Julian Assange, the founder of Wikileaks, likes to say that “no organization anywhere in the world is a more devoted advocate of free speech.” His response to the tragic shooting in Tucson came, therefore, as something of a surprise. In early January, Assange issued a press release arguing, despite the lack of any evidence, that right-wing vitriol had provoked the alleged shooter, Jared Lee Loughner, to go on a murderous rampage. Comparing himself to Representative Gabrielle Giffords and the other victims of the attack, Assange declared, “Wikileaks’ staff and contributors have also been the target of unprecedented violent rhetoric by U.S. prominent media personalities, including Sarah Palin, who urged the U.S. administration to ‘hunt down the Wikileaks chief like the Taliban.’” Taking the analogy one step further, Assange called on American authorities to prosecute Palin and other right-wing commentators, noting that, “when senior politicians and attention seeking media commentators call for specific individuals or groups of people to be killed, they should be charged with incitement—to murder.”
The spectacle of a self-professed free-speech activist calling for people to be prosecuted for their rhetoric shows just how muddled our discourse over freedom of expression has become. That confusion is understandable. The shooting in Tucson and the news that Wikileaks had acquired more than 250,000 leaked diplomatic cables occurred within two months of each other. Both events seemed to illuminate a disquieting, even dangerous, side to the freedom of expression and the uninhibited flow of information. They also prompted a difficult question: How should we deal with speech that we hate? As it happens, lessons from the tragedy in Arizona may also help us think about how we should deal with Wikileaks.
Across the political spectrum, the visceral response to both the Wikileaks release and the Tucson murders was to retaliate with the full force of the law. After the Wikileaks document dump, the Department of Justice began exploring prosecution options under the Espionage Act, and Newt Gingrich called for Assange to be designated an enemy combatant. Similarly, the knee-jerk liberal response to the Tucson shootings was that Loughner must have been responding to violent conservative rhetoric, and, therefore, that rhetoric should somehow be curbed. Assistant House Minority Leader James Clyburn called on Congress to clamp down on the vitriol by resurrecting the Fairness Doctrine, which legally required media to present both sides of an issue. “Free speech is as free speech does,” Clyburn contended.
In the case of the Arizona murders, it quickly became obvious that legal options for suppressing speech were limited. After the initial shock passed, the political culture realized that regulating the media was an insane response to an act of senseless violence by a mentally unbalanced individual, and Clyburn’s proposal was swiftly shelved. That doesn’t mean, however, that the shootings passed without a meaningful response. While there is no discernable connection between Loughner and right-wing activists, the shooting nevertheless prompted a constructive conversation about America’s poisonous political discourse. Roger Ailes, the head of Fox News, announced that he had asked talking heads on the network to stop using polarizing language. “I told all of our guys, ‘Shut up, tone it down, make your argument intellectually. You don’t have to do it with bombast.’” In his memorial speech, President Obama made the same point, albeit more eloquently. “A simple lack of civility” did not cause the tragedy, Obama said, but “a more civil and honest public discourse can help us face up to the challenges of our nation” in a way that would make the victims proud. The speech resonated—many commentators described it as the best of Obama’s presidency, and his approval ratings rose. In other words, the culture responded where the law could not.
The Wikileaks matter unfolded differently. As with the Arizona shootings, it soon became obvious that the legal options were limited. Private Bradley Manning, who provided the documents to Wikileaks, is being court-martialed for violating the terms of the military code under which he was granted a security clearance. But the Espionage Act has historically only been successfully applied to leakers, not publishers of leaks, and there was no principled way to prosecute Wikileaks for its indiscriminate document dumps without also ensnaring legitimate journalists. In the U.S. constitutional tradition, moreover, speech can only be banned if it threatens to provoke serious and imminent violence or lawless action—a standard that Wikileaks did not come close to meeting. Secretary of Defense Robert Gates wrote recently that the effect on U.S. foreign policy of the release of diplomatic cables would likely be “fairly modest.” A recent report by the Congressional Research Service has also concluded that Wikileaks did not break the law when it published the diplomatic cables, as well as classified records about the U.S. military’s activities in Afghanistan.
Yet the search for a legal punishment for Wikileaks persists. The Justice Department is still exploring possible grounds for prosecuting Assange as a co-conspirator who actively solicited Manning’s leak and in January subpoenaed Twitter for records of Wikileaks’ followers. Senator Joseph Lieberman, along with Republicans John Ensign and Scott Brown, has called for the Espionage Act to be amended in order to allow for the prosecution of Wikileaks. As Geoffrey Stone of the University of Chicago has pointed out, this proposed bill would almost certainly violate the First Amendment.
Lieberman has emerged as the A. Mitchell Palmer of the digital age—the politician who has threatened free speech more stridently than anyone since Woodrow Wilson’s attorney general, who used the Espionage Act to prosecute and deport suspected radicals after World War I. In addition to advocating for an unconstitutional crackdown on Wikileaks itself, and pressuring Amazon to stop hosting the site, he has also implied that media organizations might be punished for publishing details of the cables. “I certainly believe that Wikileaks has violated the Espionage Act,” he said, “but then what about the news organizations—including the Times—that accepted it and distributed it?”
But, although Lieberman is wrong to push for a legal vendetta against Wikileaks, he’s not wrong to deplore it. Wikileaks is a deeply troubling organization whose indiscriminate document dumps are antithetical to privacy rights and democratic deliberation. To be sure, Wikileaks has published a handful of leaks in the public interest—most notably the video released last spring of a U.S. Apache helicopter strike that killed several unarmed Iraqis and two Reuters employees in Baghdad in 2007. However, only a fraction of its leaks can be considered whistle-blower documents that expose wrongdoing, criminal activity, abuse of authority, or the waste of public resources. Instead, the vast majority involve the routine records of governmental operations, and, by revealing them, Wikileaks is attacking the entire notion of government secrecy. “Military operations, intelligence activities, diplomatic communications all depend on a capacity for confidentiality, and, if those activities are justified by law, then the secrecy they depend on is always likely to be justified,” says Steven Aftergood, who directs the Federation of American Scientists’ Project on Government Secrecy, one of America’s most respected campaigners against excessive secrecy and a leading critic of Wikileaks.
Of course, secrecy should have limits. But, by advocating for extreme transparency, Wikileaks has embraced the position that secrecy is always illegitimate—a view that doesn’t acknowledge that certain forms of disclosure can result in terrible injustice. In The Unbearable Lightness of Being, Milan Kundera describes how the Czech police recorded the telephone conversations of a political hero of the Prague Spring and broadcasted them as a radio serial. When the nation heard Jan Prochazka telling dirty jokes and floating heretical ideas, his dignity was destroyed. Wikileaks has shown a similar contempt for privacy. Last summer, the organization published a raw police file that contained allegations that a leading Belgian politician had associated with a pedophile who was jailed for murdering children. The investigation revealed that the allegations were false, but the publication of the file unfairly tarnished the reputation of the politician.
Indeed, unlike responsible publishers, Wikileaks lacks not only editorial judgment; it has often abdicated any editorial function at all. Perhaps the most notorious example is the case of Afghan war records, where Wikileaks released the names of dozens of Afghans who had cooperated with U.S. military forces, with little regard for either newsworthiness or the safety of those named in the cables. Although there have been no known casualties as a result of the disclosure, the named individuals will be looking over their shoulders for decades to come, and others will be deterred from cooperating with the U.S. military in the future. Even Assange’s claim to value transparency above all collapses under scrutiny. In the conflict in Afghanistan, for example, Wikileaks has exposed the military secrets of Western countries but not those of the Taliban. Assange’s actions suggest that he is less interested in exposing corruption worldwide than in undermining the U.S. government.
Although prosecuting Wikileaks is neither feasible nor wise, that doesn’t mean there is nothing to be done about its most extreme methods. This is where the Tucson tragedy provides a useful lesson, which is that our response should be in the realm of culture rather than law. Just as prominent public figures sought to change the discourse following the Arizona shooting, institutions with powerful cultural authority could push back against the more harmful aspects of Wikileaks.
Media organizations, for example, could refuse to work with Wikileaks in its current form. Instead, they might embrace a model proposed by a group of disaffected Wikileaks staffers who recently announced the formation of a splinter organization called OpenLeaks. The group’s leader, Daniel Domscheit-Berg, has castigated Assange for allowing Wikileaks’ mission to become a “onedimensional confrontation with the USA.” OpenLeaks will not publish any documents, but will instead serve as a conduit that allows anonymous sources to deposit leaked information in a secure drop box and then designates news organizations to determine whether the information is newsworthy and to subject it to fact-checking as well as redaction where necessary. In other words, OpenLeaks would preserve the benefits of the original Wikileaks project while avoiding the dangers. By shunning Wikileaks and working exclusively with OpenLeaks, the Times and other newspapers could limit the threat posed by Assange’s operation while preserving the ability to publish vital information.
Given the horror that occurred in Tucson, and the unsettling aspects of Julian Assange’s crusade for transparency regardless of the human costs, it’s hardly surprising that many on the left and right are instinctively searching for new legal restrictions on speech and information. But our First Amendment tradition makes it clear that reckless speech should be engaged politically, not regulated by the state. Unfolding side-by-side, the Wikileaks saga and the Tucson tragedy raise the real danger of a backlash against free expression, leading to an ever-escalating clash between force on the one hand and chaos on the other, in which reasoned democratic debate is impossible. That’s the scary world that Wikileaks wants to bring into existence, and, although its methods shouldn’t be criminalized, they should be vigorously resisted by defenders of free speech.
Jeffrey Rosen is the legal editor for The New Republic. This article ran in the February 17, 2011, issue of the magazine.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.