Wikileaks has become the new and sometimes confusing name in journalistic lexicons. A student defined them as a “secret website that posts secret information from government and corporate organizations for us to read.” It is the best description I heard since June, when I first learned about Wikileaks.
I, frankly, do not care about the sexual exploits of Wikileaks’ founder and mysterious leader, Julian Paul Assange.
I am concerned about the United States’ attempts to find something, anything, to charge Assange with so he can be brought to trial and jailed in the U.S. This raises a number of questions that the courts will need to answer.
Mark Stephens, attorney for Assange and Wikileaks, said the United States had "a secretly impaneled grand jury in Alexandria (Va.)." This may be a misunderstanding of American law. A spokesperson for the American Bar Association confirmed something I already knew: All grand juries are essentially "secret." The names of those impaneled, the proceedings and the testimony are held in confidence. A spokesperson at the United States Department of Justice said that federal grand jury proceedings are kept confidential and the department did nothing different concerning the Assange hearing than any other federal grand jury. That includes not putting out a news release.
The grand jury will determine if there is enough evidence that Assange had violated the “Espionage Act [18 U.S.C. § 793 : US Code - Section 793 (e)] for disseminating classified U.S. State Department cables and other information,” so the case could go to trial. Stephens and others have said they believe that Wikileaks and Assange are journalists and fall under an exception to the law.
How do we define “journalist,” not only Assange, but all who take it upon their “profession” to report on information received from a third party? Remember the Pentagon Papers? How about Watergate?
Are citizen journalists for this and other “traditional” news outlets, including Internet outlets, considered “journalists” because we abide by a long and sacred tradition of fact checks and editing? Or do we, and I include myself here, fall under a category that includes the political-conspiracy radical blog sites like WorldNetDaily.com?
Most definitions seem out of date, including Princeton University’s, which limits "journalist” to “a writer for newspapers and magazines,” seemingly not including online publications and blog sites. Wikipedia, which includes Internet sites, says a journalist is a person who “collects and disseminates information” and is acknowledged as a journalist. Who does the acknowledgement? Peers? Readership? Courts?
Back to Wikileaks. U.S. Supreme Court case of New York Times v. United States, 403 U.S. 713 (1971), is often cited as the ruling which allows the press to print such documents. The arguments in favor were best stated by associate justice Hugo Black, who wrote, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”
In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Supreme Court said that the dissemination of information by the press obtained through “illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”
Brandenburg v. Ohio, 395 U.S. 444 (1969), provides for a test of a “clear and present danger” as it concerns an exception to the First Amendment rights of freedom of expression and the press.
The federal grand jury has a lot on its hands, and the courts will have an even bigger plate. First, is Assange a journalist, is Wikileaks a news outlet, and how does the court define both terms?
Second, is the First Amendment all-inclusive, or are there exceptions such as the “clear and present danger"?
As citizens, you need to be aware of the scope and limits the court will be dealing with if Assange and Wikileaks are charged. Will the court apply new limitations to our right to be a fully informed public? Will the courts limit who is and is not a journalist? Are InkandVoice.com or WorldNetDaily.com journalistic publications? Will the courts weasel out of their charge by limiting their decisions to Wikileaks only?
Watch closely, my friends. Another sedition act may be coming through the judicial system.
David Rosman is an award-winning editor, writer, professional speaker and college instructor in communications, ethics, business and politics. You can read more of David’s commentaries at InkandVoice.com and New York Journal of Books.