Assange And The First Amendment: It’s Complicated

Let’s quickly review the relevant rules.

As most Americans know, the First Amendment protects free speech and freedom of the press. That freedom is not absolute: you cannot falsely cry fire in a crowded theater, nor blithely libel someone you don’t like, nor spill trade secrets in contravention of an agreement not to do so. Members of the press who report damaging, untrue information about public figures with “willful disregard” for its accuracy can be held accountable.

In most cases, the persons harmed by such improper behaviors can sue only after the fact. Our legal system has a strong bias against prior restraint–against enjoining publication in the first place. (That bias goes back to the era when England required publishers to obtain government permission before printing anything.) But even that strong presumption against prior restraint can be overcome in extraordinary circumstances–someone proposing to identify American spies abroad, or to disclose upcoming troop movements in wartime could certainly be kept from doing so.

It is probably impossible to overstate the importance of journalism to democracy–as one masthead puts it, democracy dies in darkness. Autocrats routinely take control of the media. That’s why Trump’s constant attacks on the press are so worrisome–and so unAmerican. Those attacks are probably one reason that the arrest of Julian Assange has raised such an outcry.

How does this apply to what we know thus far about Wikileaks and Julian Assange?

Assange’s Wikileaks published illegally procured classified information. Under First Amendment law as I understand it, his publication of that information is protected.

Engaging in criminal activity to acquire the information, however, is not. And that is what the government–so far–is alleging.

Typically, a whistleblower or other source of illegally obtained material is the one breaking the law; a journalist is not a lawbreaker simply because he or she received it. Here, it is alleged that Assange materially assisted Chelsea Manning in the hacking through which they acquired the information. If the government has persuasive evidence that Assange played an active role in the hacking, his conviction for that behavior would not implicate press freedom.

If there is no probative evidence that Assange broke the law in obtaining the information, or if the government expands its charges to include publication, analysis of the situation changes.  Journalists who have expressed First Amendment concerns are also worried about a “slippery slope”–especially since Assange is such an easily detested and unsympathetic figure, his case could conceivably set an unfortunate precedent. So long as the government prosecutes him only for illegal hacking, however, I think the First Amendment is safe.

This episode comes at a time when the First Amendment is under pressure from the craziness on the Internet, from conspiracy theories promulgated by provocateurs like Alex Jones, and from propaganda mills like Fox News. It’s really tempting to argue that some speech, some “news,” falls within the category of falsely shouting fire in a crowded theater. Efforts to ensure that news sources are truthful and fair, however, present us with the same dilemma that faced the nation’s Founders: who gets to decide?

Is freedom of expression dangerous? Yes. The First Amendment enables hate radio, protects propaganda and the spread of deliberate misinformation, and makes it difficult for even conscientious citizens to separate truth from fiction. But the Founders concluded that the alternative– giving government the authority to decide what information we see– would be even more dangerous.

Unless some genius can devise a way to keep information honest without empowering government censorship, slimy characters like Julian Assange will cynically market their activities as First Amendment expression. Chalk it up to the cost of protecting liberty.

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Smoke and Fire and Vote Suppression

Can an American election really be rigged? Probably not–but it looks like we’re going to find out just how good those Russian cyber guys are. In any event, if results could be manipulated, it wouldn’t be through so-called “voter fraud.”

Repeated accusations of in-person voter fraud just go to disprove that old adage that “where there’s smoke, there must be fire.” GOP officials across the country have generated a whole lot of smoke, despite the fact that numerous credible studies have found that the incidence of this particular offense is–in the words of one scholar–“vanishingly small.”

Trump, of course, wasn’t content with the level of smoke being generated by party pooh-bas –or even with the tactic’s demonstrable and intended side-effect of discouraging poor and minority folks from voting. Intent on proving that he did too win the popular vote and those three million more votes for Clinton were all fraudulent, he has convened a national commission to “investigate.”

It isn’t going well.

I’ll let Juanita Jean explain: 

The Washington Post is reporting this morning that the head of Trump’s so-called Voter Fraud Commission has made a request of every state’s voter file so he can give it to the Russians.  Okay, okay, I just made up that last part.

“The chair of President Trump’s Election Integrity Commission has penned a letter to all 50 states requesting their full voter-roll data, including the name, address, date of birth, party affiliation, last four Social Security number digits and voting history back to 2006 of potentially every voter in the state.”

He says he’s going to make all this information available to the public…I’m gonna try real hard to think of a way this information would be important to anyone in the federal government except for voter suppression.

Evidently, state officials are having an equally hard time envisioning a legitimate reason for supplying this information–not to mention that election laws in a number of states prohibit doing so (something you might think they’d have known). Thus far, forty-plus states have refused to comply.

Trump’s touching concern about voter shenanigans evidently doesn’t extend to other ways of manipulating election results, despite the fact that such fraud is far more likely to occur through the hacking of voting technologies. Given irrefutable evidence of Russian efforts to interfere with the last election, it would seem prudent to investigate whether that interference extended to breaches of voting machines.

The Trump Administration–surprise!–disagrees. 

Pressure to examine voting machines used in the 2016 election grows daily as evidence builds that Russian hacking attacks were broader and deeper than previously known. And the Department of Homeland Security has a simple response:

No.

DHS officials from former secretary Jeh Johnson to acting Director of Cyber Division Samuel Liles may be adamant that machines were not affected, but the agency has not in fact opened up a single voting machine since November to check.

A number of recent reports suggest that at least 39 states were targeted by Russian hackers. DHS itself has confirmed domestic attacks, but the agency continues to insist that there is no reason to look further.

Computer scientists have been critical of that decision. “They have performed computer forensics on no election equipment whatsoever,” said J. Alex Halderman, who testified before the Senate Intelligence Committee last week about the vulnerability of election systems. “That would be one of the most direct ways of establishing in the equipment whether it’s been penetrated by attackers. We have not taken every step we could.”

Voting machines, especially the electronic machines still used in several states, are so insecure that an attack on them is likely to be successful, according to a report from NYU’s Brennan Center for Justice out Thursday morning. David Dill, a voting systems expert and professor of computer science at Stanford University quoted in the report, said hackers can easily breach election systems regardless of whether they’re able to coordinate widely enough to alter a general election result.

Intimidating poor folks in order to “protect the integrity of elections”? Check.

Looking to see whether voting machines might have been tampered with? Nah.

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