re: #338 Aceofwhat?

Then you need to read the Floyd Abrams piece again, more carefully.

What do you make of this part of Floyd Abrams piece?

As Princeton historian Sean Wilentz told the Associated Press earlier this month, WikiLeaks seems rooted in a “simpleminded idea of secrecy and transparency,” one that is “simply offended by any actions that are cloaked.”

Ironically, this view of the world may aid Mr. Assange in avoiding criminal liability for his actions. The Justice Department is well aware that if it can prove that Mr. Assange induced someone in the government to provide him with genuinely secret information, it might be able to obtain an indictment under the Espionage Act based upon that sort of conspiratorial behavior. But the government might not succeed if it can indict based only upon a section of the Espionage Act relating to unauthorized communication or retention of documents.

Section 793 of the Espionage Act was adopted in 1917 before the Supreme Court had ever declared an act of Congress unconstitutional under the First Amendment. The statute has been well-described by former Supreme Court Justice John Marshall Harlan as “singularly oblique.” Its language is sweepingly overbroad, allowing prosecution of anyone who “willfully” retains or communicates information “relating to the national defense” he or she is not “authorized” to have with the knowledge that it “could” damage the United States or give “advantage” to a foreign nation.

On the face of the statute, it could not only permit the indictment of Mr. Assange but of journalists who actually report about or analyze diplomatic or defense topics. To this date, no journalist has ever been indicted under these provisions.

The Justice Department took the position that it could enforce the law against journalists in a case it commenced in 2006 (and later dropped) against two former officials of the American Israel Political Action Committee accused of orally telling an Israeli diplomat classified information they were told by a Defense Department employee. In that case, federal Judge T.S. Ellis III ruled that to obtain a conviction of individuals who had not worked for the government but had received information from individuals who had, prosecutors must prove that the defendant actually intended to harm the U.S. or to help an enemy. Judge Ellis intimated that unless the law were read in that defendant-protective manner, it would violate the First Amendment.

Under that reading of the legislation, if Mr. Assange were found to have communicated and retained the secret information with the intent to harm the United States—some of his statements can be so read—a conviction might be obtained. But if Mr. Assange were viewed as simply following his deeply held view that the secrets of government should be bared, notwithstanding the consequences, he might escape legal punishment.

online.wsj.com