Benkler argues against prosecution of WikiLeaks, detailing government and news media "overreaction"

Professor Yochai Benkler '94

Professor Yochai Benkler ’94

Harvard Law Professor Yochai Benkler ’94 has released an article detailing U.S. government and news media censorship of WikiLeaks after the organization released the Afghan War Diary, the Iraq War Logs, and U.S. State department diplomatic cables in 2010. Among his key conclusions: The government overstated and overreacted to the WikiLeaks documents, and the mainstream news media followed suit by engaging in self-censorship. Benkler argues further that there is no sound Constitutional basis for a criminal prosecution of WikiLeaks or its leader, Julian Assange.

Benkler, the Berkman Professor of Entrepreneurial Legal Studies at Harvard Law School and faculty co-director of the Berkman Center, argues that WikiLeaks’ freedom of expression is protected by the First Amendment and should not be treated differently from that of traditional news media. A working draft of his article, which will be published in the Harvard Civil Rights-Civil Liberties Law Review, can be found here.

Below, Benkler answers questions from June Wu for the publication Harvard Law Today.

Q: What did you set out to investigate?

A: The article essentially does two things. The first is to explain why WikiLeaks is essentially the Pentagon Papers case of the 21st century: a core journalistic release of material coming under attack. As a matter of First Amendment limitations, you can’t distinguish Wikileaks from the New York Times along any dimension that is constitutionally relevant. The second is to offer a case study of the difficult but important relationship between the new, networked media and traditional media that is coming to characterize the new media environment.

Q: How would you describe government and media response to WikiLeaks?

A: I think once you actually look at the facts carefully, the government and media vastly overreacted and overstated dramatically the extent of the actual threat of WikiLeaks. One of the things I did was an analysis of all the news stories at the time of the embassy cables release. About two-thirds of news reports in the U.S. in the first two weeks explicitly misstated what WikiLeaks had released and claimed that hundreds of thousands of cables had been dumped online at a time that only a few hundred cables had been released, in redacted form, and only after they were already published by one of the traditional newspaper partners in the endeavor. The pattern of misreporting in the news media fit the pattern of overstatement by government actors, both administration officials and senators.

Q: What is your primary criticism of the government and media overreaction?

A: It fed into a description of WikiLeaks as though it was some terrorist organization as opposed to what it is, which is, in fact, a journalistic enterprise. Joe Biden responded to the release of the embassy cables by stating that WikiLeaders founder Julian Assange is “more like a high-tech terrorist than the Pentagon Papers.” That captured the overstated, overheated, irresponsible nature of the public and political response to what was fundamentally a moment of journalistic disclosure. They responded as if it were a security threat, in a way that was simply inconsistent with a democratic American administration. This, in turn, set the background for the denial of service attacks by the commercial providers of services to Wikileaks: Amazon, EveryDNS, Mastercard, Visa, etc.

Q: What are the main implications of your findings?

A: The direct implication is the U.S. should take a look at this investigation and declare that the Constitution’s First Amendment simply does not permit prosecution of WikiLeaks. It is not, as a matter of law, sustainable to treat WikiLeaks or Assange any differently than the New York Times and its reporters.

The second implication is that we need a reformed legal regime, which is what I start to look at in the paper. A system that depends on privately-owned critical communications systems and privately-run payment systems owned by companies eager to avoid public controversy is an easy target for government trying to shut it down. We need to develop much more robust legal responsibility for private operators of critical infrastructures so they will have a backbone when the government or negative public opinion says you have to shut it down. We need to create a framework in which they instead have to say, we have a legal responsibility to not discriminate against users based on fact that they are unpopular speakers. We have a lot of work to do in this area.

The third piece is more about the future of journalism. Already, we are seeing today a much more global, much more diverse media environment that includes a wide range of actors. If we want to understand the future of journalism, we need to look at the whole integrated system. We can’t keep looking at it through a prism of traditional American media.

Q. How is WikiLeaks a journalistic organization?

A: There are multiple functions that go into journalism: identify sources, review material, preserve anonymity of sources at some points, and choreograph the release of information. WikiLeaks is not a traditional media organization, but essentially over course of the year, WikiLeaks was learning how to participate in a joint venture with a number of other traditional news organizations in order to achieve exactly that—finding sources, getting information, structuring it in a way that is usable, and integrating with other organizations to achieve release. That’s journalism.