Yesterday I posed a simple question on Twitter: “Would someone please explain to me just what US law(s) WikiLeaks has violated? It didn’t leak, remember, only published.” It drew quite a few responses, but no one could point to a single US law that WikiLeaks has broken.
Given that fact, one can reasonably ask what drove the decisions of Amazon, EveryDNS, PayPal, and who knows how many other businesses and service providers to cut off access for US citizens to the WikiLeaks material. I’m left with politics as an answer—the convenience of avoiding discomfort and inconvenience under political cover, to be more precise. American politicians—most notably Senator Joe Lieberman (I-Connecticut)—are said to be behind the various service disruptions involving WikiLeaks and the purloined content it published.
But Amazon, perhaps a little slow on the uptake of the ramifications of its WikiLeaks takedown, quickly issued a statement maintaining that Lieberman had nothing to do with the issue. WikiLeaks had violated Amazon’s terms of service, that’s all.
EveryDNS, for its part, cowered behind a clause in its terms of service: “More specifically, the services were terminated for violation of the provision which states that ‘Member shall not interfere with another Member’s use and enjoyment of the Service or another entity’s use and enjoyment of similar services.’” WikiLeaks didn’t interfere with anything, it was the target of multiple highly organized distributed denial of service (DDoS) attacks.
PayPal, under the cover of darkness on a late Friday night, “permanently restricted the account used by WikiLeaks due to a violation of the PayPal Acceptable Use Policy, which states that our payment service cannot be used for any activities that encourage, promote, facilitate or instruct others to engage in illegal activity.”
Fine. Except WikiLeaks—nor any of its principals—has been indicted, tried, or convicted of any crime. While it may be illegal to leak certain information in certain situations, in the US it’s not illegal to publish said information. Amazon, EveryDNS, and PayPal are undoubtedly cowards and no longer worthy of anyone’s business. Additionally we’ve learned the very difficult—but very important—lesson that the internet, long assumed to be impervious to censorship, doesn’t really interpret censorship as damage and route around it like we all thought after all.
While the loss by the American citizenry to the source WikiLeaks documents is tragic, and a terrible loss, no one’s likely to die because of lack of access. And this is where things take a hard right turn into the bizarro ditch.
Near as I can tell, Tom Flanagan, a Canadian political scientist, professor at the University of Calgary, and former advisor to Canadian Prime Minister Stephen Harper made the first call for WikiLeaks founder Julian Assange’s assassination during an appearance on CBC. “Well, I think Assange should be assassinated, actually,” said Flanagan. “I think Obama should put out a contract and maybe use a drone or something.” When the television host gave Flanagan an opportunity to walk the statement back, Flanagan responded by saying, “I’m feeling very manly today.”
Sarah Palin was one of the first out of the “assassinate Assange” blocks in the US when she referred to Assange as an “anti-American operative with blood on his hands” and asked, “Why was he not pursued with the same urgency we pursue al Qaeda and Taliban leaders?”
Then there was this from Bill Kristol, editor of the Weekly Standard: “Why can’t we act forcefully against WikiLeaks? Why can’t we use our various assets to harass, snatch, or neutralize Julian Assange and his collaborators, wherever they are? Why can’t we disrupt and destroy WikiLeaks in both cyberspace and physical space, to the extent possible? Why can’t we warn others of repercussions from assisting this criminal enterprise hostile to the United States?” Kristol’s comments were issued under the headline, “Whack WikiLeaks.”
Fox News analyst KT McFarland is less nuanced when he writes, “It’s time to up the charges. Let’s charge him and try him for treason. If he’s found guilty, he should be executed.” If calls for execution and assassination weren’t so deadly serious, McFarland’s comment would be comical. Julian Assange is an Australian—not an American—citizen.
And finally there’s Jeffrey T. Kuhner, president of the Edmund Burke Institute, writing in the Washington Times, who minces no words under the headline “Assassinate Assange.” Kuhner writes, “He is aiding and abetting terrorists in their war against America. The administration must take care of the problem—effectively and permanently. ... In short, Mr. Assange is not a journalist or publisher; rather, he is an enemy combatant—and should be treated as such. ...we should treat Mr. Assange the same way as other high-value terrorist targets: Kill him.”
Remember, bracketing Assange’s pending Swedish charges, neither he nor WikiLeaks has done anything illegal so far as I can tell. But assassination is illegal and advocacy of assassination by the public figures outlined above is similarly illegal under what’s come to be known as the “incitement test.”
The first judicial decision in this regard—Learned Hand’s opinion in Masses Publishing Co. v. Patten—is eerily relevant to the WikiLeaks situation. In 1917, the US Postmaster General refused to allow Masses’ publication against capitalism and the draft to be distributed through the US postal system. Hand’s opinion upheld the First Amendment saying that the government may prosecute words that are “triggers to action” but not words that are “keys of persuasion.”
The US Supreme Court solidified Hand’s opinion in the 1969 case, Brandenburg v. Ohio, holding that the First Amendment allows prosecution of expression intended to incite “imminent lawless action” which is likely to produce such lawless action. What has become known as the “incitement test” is clearly stated in the Brandenburg v. Ohio decision:
“The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
So, while Julian Assange and WikiLeaks have violated no US law with regard to the publication of leaked diplomatic cables, pundits and politicians have clearly made inciteful expression that is not protected by the First Amendment and in clear violation of existing US law. Why do Flanagan, Palin, Kristol, McFarland, Kuhner, et. al. remain unindicted?
0 responses. Comments closed for this article.