Why Senator Lieberman's Censorship Law Is Unconstitutional And A Danger To Free Speech

from the senator-censorship dept

Senator Joe Lieberman has been the harshest critic of the Wikileaks cable leak, and has been very active in putting pressure on US companies to either block or cut ties with Wikileaks. Even if you support those actions and hate Wikileaks, you should still be worried about his other kneejerk reaction to Wikileaks: to introduce a bill that would extend the Espionage Act to make it illegal to publish certain leaked info, even after it's been leaked. Not surprisingly, even without this law in place, Lieberman has publicly suggested that the NY Times may be guilty of some crime for publishing documents released by Wikileaks.

However, law professor Geoffrey R. Stone has done a nice job in that very same NY Times, explaining why Lieberman's so-called "Shield Act" is almost certainly an unconstitutional restriction on speech and a clear violation of the First Amendment. Stone notes that it's perfectly fine to say it's illegal for government employees to leak documents -- but to go beyond that and say that once that info is leaked, it's a crime to publish that info, is clearly going beyond what the Constitution allows:
The First Amendment does not compel government transparency. It leaves the government extraordinary autonomy to protect its own secrets. It does not accord anyone the right to have the government disclose information about its actions or policies, and it cedes to the government considerable authority to restrict the speech of its own employees. What it does not do, however, is allow the government to suppress the free speech of others when it has failed to keep its own secrets.

We might think of this like the attorney-client privilege. If a lawyer reveals his client’s confidences to a reporter, he can be punished for violating that privilege -- but the newspaper cannot constitutionally be punished for publishing the information.
Hopefully enough of our elected officials recognize this, and Lieberman's bill goes nowhere fast.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    ChurchHatesTucker (profile), Jan 7th, 2011 @ 11:32am

    230

     

    reply to this | link to this | view in thread ]

  2.  
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    average_joe (profile), Jan 7th, 2011 @ 11:34am

    We might think of this like the attorney-client privilege. If a lawyer reveals his client’s confidences to a reporter, he can be punished for violating that privilege -- but the newspaper cannot constitutionally be punished for publishing the information.

    That example would fall under the duty of confidentiality, not the attorney-client privilege. Sorry, but I've been studying for my upcoming MPRE... ;)

    http://en.wikipedia.org/wiki/Multistate_Professional_Responsibility_Examination

     

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  3.  
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    halley (profile), Jan 7th, 2011 @ 11:52am

    Lieberman is a disgrace to his constituency, The Constitution State, Connecticut.

     

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  4.  
    identicon
    AJ, Jan 7th, 2011 @ 11:55am

    Re:

    Seems analogous to me. In both cases someone commits an act that interferes with another person's rights.

    tried .. to ... hold.... back..........

     

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  5.  
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    DH's Love Child (profile), Jan 7th, 2011 @ 11:55am

    Electorate

    Hopefully enough of our elected officials recognize this, and Lieberman's bill goes nowhere fast.

    Sadly, Mike, I think you have more faith in the electorate than they deserve.

     

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  6.  
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    average_joe (profile), Jan 7th, 2011 @ 12:02pm

    Re: Re:

    I think you crossed threads...

     

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  7.  
    identicon
    AJ, Jan 7th, 2011 @ 12:07pm

    Re: Re: Re:

    Did I? I was poking fun at you in a friendly way .... You pointed out someone elses nit-picking on the last thread only to nit-pick yourself on this one.... sry AJ

     

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  8.  
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    cryptozoologist (profile), Jan 7th, 2011 @ 12:26pm

    i'd be interested to read the constitutional authority cited to implement this as now all bills (at least in the house) are supposed to include an explicit reference to the part of the constitution that empowers congress to implement it.

     

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  9.  
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    Gwiz (profile), Jan 7th, 2011 @ 12:34pm

    Re:

    Makes me wonder what exactly is in the leaks that Lieberman is so afraid of. Sort of like a pre-Streisand Effect for something that hasn't been exposed yet

     

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  10.  
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    :Lobo Santo (profile), Jan 7th, 2011 @ 12:45pm

    Re: Re:

    Perhaps he's afraid people will realize he votes in whichever direction pays more...

     

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  11.  
    identicon
    Anonymous Coward, Jan 7th, 2011 @ 12:48pm

    Re:

    Thats only for bills that the majority parity hates. For bills it wants , the constitutionality is optional.

     

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  12.  
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    Anonymous Coward, Jan 7th, 2011 @ 12:48pm

    Whitney v California overruled

    Professor Stone's discussion —necessarily abbreviated for a popular audience— omits mention that Whitney was explicitly overruled by Brandenburg v Ohio (1969):
    Whitney has been thoroughly discredited by later decisions. See Dennis v. United States (1951).

    And further:

    The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.

    What Professor Stone has written is not wrong, but might mislead the unwary. The longer account is more complicated and subtle.

     

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  13.  
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    The Mighty Buzzard (profile), Jan 7th, 2011 @ 12:54pm

    Re: Re: Re:

    Possibly but it still beats picking whichever side will get you elected in your district and voting lockstep. At least with someone actually selling their vote you could take up a collection on a specific issue and buy the vote you wanted.

     

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  14.  
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    The Mighty Buzzard (profile), Jan 7th, 2011 @ 12:57pm

    Re: Electorate

    Seriously, everyone seems to constantly forget that 49% of the electorate are of below average intelligence.

     

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  15.  
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    The Mighty Buzzard (profile), Jan 7th, 2011 @ 12:58pm

    Re: Re:

    Actually, no. That's a House rule and Lieberman is a Senator.

     

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  16.  
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    mikeinrichmond (profile), Jan 7th, 2011 @ 1:26pm

    Re: Re: Electorate

    Yep, the folks that don't agree with us are always much less intelligent than we are, aren't they..?

     

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  17.  
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    arrgster, Jan 7th, 2011 @ 1:27pm

    Seriously

    I think putting up such a bill is traitorous to everything this country stands for. If it were up to me I'd put him away for treason.

     

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  18.  
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    Chargone (profile), Jan 7th, 2011 @ 1:37pm

    Re: Re: Re: Electorate

    actually, that comment is based entirely on the fact that, by some of the meanings of average, 49-50 % of any given sample group will be below the average, by definition, in any context :P

    your little jab there may or may not hold water as a result.

     

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  19.  
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    Chargone (profile), Jan 7th, 2011 @ 1:39pm

    Re: Seriously

    isn't treason (actual treason, not random flailing accusations of pointlessness) normally a capital crime, at least in times of war?

     

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  20.  
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    The eejit (profile), Jan 7th, 2011 @ 1:43pm

    Re: Re: Seriously

    No. At least, not in Europe. There is only one capital offence on the books in the UK - Interfering with the Royal Mail.

    I shit you not.

     

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  21.  
    identicon
    Anonymous Coward, Jan 7th, 2011 @ 1:51pm

    Re:

    Lieberman is a disgrace to the human race.

     

    reply to this | link to this | view in thread ]

  22.  
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    The Mighty Buzzard (profile), Jan 7th, 2011 @ 2:27pm

    Re: Re: Re: Re: Electorate

    Holy crap, someone got that I was just being a wiseass. On the Internet even! Time to buy that lottery ticket.

     

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  23.  
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    Steve, Jan 7th, 2011 @ 2:52pm

    Well, you are partially right

    Your analogy holds true "if" Wikileaks did not conspire with their source(s) to obtain classified information. If they did, there are already laws on the books to cover that. If they (WikiLeaks) provided tools to their source(s), there are laws on the books about that as well. Espionage against a government entity (not just the U.S.) typically carries some very harsh penalities.

     

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  24.  
    identicon
    Anonymous Coward, Jan 7th, 2011 @ 3:32pm

    Senator Liebermans is the most serious threat to liberty in the world today.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Johnny, Jan 7th, 2011 @ 3:48pm

    Re: Re: Re: Re: Re: Electorate

    Actually it's 50% that has an IQ below the MEDIAN IQ.

    The number of people with an IQ below average may be well above 50%, example:

    person A: 90
    person B: 95
    person C: 99
    person D: 101
    person E: 105
    person F: 160

    The average would be an IQ of 108, and in this example 83% has an IQ lower than that.

    The median however would be 100, with exactly 50% having a lower IQ (by definition).

     

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  26.  
    identicon
    Anonymous Coward, Jan 7th, 2011 @ 3:58pm

    Re: Re: Re: Re: Re: Re: Electorate

    Median is average. The distinction you're making is between median and mean, which are just different methods of calculating average.

     

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  27.  
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    Pixelation, Jan 7th, 2011 @ 5:16pm

    Please

    Let's hope the released information exposes Lieberman's corruption. Please, please, please!

     

    reply to this | link to this | view in thread ]

  28.  
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    Any Mouse, Jan 8th, 2011 @ 2:54am

    Re: Whitney v California overruled

    And for those of us not of the legal profession, do you care to explain what all of this means to the class?

     

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  29.  
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    Anonymous Coward, Jan 8th, 2011 @ 4:59am

    Send Lieberman to Israel and let him and his progeny live there. He and his lobby is responsible for every Israeli citizen receiving over $14,000 a year from the US taxpayers. That's more than I get with Social Security and I had to work my whole damn life for that. Lieberman is the worst kind of politician that gives the peoples hard earned money away to foreigners. Not only that but murderous, dictatorial, land stealing foreigners.

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous Coward, Jan 8th, 2011 @ 5:48am

    Re: Re: Whitney v California overruled

    ... do you care to explain what all of this means to the class?

    As briefly as I can...

    Prior to the American Revolution, the English (Protestant) colonial possessions in North America were in tension and war with the French (Catholic) in Quebec and surrounding Canada. Eventually, the English won Canada. During the Revolution, though, the American rebels allied themselves with the French Bourbon King.

    After the American Revolution, the French had their own revolution. The guillotine and excesses of revolutionary France shocked many in both Great Britain and America who had sided with the American rebels just a few years before. (Not to mention the French were Catholic.) Still, the French revolution also had a great deal of sympathy in America. Opinion was very divided.

    So, in the late 1790's, with France at war with the United Kingdom, the United States attempted to take a policy of neutrality. But tensions with France at sea led to what was known as the “Quasi-War”.

    With that backdrop, in 1798, the Federalists under John Adams (2nd U.S. President) passed the “Alien and Sedition Acts”. These acts were considered an unconstitutional attempt to suppress criticism of the government by the Democratic-Republics, who were led by Thomas Jefferson (3rd U.S. President) and James Madison (4th U.S. President). But the acts weren't ever tested in court, because the Supreme Court hadn't yet grabbed all the power it would. Instead, the acts expired when Jefferson took office, and everyone pretty much assumed they had been contrary to the First Amendment.

    . . . . I shall pass over the attempts to suppress the speech of abolitionists prior to the American Civil War. Basically, many were deeply opposed to the Southern states' “peculiar institution”. The Southerners told them to shut the hell up. So they ended up fighting a war over it. After the Civil War, the relationship between the states and the federal government was profoundly altered by constitutional amendments.

    . . . . Which brings us to 1916.

    In 1916, the damn Europeans were busy machine-gunning each other in trenches and lobbing poison gas at each other. Way back when, George Washington (Revolutionary Commander and 1st U.S. President) had very famously warned Americans to avoid foreign entanglements. In 1916, avoiding foreign barbed-wire entanglements seemed like a hell of good idea to many Americans.

    Woodrow Wilson (28th President) was re-elected to his second term on the slogan, “He kept us out of war!”

    In Wilson's defense, it's not so much that he lied to the American people—as that he was more interested in being reelected than telling the truth.

    So, in the midst of war hysteria, Congress outlawed political opposition. That's the Espionage Act of 1917 and its amendment, the Sedition Act of 1918.

    There's enough for one post—and a quick prelude for the 20th Century legal history. Any questions so far? Or have you all gone to sleep?

     

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  31.  
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    average_joe (profile), Jan 8th, 2011 @ 7:21am

    Re: Re: Re: Whitney v California overruled

    Great post!

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Anonymous Coward, Jan 8th, 2011 @ 8:03am

    Lieberman is a danger to democracy period. The Israeli puppet.

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Anonymous Coward, Jan 8th, 2011 @ 8:53am

    Re: Re:

    Wouldn't he have to be human first?

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Anonymous Coward, Jan 8th, 2011 @ 9:57am

    Senator Joe Lieberman supports the sex trafficking of children. While the world is now aware that the US Government is paying a company, that has been caught multiple times selling children as sex toys, nearly 2 billion dollars a year Senator Joe Lieberman screams that the problem is Wikileaks. While the State Department covers up these crimes against children, Senator Joe Lieberman ignores the suffering the US is paying to support.

    Senator Lieberman, people peddling children in your name should offend and disgust you more than anything Wikileaks has done. The freedoms being stolen from the American people in the name of "safety", the selling of children for sex, the disgusting methods used time and time again to undermine the free market in support of those who donate obscene amounts of money to you and your cohorts, ignoring treaties while trying to force other countries to bow to "American" wishes, and the problem is Wikileaks?

    Senator Lieberman, Wikileaks is not the problem. You and every other member of the Government are complicit in actual crimes being committed daily. Before trying to hold others to a high moral standard, maybe you should make sure you actually are on the high ground.

    If something like the tidbits that have been leaked, have you trying to remove the rest of the Constitutional protections we have, one is left to wonder what other secrets your trying to hide behind your pay no attention to the man behind the curtain show.

    The problem is for to long we have accepted you have our best interests in mind. You protect the interests of those who pay you, not who elect you to act on their behalf. I am ashamed that you are a representative of my country. Stop the showboating, and clean your own house of all of the corruption.

     

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  35.  
    identicon
    Anonymous Coward, Jan 8th, 2011 @ 12:08pm

    Re: Re: Re: Re: Re: Re: Re: Electorate

    Median is average.
    --->>> Your math grade for the day: FLUNK
    by definition: The Mean is the average.

    Although it is possible for the median to be equivalent to the mean (average)this is almost always not not true. The median will only be equivalent to the average if the values for which the statistics are calculated are normally distributed and the data has no skew.
    In real life, most data has at least some skew.

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    Anonymous Coward, Jan 10th, 2011 @ 12:31am

    Re: Re: Re: Whitney v California overruled

    Thanks for the history lesson -- much appreciated.

    That said however, I have the following question about your original comment.
    Could you clarify what you think is misleading about Professor Stone's article, because I felt your comment was in its own way, misleading because it could be interpreted to mean that Professor Stone's argument isn't quite as strong as it sounds.
    Brandenburg v Ohio (1969) actually strengthens Professor Stone's criticism of Lieberman's proposed bill. BvO states specifically that the aspect of the Whitney decision which had been rejected by subsequent legal decisions is the idea that the government could outlaw the act of "advocating" violent means to effect political and economic change. The Dennis and Brandenburg decisions said that it was legal to talk about violent overthrow of the government, and even publicly advocate that overthrow of the government should occur, so long as your activities did not lead to "imminent lawless action."
    In other words, not withstanding the praise Professor Stone gives to Justice Brandeis, the opinion in the Whitney decision didn't go far enough to protect First Amendment rights
    Here is a longer quote from the Brandenburg decision:
    " In 1927, this Court sustained the constitutionality of California's Criminal Syndicalism Act, Cal.Penal Code §§ 11400-11402, the text of which is quite similar to that of the laws of Ohio. Whitney v. California, 274 U. S. 357 (1927). The Court upheld the statute on the ground that, without more, "advocating" violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas, 274 U. S. 380 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U. S. 494, at 341 U. S. 507 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. "

     

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  37.  
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    Thomas (profile), Jan 10th, 2011 @ 1:41pm

    The government..

    always believes that "National Security" trumps such minor things as the constitution. This applies not only to Congress but also to the federal court system.

    When did any congressman ever worry about the constitution when introducing laws anyway?

    They all know full well they can pass blatantly unconstitutional laws and the only place the laws can be stopped in the courts. With the courts increasingly being willing to let the government do whateve they want, they really need not worry about the courts any more.

     

    reply to this | link to this | view in thread ]

  38.  
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    Thomas (profile), Jan 10th, 2011 @ 1:43pm

    Re: Re: Re:

    Don't all politicians do this?????

     

    reply to this | link to this | view in thread ]

  39.  
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    lala (profile), Jan 10th, 2011 @ 3:01pm

    taj

     

    reply to this | link to this | view in thread ]


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