RICOCHET RESOLVES: IN FAVOR
Claire Berlinski, Ed. ·
Dec 27, 2010 at 1:16am
RESOLVED: Wikileaks is a legitimate member of the fourth estate, deserving of First Amendment protections.
This is the second stage. If you're IN FAVOR of this motion, I'd like to know how you answer the following questions:
- Is the first part of this motion relevant to the second? The First Amendment says nothing about the fourth estate. Why do we need to ask ourselves whether this is a journalistic enterprise at all?
- What's the principle underlying the First Amendment? Why, in other words, is having a First Amendment a good thing?
- In what sense are the issues raised by Wikileaks First Amendment issues? Does the First Amendment otherwise allow citizens to violate copyrights, publish stolen intellectual property, or incite and facilitate such crimes as mishandling classified information? If so, under what circumstances?
- If I steal the secret formula for Coca Cola, does the First Amendment allow me to publish it?
- Is there any point at which you would say, "To hell with the First Amendment, the Constitution's not a suicide pact, we have to stop this?" Does your argument rest upon the idea that the revelations just aren't bad enough or damaging enough (or are, indeed, good and useful)? Or is your position absolute?
Feel free to suggest other questions for those in favor of the argument in this thread. Just questions, not arguments. Otherwise, this thread is for those in favor to refine their arguments.
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Jun '10
Re: RICOCHET RESOLVES: IN FAVOR
Claire Berlinski, Ed.
It is not necessary to define "fourth estate" or "journalistic enterprise" to implicate 1stA protection of speech. Even "legitimate" may be value-laden and unnecessary. The Founders were familiar with treatises, sermons, street corner speeches, pamphlets, stage plays, broadsheets, whispering campaigns, and public postings. Modern courts have extended the 1stA to television and radio, bumper-stickers, T-shirts, and tattoos, and Facebook. Wikileaks is part of the continuum. Conceptually, it is the world's longest wall covered with millons of posters.
Edited on Dec 27, 2010 at 3:06amJun '10
Re: RICOCHET RESOLVES: IN FAVOR
Claire Berlinski, Ed.
As expanded through court decisions, the 1stA has been interpreted as a guarantee of freedom of expression which is one of those "endowed by our Creator" deals. All forms of expression are protected from lap-dancing to pornography. Probably opera, ballet, symphonic music, and Joyce Carol Oates as well, but that can't be helped.
Political speech is given particular weight because the Founders understood that democracy is a dead letter without the ability to freely express ideas, impart information, call critical attention to government actions, debate and persuade.
The Founders well understood a tendency in people to want to shut other people up and to scurry around in secrecy for self-serving ends
Dec '10
Re: RICOCHET RESOLVES: IN FAVOR
The information made public by Wikileaks is not patented or copyrighted. Thus comparing it to the secret recipe for Coca-Cola or other stolen intellectual property is an apples to oranges deal.
As posted elsewhere, if you want to keep secrets, get better security. To the extent the security was breached, I would think PFC Manning is in a whole heap of trouble. Information, as they say, wants to be free. If our government has some it needs to keep in chains, start by not sharing it with hundreds of thousands of people in the first place.
Assange, though, does not seem legally implicated at all due to the obvious jurisdictional issues, and due to the fact he did not steal the information. Also per previous comments, the Pentatgon Papers folks remain free...that's different how?
Jun '10
Re: RICOCHET RESOLVES: IN FAVOR
Claire Berlinski, Ed.
Exceptions to the 1stA have been made explicit to balance the interest in encouraging invention and creativity by limited periods of copyright or patents with public access to information. Copyright violation and patent infringement are civil actions for damages. Trade secrets (as opposed to patents) that become public lose their status as "trade secrets" and their theft is a crime ("industrial espionage") and is a civil action.
These are the issues of the Coca-Cola company and Bradley Sodapop, the sneaky janitor that took a copy of the secret formula. Wikileaks posts material leaked from commercial enterprises and happily posted Bradley's copy of the formula and we are back where we started.
An interesting question is whether intellectual property is more protected than state secrets. Peer-to-peer MP3 file sharing websites (KaZaa, Napster) were shut down after lawsuits by artists and the recording industry because the sites were unable to prevent the rampant exchange of protected intellectual property.
Jun '10
Re: RICOCHET RESOLVES: IN FAVOR
Premises of the For contingent:
May we take these as settled? Are there other premises on which the For position is grounded?
Edited on Dec 27, 2010 at 6:16amJul '10
Re: RICOCHET RESOLVES: IN FAVOR
And if the answer is yes, why?
In other words, should copyrighted (or patented) be a more protected category than classified?
Claire Berlinski, Ed.
Is the first part of this motion relevant to the second? The First Amendment says nothing about the fourth estate. Why do we need to ask ourselves whether this is a journalistic enterprise at all?
If we don't classify Wikileaks as a journalistic endeavor, can't Assange just be subpoenaed and forced to reveal his sources?
If not, why?
Dec '10
Re: RICOCHET RESOLVES: IN FAVOR
In regards to the specific matter at hand, Pilgrim, I think an additional premise would be "Assange is not a citizen of the United States, and as such is not subject to our laws as they relate to Wikileaks."
PFC Manning, of course, is another case. And in regards to him I think one of your points needs to be emphasized in that appreciating it may increase our power to persuade:
"Whistle-blowers may be punished for actions that violate corporate policy or law."
Jun '10
Re: RICOCHET RESOLVES: IN FAVOR
Palaeologus
And if the answer is yes, why?
In other words, should copyrighted (or patented) be a more protected category than classified?
Claire Berlinski, Ed.
Is the first part of this motion relevant to the second? The First Amendment says nothing about the fourth estate. Why do we need to ask ourselves whether this is a journalistic enterprise at all?
If we don't classify Wikileaks as a journalistic endeavor, can't Assange just be subpoenaed and forced to reveal his sources?
If not, why? · Dec 27 at 6:05am
2nd question first: Wikileaks status as "press" is irrelevant to forcing Assange to testify as to his sources since there is no federal "shield law" (ask Judith Miller)
2nd: Shutting down sites that facilitated illegal file sharing but inability legally to shut down Wikileaks would seem to give greater protection to intellectual property. Information generated and "owned" by the government doesn't seem like IP to me. A leaked memo from Bill Gates which showed intent to restrict trade in Windows apps would be different than Microsoft's patents and copyrights in the Windows OS itself
Dec '10
Re: RICOCHET RESOLVES: IN FAVOR
Copyright, patent and trademark laws are not means to hide information. They are designed to encourage the dissemination of information. Patent and copyright encourage the publication of secrets and works of art by granting any commercial benefit to the owner.
But. And a bit but. The US Government does not copyright their output.
Jul '10
Re: RICOCHET RESOLVES: IN FAVOR
derek: Copyright, patent and trademark laws are not means to hide information. They are designed to encourage the dissemination of information. Patent and copyright encourage the publication of secrets and works of art by granting any commercial benefit to the owner.
But. And a bit but. The US Government does not copyright their output. · Dec 27 at 9:02am
Copyright is to protect published work. Trade secrets cannot be copyrighted by definition, and copyrighting them undermines ones right to maintain the trade secret. Material developed at public expense defaults to public domain with regard to copyright classification.
Edited on Dec 27, 2010 at 9:14amDec '10
Re: RICOCHET RESOLVES: IN FAVOR
The First Amendment says Congress shall make no laws. The burden of proof is upon those who wish to prevent publication to justify it. And I ask respectfully, how could common knowledge be described as secret, and how could the dissemination of it be a crime?
I'm not a lawyer, but in some intellectual property situations the owner must show due diligence in enforcing their ownership.
By distributing this information so widely, can it realistically be called secret?
This situation is exactly what the First Amendment was designed to do. Encourage is not the right word. Prevent government from interfering in speech that is critical of the conduct of government. These documents expose a serious flaw in the way the military handles information, a flaw that will cost lives.
There are thousands of good reasons that can be made to limit speech. I hear them all the time in Canada, where people are proud that we don't have the First Amendment. The end result has been the criminalization of political debate.
Any limits on the First Amendment will always limit political debate. If Wikileaks is shut down lawfully, Ricochet is at risk of being shut down.
Jul '10
Re: RICOCHET RESOLVES: IN FAVOR
The names of Afghani allies were not common knowledge, and the protection of American and allied forces is very much in accord with the Espionage Act.
Ricochet has in no way violated the Espionage Act.
May '10
Re: RICOCHET RESOLVES: IN FAVOR
Whether or not you approve of Wikileaks targeting of the U.S. government over others, there can be no doubt that its goal is one traditionally ascribed to a free and functioning press in holding public officials accountable for their actions.
The arguments against Wikileaks publishing classified documents are the same arguments applied by multiple repressive regimes that have squashed or otherwise intimidated its free press and other outlets of expression: that these organs are publishing information that is damaging to the state and that they are overruling the judgment of officials charged with our safety.
This is as important a defense of liberty as any armed force. It is no coincidence that the first step in a military coup is to gain control of the press. The fact that our government did not want these documents published should be no indictment of Wikileaks. The fact that Wikileaks showed poor judgment in publishing the names of individuals that may have endangered their lives makes it an unsympathetic organization, but does not delegitimize its role as a force in holding government leaders accountable to the public.
Dec '10
Re: RICOCHET RESOLVES: IN FAVOR
Sisyphus
Trade secrets cannot be copyrighted by definition, and copyrighting them undermines ones right to maintain the trade secret. · Dec 27 at 9:10am
Is Trade Secret a legal term? Or is it an operational description?
To quote Wikipedia, who admit not having expert opinion in this instance, "trade secret is protected only when the secret is not disclosed."
So to answer the Coca Cola question. If an employee disclosed the information, it would be illegal and they would be liable under trade secret laws and their confidentiality agreement.
But once it is disclosed, it is no longer a trade secret, and there would be no penalty publishing it.
Maybe someone in the industry can enlighten me, but I would think there is a rule of thumb about secrets and distribution, something to the effect that once something is distributed X times, it is no longer secret. What Wikileaks published are secrets only in the fevered imagination of those who designed the distribution system.
Dec '10
Re: RICOCHET RESOLVES: IN FAVOR
Trace Urdan: ... there can be no doubt that its [Wikileak's] goal is one traditionally ascribed to a free and functioning press in holding public officials accountable for their actions.
The arguments against Wikileaks publishing classified documents are the same arguments applied by multiple repressive regimes that have squashed or otherwise intimidated its free press and other outlets of expression:
No doubt? Really? None whatsoever?
Would Wikileaks/Assange have a "right" to publish under First Amendment protections, the detailed designs of our nuclear warheads to an extent enabling others to manufacture identical warheads? Or alternatively, what about all of the notes and correspondence of all of the engineers and scientists involved in their design and development? Would it have been okay to do this in 1946? How about the documentation of all testing and simulations performed during design and development, including the software code used?
Should a line be drawn anywhere, in the interest of survival? Are ideals not subject to mitigation by realities?
Or does the "Press", or anyone for that matter, have a First Amendment right to publish/post on the internet any information the government possesses or is privy to that they can obtain from any source?
Dec '10
Re: RICOCHET RESOLVES: IN FAVOR
Yes they are. Once the names were entered into a system that would be distributed to thousands of people worldwide, they were secret only in the fevered imagination of some bureaucrat.
I would not be surprised to hear that local commanders or servicemen refused to include names in their action reports.
These people were doomed by the policy of the US military. The First Amendment encourages this malfeasance be made public so that the fools who implemented it can be replaced by someone more competent.
Lawmakers need to know this, policy makers need to know this and the policy implementors need to know this. And they need the two by four across the forehead that these revelations have provided to overcome the institutional inertia that sets foolish and dangerous policy in stone.
Again, this is the First Amendment working as designed.
And to repeat. Those poor people were doomed once their names were publicized within the military data distribution system. If Assange found out, many many other people did also.
Jun '10
Re: RICOCHET RESOLVES: IN FAVOR
[double post]
Edited on Dec 27, 2010 at 1:38pmOct '10
Re: RICOCHET RESOLVES: IN FAVOR
Damned iPhone.
Edited on Dec 27, 2010 at 10:20amOct '10
Re: RICOCHET RESOLVES: IN FAVOR
Ditto
Edited on Dec 27, 2010 at 10:25amOct '10
Re: RICOCHET RESOLVES: IN FAVOR
1. No, the first part is not relevant to the second part.
2. Asking questions about what lies behind the First Amendment is just the first move in trying to undermine it. The point of a constitution is you don't have to look behind it, it just is the starting point.
3. The First Amendment is neither here nor there. (The vast bulk of) What Wikileaks did - as opposed to PFC Manning - was done outside the US so US law doesn't apply.
4. That would depend on the civil law of where you were publishing it.
5. Moving away from an absolutist position is dangerous. Today Wikileaks and Julian Assange, tomorrow Ricochet and Peter Robinson.
Edited on Dec 27, 2010 at 10:28am