WikiLeaks “Speaking and Writing the Truth”
Congressman Peter King (R-New York), the ranking Republican on the House of Representatives Homeland Security committee, has called the release of classified government documents by the website WikiLeaks "extremely damaging to U.S. interests" and is demanding that the attorney general prosecute WikiLeaks and its founder for violating the Espionage Act. He also wants Secretary of State Hillary Clinton to brand WikiLeaks, whose founder is an Australian citizen, a foreign terrorist organization.
Declaring WikiLeaks a foreign terrorist organization would silence them as a news source and give the United States government authority to seize their funds and arrest anyone who provides them with help, contributions, or assistance. Attorney General Eric Holder has announced that his office was investigating the leaks and the Obama administration is reportedly planning legal action.
Under pressure from U.S. Senator Joseph Lieberman, Amazon.com, which rents server space to other companies, has already cut WikiLeaks off of its server to limit access to its website. Amazon claims this action was taken because WikiLeaks posted documents it does not legally control and which might cause injury. WikiLeaks responded that if Amazon is “so uncomfortable with the First Amendment, they should get out of the business of selling books.”
Conservative Republicans in the Tea Party movement and on the United States Supreme Court like to hold up the nation’s founders to support their interpretations of the Constitution and views on individual rights. What would the founding fathers do (WWFFD) about WikiLeaks releasing thousands of classified records documenting American foreign policy missteps and government abuse of power and truth during the last decade?
In 1735, William Cosby, the British governor of colonial New York, put John Peter Zenger, publisher of the New York Weekly Journal, on trial for seditious libel. The newspaper had published articles which, although factual, were highly critical of the colonial government.
Zenger’s views on freedom of the press were spelled out in an editorial printed in the second issue of the newspaper. “The loss of liberty in general would soon follow the suppression of the liberty of the press; for it is an essential branch of liberty, so perhaps it is the best preservative of the whole. Even a restraint of the press would have a fatal influence. No nation ancient or modern has ever lost the liberty of freely speaking, writing or publishing their sentiments, but forthwith lost their liberty in general and became slaves.”
Two months after the newspaper began publication, Governor Cosby ordered that it be publicly burned by the town’s hangman. Zenger was arrested and held in jail for eight months. His wife, however, continued to publish the Weekly Journal.
Unfortunately for Zenger, criticizing the government, regardless of whether the statements were true or not, was illegal. When Zenger admitted he had published the offending facts, the judge, handpicked by Cosby, instructed jurors, “the Jury must find a verdict for the king. For supposing they were true, the law says that are not the less libelous for that."
In his summation before the jury, Zenger’s lawyer, Andrew Hamilton defined a belief in freedom of the press that was later incorporated into the United States Bill of Rights and has become a cornerstone of American liberty. Hamilton argued that “while men keep within the bounds of truth, I hope they may with safety both speak and write their sentiments of the conduct of men of power; . . . were this to be denied, then the next step may make them slaves.”
Hamilton concluded:
The question before the Court and you gentlemen of the Jury, is not of small or private concern, it is not the cause of a poor Printer, nor of New York alone, which you are now trying: No! It may in its consequence, affect every Freeman . . . It is the cause of liberty . . . every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.
Following Hamilton’s closing remarks, the jury retired briefly and then returned with a verdict of not guilty.
Similar issues were raised in 1971 when the Nixon administration tried to block publication of secret Pentagon papers on the origin of the Vietnam War by the New York Times and other national newspapers. The documents had been leaked to the press by former Pentagon consultant Daniel Ellsberg who wanted the American public to know the truth about United States involvement in Vietnam.
In a six-to-three decision, the court majority argued that any attempt by the government to block news articles prior to publication “bears a heavy burden of presumption against its constitutionality" and ruled, the "Government has not met that burden."
In a concurring opinion, Supreme Court Justice Hugo Black both honored the original intent of the founding fathers and the text of the first amendment to the Constitution that prohibits Congress from making any laws “abridging the freedom of speech, or of the press.”
Black issued a clarion defense of freedom of the press during a time of war when there are issues of national security involved:
In the First Amendment the founding fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the Government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell . . . In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the founders hoped and trusted they would do.
In 1938, in Lovell v. City of Griffin, GA, Chief Justice Charles Evans Hughes defined the press broadly as, “every sort of publication which affords a vehicle of information and opinion.” That definition currently includes websites. Branding the website and news source WikiLeaks a foreign terrorist organization would silence them as a news source and give the United States government authority to seize their funds and arrest anyone who provides them with any help, contributions, or assistance.
I stand with John Peter Zenger and Andrew Hamilton. Liberty requires truth. I stand with Daniel Ellsberg and Justice Hugo Black. “The founding fathers gave the free press the protection it must have to fulfill its essential role in our democracy.”
I made a $50 donation today to the American Civil Liberties Union expressly for the defense of the First Amendment rights of WikiLeaks. As Patrick Henry said to the Virginia House of Burgess in 1765 in a speech protesting against British impingement on colonial rights, “If this be treason, make the most of it.”