By Noah Feldman
THE US Department of Justice under Attorney General Jeff Sessions, according to news reports, is re-evaluating whether to charge WikiLeaks founder Julian Assange for publishing leaked classified material in 2010. This raises a First Amendment flag. The department previously decided it wouldn’t proceed because it couldn’t distinguish WikiLeaks from the New York Times or the Washington Post. So what, really, is the difference between unlawfully leaking information to the press and publishing it directly to the public? If one is unlawful, why can’t the other be?
The answer can’t be derived from the language of the First Amendment itself. Only the late Justice Hugo Black has ever come close to saying that the Constitution bars Congress from any kind of restriction of on free speech. Instead, the legal part of the answer needs to come from the body of Supreme Court interpretation of the amendment.
The most famous relevant decision is the 1971 Pentagon Papers case, New York Times v. US Daniel Ellsberg, the granddaddy of more recent leakers, was working as an analyst for the Rand Corp. with access to classified documents, including an internally commissioned Department of Defense history of the US involvement in Vietnam. Ellsberg photocopied what would come to be called the Pentagon Papers and gave them to the Times. After the Times published its first article based on the material, Richard Nixon’s administration sought a court order to prohibit further publication, and the issue went to the Supreme Court.
In deciding in favor of the newspaper, the justices said remarkably little about the fact that the Pentagon Papers were obtained unlawfully. Instead the various opinions—one by each of the nine justices in a 6-3 split—focused on the legality of the government prohibiting the press from publishing something before the fact, a form of censorship that lawyers call “prior restraint.”
Thus, although the Pentagon Papers case is an influential example of the court refusing to bar publication of classified documents that were obtained illegally and then passed to the press, it isn’t a definitive precedent protecting Assange or WikiLeaks from prosecution. The issue in such a prosecution wouldn’t be prior restraint, but rather the distinct question of whether it can be a crime to publish information that you know was obtained unlawfully.
A version of that question was addressed more directly by the Supreme Court in 1991 in Bartnicki v. Vopper. There were no national security concerns or classified information in that case. Instead, it arose after someone intercepted a cellphone call between union leaders during a heated teachers’ union negotiation with a school board in eastern Pennsylvania. After the negotiations were over, a local talk show host broadcast the overheard communications.
A federal law prohibited disclosure of the contents of an illegal wiretap. That put the Supreme Court in the position of having to decide whether the First Amendment protects a publisher of information who “obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully.”
Justice John Paul Stevens wrote the opinion for the majority. He decided the case by weighing privacy against the public significance of the disclosure. And he said that “in this case, privacy concerns give way when balanced against the interest in publishing matters of public importance.”
On the surface, this might look like a controlling precedent for Assange and WikiLeaks. Provided they didn’t actively participate in the theft of the classified documents, the government’s security concerns might seem to be outweighed by the public’s interest in knowing.
But that’s not so clear—because of the nature of the balancing test.
Remember that the overheard phone conversation wasn’t classified, and that no one was physically injured as a result of its disclosure.
Some classified information is so important and potentially dangerous that it might outweigh the public interest. As my Harvard Law colleague Charles Fried, a former US solicitor general, put it to me, a newspaper might not be able to publish leaked troop movements in wartime if that would endanger lives.
In a concurrence to Stevens’s opinion, Justice Stephen Breyer, joined by Justice Sandra Day O’Connor, wrote separately to say that the majority opinion should be read narrowly in the light of its particular circumstances and did not “imply a significantly broader constitutional immunity for the media.” Breyer insisted that the court had not created “a ‘public interest’ exception that swallows up the statutes’ privacy-protecting general rule.”
It emerges that prosecuting Assange and WikiLeaks isn’t clearly excluded by this precedent. The so-called New York Times problem—that prosecuting WikiLeaks would allow prosecuting a newspaper—is to some degree more a policy concern than a definitive constitutional one.
It might be desirable to establish a clear rule, so that publishers of leaked material can be sure that they won’t be prosecuted. But if so, that rule is unlikely to come from Donald Trump’s Department of Justice.