Shades of Grey

By John Ballard

Proceed with caution. Tuesday's FDL Roundup can be like quicksand if you're not careful. That's where this post came from.
This assessment of Wikileaks by Marvin Ammori is worth contemplating.
(I'll not transcribe them all here but the number of links in the opening paragraphs alone will make you seasick.)

I decided to write up some thoughts on Wikileaks.

Many of our nation�s landmark free speech decisions are not about heroes�several are about flag-burners, racists, Klansmen, and those with political views outside the mainstream. And yet we measure our commitment to freedom of speech, in part, by our willingness to protect even their rights despite disagreement with what they say, and why they say it.

The story of Wikileaks publishing U.S. diplomatic cables has become the story of Julian Assange: is he a hero or villain, a high-tech terrorist or enemy combatant? Should the U.S., which may have already empanelled a grand jury in Virginia, prosecute him as a criminal under the Espionage Act of 1917 or under the computer fraud and abuse act?

Though I have spent years advocating for Internet freedom, I don�t think Assange is a hero for leaking these diplomatic cables. According to plausible reports, the leaks have harmed U.S. interests, made the work of U.S. diplomats more difficult, likely endangered lives of allies, and may have set back democracy in Zimbabwe and perhaps elsewhere. Even some of Assange�s friends at Wikileaks are doubting Assange�s heroism: a few left him to launch a rival site and to write a tell-all book. Whatever the harms of secrecy and over-classification, Assange�s actions have caused tremendous damage. No wonder polls show nearly 60% of Americans believe the U.S. should arrest Assange and charge him with a crime.

My initial reaction was similar. I thought that if a case could be made against Assange, one should be made.

But, as time passed, the political and legal downsides of prosecution came into clearer focus, and I am rethinking that initial reaction. Despite still believing Assange�s actions have been harmful, I have now come to the opposite conclusion�not for the benefit of Assange, but for the benefit of Americans and of the United States.

Prosecuting Assange could do more harm than good for our freedom of the press and would inflict further harm on diplomatic effectiveness. Despite the appeal of prosecuting Assange, it is not worth the cost. We will not get the cables back. We will not deter aspiring Wikileakers, as both our allies and our enemies know. We will, as Dean Geoffrey Stone has best articulated, likely sacrifice established principles of freedom of the press in doing so.

One would think that was enough, but one would be wrong. He's just getting warmed up. The main content is yet to come.

Here are some thoughts on why we should think twice about prosecuting Assange, categorized by harms to the U.S.�s freedom of the press and then harms to America�s diplomatic effectiveness. And, in advance, I thank the many scholars, policy experts, and friends who took the time to give me thoughts on earlier drafts of this post.

?Harms to American Freedom of the Press

1. The balance between information security and freedom of the press generally permits both government secrecy and publication.


2. If the government can prosecute Assange for publishing illegally obtained information, then it can prosecute most journalists.


3. Assange looks more like a 21st Century journalist than a terrorist.


4. If the government can prosecute Assange for �conspiring� with his source, all journalists are conspirators.


5. If the First Amendment doesn't protect Wikileaks, it doesn't protect The Economist or Roberto Benigni.


6. If the government can pressure private companies to silence Wikileaks, it can silence anyone.

?Harms to American Democracy

1. We will possibly fail to convict Assange, while handing autocrats an argument to justify politically motivated prosecutions.


2. We will look weak and hypocritical, affecting our moral standing abroad and at home.

Too much sugar for a dime, I say. What you see here is only an outline. Each of these bullet points is linked, documented and underscored beyond discussion. But when he finished there is nothing left to say. That Change.org petition in our sidebar to stop picking on Wikileaks is worth a second look.