I recently read a blog on this subject by a distinguished "First Amendment Lawyer". (A code phrase: it almost always means the lawyer does now, or did then, earn his or her living by representing publishers.) The distinguished author refers to the Pentagon Papers case, and is of the view that once the Wiki documents were leaked, the government was helpless to act because all prior restraints on publication are a violation of the First Amendment, and, further, any resort by the government to the Espionage Act to discourage or prevent leaks was fruitless because the Act is "presumably unconstitutional." Indeed, I have seen and heard those views spouted any number of times in the last few days.
Baloney. I understand the Supreme Court's opinion in that case was lengthy, but c'mon guys, if you are going to rely on it, ya oughta first read it.
The Pentagon Papers case does not say that prior restraint is barred by the First Amendment. To the contrary, the Court indicated quite clearly it would uphold a prior restraint if the government met a heavy burden of proof, which it failed to meet in that particular case. Furthermore a majority of the Court was clearly of the view that though the government had not carried it's burden so as to entitle it to an pre-publication injunction, the government was free to go ahead and prosecute under the Espionage Act. In that event, the actor would be the Executive Branch, not the Judiciary, and that is what Congress intended when it passed the Espionage Act. Whether a criminal prosecution of the New York Times was then, or is now, politically prudent is a very different question.
So, how do we stop the next Wikileaks? The other day my son asked me what I thought of the current Wikileaks mess. I quote here my email to him on that subject:
First, they ought to find the guy who leaked this stuff and hang him up by his testicles and leave him there til the crows pick his flesh clean.
Second, they ought to fire every person in the U.S. intelligence structure who had anything to do with the government's post 9/11 re-design of its network that enabled every Pfc intelligence-puke to see everything the country's military and diplomatic corps had to say on any subject. I cannot believe the horrendous design and supervisory incompetence. Depressing. The government ought to turn over its intelligence, military, diplomatic, and other networks to Google to design and manage.
Third, as to the newspapers, I think once the cat was out of the bag, they had little choice. Wiki gave the stuff to the Guardian in the UK, and Guardian gave it to four or five papers. As I understand it, this time around the Times gave the government advance notice of what it had, got their input, redacted the real dangerous stuff, and apparently encouraged the others to do the same, and so far, it seems they have.
All in all, a terrible black eye for the U.S. Shows us up to be bumbling fools and hurts our diplomatic efforts for years to come. Will hurt the war on terror. Will likely impair the effort to control Iran, North Korea, reach an arms deal with Russia, etc, etc. Suggests the U.S. is an empire in decline, too big, too stupid, too blundering to manage its affairs.
Isn't that enough? Do the "First Amendment lawyers" need to pile on and take it upon themselves to repeal the Espionage Act, which, in the appropriate circumstances, is vital to our national defense?