The case of Julian Assange and WikiLeaks created an unprecedented controversy in the American society. However, apart from that, it raised a number of the legal and constitutional issues and brought many questions to the public attention. There is an opinion that WikiLeaks attracted attention to the questions of the privacy and security of the citizens, but at the same time, some claim that the organization creates a danger to the public safety. Julian Assange’s initiative raised the debate about the controversial constitutional clauses, but the activity of the organization was regarded as espionage harmful to the national security. The important aspect of the case is the fact that it cannot be treated in the same way as the previous cases of espionage since it is surrounded by the different factual circumstances (Elsea 4). Another significant issue is that the precedent of WikiLeaks questions the power of traditional journalism to articulate the needs of the society and to monitor the governments. If Julian Assange is considered an exemplary journalist, it would mean that the traditional media do not use their freedom of speech to the full potential and, therefore, cannot be regarded as the fourth estate of the state structure.
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Thus, the objective of this paper is to describe the clear and present danger test, bad tendency test and preferred freedoms test in order to analyze the factual circumstances surrounding the cases concerning free speech and First Amendment. The objective is also to compare and contrast the similarities and differences between the case of WikiLeaks and the previous cases.
Preferred freedoms test
The development of the matter of freedom of speech began in 1990’s. Prior to that time, the questions and issues of the freedom of speech and its potential consequences were never so urgent in the society. However, the political and economic contexts of the beginning of the twentieth century raised some issues concerning the First Amendment. First of all, the population of the U.S. started to become more diverse not only in origins but also in different views. As a result, there were many movements both advocating some political or societal views and those who wanted to ban and prosecute any radical assemblies and initiatives. Therefore, the Congress had to introduce the reasons and laws that would justify the abridgment of freedoms in some particular cases. In order to do that, the first test that was introduced was the preferred freedoms test.
Clear and present danger test
For a long time after the freedom of speech and the freedom of the press guaranteed by the First Amendment could not be, in any way, abridged by the Congress. However, the historical circumstances forced the U.S. Supreme Court to introduce some means of testing whether the freedom of speech does not have any harmful effects in some particular cases. The issue was prompted in the early twentieth century when the Supreme Court started to hear the cases, in which the freedom of speech and disclosure of information could have some dangerous consequences. Especially, the situation became dramatic during the course of World War I. The clear and present danger test was first implemented in the relation to the case of Schenck v. United States in 1919. The main subject of the case was draft resistance that appeared among the anti-war activists. The most important issue was whether the freedom of speech, in this particular case, was creating the clear and present danger and bringing harm to other people and state. If the danger was considered present and clear, as in the situation when the nation is at war, then the Congress has a legitimate right to hinder it. Thus, the peace and safety of the majority are prior to the freedom of speech of the individual, and the obstruction to enlistment potentially creates a threat for the national safety (Schenck v. United States 249).
Other cases, such as Abrams v. United States (1919), lead to the introduction of the Espionage Act. The case concerned the distribution of the leaflets with the propagandist material. When the nation is at war or when those materials contain the misinformation and propaganda of violence, the freedom of speech can also be abridged since it represents the clear and present danger (Abrams v. United States 631).
The clear and present danger test developed substantially during the case of Dennis v. United States in 1950 when the modification of the balancing test was introduced. In arbitrary, it refers to finding the balance for each particular case between the right of free speech and the present and clear danger of the utterances (Dennis v. United States 506). While the opposition to the government is under the definition of free speech, the conspiracy to overthrow the government or the teaching, training and encouraging other individuals to engage in violent actions represents a clear danger. However, since the danger, in that case, was more potential rather than present, the balancing test was used to estimate that the potential harm of the freedom of speech overwhelms the value of right guaranteed by the First Amendment. In other words, due to this new development, it became possible to comprise the multiple factors to the test, including the potential dangers (Dennis v. United States 525).
Bad tendency test
The case of Dennis v. United States is also a subject to the bad tendency test. The main principle of the bad tendency test in the American law is that the freedom of speech can be governmentally abridged in the situation when such a speech shows a clear intention to provoke or initiate the harmful and illegal actions.
Despite the fact that the bad tendency test was supposedly replaced by the clear and present danger test, it was for a while used for representing a more precise form of the present danger, which the intention to cause illegal activity. However, it was utterly proved to cause some illegal rulings after the case of Brandenburg v. Ohio in 1969. In that case, the Supreme Court decided that only the speech that intermediately provokes and inciting the illegal activity can be considered unlawful, whereas speeches that are regarded as solely inflammatory are less likely to bear clear and present danger. Thus, the newly introduced test of the imminent lawless action came into use instead of the bad tendency test.
Similarities and differences between previous cases and the Assange case
Although at the moment, Julian Assange is not under the sealed in the U.S., he may be facing some legal proceedings if he enters the U.S. soil (U.S. Judiciary Committee 107). It is a common opinion among the law experts that getting the founder of the WikiLeaks to American soil for the court hearings would actually be the most problematic issue for the prosecutors.
The similarities of the Assange case with the cases that put the boundaries of the right of freedom of speech to the test begin with the factor of inciting speech. The founder of the WikiLeaks more than once uttered his desire to harm the United States, which would put him in a very disadvantaged position in front of the judge and the jury (Dedman par. 5). The question whether to consider the speeches of Assange inciting would be crucial since he cannot bear responsibility for the leaks themselves. The indictment against him is based on him releasing the classified documents and diplomatic messages (Elsea 3). It could have lead to the charges under the Espionage Act because the sensible information was released, and if any force with the violent or threatening intentions used that information, it would represent a clear and present danger (Dedman par. 11).
The main aspect that implicates the differences between the previous cases and the case of Julian Assange is, of course, the modern context, in which the latter unfolded. The potential damage of releasing the sensible information about the American troops, security documents, and diplomatic correspondence is much bigger in the era of Internet and War on Terror.
Not only the terrorists can use the information for planning and conducting their operations but also the structure of the WikiLeaks itself has some dangerous potential for the propaganda. Since any user of the website can provide the information, and it would not be the subject for any editorial review, it is impossible to verify the validity of it. Therefore, there is a significant chance of using the platform of the WikiLeaks for the purposes of disinformation and propaganda. Neither accuracy nor sensibility of the information is not monitored, which, on one hand, of course, helps to preserve the anonymity of the people of providing it, but on the other hand, it endangers the lives of people, mentioned in the documents, if their names are disclosed. This factor makes WikiLeaks’ disclosures especially dangerous for the U.S. military personnel located overseas (U.S. Judiciary Committee 4).
Julian Assange positions himself as a journalist, which is one of the reasons he potentially can be charged under the Espionage Act because it does not impose prosecution on media and reporters (U.S. Judiciary Committee 39). However, the status of the WikiLeaks as a news organization is doubtful. The counterargument is that the agenda of any news organization is to provide the analysis and context to the news and documents that they publish. WikiLeaks, however, intentionally retains any judgment, leaving it for the readers to form their own opinions. The problem is that in the context of the Internet blogging, the definitions of journalism and news became vaguer.
In some ways, the activity of WikiLeaks has some dangers to the traditional journalism. The latter presupposes some level of verifying the information, as well as an editorial review to leave out of the publication the parts of information that are personal, sensible, or can cause damage to public or individuals.
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Thus, despite the fact that WikiLeaks has some advantage over the traditional news organizations in the level of disclosure and no need to censor or verify the information, it does not follow the same agenda about the safety of the society and individuals in it.
In conclusion, there are a few major factual circumstances that differ the Assange case with the cases that put the boundaries of the right of freedom of speech to the test. They are the worldwide access to the information through the Internet, the level of potential harm because of the War on Terror, and the structural organization of WikiLeaks that may enhance disinformation and propaganda and reveal sensible information. the WikiLeaks may be considered a new medium for information, but it is not the fourth estate in terms of values and rules, and, therefore, Julian Assange is not a journalist in the traditional sense.
Abrams v. United States, 250 U.S. 616. United States Supreme Court. 1919. Web.
Dedman, Bill. “U.S. V. Wikileaks: Espionage And The First Amendment”. NBC News. 2011. Web.
Dennis v. United States, 341 U.S. 494. United States Supreme Court. 1951. Web.
Elsea, Jennifer. Criminal Prohibitions on the Publication of Classified Defense Information. Washington, DC: Congressional Research Service, 2013. Print.
Schenck v. United States, 249 U.S. 47. United States Supreme Court. 1919. Web.
U.S. Judiciary Committee. Espionage Act and the Legal and Constitutional Issues Raised By Wikileaks. Washington, DC: U.S. Government Printing Office, 2011. Print.