Censorship vs. Freedom of Expression
In the United States, freedom of speech is the very first protected right listed in the Bill of Rights. As the First Amendment reads:
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.
The Supreme Court has had many interpretations of this amendment over what “freedom of speech” in the First Amendment actually implies. Although one might think of freedom of speech as closely associated with our identity and heritage as Americans and thus a ubiquitously accepted right, there have been several controversial rulings on this issue, especially in cases where one individuals’ freedom of speech might be perceived to infringe on others’ preserved rights (ie: if my freedom of speech to shout fire in a movie theater infringes on your freedom to not be trampled).
Indeed, practically speaking, it is apparent that simply not all types of speech can be tolerated for a society to function. Some forms of speech are accordingly plainly and thoroughly outlawed by US law, such as fraudulent advertising, child pornography, fighting words, words used in a criminal transaction, unlicensed broadcasts, copyright infringement (hello DMCA), libel, slander, and threats, among others. Most of these forms of speech are restricted because they have a compelling government interest: the US government may regulate, or censor speech if it has a compelling interest, is a public concern, or threatens national safety.
For example, it is even considered legal to express certain forms of hate speech as long as one does not actually do the activities or encourage others to do them. However, once these groups overstep their boundaries and their actions can be interpreted as violating a compelling government interest, they can (and have) been regulated. For example, the Ku Klux Klan has been denied certain marching permits (a real tragedy) and the Westboro Baptist Church (which became famous recently for protesting military funerals) was sued for its activities (however the ruling was later controversially overturned on appeal in the US Supreme Court). These examples illustrate that while legal history has defined certain finite limitations on the freedom of speech, courts have ultimately historically held that in order for freedom of speech to exist, it must necessarily be protected to allow the unpopular, offensive, and distasteful.
Background on Wikileaks
The “Wikileaks controversy” is a great example of the tension between this freedom of expression and censorship. Wikileaks (NOT TO BE CONFUSED WITH WIKIPEDIA) is the name of an international non-profit organization run by founder, editor-in-chief, and director Julian Assange, that publishes submissions of private, secret, and classified media from anonymous news sources, news leaks, and whistleblowers. Since it went online, the site has published an extensive catalogue of secret material, ranging from materials on procedures at Guantánamo Bay, to the contents of Sarah Palin’s private email account. Look at Trigg!!!!
What Assange and his Wikileaks team are doing is technically not illegal under international law nor under various countries’ laws (more to come on this later); nonetheless, several nations (notably Assange’s home country of Australia, China, Germany, Iceland, Thailand, and the United States) have limited access, or in some cases blacklisted and completely blocked all traffic to the site. The United States has blocked access to the site in various government agencies in addition to issuing several other 1984-reminiscient demands. I’m insulted they didn’t threaten Yale. (Although this claim was later refuted by government officials…).
Larry Flynt Reincarnate- Another Champion for Freedom of Expression?
Assange himself believes that Wikileak’s role (and his on Earth apparently) is to expose injustice, not to provide an even-handed record of events. In an invitation to potential collaborators in 2006, he wrote, “Our primary targets are those highly oppressive regimes in China, Russia and Central Eurasia, but we also expect to be of assistance to those in the West who wish to reveal illegal or immoral behavior in their own governments and corporations.” He has argued that a “social movement” to expose secrets could “bring down many administrations that rely on concealing reality—including the US administration.”
Many agree that Assange’s work is beneficial and even noble, believing that by increasing transparency of government operations, Assange will ultimately force governments to act in more accountable manners. Calling Assange a “champion of freedom of speech,” proponents of his work believe that Assange provides information that the public has a right to know, and that both international and US efforts to suppress his efforts constitute a significant threat to freedom of expression world-wide. Proponents of his cause believe that the right to freedom of information outweighs the potentially dangerous effects of revealing US military strategy, pointing to the fact that none of the published cables were kept at the highest levels of secrecy, inferring from this that nothing truly sensitive has been revealed. Organizations such as Reporters Without Borders (RSF) has condemned the “blocking, cyber-attacks and political pressure” directed at the cables’ website from all over the world, and expressed concern at comments made by American authorities “concerning Wikileaks and its founder Julian Assange.” “This is the first time we have seen an attempt at the international community level to censor a website dedicated to the principle of transparency,” RSF said.
Indeed, Assange’s work has been received to some international acclaim, as the Wikileaks foundeer has received a number of awards and nominations, including the 2009 Amnesty International Media Award for publishing material about extrajudicial killings in Kenya and Readers’ Choice for TIME magazine’s 2010 Person of the Year.
Or a Criminal?
However, despite the seemingly good intentions of Assange’s work, his work has had serious repercussions. Some of the information that his organization has published includes confidential military documents that reveal great deals of US strategy and policy. As Wikileaks makes this information publically-accessible, Assange’s work has potentially compromised US national security, essentially placing in danger not only the lives of soldiers who rely on the secrecy of these documents, but also the lives of citizens at home who are now more vulnerable to attack.
Claiming that his information compromises national security, the US Justice Department has attempted to prosecute Assange under the Espionage Act, which makes it broadly illegal to compromise national security by interfering with the US military. In 2011, an unknown person in Cambridge, Massachusetts, had received a subpoena regarding the Espionage Act’s “conspiracy” clause 18 U.S.C. § 793(g), as well as the federal embezzlement law 18 U.S.C. § 641, a statute used in some other Espionage Act-related cases. A grand jury has begun meeting in Alexandria, Virginia, to hear evidence and decide whether an indictment should be brought.
However, critics of the legal approach of charging Assange under the Espionage Act argue that the broad language of the Act could make news organizations and anyone who reported, printed, or disseminated information from Wikileaks subject to prosecution as well. This slippery-slope argument might ultimately undermine this attempt to prosecute Assange, as further spinoffs from this type of reasoning might be interpreted as uancceptably limiting freedom of expression (if a magazine publishes an article from a magazine that publishes an article from a magazine that publishes an article from Wikileaks – WHERE DOES IT END!!?!?!).
steel-clad safe haven behind these concerns, Assange has faced a growing number of other problems, including rape charges in Sweden (Update: Good news for Assange! The rape charges have been dropped….but replaced with….?) and having his assets frozen by a number of banks. He does not operate out of an office, but rather remains on the move for extended periods of time in order to avoid extradition to countries that would be eager to repay him for his “noble work.”
Has the US acted correctly in its response to Assange and Wikileaks? Should our censorship laws be altered to prevent this type of unwanted freedom of expression? Does their inability to prosecute (as of yet) mean that Assange is without blame?
Yes, no, and probably not. The fact remains that our First Amendment technically protects his right to freedom of expression, and, just like protecting the right to protest military funerals, if we want to stay true to our traditions of maintaing a society of freedom of speech, Assange shoudl not be prosecuted for his Wikileaks-related work. Our censorship laws in this regard, should not be fundamentally changed in order to close a loophole that Assange is seemingly exploiting. Thus, the fact that the US (at best) is proceeding cautiously with charging Assange is the correct response if we wish to maintain true to our traditions.
This does not, however, mean that I believe Assange to be a noble champion of our First Amendment rights. I believe his actions to be wrong, plain and simple. The fact remains that in order for a government to function properly, not all information can or should be transparent. As a citizen, I willingly abdicate my right to know this information, trusting my government to make certain determinations for me. Voting with my feet, I can choose what country to live in, and what government to trust (granted, this is not possible for everyone, but the concept is clear). Thus, Assange’s actions don’t increase the global levels of democracy through transparency of government operations, in my opinion, but rather make the world a more dangerous place for me to live in, as a result of the increased knowledge of the US military’s vulnerabilities.