The First Amendment Can’t Protect Assange

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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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  • okrahead

    Attorney General Eric Holder speaks out on free speech and preventing terror, read it here…

  • Reason_For_Life

    It's hard to believe that this article was written by the same woman that wrote "High Crimes and Misdemeanors".

    She went to law school and there is no reason that she should not be aware of the "Pentagon Papers" case where the SCOTUS clearly and unambiguously stated that the publication of classified documents is protected free speech.

    Her case against Bill Clinton was meticulously researched. This article is just pure trash, beneath the dignity of even a Marxist tabloid writer.

    I'd like to think that Coulter simply became a journalist whore writing whatever will generate cash. However, I don't believe that the motive for her present writing is anywhere near that noble.

    • tagalog

      In the Ellsberg "Pentagon Papers" case, New York Times v. United States, a majority of the justices of the Supreme Court ruled that the government could still prosecute the Times and the Post for violating the Espionage Act by publishing the documents. The case against Ellsberg was dismissed and he was freed due to a mistrial due to irregularities in the government's case (questionable practices in gathering the evidence against Ellsberg).

      • Reason_For_Life

        The government never even considered prosecuting the Times or the Post. Only Ellsberg could be prosecuted because he violated the terms of his security clearance. Since the feds had blatantly violated the 4th and 5th Amendments the case against Ellsberg was dismissed.

        The Espionage Act of 1917 was a typical expression of progressive Wilsonian authoritarianism under which people were prosecuted for merely criticizing the government's war policies. Today, any such prosecution would be annihilated when it got the Supreme Court which is why there will be no prosecution of Assange.

        No federal prosecutor wants to be the attorney that got the Espionage Act declared unconstitutional (which it is).

  • Michael Canzano

    Assange will not be prosecuted. Obama will relinquish his Nobel Peace Prize and award it to Assange. The Lincoln Memorial will be razed and replaced with the "Assange Memorial".The stars on our flag will be removed and replaced with an image of Assange. Our Nation will be renamed "Assangeica". This is the Isanity prevailing in America today. Any time the "Left" wins America loses.
    American Christian Infidel
    Michael Canzano

  • Michael Canzano

    Until we eliminate Congress as a ruling body in our Nation we are doomed. The corruption is running rampant . Most of the members should be serving time in Leavenworth.
    American Christian Infidel
    Michael Canzano