Last week in the Wall Street Journal, Sen. Dianne Feinstein, D-Calif., demanded that Assange be prosecuted under the 1917 Espionage Act. After all, she wrote, the First Amendment isn't "a license to jeopardize national security," any more than it's a license to "yell 'Fire!' in a crowded theater." A poor choice of metaphor: It comes from Justice Oliver Wendell Holmes' 1919 opinion in Schenck v. United States, when the Supreme Court allowed the Wilson administration to imprison a man for the crime of publicly arguing that the draft was unconstitutional.
We've since done a much better job protecting the First Amendment. In 1971's New York Times v. United States, the Supreme Court rebuffed the Nixon administration's attempt to stop the paper from publishing classified documents showing that the government had lied America into the Vietnam War.
WikiLeaks stands in the same position as the "gray lady" in New York Times v. United States, and since that case, the Congressional Research Service reports, no "publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it." "First Amendment implications" would likely "make such a prosecution difficult."
Even so, Sen. Joe Lieberman, I-Conn., has suggested that U.S. newspapers could still be punished for publishing WikiLeaks' leaks. Unsatisfied with mere threats, Lieberman has also gone outside the law, throwing his weight around to get Amazon.com to boot the site off its servers.
As new-media analyst Clay Shirky puts it, Myanmar and Russia "can now rightly say to us, 'You went after WikiLeaks' domain name, their hosting provider, and even denied your citizens the ability to register protest through donations,' all without the slightest legal authority. 'If that's the way governments get to behave, we can live with that.' "
Healy is too optimistic. The law is too vague. Nobody can depend on courts to defend freedom.
I have many links to Amazon.com on my websites, and I stand to make some money when people click my links and buy books from Amazon.com. I hope I don't lose my status as an Amazon affiliate by denouncing Amazon's cowardly unwillingness to stand up against government tyranny.
Please Don't Feed the Amazon - KN@PPSTER
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