With the United States’ main witness against Julian Assange recently admitting he completely fabricated every allegation he had made to the FBI, I thought this might be a good time to look at three other misconceptions related to Assange’s persecution. The consistent theme throughout this essay will be freedom of expression in its original and traditional meaning. We are going to be looking at a few aspects of the First Amendment that directly affect Julian Assange at present and consequently for every one of us. Assange Is something of a canary in the coal mine alerting us to an excess of government power. Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.
Reflecting on the particulars of Assange’s case can teach us about just how far we have strayed from a true understanding of the First Amendment. How have we become strangers to both the letter and the spirit of the law? I can’t help but wonder if we stand on the precipice of a moment in time described by the Baron de Montesquieu when he said, “A Nation may lose its liberties in a day and not miss them in a century.”
Our focus will be the on the clause stating:
Congress shall make no law abridging the freedom of speech or of the press.
We will be covering two misconceptions about the clause. First that Julian Assange has no constitutionally protected rights. That he, as a non-citizen, can be subject to the punishment of our laws without also being afforded their full protection. Which makes it nothing more than a bill of temporary privileges.
As Justice Scalia was very fond of saying:
Every tin pot dictator and Banana Republic has a bill of rights. That’s not what protects the individual liberty of the people. It comes from the limited government to be found in the Constitution.
Once we start acting under the presumption that our laws and their protections are conditional or revocable, we have surrendered to them the limited form of government that makes the Bill of Rights worth a damn. A belief in the self-limiting concept of individual liberty, protected by parchment barriers may well be as destructive to individual liberty as if we had just done away with the concept entirely. If that sentiment ever becomes the normative view in this country we will end up with all the tyranny and bad government we deserve.
Second is a common misconception which is the idea that “freedom of the press” refers to the press as a profession and not as a technology.
It’s a belief common enough that when Wikileaks dropped Hillary Clinton’s emails, Chris Cuomo said on CNN, “You can’t possess these documents, they were stolen, it’s illegal. It’s different for us as members of the press.” I cannot, nor would I ever want to, get inside the steroid-riddled mind of Chris Cuomo, but prudence and common sense would dictate he would lump Julian Assange with the rest of us plebs as nothing more than a common thief for having these public records. When the only difference between Cuomo and Assange is that Julian believes himself a journalist because he is. Cuomo believes himself a journalist because he doesn’t know any better.
The overall point I want to get across is two-fold:
- First come rights, then comes government.
- The Constitution is not the law that governs us, it is the law that governs those who govern us.
The first point has been perfectly exemplified by Thomas Paine:
A natural right is an animal right and the power to act it is supposed, either fully or in part, to be mechanically contained within ourselves as individuals.
The second part was exemplified by the preamble to the Bill of Rights:
The conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government, will best ensure the beneficent start of its institutions.
Myth #1: The Belief In Constitutional Rights
When I refuse to obey an unjust law I do not contest the right of the majority to command, but I simply appeal from the sovereignty of the people to the sovereignty of Mankind.
In this quote Alexis de Tocqueville is appealing to a concept largely forgotten by Americans today—natural law.
This essay argues that founding era elites shared certain understandings of speech and press freedoms, as concepts, even when they were divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural law that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inherent in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.
Indeed, one of the most helpful suggestions I got while working as a law clerk when dealing with constitutional clauses was, “To interpret the meaning of the text, you need to find the right level of abstraction.”
In founding era discourse, rights were divided between natural rights, which were liberties that people could exercise without governmental intervention, and positive rights, which were legal privileges or immunities defined in terms of governmental action or inaction, like the rights of due process, habeas corpus, and confrontation. Consequently, distinguishing natural rights from positive rights was simple. This was the point Thomas Paine meant to exemplify in that above quote.
Natural rights, in other words, were those that did not depend on the existence of a government. Speaking, writing, and publishing were thus readily identifiable as natural rights. Though easy to identify, natural rights at the founding scarcely resembled our modern notion of rights as determinate legal constraints on governmental authority. Rather, Americans typically viewed natural rights as aspects of natural liberty that governments should help protect against private interference (through tort law, property law, and so forth) and that governments themselves could restrain only to promote the public good and only so long as the people or their representatives consented. And assessing the public good—generally understood as the welfare of the entire society—was almost entirely a legislative task, leaving very little room for judicial involvement.
Natural rights thus powerfully shaped the way that the Founders thought about the purposes and structure of government, but they were not legal “trumps” in the way that we often talk about rights today. In part, the common law indicated the scope of natural rights both because of a presumed harmony between the common law and natural law and because common-law rules were presumptively based on popular consent and consistent with the public good. At the same time, the Founders sometimes used natural law—the law of reason—to help shape their understandings of positive law. To recognize a natural right, in other words, implied recognition of its customary legal protections, and vice versa. Simply put, however, the First Amendment did not enshrine a judgment that the costs of restricting expression outweigh the benefits.
At most, it recognized only a few established rules, leaving broad latitude for the people and their representatives to determine which regulations of expression would promote the public good. Whether modern doctrine serves those original principles is then a judgment that we must make. The original meanings of the Speech and Press Clauses do not provide the answer. Nonetheless, the Founders also accepted that speech and press freedoms denied the government narrower slices of regulatory power. Everyone agreed, for instance, that the liberty of the press encompassed at least the common-law rule against press licensing. Americans also prized the right to a general verdict in sedition trials—enabling juries to decide questions of law and fact—and the right to present truth as a defense based largely on natural-rights principles.
Not surprisingly, then, the Founders invoked the natural right of expressive freedom in all sorts of ways. References to the freedom of speaking, writing, and publishing seem to have been the most common, probably because that phrasing appeared in the Pennsylvania Constitution of 1776 and the Vermont Constitution of 1777. In the committee that revised Madison’s proposed Bill of Rights, for instance, one draft mentioned “certain natural rights which [we] retained,” including the right “of [s]peaking, writing and publishing…with decency and freedom.” But in the course of discussing natural rights, contemporaries also mentioned the “right to speak,” “[t]he right of publication,” “the natural right of free utterance,” the “liberty of discussion,” “the liberty of the tongue,” the “exercise of…communication,” and so forth.
Eighteenth-century commentators sometimes referred to “the liberty of the press” as a natural right, too. “Printing,” after all, was “a more extensive and improved Kind of Speech.” Some Founders distinguished the freedom of publishing as a natural right from the freedom of the press, as a common-law rule against press licensing. (In eighteenth-century English, “the press” was a reference to printing; the term did not refer to journalists until the nineteenth century.) But the use of this terminology was fluid, and founding era discussions of press freedom often alluded to natural-rights concepts. Some writers even equated “the Liberty of the Press” with “the Liberty of publishing our Thoughts in any Manner, whether by Speaking, Writing or Printing,” thus treating speech and press freedoms as synonymous.
Myth #2 : The First Amendment Protects a Profession, Not an Activity
Following the Wikileaks publication of the now infamous “Collateral Damage” video and foreign cables from U.S. officials, Daniel Benjamin, U.S. Coordinator for Counterterrorism at the time, had the following to say:
I don’t believe in imprisoning journalists, but I believe I we all agree someone who is stealing government information wholesale ought to be punished for that…The damage was enormous…I am open to the possibility that selective release might have been justified, but not wholesale release. What sense does that make?
So, when people withhold “the truth, the whole truth and nothing but the truth” we are guilty of perjury. When we do disclose the truth, the whole truth and nothing but the truth we are guilty of espionage.
He appears to be upholding the right of a free press. But he makes arguments in favor of prior restraint as well as the right to be punished for what you say after the fact. He then goes on to make two of the arguments against free press I mean to dispel:
I believe Julian Assange is closer to a spy than a journalist and Wikileaks is closer to a hostile foreign intelligence service than a publisher. Because, in fact, his business is engaged in stealing information and his use of information is not informed by a story, by a narrative, by a public point that needs to be made.
First he claims that WikiLeaks doesn’t have press rights because these were stolen documents. He even says WikiLeaks stole them, which we know isn’t true or Chelsea Manning wouldn’t be in prison as we speak for stealing those documents. (I take that last sentence back. This is clearly a man who has no compunctions about locking up Assange for a theft he didn’t commit. Manning did confess to the theft, but her guilt seems almost incidental.)
At least with Assange, this is quickly dispelled when we consider the precedent set by the Supreme Court in the case of Bartnicki v. Vopper, 532 U.S. 514.
The Court recognized that those who lawfully obtain information pertaining to a matter of public interest have a near absolute right to publish it even if their source illegally obtained the information. Prosecuting WikiLeaks for its role in this fundamental democratic process will undermine these vital protections.
His second claim that Assange can’t be a member of the press because all he did was provide neutral, transparent facts. It’s as though bias, narrative, and spin are the indispensable quality of a good journalist. A claim that would be laughable if the results weren’t destroying the lives of good men as well as their friends and family.
There is certainly something to be said for realistic expectations of human nature over notions of journalism as a sphere of Platonic perfectionism, but to view the deviations from the ideal form for the ideal itself offers a striking insight into the minds of the people crafting our domestic laws and foreign policies. But I digress.
Early formulations of the freedom of the press spoke of it as a right of every “freeman,” “citizen,” or “individual.” These formulations often set forth narrow substantive views of the “freedom of the press.” But, whatever the scope of the right, it belonged to everyone (or at least all free citizens).
Blackstone, for instance, wrote in 1769 that “[e]very freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press.”
Jean-Louis de Lolme, an author widely cited by 1780s American writers, likewise wrote in his chapter on “Liberty of the Press” that “[e]very subject in England has not only a right to present petitions, to the King, or the Houses of Parliament; but he has a right also to lay his complaints and observations before the Public, by the means of an open press.”
The right to present petitions, of course, was not limited to the press as an industry, but really did belong to “[e]very subject.” De Lolme’s explanation suggests that the right to speak to the public via “an open press” likewise extended to all subjects, whether or not they used the printing press for a living. State supreme courts in 1788 and 1791 similarly described the liberty of the press as “permitting every man to publish his opinions,” and meaning that “the citizen has a right to publish his sentiments upon all political, as well as moral and literary subjects.”
Justice Iredell described the liberty of the press in 1799 as meaning that “[e]very freeman has an undoubted right to lay what sentiments he pleases before the public.”
St. George Tucker, in 1803, defined the “freedom of the press” as meaning that “[e]very individual, certainly, has a right to speak, or publish, his sentiments on the measures of government.”
Several early state constitutions echoed this as well, providing that “[e]very citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.”
Likewise, Justice Story, who wrote in 1833 but who had learned the law in the decade following the enactment of the Bill of Rights, described the First Amendment as providing that “every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person…or attempt to subvert the government.”
These references to a right of “every freeman,” “every man,” “every citizen,” and “every individual” appear to refer to every person’s right to use printing technology. They are much less consistent with the notion that the right gave special protection to the few men who were members of a particular industry. Some early state constitutions mentioned both the “every citizen” phrase and, separately, the “liberty of speech, or of the press,” but as the Pennsylvania Constitution of 1776 shows, these formulations did not describe separate rights. The Pennsylvania text read, “That the people have a right to freedom of speech, and of writing and publishing their sentiments: therefore the freedom of the press ought not to be restrained.”
Which suggests that the freedom of the press was a restatement of the right of “the people” to publish. Early cases, such as the 1803 Runkle v. Meyer decision, likewise treat the “liberty of the press” as equivalent to the provision that “every citizen may freely speak, write and print on any subject.” And St. George Tucker, Chancellor Kent (James Kent), and Justice Joseph Story all treated the First Amendment phrase “freedom of the speech, and of the press” as interchangeable with the state constitutional provisions that “every citizen may freely speak, write, and publish his sentiments.”
The view that “freedom of the press” covers “every citizen,” even people who aren’t members of the publishing industry, also makes sense given how many important authors of the time were not members of that industry.
And while those newspapers doubtless contributed facts and opinions to public debate, some of the most important such contributions in newspapers came from people who were not publishers, printers, editors, or their employees—Madison, Hamilton, and Jay’s The Federalist Papers are a classic example. “[N]ot a few of the country editors…depended for what literary work their vocation demanded upon the assistance of friends who liked being “contributors to the press without fee.”
It seems unlikely that the Framers would have secured a special right limited to this small industry, an industry that included only part of the major contributors to public debate. This is especially so given that some of the most powerful and wealthy contributors, such as the politicians and planters who wrote so much of the important published material, weren’t part of the industry.
The grammatical structure of the First Amendment likewise suggests that the freedom was the freedom “of every freeman” or “every citizen” to use the press-as-technology, and not a freedom belonging to the press-as-industry.
As Justice Scalia pointed out in Citizens United, the shared words “freedom of” in the phrase the “freedom of speech, or of the press” are most reasonably understood as playing the same role for both “speech” and “press.”
The “freedom of speech” is freedom to engage in an activity, much like “freedom of movement” or “freedom of religion.” In particular, it is the freedom to use the faculty of speech this suggests that “freedom of the press” is likewise freedom to engage in an activity by using the faculty of the printing press. This is supported by sources that discuss the “freedom in the use of the press.”
St. George Tucker’s influential 1803 work, in discussing the freedom of the press, spoke of “[w]hoever makes use of the press as the vehicle of his sentiments on any subjects.”
The freedom of the press was freedom in the use of the press. Any government that wants us to believe they respect the freedom of the press can do nothing less than respect the freedom of Julian Assange.