Almost fifty years have passed since the Supreme Court decided New York Times Co. v. the United States, affirming the First Amendment right of the press to publish confidential documents about the United States’ involvement in the Vietnam War. That decision articulated a strict burden for government to meet if it wishes to restrain publication: prior restraints are impermissible absent proof that publication will surely result in direct, immediate and irreparable damage to our nation. The dearth of government challenges to enjoin publications in the last fifty years, and the inability of government witnesses to cite examples of harm sustained by the nation as a result of publication, suggest that the Court’s decision to create a heavy presumption against prior restraints was appropriate.

The Court’s balancing reflects a fundamental tension that pervades American jurisprudence: the government’s interest in maintaining secrecy to protect the nation juxtaposed against the duty of the press to inform the public and hold government accountable. That tension is only exacerbated by the Internet’s transformation of journalism and the media. Consumer habits are changing; many consumers no longer read multiple articles from a single source or newspaper. New forms of online journalism have proven able to out-innovate newspapers. Moreover, some of these new forms of media, like WikiLeaks for example, are less inclined to self-restraint. WikiLeaks is a global internet-based organization that publishes anonymous submissions of confidential corporate and government documents. WikiLeaks believes that document leaks are vital to improve transparency of government and corporations because it subjects them to greater scrutiny that will ultimately reduce corruption. Since its inception in 2007, WikiLeaks has published many controversial documents, including the Afghan War Reports. Reports of retaliation against cooperating informants by the Taliban subsequent to the release of the Afgan War Diaries lend credence to government assertions that WikiLeaks' actions have actually endangered national security.

The supranational nature of media today enables offshore Internet publishers to withstand legal attacks. In addition, advances in technology and the ease of distribution raise the stakes of publication because, unlike a traditional newspaper article, a nontraditional online publication can spread around the world instantly, which increases the potential threat to national security. Nontraditional publishers do not exercise discretion in avoiding publications that might threaten in the same manner as traditional publishers, nor do they pay the same cost of entry.

Some argue that the nature of new media calls for an increased effort by government to restrain publications. Because nontraditional publishers are not as reliable, careful, or as controllable as traditional publishers, and since information has the potential to travel further and more quickly, the traditional understanding of the First Amendment should not apply and government should use the full extent of its power to prosecute nontraditional publishers for dangerous publications. But the power of publishers like WikiLeaks to threaten legitimate secrecy pales in comparison to the government's ability to enforce secrecy through technology, control over employment, prosecutions, and the well-established processes of classified communication. Moreover, the increasing power of government to monitor patterns of behavior poses a risk to anonymity that traditionally undergirds effective newsgathering. Nontraditional publishers are more vulnerable than traditional publishers in part because their reputations are not established. Therefore, nontraditional publishers need to have just as much if not more protections as traditional publishers.

Instead of responding to the evolution of media by restricting the ability of the press to monitor government, government might respond by dedicating resources to improve infrastructure so that the unauthorized attainment of classified information is less likely. Efforts to improve our military infrastructure so that it can react more quickly to sensitive publications will sufficiently safeguard national interests without curtailing nontraditional forms of media. Professor Geoffrey Stone points out that, notwithstanding the attendant risk, discussion about issues of national importance, especially during wartime, can help save the nation from tragic blunders. Despite the risks that nontraditional publishers pose to national security, they exist to illuminate the dark that surrounds so much of government activity. The curtailment of these publications will necessarily cause unexpressed feelings of dissidence to fester and government corruption to thrive. Protection for publications about government should be absolute, and even if the freedom in the constitution is absolute, one must worry about what currency an absolute constitutional power carries in a world where peoples’ identities and the publications are digitalized and anonymity is much less absolute.

Sources:

1. Floyd Abrams, The Pentagon Papers After Four Decades, 1 Wake Forest JL & Pol'y 7 [2011].

2. Alexander E. Blanchard, A False Choice: Prior Restraint and Subsequent Punishment in A Wikileaks World, 24 U Fla JL & Pub Pol'y 5, 6 [2013].

3. Kyle Lewis, Wikifreak-Out: The Legality of Prior Restraints on Wikileaks' Publication of Government Documents, 38 Wash UJL & Pol'y 417, 425 [2012].

4. Nawi Ukabiala, Wikilaw: Securing the Leaks in the Application of First Amendment Jurisprudence to Wikileaks, 7 Fed Cts L Rev 209, 237 [2013].

5. David McCraw and Stephen Gikow, The End to an Unspoken Bargain? National Security and Leaks in A Post-Pentagon Papers World, 48 Harv CR-CLL Rev 473, 488 [2013].

6. Doug Meier, Changing with the Times: How the Government Must Adapt to Prevent the Publication of Its Secrets, 28 Rev Litig 203, 213 [2008].

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