No, WikiLeaks and Julian Assange Do Not Have 1st Amendment Protection of Freedom of Speech
By: Jim Byrd
Julian Assange is the proprietor, creator, and engineer of WikiLeaks, the incorporeal mechanism for disseminating stolen classified cables, documents, and videos owned by the United States government. Assange is not a journalist, he does not have a story, he does not write commentary, he does not supplement his pilfered images and videos with context; Assange is a computer hacker, thief, nomad, blackmailer, and a world-class nihilist devoid of allegiance to a country. He is an anthropological malignancy.
The treasonous and radical faction of the journalism community has worked itself into quite a paroxysmal state regarding Julian Assange and WikiLeaks’ 1st Amendment rights of “freedom of speech, or of the press.” They are of the benighted assumption, as are far too many judges, that freedom of speech is an uncompromising and infinite right guaranteed by the Constitution. This assumption is based on clichÃ©d impregnated ignorance, and is not based on the original intent of the 1st Amendment, nor Supreme Court rulings that have narrowed the scope of freedom of speech regarding matters of insubordination and causing harm to national security during times of war. Julian Assange’s agenda is to cause harm to United States national security, and subsequently the national security of other nations around the world.
Here is a list of questions the advocates of Julian Assange and WikiLeaks dare not ask, nor want the answers: Is Julian Assange protected under the 1st Amendment’s freedom of speech clause, and why? What does protected speech mean? Does the Constitution protect all speech without consequences? Was the release of stolen classified documents by Julian Assange and WikiLeaks â€œspeechâ€ as defined by common sense, or was it just malicious conduct with intent to harm?
To better understand Julian Assange’s impetuous attempt at sabotaging the national security of the United States and several other countries, and the questions proposed above, a clearer understanding of the history and formation of the â€œfreedom of speechâ€ clause and the â€œfreedom of the pressâ€ clause of the U.S. Constitution, and the influences and intentions of the framers, is paramountâ€“especially James Madison, who crafted the 1st Amendment with strict adherence to William Blackstoneâ€™s philosophy regarding freedom of speech and the press.
The foundational ideology of the Constitution can be traced to English common law, which is derived from natural law. John Locke (1632-1704) had significant influence on English common law and the formation of American jurisprudence. His influence is manifest in the American Revolution and the Declaration of Independence. Locke wrote:
“The state of Nature has a law of Nature to govern it, which obliges every one, and reason, which is that law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions. The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of Nature for his rule.”
The foundation of the natural law is as follows: It is dictated by God; it transcends all countries; man-made laws that are antithetical to natural law are not valid; and man-made laws should be derived from this original law.
Following Locke, William Blackstone (1723-1780) wrote Commentaries on the Laws of England in 1769. This book was the evolvement of natural lawâ€™s influence on English Law, and subsequently English law’s influence on American law. It was also the foundation for the legal education and principle in England and America, and was the source of law for the colonists. Blackstone’s beliefs in right to self-defense, freedom of speech, taxation without representation, etc. are the fundamentals of the Constitution. William Blackstone, just like Locke, was heavily influenced by natural law: “Good and wise men, in all agesâ€¦have supposed, that the deity, from the relations, we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensably, obligatory upon all mankind, prior to any human institution whatever.”
Ironically, Blackstone was a loyal member of Parliament from 1761-1770, and it was his book, Commentaries on the Laws of England, that gave the colonists cause and inspiration to seek independence from England, much to the chagrin of Blackstone. Thomas Jefferson used natural law as just cause for seeking independence while penning the Declaration of Independence:
“When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
In his book, Commentaries on the Laws of the Laws of England, Blackstone addressed the subject of free speech:
The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every 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; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.
At the time of the framing of the U.S. Constitution, England had laws of prior restraint in the form of licensing laws regarding speech and the press. The framers clearly intended to eliminate prior restraint from speech and press. Prior restraint is the seeking of permission from a censor prior to publishing, or through licensing laws. Blackstone advocated against pre-approval before publication, but maintained that subjection to the consequences of “improper, mischievous or illegal” publication is judiciously prudent.
The framers’ intentions were to eliminate prior restraint from speech and the press by virtue of the 1st Amendment. But as Blackstone heralded, there was no immunity from the consequences of speech or press after being published or spoken. Their intentions concerning free speech and the press were significantly narrower in scope than what modern jurisprudence dictates. Contemporary jurisprudence, plundered by progressive and liberal ideology, is devoid of the fundamental foundation of the original understanding and intention of the 1st Amendment.
Lockeâ€™s and Blackstoneâ€™s influence on the founders is irrefutable, as noted by Alexander Hamilton, one of the authors of The Federalist Papers, which is the preeminent elucidation of the Constitution:
“Upon this law, depend the natural rights of mankind, the supreme being gave existence to man, together with the means of preserving and beautifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty and personal safety.
Hence, in a state of nature, no man has any moral power to deprive another of his life, limbs, property, or liberty; nor the least authority to command, or exact obedience from himâ€¦.
Hence also, the origin of all civil government, justly established, must be a voluntary compact, between the rulers and the ruled; and must be liable to such limitations, as are necessary for the security of the absolute rights of the latter; for what original title can any man or set of men have, to govern others, except their own consent? To usurp dominion over a people, in their own despite, or to grasp at more extensive power than they are willing to entrust, is to violate that law of nature, which gives every man the right to his personal liberty; and can, therefore, confer no obligation to obedience.”
There were very few tests of the 1st Amendment’s freedom of speech and freedom of the press clauses prior to the early twentieth century. The first test came in 1798 as the Alien Act, followed one month later by the Sedition Act; the acts were never tested in the courts. The Sedition Act declared that any treasonable activity, including the publication of â€œany false, scandalous and malicious writing,â€ was a high misdemeanor, punishable by fine and imprisonment. People and publications were tried and convicted under this act. Unfortunately, the Sedition Act was more a tool for political expediency benefiting the Federalist Party than for punishing seditious enemies of the state.
John Marshall, a Federalist Congressman, later to become Chief Justice of the Supreme Court, had his doubts about the Sedition Act, but he argued, in lockstep with Blackstone, that the guarantee of free press and speech meant only the right to publish, free from prior constraints, and that criminal punishment after publication was constitutional.
The â€œfreedom of speechâ€ and â€œfreedom of the pressâ€ clauses of the 1st Amendment were not significantly challenged again until the enactment of the Espionage Act of 1917. The Espionage Act of 1917 was passed shortly after the U.S. entered WW I. The act prohibited disclosing government and industrial information regarding national defense, promoting the success of the enemy, interfering with the recruitment of troops, and refusing to perform military service if drafted. Exactly what Julian Assange did.
In 1918, Congress amended the Espionage Act, and the amendments were known as the Sedition Act. This act prohibited the expression of anti-war and unpatriotic speech and publication. It imposed several penalties on those convicted of â€œdisloyal, profane, scurrilous, or abusive languageâ€ about the United States government, flag, or armed forces during war. The Sedition Act, if enacted now, would take out of commission the majority of media outlets in the United States. The Espionage Act is still an active law.
Shortly after the passage of the Espionage Act and the Sedition Act, two high profile convictions under the acts were tested for their constitutionality by the Supreme Court in the cases of Schenck v. United States and Eugene Debs v. United States. The Schenck and Debs cases involved freedom of the press and freedom of speech–one case involved printed fliers, and the other involved a speech, respectively.
Charles Schenck was the local secretary of the Socialist Party of America in his area. Schenck was involved in anti-war activities in violation of acts. He mailed 15,000 leaflets to recently drafted servicemen encouraging them to resist the draft. He was arrested and charged with â€œcausing and attempting to cause insubordination in the military and naval forces of the United Statesâ€ and with disturbing the draft. He was convicted and sentenced to prison. He appealed to the Supreme Court.
Charles Schenckâ€™s conviction was upheld by the Supreme Court. Oliver Wendell Holmes, Jr. authored the majority opinion:
“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”
The Schenck case created the â€œclear and present dangerâ€ test, which became the standard for deciding what speech and press was not protected by the 1st Amendment’s “freedom of speech” and “freedom of the press” clauses. After the â€œclear and present dangerâ€ test was applied to Schenck, its ruling was summarily applied to Debs v. United States.
Eugene V. Debs (1855 â€“ 1926) ran for President of the United States five times as a Socialist Party of America candidate. Debs made an anti-war speech titled Socialism is the Answer in June of 1918 in Canton, Ohio. The content of his speech was deemed anti-war rhetoric against the United States for its involvement in WWI. Debs was arrested and charged under the Sedition Act of 1918. He was convicted and sentenced to ten years in prison.
At issue was whether the United States violated Debsâ€™ freedom of speech guaranteed under the 1st Amendment. The Supreme Court upheld the lower courtâ€™s conviction under the Espionage Act. Since Debs used language to discourage military recruitment, the Court ruled he was not entitled to protection under the 1st Amendmentâ€™s freedom of speech clause. His speech was ruled to have been a â€œclear and present dangerâ€ to the United States.
The Constitution is not the esoteric document espoused by the Bolshevist intelligentsia. It is a remarkably simple and discernible document. When in doubt, the author of any clause or amendment of the Constitution, and the debates and minutes regarding the ratification process, are readily available to be read in their entirety. Having the meaning explained by the author was, is, and will always be predominant to an interpretation maneuvered by antipodal dogma. The only complex aspect of constitutional law is the vast array of politically and ideologically motivated case law, and the jejune abstraction that stare decisis is not a debilitating infliction cast upon the original intent of the Constitution.
“Congress shall make no law….” There has never been “no law.” Before the ink had sufficiently dried on the Constitution, the men that created it had abridged absolute unfettered speech with the Sedition Act.
It is manifest what the framers’ influences and intentions were when drafting the Constitution. The Constitution and its original intent have become disoriented, confusing, and enigmatic by ideologically motivated judges, lawmakers, and law schools.
Does Julian Assange have the right to release stolen documents to the detriment of United States national security in the name of the 1st Amendment’s freedom of speech and press clauses? Even though the 1st Amendment regarding speech is much broader and more liberal than the framers intended, Julian Assange does not have the constitutional protection to jeopardize America’s national security, especially during a time of war.
Be assured that if WikiLeaks, Julian Assange, or the New York Times, 234 years ago, had distributed stolen critical information to the British that would have jeopardized the survival of the thirteen colonies during the Revolutionary War, he would have been executed, WikiLeaks and the New York Times would have ceased to exist, and the principles prosecuted.
It is preposterous to assert that while crafting the Constitution, the intention of the 1st Amendment’s speech clause was to give a rogue disciple of perdition, such as Julian Assange, the wanton and unfettered ability to destroy this nation’s national security, without recourse, by virtue of the 1st Amendment. The Constitution was meant to protect United States citizens from the federal government, and that protection was certainly not intended to be extended to a foreigner, on foreign soil, who is a self-proclaimed enemy of this country.
Jim Byrd's website is A Skewed View.