Democracy. Russia. CIS.

Napolitano, Wikileaks, and the Absolute Necessity of a Free Press

Posted by democratist on February 17, 2011

17th February 2011,

Back in December we wrote that we did not agree with Wikileaks’ release of several hundred thousand classified State Department cables, on the basis that discretion is, and should remain an important element of diplomacy (but we also acknowledged that there seemed little point ignoring these cables once published).

Our initial position was based on practicality rather than principle, and we did not pay much attention to the legal implications of the case at the time, on the basis that the main focus of this blog is on the politics and international relations of Russia and the CIS, rather than Wikileaks or the US.  

In retrospect, this was a mistake: we were disturbed by calls from the more rabid sections of the American right for Wikileaks’ founder Julian Assange to be brought to trial as a “terrorist” (and presumably executed if found “guilty”), but until today did not feel we had the required legal expertise, to comment usefully on the matter.

In this regard, we have been delighted to discover this extraordinarily clear and powerful defence of Assange, Wikileaks and the fundamental necessity of freedom of the press as an essential bulwark of a free society, thanks to a rather unexpected source; Judge Andrew Napolitano of Fox News.

Napolitano’s main points are that the actions of Mr. Assange (and Wikileaks) in releasing the secret documents are absolutely protected by the first amendment to the United States constitution, and that there is a legal precedent in the form of the release of the “Pentagon Papers” by the New York Times in 1971 for the Wikileaks case. Napolitano states;

“In 1971 the NYT obtained a stolen copy of classified defence department documents; a study on US political involvement in Vietnam (the “Pentagon Papers”). When the Times published the report, the federal government wanted to censor the newspaper, and prevent it from printing more of the classified documents. The government, and president Nixon argued that the Espionage Act of 1917 trumped the first amendment, and gave the government the right and the power to censure the newspaper. Fortunately, the supreme court disagreed, and ruled six to three that the first amendment trumps the Espionage Act, and that a free press was absolutely necessary, and was the check on the government.  And so the court ruled, that wherever members of the media come upon government documents of public interest, no matter how secret, no matter how they got them, there can be no liability, civil or criminal, for publishing them. The attacks on Assange are another example of the government trying to quash dissenters. Mr. Assange did not steal these cables, he merely published them; it’s the government’s responsibility to keep their own secrets, and not that of a free, unbiased press. If we allow the governments of the world to label Assange a terrorist, and allow them to shut down Wikileaks, it will be one giant leap towards tyranny.”

Democratist (who is no lawyer) thinks Napolitano makes a strong and logical argument. From our own perspective the most important of the points he makes are on the absolute necessity of a free press as a check on government, and that it is the responsibility of government, and not the press to keep their own secrets. It seems to us that this is a central principle to protect political freedom in the face of oppression, and one which the United States must respect is it wishes to be taken seriously as an exponent of democratic governance.

4 Responses to “Napolitano, Wikileaks, and the Absolute Necessity of a Free Press”

  1. Kozakov said

    To a point I can agree. However, there are two other counterpoints to consider. 1) Why should one who clearly steals information be able to profit or benefit from the publishing of this ‘good’? If one steals a car, one clearly does not have the right to drive this car. Stealing is stealing?
    2) The publishing of names etc; of individual contacts that the military or government uses often endangers the lives of these individuals. Seems like I remember Judge Lerned Hand come up with the limitation of ‘free speech’ when one yells fire in a crowded theater, when no fire is present. This is somewhat analogous. The issues are more complicated than a black and white response can address.

  2. Assange did not steal anything. He published what others had stolen. If he benefits financially, then perhaps the US govt might be able to take some form of legal action. BUT I agree with the principle that that it is for the US government to guard their own secrets. Government control of the press must be minimal as ideally the press acts as a check on govt power.

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