Consider the Censor

Wake Forest Journal of Law & Policy, Forthcoming

Brooklyn Law School, Legal Studies Paper No. 218

15 Pages Posted: 9 Feb 2011  

Derek E. Bambauer

University of Arizona - James E. Rogers College of Law

Date Written: February 8, 2011

Abstract

WikiLeaks is frequently celebrated as the whistleblowing heir of the Pentagon Papers case. This Essay argues that portrayal is false, for reasons that focus attention on two neglected aspects of the case. First, the New York Times relied on a well-defined set of ethical precepts shared by mainstream journalists to contextualize the Papers and to redact harmful information. Second, American courts acted as neutral arbiters of the paper’s judgment, and commanded power to enforce their decisions. WikiLeaks lacks both protective functions to regulate its disclosures. The Essay suggests that WikiLeaks is a bellwether: an exemplar of the shift in power over data generated by plummeting information costs. While that trend cannot realistically be reversed, the Essay offers two responses to the problems that WikiLeaks and its progeny create. First, established media outlets must continue to act as gatekeepers governed by strong journalistic ethics, even in an environment of ubiquitous access to raw data. Second, governments should consider, and debate, the possibility of using technological countermeasures – cyberattacks – against intermediaries threatening to disclose especially harmful data. There are times when the censor should win.

Keywords: WikiLeaks, Pentagon Papers, New York Times, Cybersecurity, Ethics, Disclosure, Dissemination, Internet, Cyberspace, First Amendment, Free Speech, Nixon, Cyberattack, Whistleblower, Cablegate, Assange, Enforcement, Censorship, Iraq, Department of Defense

Suggested Citation

Bambauer, Derek E., Consider the Censor (February 8, 2011). Wake Forest Journal of Law & Policy, Forthcoming; Brooklyn Law School, Legal Studies Paper No. 218. Available at SSRN: https://ssrn.com/abstract=1757890

Derek E. Bambauer (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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