is that protected speech
could be chilled. Because the vagueness and Overbreadth doctrines are
closely related to each other and to the “least restrictive means” test (they
all are designed essentially to ensure that restrictions on expression are
precise and narrowly drawn), any evidence of overbreadth and vagueness
could be used as evidence that the restriction does not satisfy the “least
restrictive means” test.41 The looser the fit between the statute and the
government interest, the less likely the restriction will be upheld.

B. THE CLEAR-AND-PRESENT DANGER STANDARD

Historically, the clear-and-present danger standard ensured that

Americans had broad expression rights unless the government proved that
particular expression posed a clear and imminent danger of serious harm.42
Brandenburg modified that standard in 1969, holding that the government
could restrict speech only if it is “directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.”43
Just two years later, in the Pentagon Papers case,44 yet another version of
the standard emerged, in a concurring opinion by Justice Stewart. On that
basis, Geoffrey Stone concluded recently that the clear-and-present danger
standard would apply today in cases involving the publication of classified
information, after the information is leaked.45
Although the danger standard has been dormant for a while (again,
the Court in recent years has moved toward strict scrutiny), it is not dead.
It strikes at the heart of the balance between national security and free
expression. Drawing on Professor Stone’s work, the next few paragraphs
demonstrate why the clear-and-present danger standard could be used in a
criminal prosecution of WikiLeaks or Assange, for publishing classified

40
Of Other Tests and Standards: Vagueness, Overbreadth, Least Restrictive
Means, and Others, CRS Annotated Constitution, available at Cornell Legal Information
Institute.
41
Id.
42
See, e.g., Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978)
(requiring clear and present danger and that the danger’s magnitude be serious), available
at FindLaw; Bridges v. California, 314 U.S. 252, 263 (1941) (noting that to punish
expression, “the substantive evil must be extremely serious and the degree of imminence
extremely high”), available at FindLaw.
43
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
44
N.Y. Times Co. v. United States, 403 U.S. 713 (1971), available at FindLaw.
45
See Geoffrey R. Stone, Government Secrecy vs. Freedom of the Press, 1 Harv.
L. & Pol’y Rev. 185, 213 (2007).
8 Peters

information. The Pentagon Papers case is a good place to begin this

analysis. Its facts are familiar to many:

In 1967, Secretary of Defense Robert

McNamara commissioned a top-secret study
of the Vietnam War. [It] reviewed in great
detail the formulation of U.S. policy toward
Indochina, including military operations and
secret diplomatic negotiations. In the spring
of 1970, Daniel Ellsberg, a former Defense
Department official, gave a copy of the
Pentagon Papers to the New York Times. On
June 13, the Times began publishing
excerpts from the Papers. The next day,
Attorney General John Mitchell . . .
requested that the Times [halt publication].

Two hours later, the Times transmitted a

response, which it released publicly: “The
Times must respectfully decline the request
of the Attorney General, believing that it is
in the interest of the people of this country
to be informed of the material contained in
this series of articles.” The Times added that,
if the government sought to enjoin any
further publication of the material, it would
contest the government’s position, but
would “abide by the final decision of the
court.”46

The next day, the government filed for an injunction and for a
temporary restraining order, which was granted, halting publication of the
Pentagon Papers. The order wasn’t in place for long, though, because
within two weeks the Supreme Court had heard oral arguments in the case
and had announced its decision. Six justices held that the government did
not meet its “heavy burden” to justify a prior restraint on the press,
allowing the Times to resume publication.47 The per curiam was just 237
words, including citations, so “[it] was the individual opinions of the
justices—nine justices, nine opinions—that told the detailed story behind
the judgment.”48

46
Id. at 197–98.
47
N.Y. Times, 403 U.S. at 714.
48
Floyd Abrams, Speaking Freely 44 (2005).
Harvard Law & Policy Review 9

Although they all touched on different themes,49 Justice Stewart’s

stood out as the one that “best capture[d] the view of the Court.” 50
Concurring in the judgment, he wrote:

We are asked . . . to prevent the

publication . . . of material that the
Executive Branch insists should not, in the
national interest, be published. I am
convinced that the Executive is correct with
respect to some of the documents involved.
But I cannot say that disclosure of any of
them will surely result in direct, immediate,
and irreparable damage to our Nation or its
people.51

A variation on the clear-and-present danger standard, this is the

closest the Supreme Court has come to answering the question hanging
over WikiLeaks and Assange: When can the government constitutionally
punish someone for publishing classified information related to national
security?
Notably, the Court in the Pentagon Papers case stressed that it was
dealing with a prior restraint, not a criminal prosecution after publication.
As Professor Stone has observed, this raises the question of whether the
same standard applies to both 52 (Justice Stewart and Justice White
characterized that question as an open one).53 Behind the distinction lies
the idea that prior restraints, which carry a “heavy presumption” against
their validity,54 are especially threatening to free expression because “they

49
Id. at 45–46 (“The four justices we had counted on . . . relied upon all three of
the themes Bickel and I had discussed in my office when we first spent the night there
strategizing. Three of the four had cited the absence of statutory authority by the
government . . . Three of the four had focused on the fact that what was at issue was a
prior restraint . . . [And two had relied] on the notion that prior restraint aside, the whole
purpose of the First Amendment was to protect the sort of speech that was at the heart of
the case.”)
50
Stone, supra note 45, at 198.
51
403 U.S. at 730 (Stewart, J., concurring) (emphasis added).
52
Stone, supra note 45, at 201.
53
403 U.S. at 730 (Stewart, J., concurring) (“Undoubtedly Congress has the
power to enact specific and appropriate criminal laws to protect government property and
preserve government secrets. Congress has passed such laws, and several of them are of
very colorable relevance to the apparent circumstances of these cases. And if a criminal
prosecution is instituted, it will be the responsibility of the courts to decide the
applicability of the criminal law under which the charge is brought.”); id. at 737 (White,
J., concurring) (“Prior restraints require an unusually heavy justification under the First
Amendment; but failure by the Government to justify prior restraints does not measure its
constitutional entitlement to a conviction for criminal publication.”).
54
Id. at 714.
10 Peters

are more likely than criminal statutes to be obeyed.”55 This is because

prior restraints typically take the form of injunctions or temporary
restraining orders directed at specific people. As a result, any violation is
more likely to be detected, more likely to be seen as a “direct affront to the
issuing judge’s authority,” and more likely to be punished.56 The main
ingredient, though, is the collateral bar rule. It says that a court order must
be obeyed unless the issuing judge sets it aside; if it is not obeyed, then it
cannot be challenged later in a contempt proceeding (e.g., on the theory
that it was unconstitutional).57 That means that, if a publisher violates an
injunction, she could be punished even if the injunction was improperly
granted. In contrast, if a publisher is prosecuted criminally, she can defend
herself by attacking the validity of the statute.58
Professor Stone has softened that distinction by pointing out that
the penalties for violating a court order are “usually much less severe than
those for violating a criminal law” and that a “system of prior restraint
actually enables the speaker to know in advance whether his speech is
subject to punishment.”59 Moreover, the primary focus of that system is
low-value speech (e.g., obscenity and libel), which normally can be
restricted “on the basis of a relatively undemanding standard.”60 In that
context, prior restraints do have “real bite.”61 However, for expression at
the heart of the First Amendment—high-value speech about public affairs
and government—the standards are more demanding. In turn, the
distinction between prior restraints and criminal prosecutions carries less
weight.62
Therefore, it is reasonable to conclude, as Professor Stone did, that
the standard the Court used for prior restraint in the Pentagon Papers case
could be roughly the same standard the Court would use in a criminal
prosecution of WikiLeaks or Assange for publishing classified information.
In other words, the WikiLeaks disclosures would be protected unless the
government could show that they would “surely result in direct, immediate,
and irreparable damage to our Nation or its people.”63

III. ARE WIKILEAKS AND ASSANGE PART OF THE PRESS?

DOES IT MATTER?

In mid-December, the House Judiciary Committee held a hearing

55
Stone et al., supra note 26, at 128.
56
Id. at 128–29.
57
Id. at 129.
58
Id.
59
Stone, supra note 45, at 201.
60
Id. at 202.
61
Id.
62
Id.
63
N.Y. Times Co., 403 U.S. at 730 (Stewart, J., concurring) (emphasis added).
Harvard Law & Policy Review 11

about the Espionage Act and WikiLeaks. The chairman, John Conyers of
Michigan, opened by saying “it is clear that prosecuting WikiLeaks would
raise the most fundamental questions about freedom of speech, about who
is a journalist and about what the public can know about the actions of
their own government.” 64 The next to speak, ranking member Louie
Gohmert of Texas, said WikiLeaks has “resurrected an age-old debate on
First Amendment protections afforded to media publications.”65 Shortly
thereafter, two witnesses made similar remarks. First, Abbe David Lowell,
a partner at McDermott Will & Emery, said the WikiLeaks disclosures
have raised a number of issues, including whether Assange is a
journalist. 66 Second, Kenneth Wainstein, a partner at O’Melveny &
Meyers, said the “key to overcoming” First Amendment concerns in any
prosecution of WikiLeaks is to show that the site is “fundamentally
different from other and real media organizations.”67
By these accounts, it seems to matter for constitutional purposes
whether Assange and WikiLeaks are part of the press.68 That perspective
reflects the general debate today about the elements and principles of
journalism, the role of new media in relation to old media. It is unclear
where WikiLeaks stands on that landscape. To some, the website is a “new
wrinkle on an old idea,” just an iteration of the journalistic tradition that
needs “people to leak and people to dig and people to consume and
explain.”69 To others, it is the “world’s first ‘stateless’ news organization,”
because it belongs to the Internet rather than to the laws and culture of any
one country.70 And still to others, it appears that WikiLeaks has passed on
to the legacy media the burden of real reporting, of adding value to the
leaked documents by contextualizing and explaining them. 71 Assange
himself has said “it is not necessary to debate whether [he] is a
journalist.”72 Yet the WikiLeaks site is wrapped in the cloak of journalism.
It describes itself as a “not-for-profit media organization” that has adopted
“journalism and ethical principles.” 73 The words “journalism” and

64
WikiLeaks Hearing 2 (statement of Rep. John Conyers).
65
Id. at 3 (statement of Rep. Louie Gohmert).
66
Id. at 23 (statement of Abbe David Lowell).
67
Id. at 39–40 (statement of Kenneth L. Wainstein).
68
To be fair, two witnesses, Thomas Blanton and Geoffrey Stone, did suggest
that it would be fruitless under the First Amendment to define who the press is, but they
did not really elaborate.
69
Samuel Axon, The WikiLeaks Debate: Journalists Weigh In, Mashable, Aug.
20, 2010.
70
Jay Rosen, The Watchdog Press Died; We Have This Instead, Pressthink, Dec.
9, 2010.
71
See, e.g., Anne Applebaum, WikiLeaks’ Defense of Journalism, Wash. Post,
July 29, 2010.
72
Julian Assange Answers Your Questions, The Guardian, Dec. 3, 2010.
73
About, WikiLeaks.
12 Peters

“journalist” appear on its “About” page a combined 19 times.74

Whether WikiLeaks and Assange are part of the press is worthy of
attention and debate, and in some circumstances it would matter very
much for legal purposes. For example, if Assange wanted to claim a
federal reporter’s privilege, which allows reporters in certain jurisdictions
and cases to refuse to testify about their sources, he would have to show
that he qualified for the privilege—that he was engaged in investigative
journalism.75 Here, however, in the context of publication and criminal
prosecution, that issue is less important. This is because the First
Amendment does not belong to the press. It protects the expressive rights
of all speakers, sometimes on the basis of the Speech Clause and
sometimes on the basis of the Press Clause. To argue that the First
Amendment would protect Assange and WikiLeaks only if they are part of
the press is to assume (1) that the Speech Clause would not protect them,
and (2) that there is a major difference between the Speech and Press
Clauses.
In reality, “[m]ost of the freedoms the press receives from the First
Amendment are no different from the freedoms everyone enjoys under the
Speech Clause.”76 This is true even for the “core liberties that are essential
to the functioning of the press”:77 the right of access to courtrooms and
other judicial proceedings,78 the right to publish news and information free
from government censorship and prior restraint,79 and the benefit of high
standards in libel cases (at least those involving matters of public
concern).80 The Pentagon Papers case seems to implicate both clauses.
The per curiam referred to “expression,” while the individual opinions
referred variously to “expression,” “speech,” and “press.”81 The few times
the Supreme Court has relied on the Press Clause alone, the same results
could have been reached by relying on the Speech Clause.82 For these
reasons, David Anderson concluded, “the Press Clause today is no more
than an invisible force in constitutional law.”83
On the one hand, this could be a good thing for Assange and

74
Id. See also, Adam L. Penenberg, WikiLeaks’ Julian Assange: ‘Anarchist,’
‘Agitator,’ ‘Arrogant’ and a Journalist, Wash. Post, Jan. 28, 2011.
75
I make this very argument in an article that will be published this June in the
Federal Communications Law Journal.
76
David A. Anderson, Freedom of the Press, 80 Tex. L. Rev. 429, 430 (2002).
Whether the clauses should be read coextensively is a subject for another article.
77
Russell H. Falconer, Note, Institutional Rights, Individual Litigants: Standing
to Sue Under the Press Clause, 87 Tex. L. Rev. 1223, 1223–24 (2009).
78
Id.
79
Anderson, supra note 76, at 430.
80
Id.
81
N.Y. Times, 430 U.S. at 713.
82
Anderson, supra note 76, at 526-27.
83
David A. Anderson, Freedom of the Press in Wartime, 77 U. Colo. L. Rev. 49,
66 (2006).
Harvard Law & Policy Review 13

WikiLeaks. If the government prosecutes them for publishing information

related to national security, they would not have to argue that they practice
journalism or deserve to be protected as members of the press. They
simply could call on the Speech Clause, which would trigger (1) the strict
scrutiny standard, requiring the government to show that the charging
statute is “narrowly tailored to serve a compelling state interest” and is the
“least restrictive means to further the articulated interest,” or (2) the clear-
and-present danger standard, requiring the government to show that the
publishing would “surely result in direct, immediate, and irreparable
damage to our Nation or its people.”84
On the other hand, this could be a bad thing for the legacy press.
Bill Keller, executive editor of the New York Times, summed up the
problem this February, at a symposium at Columbia University:

It’s very hard to conceive of a prosecution of

Julian Assange that wouldn’t stretch the law
in a way that would be applicable to us.
American journalists . . . should feel a sense
of alarm at any legal action that tends to
punish Assange for doing essentially what
journalists do. That is to say, any use of the
law to criminalize the publication of
secrets.85

Keller is right. Putting his remarks in legal terms, unless the

Supreme Court all of a sudden decided to “interpret the Press Clause as
something independent of the Speech Clause” 86 (e.g., by adopting an
institutional view of the press that excludes WikiLeaks and Assange, by
narrowing the protections of the Speech Clause, etc.),87 any prosecution
here for publishing information related to national security would affect
the legacy press and their rights under the First Amendment to do the
same.
Admittedly, if the government did successfully prosecute Assange
or WikiLeaks, then news media defendants in subsequent cases could

84
N.Y. Times, 403 U.S. at 730 (Stewart, J., concurring) (emphasis added).
85
Sam Gustin, Times Editor Alarmed by Prospect of WikiLeaks Prosecution,
Wired, Feb. 3, 2011.
86
Anderson, supra note 76, at 526.
87
This was the vision of the Press Clause held most famously by Justice Stewart.
Anderson, supra note 76, at 449. He distinguished the Speech and Press Clauses by
saying that the former applies to individuals, while the latter is structural and protects the
“institutional autonomy of the press.” Id. (quoting Potter Stewart, Address at Yale
University: Or of the Press (Nov. 2, 1974), in Or of the Press, 26 Hastings L.J. 631, 634
(1975)). As Professor Anderson noted, “Justice Stewart was never able to sell this
interpretation to a majority of the Court.” Id.
14 Peters

distinguish their facts from those in the WikiLeaks case. The most obvious
way to do so, in general, would be to focus on the way WikiLeaks
operates. Unlike the traditional press, it does not contextualize the
documents it releases, it does not explain their meaning or significance,
and it has not taken steps consistently to minimize harm to people who
could be affected by its actions. Still, that sort of argument would be
persuasive only if the Supreme Court would be willing to vary a speaker’s
right of expression according to the way the speaker operates.

IV. CONCLUSION

In the 40 years since the Pentagon Papers case, the Supreme Court
has not once upheld a content-based restriction on the publication of
truthful information about the government that “did not involve some
special circumstance, such as public employment.” 88 Perhaps that is
because the purpose of the First Amendment is “to protect the free
discussion of governmental affairs,” 89 and “state action to punish the
publication of truthful information seldom can satisfy constitutional
standards.”90 Or perhaps that is because the Court has come to understand
that the effects of dangerous speech often are exaggerated in the heat of
what Alexander Hamilton called “temporary passion.”91 Or perhaps that is
because in the last forty years we have felt relatively safe. As Judge
Richard Posner put it in 2002, “[W]hen the country feels very safe the
Justices can . . . plume themselves on their fearless devotion to freedom of
speech and professors can deride the cowardice of [speech-restrictive
decisions]. But they are likely to change their tune when next the country
feels endangered.”92
In any case, if the government prosecuted WikiLeaks or Assange
for publishing information related to national security, it would have to
overcome a serious First Amendment challenge that would implicate
either the strict scrutiny standard or the clear-and-present danger standard.
It is unclear exactly how the challenge would play out, because neither the
Justice Department nor the Pentagon has released factual findings from
their investigations. But it is clear that the challenge would affect the
legacy press and their rights. For these reasons, it would behoove the
government to proceed with caution. The constitution is not a “suicide

88
Stone, supra note 45, at 202.
89
Mills v. Alabama, 384 U.S. 214, 218 (1966), available at FindLaw.
90
Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (quoting Smith v. Daily Mail
Publishing Co., 443 U.S. 97, 102 (1979)), available at FindLaw.
91
The Federalist No. 85 (Alexander Hamilton), available at Constitution.org.
92
Richard Posner, Comment, Pragmatism Versus Purposivism in First
Amendment Analysis, 54 Stan. L. Rev. 737, 741 (2002).
Harvard Law & Policy Review 15

pact.”93 It does not require the government to tolerate expression at any

cost. But it does derive great strength from the freedom that the First
Amendment affords to expression. That strength must be acknowledged
by the Justice Department before it decides whether to prosecute
WikiLeaks or Assange.

93
Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting),
available at FindLaw.