First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Thursday, July 11, 2013

Is WikiLeaks legitimate media? Would that help Bradley Manning?

Yesterday, Pfc. Bradley Manning's defense team rested in his court martial trial for releasing a trove of classified information to WikiLeaks, a website designed to accumulate and disperse confidential information.  Manning's lawyers called to the stand Harvard Law Professor Yochai Benkler, an expert on Internet journalism, who testified that WikiLeaks is a legitimate news operation.  Could that really help Manning?  It might.

Charlie Savage of The New York Times reports that Manning's lawyer David Coombs aimed to have Benkler establish that Manning was not trying to "aid the enemy," which could carry a life sentence. 

Instead, Benkler insisted that Manning was feeding information to an outfit that was designed to accumulate and disseminate newsworthy information.  Although there is significant debate about WikiLeaks and its methods and motivations, isn't that what most media outlets are designed to do?  Benkler acknowledged that not every document of the thousands transmitted by Manning was newsworthy, but the point is that the database contains matters of public interest.

If WikiLeaks is a legitimate media outfit, would that relieve some of the pressure on Manning?  Could it be that Manning was trying to educate the public and also give "aid" to the enemy?  Knowing that the enemy might see what you are sharing could be understood to give "aid" in a raw sense.  And, it is well-established that neither the press nor the public are above laws of "general applicability" (that gets fuzzy sometimes -- more on that in a later post). 

There may, however, be something special about the fact that Manning released the information to WikiLeaks, at least as an intermediary, rather than doing what we imagine most alleged traitors doing -- i.e., spying for the enemy and giving away state secrets for something else in return.

All told, the government has an easier road to pursue the leaker (i.e., Manning), as compared with a media outlet receiving the material.

But, what if the next target for prosecution is WikiLeaks or the mainstream media for publishing material provided by the likes of Manning or leaker-du-jour Edward Snowden?

Upcoming posts will explore the legal basis (really the lack thereof) for any such prosecutions in the modern era, and why it would be scary and bad for all of us if the media came under such attack.

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