RICOCHET RESOLVES: THE FINAL VOTE
Claire Berlinski, Ed. ·
Dec 29, 2010 at 1:12am
RESOLVED: Wikileaks is a legitimate member of the fourth estate, deserving of First Amendment protections.
Please ENTER YOUR FINAL VOTE in this comment thread after considering the points raised in the ensuing discussion.
You may vote now even if you didn't before, but please vote as a new voter--scroll down the comment thread and look for that option.
Voting is open for 24 hours after the time stamp of this post.
Highlights of the Arguments in Favor:
- The First Amendment is sacrosanct.
- The only defense that a free people has against falsehood and lies is a press that relentlessly publishes things, even so-called secrets. Government should always live in fear that the press will publish its thoughts and deeds.
- Political speech is given particular protection in our jurisprudence because the Founders understood that democracy is dead absent the freedom to 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 use secrecy for self-serving ends. When in doubt, it is better to err on the side of press freedom.
- The relevant legal precedent is New York Times vs. United States -- The Pentagon Papers decision. The Supreme Court ruled that publication of classified information could be suppressed only if its publication would bring “grave and irreparable” danger to the nation. The Pentagon Papers did not meet that standard. If that did not, it is impossible to argue that the Wikileaks disclosures would. The courts have always shied from using the Espionage Act to silence journalists precisely because of the obvious challenge this would pose to the First Amendment.
- "The NYT is a legitimate member of the fourth estate, deserving of First Amendment protections" is indisputably true. It is impossible to draw any meaningful distinction between the NYT and Wikileaks.
- A legal distinction has been and must continue to be drawn between the person taking classifed materials (Bradley Manning\Daniel Ellsberg) and the publisher of the classifed materials (Wikileaks/NYT). In both instances our legal system can and should punish the thief, not the publisher.
- The Scheck decision establishes only three exclusions from the First Amendment right of expression: "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government." The Wikileaks disclosures do not fall under this limited penumbra.
- The proper focus of legal ire is upon those who provide Wikileaks with these documents, not Wikileaks.
- New publishing technologies ensure that entities such as Wikileaks are unstoppable, and efforts to control them will produce collateral damage – to our freedoms – only. The only solution is for sources of information to become smarter about how they handle it.
- There is no such thing, nor should there be such a thing, as credentialed journalism.
- That Wikileaks put lives at risk is not sufficient to revoke First Amendment protection. This reasoning can be used to justify speech codes, hate crime laws, and other propositions rightly recognized as assaults on the concept of free speech. A bright line needs to be drawn between explicit incitement of violence and callousness, and there is no evidence that Wikileaks has committed the former.
- If a country can't keep secrets its citizens should replace the incompentents in their government, not persecute those who have done us the favor of exposing this.
- It is impossible to exclude Wikileaks from First Amendment protections based upon an appeal to the damage caused by the exposure of these secrets, because it is not possible to establish that the harm outweighs the benefit. Among the benefits, this event has shown a serious flaw in our security procedures. The US government will now be forced to change these--clearly to the long-term benefit of national security.
- Silencing Wikileaks will not prevent the leaking of this kind of information, it will only prevent the exposure of such security loopholes, ensuring that the government remains unaccountable for its fecklessness.
Highlights of the Arguments Against
- Wikileaks has clearly violated the letter and spirit of the Espionage Act of 1917, in particular, Sections 793, 794 and 798.
- Legitimate press agencies can engage in illegitimate activities. Those activities either do not or ought not enjoy First Amendment protection.
- The Bill of Rights is not a death warrant. The mass dumping of classified data constitutes an act of aggression.
- The Supreme Court's decision in New York Times vs. United States was either wrong in the first place, or irrelevant here. Clearly, no country can conduct foreign policy if millions of its secret documents are regularly exposed. This is so obvious that if our jurisprudence does not yet account for this, it must. To judge the publishing of this many classified documents by standards that evolved in a world where something of this scale would not have been physically possible betrays a poverty of imagination. The old rules don't apply.
- The Supreme Court ruling favored the Times, in that instance only, as a prior restraint case and in no way absolved the Times from prosecution under the Espionage Act, which was never undertaken. The protection of Wikileaks was obviously not a consideration in the Times vs. United States verdict; it could not have been: The technology didn't exist.
- Common sense, as demonstration by worldwide reaction, indicates that Wikileaks has crossed a line.
- The stated purpose of Wikileaks is to induce people illegally to reveal secrets, and did precisely that in this case. This is a morally and legally relevant distinction between Wikileaks and a legitimate press organ.
- The release of classified documents is clearly a crime; Wikileaks is clearly therefore involved in a conspiracy to commit a crime. Wikileaks actively sought the theft of the information in question. This makes it part of a conspiracy to steal classified information, which cannot be said of the New York Times.
- If this information had been given directly to Vladimir Putin, Hu Jintao, or Mahmoud Ahmadinejad, it would be clear that we were discussing espionage and not journalism. Why is this changed by virtue of the fact that the information was given to billions of people rather than one?
- Most First Amendment jurisprudence involves balancing tests. Here the question is one of balancing the salutary effects of greater public knowledge of government secrets in a democracy against the risk to lives of persons revealed by the information. The harm done by these disclosures clearly exceeds any good.
- If we cannot establish that there are significant differences between Wikileaks and The New York Times, this does not suggest that the First Amendment protects Wikileaks. It suggests that it does not or should not always protect the Times.
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Comments :
Re: RICOCHET RESOLVES: THE FINAL VOTE
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Re: RICOCHET RESOLVES: THE FINAL VOTE
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Re: RICOCHET RESOLVES: THE FINAL VOTE
If you voted initially and are undecided about this resolution, "like" this comment.
Re: RICOCHET RESOLVES: THE FINAL VOTE
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Re: RICOCHET RESOLVES: THE FINAL VOTE
If you did not vote initially and are against this resolution, "like" this comment.
Re: RICOCHET RESOLVES: THE FINAL VOTE
If you did not vote initially and are undecided about this resolution, "like" this comment.
May '10
Re: RICOCHET RESOLVES: THE FINAL VOTE
This contest is rigged to purposely exclude "like" eunuchs such as myself (the button doesn't work, so I am incapable of love). Put me down as a new voter in favor of the resolution.
Cute how you left the option for new voters to register indecision. Heh.
Re: RICOCHET RESOLVES: THE FINAL VOTE
Kennedy Smith: This contest is rigged to purposely exclude "like" eunuchs such as myself (the button doesn't work, so I am incapable of love). Put me down as a new voter in favor of the resolution.
Cute how you left the option for new voters to register indecision. Heh. · Dec 29 at 8:30am
What's wrong with the button? We have a major problem if that's not working. You're freaking me out here, I'm having visions of Florida and hanging chads.
May '10
Re: RICOCHET RESOLVES: THE FINAL VOTE
I dunno. Alerted the Busy System Admin, but I think there may be more pressing issues in the stack of stuff. As a general networker and gadabout and usher/chorus boy, you can imagine it may cramp the style somewhat.
Wrote a risque haiku about the hanging Chad once, but can't remember it, so here's the one about the Pregnant Chad:
Touched by the stylus
He leaves without commitment
And now I don't count.
May '10
Re: RICOCHET RESOLVES: THE FINAL VOTE
What?! I thought that was you, Kennedy, liking all of my comments. Curses!
Your haiku made me laugh out loud.
Oct '10
Re: RICOCHET RESOLVES: THE FINAL VOTE
#4
There are too many secrets, which means there are no secrets. Most of the secret stuff is gossip and nonsense, evidence of bad behavior, or putting in writing what one should not.
I assume this is the only way to vote because there are no buttons.
Jul '10
Re: RICOCHET RESOLVES: THE FINAL VOTE
Claire, I'm still undecided, so I selected #3. This is due to a lack of facts in the case at present.
But apparently the Justice Department is in agreement with me;
"The Justice Department is well aware that if it can prove that Mr. Assange induced someone in the government to provide him with genuinely secret information, it might be able to obtain an indictment under the Espionage Act based upon that sort of conspiratorial behavior.
But the government might not succeed if it can indict based only upon a section of the Espionage Act relating to unauthorized communication or retention of documents."
What I'm saying is that this information is not forthcoming at this time regarding the interactions of Mr Assange through any sources, it is mostly opinion involved, and I need facts to decide. When the facts are in, then I can actually come down on a side.
Please forgive my using comment to forward this to you, but I am thinking Ricochet needs a Messaging Function.
Edited on Dec 29, 2010 at 11:30amSep '10
Re: RICOCHET RESOLVES: THE FINAL VOTE
Thanks for the terrific summary, Claire.
May '10
Re: RICOCHET RESOLVES: THE FINAL VOTE
FeliciaB: What?! I thought that was you, Kennedy, liking all of my comments. Curses!
Your haiku made me laugh out loud. · Dec 29 at 10:53am
No way, babe. I'm a cad and bounder, technically now. Liking is a one-way street. A virtual black hole of female adoration.
Jun '10
Re: RICOCHET RESOLVES: THE FINAL VOTE
Claire Berlinski, Ed.
Kennedy Smith: This contest is rigged to purposely exclude "like" eunuchs such as myself (the button doesn't work, so I am incapable of love). Put me down as a new voter in favor of the resolution.
Cute how you left the option for new voters to register indecision. Heh. · Dec 29 at 8:30am
What's wrong with the button? We have a major problem if that's not working. You're freaking me out here, I'm having visions of Florida and hanging chads. · Dec 29 at 10:07am
The Like button hasn't worked for me since the intial Ricochet Resolves post went up. I said as much in a comment on that thread. I have also sent email to support@ricochet.com and info@ricochet.com
Please register me as an inital undecided (vote didn't take) switched to a current "for" (voted does not take)
May '10
Re: RICOCHET RESOLVES: THE FINAL VOTE
So a formal Ricochet debate can't even occur without stifling corruption and fraudulence. The "like" button doesn't work...*cough*
May '10
Re: RICOCHET RESOLVES: THE FINAL VOTE
Haiku are the lowest form of poetry. Limericks, on the other hand:
A ballotrix liked her boys bad,
Til one left her pregnant with chad.
With curses galore,
She was swept to the floor,
But at least she can say she's been had.
Oct '10
Re: RICOCHET RESOLVES: THE FINAL VOTE
Claire Berlinski, Ed.
What's wrong with the button? We have a major problem if that's not working. You're freaking me out here, I'm having visions of Florida and hanging chads. · Dec 29 at 10:07am
If this is a virtual West Palm Beach butterfly ballot, who is playing the role of Pat Buchanan? ;)
Nov '10
Re: RICOCHET RESOLVES: THE FINAL VOTE
Here is a fine article in today's Wall Street Journal by Floyd Abrams, the dean of the First Amendment bar, to the effect that the current WikiLeaks cables "dump" is not journalism, is not akin to the publication of the "Pentagon Papers", and may not subject Assange to proseuction under the Espionage Act of 1917:
http://online.wsj.com/article/SB10001424052970204527804576044020396601528.html?KEYWORDS=Abrams
Nov '10
Re: RICOCHET RESOLVES: THE FINAL VOTE
In the foregoing, substitute "prosecution" for "proseuction", please.