Attorney Daniel Klau, a First Amendment expert, particularly on press protections, takes issue with U.S. Sen. Joseph I. Lieberman's suggestion the New York Times should be investigated for printing stories based on documents released by WikiLeaks.
"I certainly believe that WikiLeaks has violated the Espionage Act, but then what about the news organizations -- including The Times -- that accepted it and distributed it? To me, The New York Times has committed at least an act of bad citizenship, and whether they have committed a crime, I think that bears a very intensive inquiry by the Justice Department," Lieberman, I-Conn., said on Fox News.
Klau, a partner with Pepe and Hazard in Hartford and president of the Connecticut Foundation for Open Government, said the Supreme Court has been clear in several cases where it defined the role newspapers play in this scenario.
As long as they did not actively aid the leak and obtained it lawfully, a newspaper cannot be punished for publishing "truthful information on a matter of public significance," Klau said.
Only in rare cases would the government's interest in halting publication trump the First Amendment protections of free speech afforded the media, he said.
The deleterious effect of publication would have to be "immediate and foreseeable," said Klau, such as printing names of secret agents or revealing troop movements -- something "comparable to yelling 'fire' in a crowded theater."
Klau said the protections also apply to Julian Assange, WikiLeaks' editor, as long as he did not aid the leaker, who is reportedly an Army intelligence analyst. The latest document drop by WikiLeaks totals some 250,000 pages of diplomatic cables, while in July Assange released material on Iraq and Afghanistan.
Personally, Klau thinks Assange's actions are "grossly irresponsible," but not illegal.
Up to now, the government has prosecuted officials who leak materials, but not recipients of those documents. The Justice Department is looking into whether it can prosecute Assange under the Espionage Act of 1917, or under other laws dealing with trafficking in stolen property.
Lieberman aide Leslie Philips said the senator feels prosecuting the news organizations that carried stories based on the documents "is a difficult question that should be taken up and decided by Justice Department officials." Going forward, she said Lieberman thinks Congress should discuss "whether to change the law, within the limits of the First Amendment, to more precisely address media disclosure of secret documents."
Klau was equally concerned Amazon.com, PayPal and MasterCard are among companies that cut off WikiLeaks after Amazon got a call from Lieberman's staff on the Senate Homeland Security and Government Affairs Committee, of which Lieberman is chairman. "That makes me very nervous," Klau said.
To clarify these events, Philips said a Lieberman staffer asked Amazon if it had plans to take the website down. She said the Amazon official did not know and promised to call back. The next day, Dec. 1, it called to report it had ended its relationship with WikiLeaks.
"Amazon refused to say which term of use was violated and provided no other information. ... While Senator Lieberman believes that good corporate citizens should not provide services to Wikileaks, he did not ask Amazon for anything," Philips said.
