Lind and the Pentagon Papers Case

A few points about Michael Lind’s argument here:

Even if WikiLeaks is defined as a news organization, American law allows both prior injunctions halting publication of government secrets and prosecutions of media organizations following publication, in certain circumstances. In New York Times v. Sullivan, the Pentagon Papers case, the Supreme Court held that the government failed to pass a heavy test in trying to prevent publication of state secrets in advance — but conceivably in some cases that test could be met. And according to the Court, the federal government had the right to prosecute the New York Times and the Washington Post after publication, although it chose not to. The government’s case against Daniel Ellsberg and Anthony Russo for leaking the Pentagon Papers was thrown out because of the gangster-like methods used against them by Richard Nixon’s sinister “plumbers,” not because the government lacked the power to prosecute them under the Espionage Act.

• The case is NY Times v. U.S., not Sullivan (the landmark 1964 libel case.)
• Lind’s assertion that the Court said that the government had the “right” to prosecute the newspapers is, at best, deeply misleading.   It implies that the Court found that such a prosecution would not violate the First Amendment, but the Court’s three paragraph per curiam is entirely silent on the subject of an after-the-fact prosecution.
• Similarly, while the Court did theoretically hold open the possibility that prior restraints on the press would be constitutional, it is exceptionally unlikely that any of the WikiLeaks material would come close to meeting that burden, which must involve immediate and direct harm (such as revealing troop positions for an imminent attack.)
• It is true that (absent the Nixon administration’s other illegal actions) the government had the authority to prosecute Ellsburg, but that’s conflating two very distinct issues:  stealing/directly leaking classified data and publishing data leaked by a third party.    Wikileaks is comparable to the newspapers, not to Ellsburg.   The government has the legitimate authority to prosecute Bradley Manning (although it shouldn’t have the authority to torture him.)    That’s an entirely different question for whether the government can prosecute Assange, and even after the fact it faces an extremely high First Amendment burden.   I very strongly doubt that a prosecution of either Assange or the New York Times for publishing the leaks could pass constitutional muster.   And if it did, the chilling effect would be appalling.