{"id":786,"date":"2011-04-18T12:26:43","date_gmt":"2011-04-18T16:26:43","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=786"},"modified":"2015-10-02T15:58:05","modified_gmt":"2015-10-02T15:58:05","slug":"wikileaks-the-first-amendment-and-the-press","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2011\/04\/18\/wikileaks-the-first-amendment-and-the-press\/","title":{"rendered":"WikiLeaks, the First Amendment, and the Press"},"content":{"rendered":"

Jonathan Peters<\/em><\/p>\n

Using a high-security online drop box and a well-insulated website, WikiLeaks has published 76,000 classified U.S. documents about the war in Afghanistan,<\/a>[1]<\/a>\u00a0nearly 400,000 classified U.S. documents about the war in Iraq,<\/a>[2]<\/a>\u00a0and more than 2,000 U.S. diplomatic cables.<\/a>[3]<\/a>\u00a0In doing so, it has collaborated with some of the most powerful newspapers in the world,<\/a>[4]<\/a>\u00a0and it has rankled some of the most powerful people in the world.<\/a>[5]<\/a>\u00a0President Barack Obama\u00a0said<\/a>\u00a0in July 2010, right after the release of the Afghanistan documents, that he was \u201cconcerned about the disclosure of sensitive information from the battlefield.\u201d<\/a>[6]<\/a>\u00a0His concern spread quickly through the echelons of power, as WikiLeaks continued in the fall of 2010 to release caches of classified U.S. documents.<\/p>\n

Secretary of State Hillary Clinton condemned the slow drip of diplomatic cables, saying it was \u201cnot just an attack on America\u2019s foreign policy interests, it [was] an attack on the international community.\u201d<\/a>[7]<\/a>\u00a0Director of National Intelligence James Clapper wrote in an e-mail to intelligence agencies that the \u201cactions taken by WikiLeaks are not only deplorable, irresponsible, and reprehensible\u2014they could have major impacts on our national security.\u201d<\/a>[8]<\/a>\u00a0Members of Congress scrambled to respond to the website and its founder, Julian Assange, calling variously for a criminal prosecution,<\/a>[9]<\/a>\u00a0for an overhaul of the\u00a0Espionage Act<\/a>\u00a0of 1917,<\/a>[10]<\/a>and for a law that would make it illegal to publish the names of military and intelligence informants.<\/a>[11]<\/a><\/p>\n

For his part, Attorney General Eric Holder\u00a0announced<\/a>\u00a0in late November that the Justice Department and the Pentagon were investigating the circumstances surrounding the leaks to determine if criminal charges would be filed.<\/a>[12]<\/a>\u00a0Holder declined to say whether WikiLeaks or Assange were targets of the investigation. He said that anybody, regardless of citizenship or place of residence, could be a target,\u00a0adding<\/a>, \u201cLet me be very clear . . . to the extent that we can find anybody who was involved in the breaking of American law . . . they will be held responsible.\u201d<\/a>[13]<\/a>\u00a0Holder also said it would be a \u201cmisimpression\u201d to think he was studying only the Espionage Act.<\/a>[14]<\/a>\u00a0Then, in early January 2011, the Justice Department\u00a0subpoenaed records<\/a>\u00a0from Twitter about the account activity of several people connected to WikiLeaks.<\/a>[15]<\/a>\u00a0A federal grand jury reportedly has been meeting in Virginia to weigh the government\u2019s evidence against WikiLeaks and Assange,<\/a>[16]<\/a>\u00a0in connection with the military\u2019s case against Pfc. Bradley Manning, the Army intelligence analyst accused of leaking classified information to WikiLeaks.<\/p>\n

This is largely unfamiliar territory for the Justice Department. As a result, the legal and constitutional issues are challenging and varied. This article focuses on one of them: When can the government, consonant with the First Amendment, punish the publication of classified information related to national security?<\/a>[17]<\/a>\u00a0To that end,\u00a0Part I<\/strong>\u00a0outlines the constitutional standards that could apply to such a prosecution of Assange or WikiLeaks.\u00a0\u00a0Part II<\/strong>\u00a0discusses whether Assange and WikiLeaks are part of the press and whether that matters for constitutional purposes.\u00a0\u00a0Part III<\/strong>\u00a0concludes by urging the Justice Department to proceed with caution.<\/p>\n

I. The Constitutional Standards<\/h3>\n

The first thing to do is briefly to inventory the statutory provisions that could be used to prosecute WikiLeaks or Assange. Notably, there is no one law or provision that generally criminalizes the disclosure of classified information\u2014no catchall that simply says, \u201cThou shalt not disclose.\u201d<\/a>[18]<\/a>\u00a0There is, rather, a patchwork of laws and provisions serving that function, each applying in different circumstances.<\/a>[19]<\/a>\u00a0For our purposes, one law and three of its provisions take center stage.<\/p>\n

Passed in 1917, the Espionage Act applies broadly to national defense information and prohibits, in pertinent part: (1) the transmitting of such information with the intent or reason to believe it will be used against the U.S. or to the benefit of a foreign nation;<\/a>[20]<\/a>\u00a0(2) the disclosure of such information to any person not entitled to receive it, with reason to know it could be used to harm the U.S. or to benefit a foreign nation;<\/a>[21]<\/a>\u00a0and (3) the knowing and willful disclosure, prejudicial to the national security or to U.S. interests, of information related to communications intelligence specially designated by a federal agency for \u201climited or restricted dissemination or distribution.\u201d<\/a>[22]<\/a><\/p>\n

Based on these provisions, there appears to be statutory authority to punish WikiLeaks for publishing a number of the classified U.S. documents, \u201cas long as the intent element can be satisfied and potential damage to national security can be demonstrated.\u201d<\/a>[23]<\/a>\u00a0These provisions are the most likely to be used in these circumstances because of their scope and because they apply to all people (other provisions in the Act apply only to government employees or those authorized to access classified information).<\/a>[24]<\/a><\/p>\n

However, any prosecution would have to comport with the First Amendment. It is critical to keep in mind a distinction that has played a central role in the Supreme Court\u2019s analysis of the Speech and Press Clauses, the distinction between content-neutral and content-based restrictions. The constitutional standard to be applied depends on which type is at issue. Content-neutral laws restrict expression without regard to the message conveyed (e.g., laws banning noisy speeches near a hospital), while content-based laws restrict expression because of the message conveyed (e.g., laws banning the display of the swastika).<\/a>[25]<\/a>\u00a0Criminal statutes prohibiting the publication of classified information fall into the latter category.<\/p>\n

For content-based restrictions, the Supreme Court primarily has applied strict scrutiny or some version of the clear-and-present danger standard. It is difficult to predict which one would apply in a criminal prosecution of WikiLeaks or Assange, because the Supreme Court has applied each standard to a wide range of First Amendment issues.<\/a>[26]<\/a>\u00a0It seems that historically the Court has preferred to use the clear-and-present danger standard in cases involving speech that creates some sort of hazard. Recently, however, it seems the Court has preferred in general to use the strict scrutiny standard. Each standard is examined in the following subparts of this article, and for now it is enough to say that either one could apply in a case against WikiLeaks or Assange.<\/p>\n

a. Strict Scrutiny<\/h4>\n

A content-based restriction on expression can be upheld if (1) it is \u201cnarrowly tailored to serve a compelling state interest,\u201d<\/a>[27]<\/a>\u00a0and (2) it is the \u201cleast restrictive means to further the articulated interest.\u201d<\/a>[28]<\/a>\u00a0The government bears the burden to show that the interest is sufficiently compelling. The standard requires the courts to make a normative judgment about the ends (Is the interest important enough to justify a speech restriction?) and an empirical judgment about the means (Does it further the interest? Is it too broad, too narrow? Is it unnecessarily burdensome?).<\/a>[29]<\/a><\/p>\n

The Supreme Court has set forth some general principles to inform those judgments. First, regarding the ends: a restriction\u2019s underinclusiveness can be evidence that the interest is not truly compelling (i.e., the government does not consider it compelling enough to justify a broader statute). An interest itself can also be impermissibly underinclusive, even if the restriction is narrowly tailored to it (i.e., asserting an interest to fight one ill while ignoring other ills that are indistinguishable). Further, the government has no compelling interest in privileging one type of high-value speech (i.e., economic, social, and political) at the expense of another, or in restricting expression simply because society would find the expression offensive or bad.<\/a>[30]<\/a><\/p>\n

Second, regarding the means: the government must show that the restriction actually advances its interest. A restriction is not narrowly tailored if it covers a large amount of expression that does not implicate the interest, or if other less-restrictive means are available and would adequately serve the interest. Courts also will strike down a restriction if it fails to cover a large amount of expression that harms the interest to the same degree as the expression actually being restricted.<\/a>[31]<\/a><\/p>\n

It is unclear exactly how the strict scrutiny standard would apply in a case against WikiLeaks or Assange. Neither the Justice Department nor the Pentagon has released factual findings from their investigations, and we do not know enough at this point to conduct a comprehensive analysis. That said, if the government decided to prosecute WikiLeaks or Assange, it would likely argue that punishing the publication of classified defense information promotes its interest in national security and that \u201cno governmental interest is more compelling than the security of the Nation.\u201d<\/a>[32]<\/a>\u00a0For support, the government might point to the ongoing wars in Iraq and Afghanistan: \u201cWhen a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight . . . .\u201d<\/a>[33]<\/a><\/p>\n

Of course, even if national security is a compelling interest, it remains an open question whether the charging statute is the \u201cleast restrictive means to further the articulated interest.\u201d<\/a>[34]<\/a>\u00a0Consider, for example, the following views of the Espionage Act. Jack Goldsmith, a former head of the Office of Legal Counsel at the Justice Department, said in February 2011 that the Act is \u201cfamously overbroad.\u201d<\/a>[35]<\/a>\u00a0Abbe David Lowell, a former special assistant to the Attorney General, said in December 2010 that, \u201c[b]ecause of its breadth and language, [the Act] can be applied in a manner that infringes on proper First Amendment activity,\u201d such as \u201cnewsgathering to expose government wrongdoing.\u201d<\/a>[36]<\/a>\u00a0Judson Littleton, now a trial attorney at the Justice Department, said in 2008 that the Act has \u201cvagueness and overbreadth problems.\u201d<\/a>[37]<\/a>\u00a0And Bruce Fein, a former U.S. Associate Deputy Attorney General, said in 2006 that the Act is \u201cunconstitutionally overbroad because it makes no distinction between genuine and contrived dangers.\u201d<\/a>[38]<\/a><\/p>\n

To make sense of these comments, it helps to review the vagueness and overbreadth doctrines.<\/a>[39]<\/a>\u00a0The vagueness doctrine requires that a criminal statute state clearly and explicitly what is prohibited. This is to provide fair warning and to preclude arbitrary enforcement of the statute. The vagueness doctrine often overlaps with the overbreadth doctrine, which is used to invalidate statutes so broadly written that they cover both unprotected and protected speech. The concern is that protected speech could be chilled. Because the vagueness and overbreadth doctrines are closely related to each other and to the \u201cleast restrictive means\u201d test (they all are designed essentially to ensure that restrictions on expression are precise and narrowly drawn), any evidence of overbreadth and vagueness could be used as evidence that the restriction does not satisfy the \u201cleast restrictive means\u201d test.<\/a>[40]<\/a>\u00a0The looser the fit between the statute and the government interest, the less likely the restriction will be upheld.<\/p>\n

b. The Clear-and-Present Danger Standard<\/h4>\n

Historically, the clear-and-present danger standard ensured that Americans had broad expression rights unless the government proved that particular expression posed a clear and imminent danger of serious harm.<\/a>[41]<\/a>\u00a0Brandenburg<\/em>\u00a0modified that standard in 1969, holding that the government could restrict speech only if it is \u201cdirected to inciting or producing imminent lawless action and is likely to incite or produce such action.\u201d<\/a>[42]<\/a>\u00a0Just two years later, in the\u00a0Pentagon Papers<\/em>\u00a0case,<\/a>[43]<\/a>\u00a0yet another version of the standard emerged, in a concurring opinion by Justice Stewart. On that basis, Geoffrey Stone concluded recently that the clear-and-present danger standard would apply today in cases involving the publication of classified information, after the information is leaked.<\/a>[44]<\/a><\/p>\n

Although the danger standard has been dormant for a while (again, the Court in recent years has moved toward strict scrutiny), it is not dead. It strikes at the heart of the balance between national security and free expression. Drawing on Professor Stone\u2019s work, the next few paragraphs demonstrate why the clear-and-present danger standard could be used in a criminal prosecution of WikiLeaks or Assange, for publishing classified information. The\u00a0Pentagon Papers<\/a><\/em>\u00a0case is a good place to begin this analysis. Its facts are familiar to many:<\/p>\n

In 1967, Secretary of Defense Robert McNamara commissioned a top-secret study of the Vietnam War. [It] reviewed in great detail the formulation of U.S. policy toward Indochina, including military operations and secret diplomatic negotiations. In the spring of 1970, Daniel Ellsberg, a former Defense Department official, gave a copy of the\u00a0Pentagon Papers<\/em>\u00a0to the\u00a0New York Times<\/em>. On June 13, the\u00a0Times<\/em>\u00a0began publishing excerpts from the\u00a0Papers<\/em>. The next day, Attorney General John Mitchell . . . requested that the\u00a0Times<\/em>\u00a0[halt publication].<\/p>\n

Two hours later, the\u00a0Times<\/em>\u00a0transmitted a response, which it released publicly: \u201cThe\u00a0Times<\/em>\u00a0must respectfully decline the request of the Attorney General, believing that it is in the interest of the people of this country to be informed of the material contained in this series of articles.\u201d The\u00a0Times<\/em>\u00a0added that, if the government sought to enjoin any further publication of the material, it would contest the government\u2019s position, but would \u201cabide by the final decision of the court.\u201d<\/a>[45]<\/a><\/p>\n

The next day, the government filed for an injunction and for a temporary restraining order, which was granted, halting publication of the\u00a0Pentagon Papers<\/em>. The order wasn\u2019t in place for long, though, because within two weeks the Supreme Court had heard oral arguments in the case and had announced its decision. Six justices held that the government did not meet its \u201cheavy burden\u201d to justify a prior restraint on the press, allowing the\u00a0Times<\/em>\u00a0to resume publication.<\/em><\/a>[46]<\/a>\u00a0<\/em>The\u00a0per curiam<\/em>\u00a0was just 237 words, including citations, so \u201c[it] was the individual opinions of the justices\u2014nine justices, nine opinions\u2014that told the detailed story behind the judgment.\u201d<\/a>[47]<\/a><\/p>\n

Although they all touched on different themes,<\/a>[48]<\/a>\u00a0Justice Stewart\u2019s stood out as the one that \u201cbest capture[d] the view of the Court.\u201d<\/a>[49]<\/a>\u00a0Concurring in the judgment, he wrote,<\/p>\n

We are asked . . . to prevent the publication . . . of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will\u00a0surely result in direct, immediate, and irreparable damage to our Nation or its people<\/em>.<\/a>[50]<\/a><\/p>\n

A variation on the clear-and-present danger standard, this is the closest the Supreme Court has come to answering the question hanging over WikiLeaks and Assange: When can the government constitutionally punish someone for publishing classified information related to national security?<\/p>\n

Notably, the Court in the\u00a0Pentagon Papers<\/em>\u00a0case stressed that it was dealing with a prior restraint, not a criminal prosecution after publication. As Professor Stone has observed, this raises the question of whether the same standard applies to both<\/a>[51]<\/a>\u00a0(Justice Stewart and Justice White characterized that question as an open one).<\/a>[52]<\/a>\u00a0Behind the distinction lies the idea that prior restraints, which carry a \u201cheavy presumption\u201d against their validity,<\/a>[53]<\/a>\u00a0are especially threatening to free expression because \u201cthey are more likely than criminal statutes to be obeyed.\u201d<\/a>[54]<\/a>\u00a0This is because prior restraints typically take the form of injunctions or temporary restraining orders directed at specific people. As a result, any violation is more likely to be detected, more likely to be seen as a \u201cdirect affront to the issuing judge\u2019s authority,\u201d and more likely to be punished.<\/a>[55]<\/a>\u00a0The main ingredient, though, is the collateral bar rule. It says that a court order must be obeyed unless the issuing judge sets it aside; if it is not obeyed, then it cannot be challenged later in a contempt proceeding (e.g., on the theory that it was unconstitutional).<\/a>[56]<\/a>\u00a0That means that, if a publisher violates an injunction, she could be punished even if the injunction was improperly granted. In contrast, if a publisher is prosecuted criminally, she can defend herself by attacking the validity of the statute.<\/a>[57]<\/a><\/p>\n

Professor Stone has softened that distinction by pointing out that the penalties for violating a court order are \u201cusually much less severe than those for violating a criminal law\u201d and that a \u201csystem of prior restraint actually enables the speaker to know in advance whether his speech is subject to punishment.\u201d<\/a>[58]<\/a>Moreover, the primary focus of that system is low-value speech (e.g., obscenity and libel), which normally can be restricted \u201con the basis of a relatively undemanding standard.\u201d<\/a>[59]<\/a>\u00a0In that context, prior restraints do have \u201creal bite.\u201d<\/a>[60]<\/a>\u00a0However, for expression at the heart of the First Amendment\u2014high-value speech about public affairs and government\u2014the standards are more demanding. In turn, the distinction between prior restraints and criminal prosecutions carries less weight.<\/a>[61]<\/a><\/p>\n

Therefore, it is reasonable to conclude, as Professor Stone did, that the standard the Court used for prior restraint in the\u00a0Pentagon Papers<\/em>\u00a0case could be roughly the same standard the Court would use in a criminal prosecution of WikiLeaks or Assange for publishing classified information. In other words, the WikiLeaks disclosures would be protected unless the government could show that they would \u201csurely result in direct, immediate, and irreparable damage to our Nation or its people.\u201d<\/a>[62]<\/a><\/p>\n

II. Are WikiLeaks and Assange Part of the Press? Does It Matter?<\/h3>\n

In mid-December, the House Judiciary Committee held\u00a0a hearing<\/a>\u00a0about the Espionage Act and WikiLeaks. The chairman, John Conyers of Michigan, opened by saying \u201cit is clear that prosecuting WikiLeaks would raise the most fundamental questions about freedom of speech, about who is a journalist and about what the public can know about the actions of their own government.\u201d<\/a>[63]<\/a>\u00a0The next to speak, ranking member Louie Gohmert of Texas, said WikiLeaks has \u201cresurrected an age-old debate on First Amendment protections afforded to media publications.\u201d<\/a>[64]<\/a>\u00a0Shortly thereafter, two witnesses made similar remarks. First, Abbe David Lowell, a partner at McDermott Will & Emery, said the WikiLeaks disclosures have raised a number of issues, including whether Assange is a journalist.<\/a>[65]<\/a>\u00a0Second, Kenneth Wainstein, a partner at O\u2019Melveny & Meyers, said the \u201ckey to overcoming\u201d First Amendment concerns in any prosecution of WikiLeaks is to show that the site is \u201cfundamentally different from other and real media organizations.\u201d<\/a>[66]<\/a><\/p>\n

By these accounts, it seems to matter for constitutional purposes whether Assange and WikiLeaks are part of the press.<\/a>[67]<\/a>\u00a0That perspective reflects the general debate today about the elements and principles of journalism, the role of new media in relation to old media. It is unclear where WikiLeaks stands on that landscape. To\u00a0some<\/a>, the website is a \u201cnew wrinkle on an old idea,\u201d just an iteration of the journalistic tradition that needs \u201cpeople to leak and people to dig and people to consume and explain.\u201d<\/a>[68]<\/a>\u00a0To others, it is the \u201cworld\u2019s first \u2018stateless\u2019 news organization,\u201d because it belongs to the Internet rather than to the laws and culture of any one country.<\/a>[69]<\/a>\u00a0And still to\u00a0others<\/a>, it appears that WikiLeaks has passed on to the legacy media the burden of real reporting, of adding value to the leaked documents by contextualizing and explaining them.<\/a>[70]<\/a>\u00a0Assange himself has\u00a0said<\/a>\u00a0\u201cit is not necessary to debate whether [he] is a journalist.\u201d<\/a>[71]<\/a>\u00a0Yet the WikiLeaks site is wrapped in the cloak of journalism. It describes itself as a \u201cnot-for-profit media organization\u201d that has adopted \u201cjournalism and ethical principles.\u201d<\/a>[72]<\/a>\u00a0The words \u201cjournalism\u201d and \u201cjournalist\u201d appear on its \u201cAbout\u201d page a combined 19 times.<\/a>[73]<\/a><\/p>\n

Whether WikiLeaks and Assange are part of the press is worthy of attention and debate, and in some circumstances it would matter very much for legal purposes. For example, if Assange wanted to claim a federal reporter\u2019s privilege, which allows reporters in certain jurisdictions and cases to refuse to testify about their sources, he would have to show that he qualified for the privilege\u2014that he was engaged in investigative journalism.<\/a>[74]<\/a>\u00a0Here, however, in the context of publication and criminal prosecution, that issue is less important. This is because the First Amendment does not belong to the press. It protects the expressive rights of all speakers, sometimes on the basis of the Speech Clause and sometimes on the basis of the Press Clause. To argue that the First Amendment would protect Assange and WikiLeaks only if they are part of the press is to assume (1) that the Speech Clause would not protect them, and (2) that there is a major difference between the Speech and Press Clauses.<\/p>\n

In reality, \u201c[m]ost of the freedoms the press receives from the First Amendment are no different from the freedoms everyone enjoys under the Speech Clause.\u201d<\/a>[75]<\/a>\u00a0This is true even for the \u201ccore liberties that are essential to the functioning of the press\u201d:<\/a>[76]<\/a>\u00a0the right of access to courtrooms and other judicial proceedings,<\/a>[77]<\/a>\u00a0the right to publish news and information free from government censorship and prior restraint,<\/a>[78]<\/a>\u00a0and the benefit of high standards in libel cases (at least those involving matters of public concern).<\/a>[79]<\/a>\u00a0The\u00a0Pentagon<\/em>\u00a0Papers<\/em>\u00a0case seems to implicate both clauses. The\u00a0per curiam\u00a0<\/em>referred to \u201cexpression,\u201d while the individual opinions referred variously to \u201cexpression,\u201d \u201cspeech,\u201d and \u201cpress.\u201d<\/a>[80]<\/a>\u00a0The few times the Supreme Court has relied on the Press Clause alone, the same results could have been reached by relying on the Speech Clause.<\/a>[81]<\/a>\u00a0For these reasons, David Anderson concluded, \u201cthe Press Clause today is no more than an invisible force in constitutional law.\u201d<\/a>[82]<\/a><\/p>\n

On the one hand, this could be a good thing for Assange and WikiLeaks. If the government prosecutes them for publishing information related to national security, they would not have to argue that they practice journalism or deserve to be protected as members of the press. They simply could call on the Speech Clause, which would trigger (1) the strict scrutiny standard, requiring the government to show that the charging statute is \u201cnarrowly tailored to serve a compelling state interest\u201d and is the \u201cleast restrictive means to further the articulated interest,\u201d or (2) the clear-and-present danger standard, requiring the government to show that the publishing would \u201csurely result in direct, immediate, and irreparable damage to our Nation or its people.\u201d<\/a>[83]<\/a><\/p>\n

On the other hand, this could be a bad thing for the legacy press. Bill Keller, executive editor of the\u00a0New York Times<\/em>, summed up the problem this February, at a symposium at Columbia University:<\/p>\n

It\u2019s very hard to conceive of a prosecution of Julian Assange that wouldn\u2019t stretch the law in a way that would be applicable to us. American journalists . . . should feel a sense of alarm at any legal action that tends to punish Assange for doing essentially what journalists do. That is to say, any use of the law to criminalize the publication of secrets.<\/a>[84]<\/a><\/p>\n

Keller is right. Putting his remarks in legal terms, unless the Supreme Court all of a sudden decided to \u201cinterpret the Press Clause as something independent of the Speech Clause\u201d<\/a>[85]<\/a>\u00a0(e.g., by adopting an institutional view of the press that excludes WikiLeaks and Assange, by narrowing the protections of the Speech Clause, etc.),<\/a>[86]<\/a>\u00a0any prosecution here for publishing information related to national security would affect the legacy press and their rights under the First Amendment to do the same.<\/p>\n

Admittedly, if the government did successfully prosecute Assange or WikiLeaks, then news media defendants in subsequent cases could distinguish their facts from those in the WikiLeaks case. The most obvious way to do so, in general, would be to focus on the way WikiLeaks operates. Unlike the traditional press, it does not contextualize the documents it releases, it does not explain their meaning or significance, and it has not taken steps consistently to minimize harm to people who could be affected by its actions. Still, that sort of argument would be persuasive only if the Supreme Court would be willing to vary a speaker\u2019s right of expression according to the way the speaker operates.<\/p>\n

III. Conclusion<\/h3>\n

In the 40 years since the\u00a0Pentagon Papers<\/em>\u00a0case, the Supreme Court has not once upheld a content-based restriction on the publication of truthful information about the government that \u201cdid not involve some special circumstance, such as public employment.\u201d<\/a>[87]<\/a>\u00a0Perhaps that is because the purpose of the First Amendment is \u201cto protect the free discussion of governmental affairs,\u201d<\/a>[88]<\/a>\u00a0and \u201cstate action to punish the publication of truthful information seldom can satisfy constitutional standards.\u201d<\/a>[89]<\/a>\u00a0Or perhaps that is because the Court has come to understand that the effects of dangerous speech often are exaggerated in the heat of what Alexander Hamilton called \u201ctemporary passion.\u201d<\/a>[90]<\/a>\u00a0Or perhaps that is because in the last forty years we have felt relatively safe. As Judge Richard Posner put it in 2002, \u201c[W]hen the country feels very safe the Justices can . . . plume themselves on their fearless devotion to freedom of speech and professors can deride the cowardice of [speech-restrictive decisions]. But they are likely to change their tune when next the country feels endangered.\u201d<\/a>[91]<\/a><\/p>\n

In any case, if the government prosecuted WikiLeaks or Assange for publishing information related to national security, it would have to overcome a serious First Amendment challenge that would implicate either the strict scrutiny standard or the clear-and-present danger standard. It is unclear exactly how the challenge would play out, because neither the Justice Department nor the Pentagon has released factual findings from their investigations. But it is clear that the challenge would affect the legacy press and their rights. For these reasons, it would behoove the government to proceed with caution. The constitution is not a \u201csuicide pact.\u201d<\/a>[92]<\/a>\u00a0It does not require the government to tolerate expression at any cost. But it does derive great strength from the freedom that the First Amendment affords to expression. That strength must be acknowledged by the Justice Department before it decides whether to prosecute WikiLeaks or Assange.<\/p>\n

\n

[*]<\/a><\/a>\u00a0Jonathan Peters is a lawyer and the Frank Martin Fellow at the Missouri School of Journalism, where he is working on his Ph.D. and specializing in the First Amendment. He has written on legal issues for a variety of newspapers and magazines, and now he writes regularly for PBS MediaShift about new media and the law. E-mail: jonathan.w.peters@gmail.com.<\/span>

[1]<\/a><\/a>\u00a0Noam N. Levey & Jennifer Martinez,\u00a0<\/span>WikiLeaks Emerges as Powerful Online Whistle-Blower<\/a>,\u00a0<\/em>L.A. Times, July 27, 2010.<\/span>
[2]<\/a><\/a>\u00a0<\/span>The Iraq Archive: The Strands of a War<\/a><\/em>, N.Y. Times, Oct. 23, 2010, at A1.<\/span>
[3]<\/a><\/a>\u00a0<\/span>How Many Documents Has WikiLeaks Published<\/a>?<\/em>, NPR, Dec. 28, 2010.<\/span>
[4]<\/a><\/a>\u00a0Noam Cohen,\u00a0<\/span>A Renegade Site, Now Working With the News Media<\/a><\/em>, N.Y. Times, Aug. 2, 2010, at B3;\u00a0<\/span>see also<\/em>, N.Y. Times,\u00a0<\/span>Open Secrets: WikiLeaks, War and American Diplomacy<\/a>\u00a0(Alexander Star ed., 2011).<\/span>
[5]<\/a><\/a>\u00a0<\/span>See<\/em>,\u00a0<\/span>e.g.,<\/em>\u00a0Charlie Savage,\u00a0<\/span>U.S. Prosecutors Study WikiLeaks Prosecution<\/a><\/em>, N.Y. Times, Dec. 8, 2010, at A10; Scott Shane,\u00a0<\/span>Accused Soldier Stays in Brig as WikiLeaks Link Is Sought<\/a>,\u00a0<\/em>N.Y. Times, Jan. 14, 2011.<\/span>
[6]<\/a><\/a>\u00a0<\/span>Obama on WikiLeaks: \u2018I\u2019m Concerned,\u2019<\/a>\u00a0<\/em>ABC News, July 27, 2010.<\/span>
[7]<\/a><\/a>\u00a0David Jackson,\u00a0<\/span>Obama Aides Condemn WikiLeaks; Obama Orders Review,<\/a>\u00a0<\/em>USA Today, Nov. 29, 2010.<\/span>
[8]<\/a><\/a>Dianne Feinstein,\u00a0<\/span>Prosecute Assange Under the Espionage Act<\/a><\/em>, Wall St. J., Dec. 7, 2010.<\/span>
[9]<\/a><\/a>\u00a0<\/span>Id.<\/a><\/em>\u00a0<\/span>See also<\/em>, Dan Lungren,\u00a0<\/span>WikiLeaks Actions Are Damaging and Should Be Prosecuted<\/a><\/em>, The Hill, Dec. 1, 2010; Michael O\u2019Brien,\u00a0<\/span>Graham: Prosecute WikiLeaks<\/a><\/em>, The Hill, July 28, 2010.<\/span>
[10]<\/a><\/a>\u00a0<\/span>See, e.g<\/em>.,\u00a0<\/span>Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks: Hearing Before the H. Comm. on the Judiciary<\/a><\/em>, 111th Cong. (2010) [hereinafter\u00a0<\/span>WikiLeaks Hearings<\/em>].<\/span>
[11]<\/a><\/a>\u00a0Gautham Nagesh,\u00a0<\/span>Rep. King Introduces Anti-WikiLeaks Bill,<\/a><\/em>, The Hill, Dec. 9, 2010; Kevin Poulsen,\u00a0<\/span>Lieberman Introduces Anti-WikiLeaks Legislation<\/a><\/em>, Wired, Dec. 2, 2010.<\/span>
[12]<\/a><\/a>Ellen Nakashima & Jerry Markon,\u00a0<\/span>WikiLeaks Founder Could Be Charged Under Espionage Act<\/a><\/em>, Wash. Post, Nov. 30, 2010.<\/span>
[13]<\/a><\/a>\u00a0Mark Landler & J. David Goodman,\u00a0<\/span>Clinton Says U.S. Diplomacy Will Survive \u2018Attack,\u2019<\/a>\u00a0<\/em>N.Y. Times, Nov. 30, 2010, at A14.<\/span>
[14]<\/a><\/a>\u00a0Sarah Ellison,\u00a0<\/span>The Man Who Spilled the Secrets<\/a><\/em>, Vanity Fair, Feb. 2011.<\/span>
[15]<\/a><\/a>\u00a0Scott Shane & John F. Burns<\/span>,\u00a0U.S. Subpoenas Twitter Over WikiLeaks Supporters<\/a>,\u00a0<\/em>N.Y. Times, Jan. 9, 2011, at A1.<\/span>
[16]<\/a><\/a>\u00a0Kim Zetter,\u00a0<\/span>Report: Federal Grand Jury Considering Charges Against WikiLeaks\u2019 Assange<\/a><\/em>, Wired, Dec. 13, 2010.<\/span>
[17]<\/a><\/a>\u00a0For this article, I am assuming that proper jurisdiction lies in federal court. There is reason and room for others to challenge that assumption. And, again, I am focusing on criminal liability for publishing classified information, rather than criminal liability for gathering or possessing or eliciting it. Accordingly, I am not addressing some issues that are worthy of consideration (e.g., Are the charging statutes intended to apply extraterritorially? Would extradition be allowed for the offense(s) charged?).<\/span>
[18]<\/a><\/a>Baruch Weiss,\u00a0<\/span>Why Prosecuting WikiLeaks\u2019 Julian Assange Won\u2019t Be Easy<\/a><\/em>, Wash. Post, Dec. 5, 2010.<\/span>
[19]<\/a><\/a>\u00a0Jennifer K. Elsea,\u00a0<\/span>Criminal Prohibitions on the Publication of Classified Defense Information<\/a><\/em>, Cong. Res. Service, Dec. 6, 2010.<\/span>
[20]<\/a><\/a>\u00a018 U.S.C. \u00a7 793(a)\u2013(c) (2010),\u00a0<\/span>available<\/a>\u00a0at\u00a0<\/em>Cornell University Legal Information Institute.<\/span>
[21]<\/a><\/a>\u00a018 U.S.C. \u00a7 793(e) (2010),\u00a0<\/span>available<\/a>\u00a0at\u00a0<\/em>Cornell University Legal Information Institute.<\/span>
[22]<\/a><\/a>18 U.S.C. \u00a7 798(a)\u2013(b) (2010),\u00a0<\/span>available<\/a>\u00a0at\u00a0<\/em>Cornell University Legal Information Institute.<\/span>\u00a0<\/em>
[23]<\/a><\/a>\u00a0<\/span>Elsea<\/a>,\u00a0<\/span>supra<\/em>\u00a0note 20, at 8.<\/span>
[24]<\/a><\/a>\u00a0Other language in those provisions would be used if criminal liability were based on gathering, receiving, or possessing the information. Likewise, other laws would take center stage if liability were based on fraud in connection with computers, a violation of 18 U.S.C. \u00a7 1030(a)(1),\u00a0<\/span>available at<\/a>\u00a0<\/em>Cornell Legal Information Institute; theft or conversion of government property or records, a violation of 18 U.S.C. \u00a7 641,\u00a0<\/span>available<\/a>\u00a0at\u00a0<\/em>Cornell Legal Information Institute; or disclosing the identities of certain U.S. undercover intelligence officers, agents, informants and sources, a violation of 50 U.S.C. \u00a7 421\u00a0<\/span>available at<\/a>\u00a0<\/em>Cornell Legal Information Institute. Again, for this article, I am focusing on liability for publishing the information.<\/span>
[25]<\/a><\/a>\u00a0Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet, Pamela S. Karlan, The First Amendment 16\u201317 (2008).<\/span>
[26]<\/a><\/a>\u00a0<\/span>See, e.g<\/em>., Frank Strong,<\/span>\u00a0Fifty Years of Clear and Present Danger: From\u00a0<\/em>Schenck<\/span>\u00a0to\u00a0<\/em>Brandenburg<\/span>\u2013and Beyond<\/em>, 1969 Sup. Ct. Rev. 41 (1969); Eugene Volokh,\u00a0<\/span>Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny<\/a><\/em>, 144 U. Pa. L. Rev. 2417 (1996).<\/span>
[27]<\/a><\/a>\u00a0<\/span>Volokh<\/a>,\u00a0<\/span>supra\u00a0<\/em>note 27, at 2417.<\/span>
[28]<\/a><\/a>\u00a0Sable Commc\u2019ns of Cal. v. FCC, 492 U.S. 115, 126 (1989)\u00a0<\/span>available<\/a>\u00a0at<\/em>\u00a0FindLaw.<\/span>
[29]<\/a><\/a>\u00a0<\/span>Volokh<\/a>,\u00a0<\/span>supra<\/em>\u00a0note 27, at 2418\u201319.<\/span>
[30]<\/a><\/a>\u00a0<\/span>Id.<\/a><\/em>\u00a0at 2419\u201321.<\/span>
[31]<\/a><\/a>\u00a0<\/span>Id.<\/a><\/em>\u00a0at 2421\u201324.<\/span>
[32]<\/a><\/a>\u00a0Haig v. Agee, 453 U.S. 280, 307 (1981) (citations omitted),\u00a0<\/span>available<\/a>\u00a0at<\/em>\u00a0FindLaw.<\/span>
[33]<\/a><\/a>\u00a0Schenck v. United States, 249 U.S. 47, 52 (1919),\u00a0<\/span>available at<\/a>\u00a0<\/em>FindLaw. This case, of course, involved the clear-and-present danger standard, rather than the strict scrutiny standard.<\/span>
[34]<\/a><\/a>\u00a0<\/span>Sable<\/em>, 492 U.S. at 126,\u00a0<\/span>available<\/a>\u00a0at<\/em>\u00a0FindLaw.<\/span>
[35]<\/a><\/a>\u00a0Jack Goldsmith,\u00a0<\/span>Why the U.S. Shouldn\u2019t Try Julian Assange<\/a><\/em>, Wash. Post, Feb. 11, 2011.<\/span>
[36]<\/a><\/a>\u00a0<\/span>WikiLeaks Hearings<\/a><\/em>\u00a0at 30 (statement of Abbe David Lowell).<\/span>
[37]<\/a><\/a>\u00a0Judson O. Littleton, Note,\u00a0<\/span>Eliminating Public Disclosures of Government Information from the Reach of the Espionage Act<\/a><\/em>, 86 Tex. L. Rev. 889, 904 (2008).<\/span>
[38]<\/a><\/a>\u00a0Bruce Fein,\u00a0<\/span>A More Secret Government?<\/a><\/em>, Wash. Times, Aug. 21, 2006.<\/span>
[39]<\/a><\/a>\u00a0<\/span>Of Other Tests and Standards: Vagueness, Overbreadth, Least Restrictive Means, and Others,<\/em>\u00a0CRS Annotated Constitution,\u00a0<\/span>available<\/a>\u00a0at\u00a0<\/em>Cornell Legal Information Institute.<\/span>
[40]<\/a><\/a>\u00a0<\/span>Id.<\/a><\/em>
[41]<\/a><\/a>\u00a0<\/span>See, e.g<\/em>., Landmark Commc\u2019ns, Inc. v. Virginia, 435 U.S. 829 (1978) (requiring clear and present danger and that the danger\u2019s magnitude be serious),\u00a0<\/span>available<\/a>\u00a0at<\/em>\u00a0FindLaw; Bridges v. California, 314 U.S. 252, 263 (1941) (noting that to punish expression, \u201cthe substantive evil must be extremely serious and the degree of imminence extremely high\u201d),\u00a0<\/span>available<\/a>\u00a0at<\/em>\u00a0FindLaw.<\/span>
[42]<\/a><\/a>\u00a0Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).<\/span>
[43]<\/a><\/a>\u00a0N.Y. Times Co. v. United States, 403 U.S. 713 (1971),\u00a0<\/span>available<\/a>\u00a0at<\/em>\u00a0FindLaw.<\/span>
[44]<\/a><\/a>\u00a0<\/span>See<\/em>\u00a0Geoffrey R. Stone,\u00a0<\/span>Government Secrecy vs. Freedom of the Press<\/a><\/em>, 1 Harv. L. & Pol\u2019y Rev. 185, 213 (2007).<\/span>
[45]<\/a><\/a>\u00a0<\/span>Id.<\/a><\/em>\u00a0at 197\u201398.<\/span>\u00a0<\/em>
[46]<\/a><\/a>\u00a0<\/span>N.Y. Times,\u00a0<\/em>403 U.S. at 714.<\/span>
[47]<\/a><\/a>\u00a0Floyd Abrams, Speaking Freely 44 (2005).<\/span>
[48]<\/a><\/a>\u00a0<\/span>Id<\/em>. at 45\u201346 (\u201cThe four justices we had counted on . . . relied upon all three of the themes Bickel and I had discussed in my office when we first spent the night there strategizing. Three of the four had cited the absence of statutory authority by the government . . . Three of the four had focused on the fact that what was at issue was a prior restraint . . . [And two had relied] on the notion that prior restraint aside, the whole purpose of the First Amendment was to protect the sort of speech that was at the heart of the case.\u201d)<\/span>
[49]<\/a><\/a>\u00a0<\/span>Stone<\/a>, supra\u00a0<\/em>note 45, at 198.<\/span>
[50]<\/a><\/a>\u00a0403 U.S. at 730 (Stewart, J., concurring) (emphasis added).<\/span>
[51]<\/a><\/a>\u00a0<\/span>Stone<\/a>, supra\u00a0<\/em>note 45, at 201.<\/span>
[52]<\/a><\/a>\u00a0403 U.S. at 730 (Stewart, J., concurring) (\u201cUndoubtedly Congress has the power to enact specific and appropriate criminal laws to protect government property and preserve government secrets. Congress has passed such laws, and several of them are of very colorable relevance to the apparent circumstances of these cases. And if a criminal prosecution is instituted, it will be the responsibility of the courts to decide the applicability of the criminal law under which the charge is brought.\u201d);\u00a0<\/span>id<\/em>. at 737 (White, J., concurring) (\u201cPrior restraints require an unusually heavy justification under the First Amendment; but failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication.\u201d).<\/span>
[53]<\/a><\/a>\u00a0<\/span>Id<\/em>. at 714.<\/span>
[54]<\/a><\/a>\u00a0Stone et al.,\u00a0<\/span>supra<\/em>\u00a0note 26, at 128.<\/span>
[55]<\/a><\/a>\u00a0<\/span>Id<\/em>. at 128\u201329.<\/span>
[56]<\/a><\/a>\u00a0<\/span>Id<\/em>. at 129.<\/span>
[57]<\/a><\/a>\u00a0<\/span>Id<\/em>.<\/span>
[58]<\/a><\/a>\u00a0<\/span>Stone<\/a>,\u00a0<\/span>supra\u00a0<\/em>note 45, at 201.<\/span>
[59]<\/a><\/a>\u00a0<\/span>Id.<\/em>\u00a0at 202.<\/span>
[60]<\/a><\/a>\u00a0<\/span>Id<\/em>.<\/span>
[61]<\/a><\/a>\u00a0<\/span>Id.<\/em>
[62]<\/a><\/a>\u00a0<\/span>N.Y. Times Co.,\u00a0<\/em>403 U.S. at 730 (Stewart, J., concurring) (emphasis added).<\/span>
[63]<\/a><\/a>\u00a0<\/span>WikiLeaks Hearing<\/a>\u00a0<\/em>2 (statement of Rep. John Conyers).<\/span>
[64]<\/a><\/a>\u00a0<\/span>Id.<\/a>\u00a0<\/em>at 3 (statement of Rep. Louie Gohmert).<\/span>
[65]<\/a><\/a>\u00a0<\/span>Id.<\/a>\u00a0<\/em>at 23 (statement of Abbe David Lowell).<\/span>
[66]<\/a><\/a>\u00a0<\/span>Id.<\/a>\u00a0<\/em>at 39\u201340 (statement of Kenneth L. Wainstein).<\/span>
[67]<\/a><\/a>\u00a0To be fair, two witnesses, Thomas Blanton and Geoffrey Stone, did suggest that it would be fruitless under the First Amendment to define who the press is, but they did not really elaborate.<\/span>
[68]<\/a><\/a>\u00a0Samuel Axon,\u00a0<\/span>The WikiLeaks Debate: Journalists Weigh In<\/a><\/em>, Mashable, Aug. 20, 2010.<\/span>
[69]<\/a><\/a>\u00a0Jay Rosen,\u00a0<\/span>The Watchdog Press Died; We Have This Instead<\/a>,\u00a0<\/em>Pressthink, Dec. 9, 2010.<\/span>
[70]<\/a><\/a>\u00a0<\/span>See, e.g<\/em>., Anne Applebaum,\u00a0<\/span>WikiLeaks\u2019 Defense of Journalism<\/a><\/em>, Wash. Post, July 29, 2010.<\/span>
[71]<\/a><\/a>\u00a0<\/span>Julian Assange Answers Your Questions<\/a><\/em>, The Guardian, Dec. 3, 2010.<\/span>
[72]<\/a><\/a>\u00a0<\/span>About<\/a><\/em>, WikiLeaks.<\/span>\u00a0<\/em>
[73]<\/a><\/a>\u00a0<\/span>Id<\/em>.\u00a0\u00a0<\/span>See also<\/em>, Adam L. Penenberg,\u00a0<\/span>WikiLeaks\u2019 Julian Assange: \u2018Anarchist,\u2019 \u2018Agitator,\u2019 \u2018Arrogant\u2019 and a Journalist,<\/a><\/em>\u00a0Wash. Post, Jan. 28, 2011.<\/span>
[74]<\/a><\/a>\u00a0I make this very argument in an article that will be published this June in the\u00a0<\/span>Federal Communications Law Journal<\/em>.<\/span>
[75]<\/a><\/a>\u00a0David A. Anderson,\u00a0<\/span>Freedom of the Press<\/em>,<\/span>\u00a0<\/strong>80 Tex. L. Rev. 429, 430 (2002). Whether the clauses\u00a0<\/span>should<\/em>\u00a0be read coextensively is a subject for another article.<\/span>
[76]<\/a><\/a>\u00a0Russell H. Falconer, Note,\u00a0<\/span>Institutional Rights, Individual Litigants: Standing to Sue Under the Press Clause<\/a><\/em>, 87 Tex. L. Rev. 1223, 1223\u201324 (2009).<\/span>
[77]<\/a><\/a>\u00a0<\/span>Id.<\/a><\/em>
[78]<\/a><\/a>\u00a0Anderson,\u00a0<\/span>supra<\/em>\u00a0note 76, at 430.<\/span>
[79]<\/a><\/a>\u00a0<\/span>Id<\/em>.<\/span>
[80]<\/a><\/a>\u00a0<\/span>N.Y. Times<\/em>, 430 U.S. at<\/span>\u00a0<\/em>713.<\/span>
[81]<\/a><\/a>\u00a0Anderson,\u00a0<\/span>supra<\/em>\u00a0note 76, at 526-27.<\/span>
[82]<\/a><\/a>\u00a0David A. Anderson,\u00a0<\/span>Freedom of the Press in Wartime<\/em>, 77 U. Colo. L. Rev. 49, 66 (2006).<\/span>
[83]<\/a><\/a>\u00a0<\/span>N.Y. Times,<\/em>\u00a0<\/em>403 U.S. at 730 (Stewart, J., concurring) (emphasis added).<\/span>
[84]<\/a><\/a>\u00a0Sam Gustin,\u00a0<\/span>Times Editor Alarmed by Prospect of WikiLeaks Prosecution<\/a><\/em>, Wired, Feb. 3, 2011.<\/span>
[85]<\/a><\/a>\u00a0Anderson,\u00a0<\/span>supra<\/em>\u00a0note 76, at 526.<\/span>
[86]<\/a><\/a>\u00a0This was the vision of the Press Clause held most famously by Justice Stewart. Anderson,\u00a0<\/span>supra<\/em>\u00a0note 76, at 449. He distinguished the Speech and Press Clauses by saying that the former applies to individuals, while the latter is structural and protects the \u201cinstitutional autonomy of the press.\u201d\u00a0\u00a0<\/span>Id<\/em>. (quoting Potter Stewart, Address at Yale University: Or of the Press (Nov. 2, 1974),\u00a0<\/span>in<\/em>\u00a0<\/span>Or of the Press<\/em>, 26 Hastings L.J. 631, 634 (1975)). As Professor Anderson noted, \u201cJustice Stewart was never able to sell this interpretation to a majority of the Court.\u201d\u00a0\u00a0<\/span>Id<\/em>.<\/span>
[87]<\/a><\/a>\u00a0<\/span>Stone<\/a>, supra\u00a0<\/em>note 45, at 202.<\/span>
[88]<\/a><\/a>\u00a0Mills v. Alabama, 384 U.S. 214, 218 (1966),\u00a0<\/span>available<\/a>\u00a0at<\/em>\u00a0FindLaw.<\/span>
[89]<\/a><\/a>\u00a0Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (quoting Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102 (1979)),\u00a0<\/span>available<\/a>\u00a0at<\/em>\u00a0FindLaw.<\/span>
[90]<\/a><\/a>\u00a0The Federalist No. 85 (Alexander Hamilton),\u00a0<\/span>available<\/a>\u00a0at\u00a0<\/em>Constitution.org.<\/span>
[91]<\/a><\/a>\u00a0Richard Posner, Comment,\u00a0<\/span>Pragmatism Versus Purposivism in First Amendment Analysis<\/em>, 54 Stan. L. Rev. 737, 741 (2002).<\/span>
[92]<\/a><\/a>\u00a0Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting),\u00a0<\/span>available<\/a>\u00a0at<\/em>\u00a0FindLaw.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Jonathan Peters Using a high-security online drop box and a well-insulated website, WikiLeaks has published 76,000 classified U.S. documents about […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-786","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-cG","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/786","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=786"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/786\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=786"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=786"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=786"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}