Essay: Espionage Act Conflicts First Amendment Rights in WikiLeaks Case

Federal Attorney General Eric Holder faces a perplexing dilemma in regards to prosecuting WikiLeaks founder Julian Assange for posting classified government documents for everyone to see. Assange has posted more than 70,000 documents on the website posing possible threat to U.S. defense and security. Many documents include information relating to active war regions Afghanistan and Iraq. The federal government would like to find a means of prosecuting Assange. The great debate involved includes freedom of press under the First Amendment and the Espionage Act of 1917. Holder is dealing with new territory in this case. The First Amendment protects freedom of press when information is acquired legally. However, the information posted on WikiLeaks was collected illegally. The courts have not yet decided a First Amendment case when classified information was gathered illegally. The final outcome could set precedence for future litigation.

The Bill of Rights was enacted to guarantee certain rights to individuals living in the newly created United States. It was added to the Constitution in response to states like Virginia and New York over concerns of a strong centralized federal government. The Constitution received unanimous state ratification with promise the first Ten Amendments would be included. However, exceptions have been made to prevent classified documents from becoming public during sensitive times especially war. For national security during World War I, President Woodrow Wilson enacted the Espionage Act of 1917. This Act allows prosecution of individuals passing sensitive information that could threaten security. The Espionage Act could provide Holder with the tool to prosecute Assange without violating the First Amendment.

Congressional leaders assert WikiLeaks is in direct violation of the Espionage Act. Senators Dianne Feinstein, Joe Lieberman and Kit Bond provide bipartisan support that classified documents posted on WikiLeaks are a threat to national security and violation of the Espionage Act. However, the ACLU argues the validity of violating the First Amendment and bringing charges against Assange. The ACLU could have a valid point. The First Amendment is not limited to freedom of press but also freedom of speech.

There are other issues with regards to how the information was acquired by Assange. Charges have been brought against U.S. Army Private First Class Bradley Manning. Prosecuting the individual responsible for providing the documents is not as complicated as prosecuting WikiLeaks. It is a clear case of obtaining and selling classified documents. Prosecuting Assange for posting information is more complicated. Despite how the documents were originally acquired the First Amendment does provide freedom of press for establishments such as WikiLeaks.

Attorney General Holder and the Justice Department would certainly enjoy the opportunity to prosecute Assange for publication of sensitive classified documents. The Espionage Act appears one possible route and is under review. It was attempted in 1971 when charges were brought against the New York Times for publishing documents concerning the Vietnam War called Pentagon Papers. However, the Supreme Court upheld the New York paper’s First Amendment rights and the documents were published despite how the information was acquired. The outcome of this case set precedence and the First Amendment should protect WikiLeaks from prosecution.

Attorney Floyd Abrahms defended New York Times. During a recent interview, Abrahms has commented on differences between the Pentagon Papers case and WikiLeaks. He stated that media source like the New York Times are required to verify information as accurate before it can be published. Sensitive documents should be reviewed carefully to ascertain possible dangers to national security. Abrahms doubted that Assange took these necessary steps before publishing classified documents online. In addition, recent interviews with Assange indicates he had knowledge posting senstive documents could be harmful to U.S. security. For these reasons, Assange and WikiLeaks are not reliable sources of media. However, the First Amendment does not provide guidelines requiring a source of media to review documents.


Holder faces complications with regards to the Espionage Act. Documents posted on WikiLeaks have spread throughout cyberspace using websites such as Twitter and Facebook. It is possible the long arm reach of the Espionage Act could include any person viewing and passing information from the WikiLeaks site. The White House issued warning to government employees concerning the WikiLeak documents. The Espionage Act could potentially provide reason to prosecute any individual viewing and passing these classified documents.

Julian Assange is currently held in a British prison on charges of sexual misconduct. The Attorney General is working vigorously in support of extradition to the U.S. where charges could be brought against Assange and WikiLeaks. The question remaining is whether the First Amendment could provide protection from prosecution even when the individual responsible for leaking the documents is prosecuted. Chances are the First Amendment will stand.