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Jewish World Review
Dec. 16, 2010
/ 9 Teves, 5771
Like a condom, the First Amendment can't always protect you
First of all, I feel so much more confident that the TSA's nude photos of airline passengers will never be released now that I know the government couldn't even prevent half a million classified national security documents from being posted on WikiLeaks.
President Obama and Attorney General Eric Holder will be getting around to WikiLeaks' proprietor, Julian Assange, just as soon as they figure out which law the New Black Panthers might have violated by standing outside a polling place with billy clubs.
These legal eagles are either giving the press a lot of disinformation about the WikiLeaks investigation or they are a couple of Elmer Fudds who can't find their own butts without a map.
Since Holder apparently wasn't watching Fox News a few weeks ago, I'll repeat myself and save the taxpayers the cost of Holder's legal assistants having to pore through the federal criminal statutes starting with the A's.
Among the criminal laws apparently broken by Assange is 18 U.S.C. 793(e), which provides:
"Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, (etc. etc.) relating to the national defense, ... (which) the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates (etc. etc) the same to any person not entitled to receive it, or willfully retains the same (etc) ...
"Shall be fined under this title or imprisoned not more than ten years, or both."
As is evident, merely being in unauthorized possession of classified national security documents that could be used to harm this country and publishing those documents constitutes a felony.
There's no exception for albinos with webpages -- or "journalists." Journalists are people, too!
Depending on the facts adduced at trial, there are about a half-dozen other federal laws that might apply to the WikiLeaks document dump, including 18 USC 641, which provides that any person who "receives" or "retains" a "thing of value of the United States" knowing "it to have been embezzled, stolen, purloined or converted" is also guilty of a felony, punishable by up to ten years in prison.
Classified information is valuable government property.
The entire public discussion about prosecuting Assange has been neurotically fixated on the First Amendment, as if that matters. Is Assange a "journalist"? What kind of journalist? Who is a "journalist" in the world of the Internet?
Assange's lawyer, naturally, wraps his client in the First Amendment, saying Assange "is entitled to First Amendment protection as publisher of WikiLeaks."
Even Sen. Diane Feinstein, who wants Assange prosecuted -- bless her patriotic Democratic heart -- has responded to Assange's free speech defense by saying, "But he is no journalist: He is an agitator intent on damaging our government, whose policies he happens to disagree with, regardless of who gets hurt."
All this is completely irrelevant.
New York Times reporters are agitators intent on damaging our government, and they're considered "journalists." That doesn't mean they have carte blanche to hunt endangered species, refuse to pay their taxes or embezzle money. The First Amendment isn't a Star Trek "energy field" that protects journalists from phasers, photon torpedoes, lasers, rockets and criminal prosecutions.
It's possible for the First Amendment to be implicated in a case involving national security information, just as it's possible for the First Amendment to be implicated in a case involving the Montgomery County (Ala.) public safety commissioner.
This isn't that case.
The government isn't trying to put a prior restraint on Assange's publication of the documents, as in the Pentagon Papers case (though it probably could have). It wouldn't be punishing Assange for his opinions. The government wouldn't be prosecuting Assange to force him to give up his sources -- and not only because we already know who his source is (a gay guy in "an awkward place"), but because it simply doesn't matter.
Assange would be prosecuted for committing the crime of possessing and releasing classified national security documents that could do this country harm. The First Amendment has no bearing whatsoever on whether Assange has committed this particular crime, so whether or not Assange is a "journalist" is irrelevant.
The problem here is that people get their information from the media, which is written by journalists, and journalists have spent the last half-century trying to persuade everyone that laws don't apply to them.
If a fully certified, bona fide, grade-A "journalist," rushing to get a story, swerves his car onto a sidewalk and mows down 20 pedestrians, he's committed a crime. It doesn't matter that he was engaged in the vital First Amendment-protected activity of news-gathering.
If Paul Krugman shoots his wife because she's talking too much when he's engaged in the First Amendment activity of finishing another silly column about the economy, he's committed a crime.
Journalists can't run red lights, they can't print Coca-Cola's secret formula, they can't torture sources for information, and -- as Gawker Media recently discovered when it published a story on the new iPhone before it was released -- journalists can't misappropriate lost property.
Fox News' Alan Colmes said he checked with Fox News legal analyst Andrew Napolitano, who told him there's no case against Assange because the government can't punish "the disseminator of information." They should have been on Gawker's legal team!
If Assange had unauthorized possession of any national defense document that he had reason to believe could be used to injure the United States, and he willfully communicated that to any person not entitled to receive it, Assange committed a felony, and it wouldn't matter if he were Lois Lane, my favorite reporter.
As I have noted previously, the only part of the criminal law that doesn't apply to reporters is the death penalty, at least since 2002, when the Supreme Court decided in Atkins v. Virginia that it's "cruel and unusual punishment" to execute the retarded.
Also, journalists can slander people at will. That ought to make them happy.
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