Wake Forest Journal of Law and Policy, 2011
27 Pages Posted: 19 Apr 2011
Date Written: April 18, 2011
This Essay focuses on two clashes between national security and the First Amendment - the Pentagon Papers case and the WikiLeaks controversy. The two cases are hardly exact parallels. In the Pentagon Papers case the government was seeking to enjoin publications, asking for the imposition of a prior restraint. In that context, the press received the benefit of the "heavy presumption" against prior restraints. In the WikiLeaks controversy, because the discussion centers on the possibility of a criminal prosecution against Julian Assange, there is no equivalent "heavy presumption" against such a prosecution. In each case, the actual leaker was arrested, but, in the Pentagon Papers case, the publishers were not prosecuted. Assange has not yet been the subject of a U.S. criminal prosecution, but it may happen.
The newspaper press is obviously an addressee of the First Amendment, but an issue remains as to whether a website such as WikiLeaks is part of that press. Furthermore, Assange and WikiLeaks seek to challenge the very idea and practice of government secrets altogether. Such a claim is unlikely to receive full First Amendment protection.
Keywords: WikiLeaks, Pentagon Papers, First Amendment, National Security
JEL Classification: H56, K10, K14
Suggested Citation: Suggested Citation
Barron, Jerome A., The Pentagon Papers Case and the Wikileaks Controversy: National Security and the First Amendment (April 18, 2011). Wake Forest Journal of Law and Policy, 2011; GWU Legal Studies Research Paper No. 552; GWU Law School Public Law Research Paper No. 552. Available at SSRN: https://ssrn.com/abstract=1814181