Brian Stief August 10, 2011 Brandeis on WikiLeaks: An argument for truth “Knowledge is essential for understanding and understanding

should precede judging.” - Justice Louis D. Brandeis Introduction Freedom of speech is vital to democracy in the United States, but opinions abound regarding the contours of its protection. WikiLeaks, and similar outlets for illegally obtained documents, will force lawmakers and courts to determine whether such organizations fall under the First Amendment’s protection. Justice Louis Brandeis’s opinions from the early 20th century form the basis for our present-day understanding of the First Amendment.1 It is therefore appropriate to begin the analysis of this issue with Brandeis’s conception of free speech and its purpose.2 Much of his thought on free speech came in the form of dissenting and concurring opinions.3 However, the eventual
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Neil M. Richards, The Puzzle of Brandeis, Privacy, and Speech, 63 Vand. L. Rev. 1295, 1297 (2010)(discussing Brandeis as a central figure in the genesis of First Amendment law). 2 This Article will not encompass the issue of jurisdiction presented by WikiLeaks as an international organization with no operations in the United States. For further analysis of this issue, see generally Doug Meier, Changing with the Times: How the Government Must Adapt to Prevent the Publication of its Secrets, 28 Rev. Litig. 203 (2008). 3 See Whitney v. California, 274 U.S. 357, 372 (1927) (Brandeis, J., concurring); Milwaukee Pub. Co. v. Burleson, 255 U.S. 407, 417 (1921) (Brandeis, J., dissenting); Gilbert v. Minnesota 254 U.S. 325, 334 (1920) (Brandeis, J., dissenting); Pierce v. United States, 252 U.S. 239, 253 (1920) (Brandeis, J., dissenting); Schaefer v. United States, 251 U.S. 466, 482 (1920) (Brandeis, J., dissenting).

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acceptance of Justice Brandeis’s arguments, most notably in New York Times v. Sullivan,4 makes understanding them essential to First Amendment analysis.5 In attempts to do so, scholars have generally come to understand Brandeis’s free speech philosophy in terms of several motifs.6 Self-government and civic responsibility represent the two broadest of these motifs and underpin Brandeis’s iteration of First Amendment theory. On self-government, Brandeis believed passionately that citizens should make policy through their elected representatives and that unhindered speech is an essential requirement of that end.7 Civic responsibility and the character of citizens, Brandeis argued, are reflected in government and in the idea that a vibrant democracy is unattainable without a free people with the strength to take chances.8 The Justice declared, “It is not sufficient that
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New York Times v. Sullivan, 376 U.S. 254 (1964). In Sullivan, the court strengthened the freedom of the press protections granted under the First Amendment. Id. Justice Brennan, delivering the opinion of the court, quoted a large portion of Justice Brandeis’s Whitney concurrence, stating that it provided the “classical formulation” of the free speech principle. Id. at 270. 5 Richards, supra note 1, at 1328 (citing Justice Brennan’s use of Brandeis’s counterspeech argument from Whitney). 6 For examples of analysis on Brandeis’s free speech theory, see generally ALPHEUS THOMAS MASON, BRANDEIS: A FREE MAN’S LIFE (1946); MELVIN I. UROFSKY, LOUIS D. BRANDEIS: A LIFE (2009); THE WORDS OF JUSTICE BRANDEIS (Solomon Goldman ed., Henry Schuman 1953); Vincent Blasi, The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California, 29 Wm. & Mary L. Rev. 653 (1988); Henry J. Friendly, Mr. Justice Brandeis: The Quest for Reason, 108 U. Pa. L. Rev. 985 (1960); David M. Rabban, The Emergence of Modern First Amendment Doctrine, 50 U. Chi. L. Rev. 1205 (1983); Phillippa Strum, Brandeis The Public Activist and Freedom of Speech, 45 Brandeis L. J. 659 (2007). 7 See Urofsky, supra n. 5, at 566 (noting that even when Brandeis disagreed with policy, he desired implantation based on citizens asserting their beliefs through their represnetatives). 8 Id. at 308-9.

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men vote, it is essential that they vote right,”9 meaning that one must actively conduct research and contemplate issues in order to ground their support before reaching a decision.10 This logic would become the central theme for his public philosophy along with his valuation of the First Amendment.11 The search for real political truth and the facts necessary for such a search provide the third and fourth motifs on which to consider a Brandeisian interpretation of the First Amendment. Political truth is absolute and “revealed to men in an unbroken, continuous, and consistent flow by the great prophets and poets of all times,” Brandeis once declared to Harvard professor Manley Hudson.12 The belief in a real, non-theoretical political truth distinguished Brandeis from his contemporary and fellow Supreme Court Justice, Oliver Wendell Holmes, who believed such truth unattainable and merely supported the exercise of an open marketplace of ideas.13 The disagreement is notable, for both Brandeis and Holmes emerged as champions of free expression during their era with Brandeis ultimately crafting the basis of modern First Amendment jurisprudence.14 In pursuit of political
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Id. at 400-01. Id. at 401. 11 Id. 12 Id. at 568 (stating Brandeis’s passionate response to Hudson’s claim that “moral principles were no more than generalizations from the mores or accepted notions of a particular time or place”). 13 Id. at 556-7. Holmes adopted the argument that truth is identifiable with power and that the best test of truth is its power to be accepted among other ideas in the marketplace. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 14 Urofsky, supra n. 5, at 545; For examples of Justice Holmes conception of free speech theory, see generally Steven J. Heyman, The Dark Side of the Force: The
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truth, “above all, Brandeis cherished facts.”15 The Justice refuted the idea that truth could be found through discipleship to any leader or speculation on metaphysics. Instead, he believed the search for truth required the “relentless, disinterested and critical study of facts,” in the words of Henry J. Friendly.16 Such a commitment to factual information can indeed be seen in Brandeis’s own writing, typified by his famous, fact-intensive brief presented to the Supreme Court in the case of Muller v. Oregon,17 now referred to as the “Brandeis Brief.”18 The need for “emergency” as a prerequisite for the suppression of speech and the protection of advocacy that falls short of incitement round out the final two points of Brandeis’s First Amendment philosophy. Expanding on Justice Holmes’s “clear and present danger” test,19 Brandeis argued, “only emergency can justify suppression.”20 The danger could not be theoretical or remote or only possible, but had to be imminent.21 Further, Brandeis incorporated Judge Learned Hand’s requirement of direct incitement from Masses Publishing Co. v. Patten.22 This required speech to consist of more than the mere
Legacy of Justice Holmes for First Amendment Jurisprudence, 19 Wm. & Mary Bill Rts. J. 661 (2011); David S. Bogen, The Free Speech Metamorphosis of Mr. Justice Holmes, 11 Hofstra L. Rev. 979 (1982); Irene M. Ten Cate, Speech, Truth, and Freedom: An Examination of John Stewart Mill’s and Justice Oliver Wendell Holmes’s Free Speech Defenses, 22 Yale J. L. & Human. 35 (2010). 15 Urofsky, supra n. 5, at 566. 16 Friendly, supra n. 5, at 999. 17 208 U.S. 412 (1908). 18 Brandeis, Brief for Defendant In Error, Muller v. Oregon, 208 U.S. 412 (1908), (http://www.law.louisville.edu/library/collections/brandeis/node/235) 19 Schenck v. United States, 249 U.S. 47, 52 (1919). 20 Whitney, 274 U.S. at 377 (Brandeis, J., concurring). 21 See Urofsky, supra note 5, at 559. 22 244 F. 535, 541 (1917).

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discussion of violence, but instead a call for a specific, immediate act.23 WikiLeaks presents the issue of whether an organization dedicated to the dissemination of illegally obtained information is protected under the First Amendment.24 It is my contention that the application of Brandeis’s First Amendment jurisprudence dictates that protection be accorded to WikiLeaks based on the premise that the dissemination of all available information, regardless of the source, is necessary, lest the broader goals of the First Amendment as articulated in the Justice’s writings not be reached. I intend to argue that each of the previously mentioned grounds of Brandeis’s free speech philosophy supports the implicit mission of WikiLeaks and similar organizations based on the essential role information plays in the underlying purpose of free speech. In Part I of this Article, I provide an overview of WikiLeaks, including a brief history of the organization and its major disclosures. The next three parts consist of the theoretical motifs of Justice Brandeis’s First Amendment theory. In Part II, I explain Brandeis’s conception of selfgovernment and how it plays an essential role in a successful democracy. In Part III, I explore the Justice’s thoughts on what it means to be a citizen in a democracy and how character and courage play an essential role in social progress. In Part IV, I complete the
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Whitney, 274 U.S. at 376 (Brandeis, J., concurring). David Batty, WikiLeaks war logs posting 'will lead to free speech ruling,' THE GUARDIAN (August 27, 2010), (http://www.guardian.co.uk/media/2010/aug/27/wikileaks-warlogs-free-speech-supreme-court).

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theoretical background of Brandeis’s free speech beliefs with a discussion on political truth as an ascertainable goal, not merely an abstract concept. Finally, in Parts V, VI, and VII, I explain each part of the test laid out by Brandeis in Whitney v. California25 and how they should be applied to WikiLeaks. I. The History of WikiLeaks The domain name “WikiLeaks.org” was registered on October 4, 2006.26 In December of the same year the site was launched it released its first document, a “secret decision” by a Somali rebel leader to hire “criminals” to assassinate government officials.27 Although the authenticity of the document was never verified, its publication was accompanied by commentary inquiring into whether it was a “bold manifesto” or a “clever smear.”28 In its own words, “WikiLeaks was founded by Chinese dissidents, journalists, mathematicians and startup company technologists, from the US, Taiwan, Europe, Australia and South Africa.”29 In its infancy, an explanation of the site’s philosophy appeared in its “About” page. 30 The page detailed the belief that public scrutiny reduces corruption
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274 U.S. 357 (Brandeis, J., concurring). WHOIS search results for: WIKILEAKS.ORG, GODADDY.COM, http://who.godaddy.com/whois.aspx?domain=wikileaks.org&prog_id=GoDaddy (last visited April 23, 2011). 27 Raffi Khatchadourian, No Secrets, THE NEW YORKER (June 7, 2010), http://www.newyorker.com/reporting/2010/06/07/100607fa_fact_khatchadourian? printable=true. 28 Id. 29 WikiLeaks: About, WIKILEAKS.COM, http://web.archive.org/web/20080314204422/http://www.WikiLeaks.org/wiki/WikiLeak s:About (Last visited March 22, 2011) 30 Id.

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and strengthens democracies and that scrutiny requires information.31 Therefore, the purpose of the service was to minimize the danger to those who expose such information through “technological advances – the internet, and cryptography.”32 The “Pentagon Papers” discussion has been credited with spurring WikiLeaks founder, spokesperson and editor-in-chief, Julian Assange, into creating the site.33 Growing from a handful of people at its inception, current estimates of the WikiLeaks workforce include five full-time employees, 800 occasional contributors and a “spectrum” in between.34 Living from donations, the site does not pay any of its employees and receives minimal aid from outside sources.35 The majority of the funds at its disposal are used to purchase hosting services.36 In addition to monetary challenges, the site faced operational problems as a result of being targeted by numerous countries’ security

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Id. Id. 33 Massimo Calabresi, WikiLeaks’ War on Secrecy: Truth’s Consequences, TIME (December 2, 2010), http://www.time.com/time/world/article/0,8599,20342763,00.html (discussing Julian Assange’s past and jsutifications for creating WikiLeaks). 34 Stefan Mey, Leak-o-nomy: The Economy of Wikileaks (Interview with Julian Assange), MEDIEN-ÖKONOMIE-BLOG (January 1, 2010), http://stefanmey.com/2010/01/04/leak-o-nomy-the-economy-of-WikiLeaks/ (explaining the logistics of WikiLeaks, including the status of its workforce and the makeup of its hierarchy). 35 Id. In an interview in January of 2010, Assange explained that the sites “steadfast supporters,” mostly news organizations, provide legal aid and not funding. Id. Assange speculated that this aid is a result of WikiLeaks making those media outlets’ jobs easier and the possibility that any sanction of the site could provide a steppingstone to their own outlet. Id. 36 Assange estimated that the site costs about $200,000 to run per year with the cost rising to $600,000 if employees were compensated properly. Id.

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agencies.37 Coupled with organizational infighting,38 these attacks on WikiLeaks’ ability to stay online have produced intermittent outages. Where the verification process used by WikiLeaks is concerned, the site claimed to “assess” documents before releasing them.39 According to Assange, this included vetting by a group of individuals with varying professional expertise who examine the background of the leaker if it is known.40 Assange maintained that the final word on release lies with him.41 The “Frequently Asked Questions” section of the site explains that “[t]he simplest and most effective countermeasure is a worldwide community of informed users and editors who can scrutinize and discuss leaked documents.”42 This stance has led to accusations by the United States government that the site and its near-unfiltered releases have placed countless lives in
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See, i.g., Elinor Mills, Researcher detained at U.S. border, questioned about WikiLeaks, CNET (July, 28 2010), http://news.cnet.com/8301-27080_3-20012253245.html (detainment and interrogation of a researcher who spoke on behalf of Julian Assange in New York); Doug Gross, WikiLeaks cut off from Amazon servers, CNN (December 1, 2010), http://edition.cnn.com/2010/US/12/01/WikiLeaks.amazon/index.html?eref=edition (cutting off hosting services by amazon dot com). 38 In September of 2010, the organization’s German spokesman, Daniel DomscheitBerg, was suspended by Assange and subsequently left WikiLeaks after publically criticizing Assange. Theunis Bates, WikiLeaks' Woes Grow as Spokesman Quits Site, AOLNEWS (September 28, 2010), http://www.aolnews.com/2010/09/28/WikiLeakswoes-grow-as-spokesman-quits-site/ (citing unrest in the ranks of WikiLeaks and the resignation of one of the organizations representatives). 39 Michael Trapido, WikiLeaks: Is Julian Assange a hero, villain or simply dangerously naïve?, NEWSTIME (December 1, 2010), http://www.newstime.co.za/WorldNews/WikiLeaks_:_Is_Julian_Assange_a_hero_villain_ or_simply_dangerously_na%C3%AFve/16065/ (exploring the process through which WikiLeaks verifies information it receives and raising the argument that misinformation is already ubiquitous in the mainstream media). 40 David Kushner, Inside the WikiLeaks’ Leak Factory, MOTHER JONES (April 6, 2010), http://motherjones.com/politics/2010/04/wikileaks-julian-assange-iraq-video?page=3 (describing the verifications of Wikileaks). 41 Id. 42 WikiLeaks FAQ, wikileaks.org/faq.

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danger.43 As of early 2011, WikiLeaks has maintained its battle against censorship through legal means and threats, including a warning that the organization will release information they call a “thermonuclear device” should it need to defend itself.44 I. Self-government Self-government theory views the freedom of speech not as an individual right, but instead as a collective right upon which government sovereignty rests.45 It is from this perspective that Brandeis argued that freedom of speech is vital to the progress of any dynamic, thriving society.46 To him, the inability to discuss and debate new ideas crippled the necessary ability to adapt.47 Out of these thoughts, Brandeis developed his concurrence in Whitney, which may represent the “quintessential” opinion based on self-government theory.48 Portions of the opinion highlight the importance of open dialogue in a democratic society: [Those who won our independence] recognized the risks to which all human institutions are
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The Justice Department weighs a criminal case against WikiLeaks, THE WASHINGTON POST, (August 18, 2010),http://www.washingtonpost.com/wpdyn/content/article/2010/08/17/AR2010081705225.html. 44 Wikileaks’ Julian Assange to Fight Swedish Allegations, BBC NEWS (December 5, 2010), http://www.bbc.co.uk/news/world-europe-11921080 45 Vincent Blasi, Learned Hand and the Self-Government Theory of the First Amendment: Masses Publishing Co. v. Patten, 61 U. of Col. L. Rev. 1, 13 (1990). 46 Id. at 25. 47 Id. at 13. 48 Id. at 25 (noting the resemblance between Judge Hand’s opinion in Masses and Justice Brandeis’s dissent in Whitney).

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subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsel is good ones.49 Vincent Blasi argued that this should be read as Brandeis reaffirming the concept of self-government.50 That interpretation is consistent with Brandeis’s dissent in Pierce v. U.S. where he defended the right to distribute controversial material on the grounds that it is a method through which “free men . . . strive for better conditions through new legislation and new institutions . . .”51 Brandeis further expounded that individuals have a duty to speak out on matters of importance and “to endeavor to make his own opinion concerning laws existing or contemplated prevail, and to this end, to teach the truth as he sees it . . . for [the] exercise [of free speech] is more important to the nation

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Whitney, 274 U.S. at 375 (Brandeis, J. concurring). Blasi, supra n. 5, at 672. 51 Pierce, 254 U.S. at 273 (Brandeis, J., dissenting). In further support of his view, Justice Brandeis quoted the entirety of “The Price We Pay” by Irwin St. John Tucker, one of the controversial texts within the pamphlets. Id.

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than to himself.”52 It is on these grounds that the first defense of WikiLeaks rests. The documents released by WikiLeaks often contain information regarding extremely controversial issues or raise new ones of which the public was unaware.53 “[F]rank expression of conflicting opinion” is most important on these issues in order to pursue “wisdom in government action.”54 If the underlying self-government principle of the First Amendment is to be fully realized, the quality of these “frank” discussions should be paramount to the ability of citizens to form their own opinions. A discussion regarding the detainment of “enemy combatants” at Guantanamo Bay, Cuba, would be less fruitful if those participating were not aware of the operating procedures used there.55 A debate on the Iraq war would be near pointless without the most accurate description available of the conditions there.56 Justice Brandeis noted that “knowledge is essential for understanding and understanding should precede judging.” The stifling of the information disseminated by WikiLeaks limits the knowledge of citizens, crippling their ability to

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See Urofsky, supra note 5, at 562-3 quoting Gilbert, 254 U.S. at 337-8 (Brandeis, J., dissenting). 53 Supra, Part I, 8-9. 54 Gilbert, 254 U.S. 338. 55 See Ryan Singel, Sensitive Guantanamo Bay Manual Leaked through Wiki Site, WIRED MAGAZINE (Nov. 14, 2007), http://www.wired.com/politics/onlinerights/news/2007/11/gitmo. 56 See Nick Davies, Jonathan Steele & David Leigh, Iraq War Logs: Secret Files Show How US Ignored Torture, THE GUARDIAN (Oct. 22, 2010), http://www.guardian.co.uk/world/2010/oct/22/iraq-war-logs-military-leaks.

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self-govern. The limitation of the First Amendment cannot lie where it would allow materially important information about societal issues to be silenced. II. Civic character and courage In the words of Brandeis’s good friend, political scientist Harold Laski, “[d]emocracy is not merely a form of government, it is also a way of life.”57 This proposition underlies the third motif of Justice Brandeis’s First Amendment theory: civic character and courage. Generally, Brandeis believed citizens of a democracy should develop certain essential traits.58 The Justice did not provide an exhaustive list of these traits, but Blasi offered a few in his own explanation of character, including: inquisitiveness, independence of judgment, distrust of authority, willingness to take initiative, and perseverance.59 These likely illustrate the type of traits Brandeis felt a citizen needed in order to self-govern adequately.60 One quality he felt vital enough to mention specifically, however, was courage.61 To Brandeis, courage is the demanding virtue by means of which happiness is attained.62 Even

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William Swindler, Constitutional Retrospect: The First Series of Cutler Lectures Revisited, 23 Wm. & Mary L. Rev. 1, 6-7 (1981) (quoting Laski, The Prospects of Democratic Government, 33 Wm. & Mary Bull. No. 4 at 4 (1939)). 58 Vincent Blasi, Free Speech and Good Character, 46 UCLA L. Rev. 1567, 1569 (1999) (attributing the argument of certain character traits as essential to a successful selfgoverning society to John Milton, John Stuart Mill, Oliver Wendell Holmes, and Brandeis). 59 Id. at 1571. 60 Whitney, 274 U.S. at 375. 61 Id. at 375, 377. 62 Blasi, supra n. 5, at 673.

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on a personal level, courage was a lasting theme in Brandeis’s life.63 In his Whitney dissent, Brandeis explained that “[t]hose who won our independence believed that the final end of the state was to make men free to develop their faculties.”64 His belief in this type of development was universal, extending to dissenters and the majority alike.65 It has been argued that the reason for this all-encompassing commitment to personal development, even by adversaries, is based on the belief that traits are contagious.66 In the words of Blasi, “[i]f the marginal, powerless members of the community retain some semblance of spirit, the mainstream is more likely to sustain its own vitality . . . and when dissidents become gripped by fear and hate, so too does the majority.”67 Furthermore, Brandeis wrote in Whitney that “the greatest menace to freedom is an inert people. The Justice often said that the highest office a person could aspire to in a democracy was that of citizen.68 This belief was supported by the idea that the virtues of a citizen, in Brandeis’s view, allow for instrumental contributions, to be made to the collective well
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See PHILIPPA STRUM, BRANDEIS: BEYOND PROGRESSIVISM (University Press of Kansas 1995) (discussing the perseverance of Brandeis when his eyes gave out while he attended law school). 64 Whitney, 275 U.S. at 375. 65 Id. 66 Blasi, supra n. 5, at 676. 67 Id. Blasi goes on the explain that “noxious doctrine is most likely to flourish when its opponents lack the personal qualities of wisdom, creativity, and confidence. And those qualities . . . are best developed by discussion and education, not by lazy and impatient reliance on the coercive authority of the state.” Id. at 674-5. Blasi’s explanation on this point is valuable because it speaks directly to how Brandeis would suggest combating “dissenters,” such as those who utilize the services of WikiLeaks. 68 Urofsky, supra n. 5, at 238-9.

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being of the democracy.69 Under this conception of democracy, the government is a reflection of the character of its citizens.70 It may have been for that reason that the Justice cared so deeply about courage.71 Brandeis wrote in Whitney of “courageous, self-reliant men with confidence in the power of free and fearless reasoning.”72 His reverence for courage is ubiquitous in his First Amendment opinions,73 no doubt because he found it essential to deal with the political change that can accompany self-government.74 In Brandeis’s mind, civic courage is the ability to experience or anticipate change without losing perspective or confidence.75 With an eye to applying Brandeis’s arguments on civic character and courage to the WikiLeaks case, Urofsky’s explanation of the Justice’s theory is useful: Democracy, [Brandeis] taught, is not easy, and for it to work, for it to continue to support a climate of freedom, individuals have to do the hard labor of learning, of debating, and of making informed decisions. That lesson, as he well understood, has to be taught anew in each
69 70 71 72 73 74 75

Blasi, supra n. 5, at 1569. Urofsky, supra n. 5, at 308-9. Blasi, supra n. 5, at 679. Whitney, 274 U.S. at 377. See supra n. 2. Whitney, 274 U.S. at 377. Blasi, supra n. 5, at 690.

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generation.76 Perhaps the WikiLeaks controversy represents a chance for the current generation to learn the lesson to which Urofsky refers. If Brandeis’s conception of the First Amendment is to be given its due, individuals must develop the character and courage necessary to have an honest discussion, taking account, then, of all facts. The suppression of the information disseminated by WikiLeaks would represent a clear expression of political fear. The facts contained in diplomatic cables or military manuals cannot all cause immediate, real harm to the United States. They can, however, have a serious impact on national discussions. The stifling of that impact would be an act of cowardice and would set a dangerous precedent of favoring order over liberty both of which Brandeis warned of in Whitney.77

III. Political truth Brandeis believed that free speech was the vehicle for finding real political truth.78 This is in contrast to his fellow Justice, Holmes,
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Urofsky, supra n. 5, at 641. Whitney, 274 U.S. at 377. 78 PHILIPPA STRUM, LOUIS D. BRANDEIS: JUSTICE FOR THE PEOPLE, 329 (Harvard University Press 1984)(“Brandeis understood the power of ideas; indeed it was precisely because ideas could bring about change that they were so important to a democratic

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who did not believe human beings capable of ascertaining truth, let alone using it appropriately.79 Brandeis, like friend and Harvard professor Zechariah Chafee, believed that actual truth was within the reach of man and, further, that it could lead to the implementation of appropriate policies.80 Evidence of this underlying belief can be found in Chafee’s influential book, Freedom of Speech,81 which is suspected of heavily influencing Justice Brandeis’s opinions regarding speech:82 “In the first place, the First Amendment is very much more than ‘an expression of political faith.’ It was demanded by several states as a condition of their ratification of the Federal Constitution, and is as definitely a prohibition upon Congress as any other article in the Bill of Rights. The policy behind it is the attainment and spread of truth, not merely as an abstraction, but as the basis of political and
society”). 79 Strum, supra n. 5, at 690. For more examination of the divergence of belief in political truth between Holmes and Brandeis, see generally Murray Dry, The First Amendment Freedoms, Civil Peace and the Quest for Truth, 15 Const. Comment. 325 (1998); David Cole, Agon to Agora: Creative Misreadings in the First Amendment Tradition, 95 Yale L. J. 875 (1986); Steven Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression, 78 B.U. L. Rev. 1275 (1998). 80 ZECHARIAH CHAFEE, FREEDOM OF SPEECH, 156 (1920). 81 Id. 82 Strum, supra n. 5, at 690. Brandeis read at least part of [Freedom of Speech] in page proofs, and David Rabban attributes some of the ideas in Brandeis’s Gilbert opinion to a letter from Chafee that accompanied the proofs. Brandeis sent a copy of the opinion to Frankfurter with a request: “Tell me frankly whether you or Chaffee [sic] see any flaw in the reasoning in the dissent.” . . . It is clear that Chafee was much admired by Brandeis. Id. (citation omitted).

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social progress. ‘Freedom of speech and of the press’ is to be unabridged because it is the only means of testing out the truth.”83 The recognition of this political truth motif is vital to Brandeis’s conception of the First Amendment. It speaks directly to the value of speech in a democratic society and, therefore, it is instructive for determining what speech should and should not be protected. Holmes’s view that the First Amendment is just “an expression of political faith” is a dangerous one to those who believe, as Brandeis did, that free speech is the essential mode of political and social progress. If the importance of free speech is not understood, the chance of setting its boundaries too narrowly increases because it may be undervalued.84 When considering the WikiLeaks controversy, the implications of the organization’s activities on the search for political truth are clear. If free speech does eventually lead to actual truth, as well as development of policies based on that truth, then access to all available information on a given subject is crucial. The suppression of any information that may contribute to the finding of truth hinders the
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Id. at 156. Justice Holmes’s concurrence in Gilbert provides an illustration of curtailment of free speech resulting from an evaluation falling short of that of Brandeis. Gilbert, 254 U.S. 334 (Holmes, J., concurring). In a note to Justice Brandeis, Holmes argued that Brandeis had gone too far with his dissent in the case. See Note from Holmes to Brandeis (Louis D. Brandeis Papers, Box 5, Folder 13 Harvard Law School Library), cited by Rabban, supra n. 5, at 1319. As a result, Holmes supported the majority in Gilbert that found constitutional a statute that made it unlawful to discourage the enlistment of men in the military or naval forces of the United States. Gilbert, 254 U.S. 326.

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process in which Brandeis placed so much faith. Under this motif, the protection of WikiLeaks’ operations is based upon their ability to aid the search for the “political truth” Brandeis argued would lead to progress.

IV. Facts Judge Henry J. Friendly, in an address about the Justice given in Louisville, outlined Brandeis’s “profound belief in the need for facts.”85 The necessity of facts is the fourth motif of Brandeis’s conception of free speech. Indeed, on several occasions the Justice attempted to share his appreciation for facts with Justice Holmes,86 who despised them.87 Such encouragement to place high value on facts was based on Brandeis’s belief that understanding is a prerequisite for judgment and that knowledge was essential to achieve understanding.88 Brandeis lent action to this belief multiple times throughout his legal career. Before his appointment to the Supreme Court, Brandeis filed a legal brief with Josephine Goldmark in the case of Muller v.

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Henry J. Friendly, 108 U. Pa. L. Rev. 985, 998 (1960). Further making his point, Judge Friendly went on to say, “Judge Hand has spoken of the apocalyptic quality of Brandeis. So it is appropriate if, for my summation, I go to the great words in the Gospel according to John: ‘the truth shall make you free.’” Id. 86 DAVID LAURENCE FAIGMAN, LABORATORY OF JUSTICE: THE SUPREME COURT’S 200-YEAR STRUGGLE TO INTEGRATE SCIENCE AND LAW, 101 (Macmillan 2004). Justice Holmes wrote to his friend Frederick Pollack: “Brandeis the other day drove a harpoon into my midriff with reference to my summer occupations. He said, ‘you talk about improving your mind, you only exercise it on the subjects with which you are familiar. Why don’t you try something new, study some domain of facts.’” Id. 87 Urofsky, supra n. 5, at 566. 88 Id. at 557.

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Oregon.89 At the time, the “Brandeis Brief” represented the most extensive legal arguments grounded in scientific research ever levied.90 Even today, the brief retains its status as a premier example of the power of facts in legal arguments.91 Brandeis continued his activism on behalf of factual analysis during his time on the Court. Multiple times in his opinions the Justice quoted in complete form the objectionable speech found to be outside First Amendment protections.92 Brandeis wrote to Frankfurter: “I made up my mind I would put it all out and let the future know what we weren’t allowed to say in the days of the war and following.”93 These actions make clear his conviction in the importance of facts. The effect of the facts motif on the WikiLeaks issue is straightforward. Finding the WikiLeaks disclosures to be unprotected under the First Amendment would completely undercut Brandeis’s belief in the vitality of facts. The Justice’s value of facts as a fundamental component of decision-making is most evident in the examination of his legal scholarship. However, it is not a far leap to assume that Brandeis would find facts just as essential to citizens making decisions as they were to him on the bench. To Brandeis, the
89 90

Brandeis, supra n. 17. Clyde Spillenger, Revenge of the Triple Negative: A Note on the Brandeis Brief in Muller v. Oregon, 22 Const. Com. 5, 5 (2005). 91 Id. at 6. 92 See Pierce, 252 U.S. at 256-64 (Brandeis, J., concurring) (quoting “The Price We Pay” by Irwin St. John Tucker); Shaefer, 251 U.S. at 484-93 (Brandeis, J., concurring) (quoting a reprint from a Berlin paper in Tageblatt). 93 Urofsky, supra n. 5, at 557.

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First Amendment provided assurance that facts would reach those who needed them. The suppression of WikiLeaks would undercut this conviction.

V. Emergency In Schenck v. United States,94 Justice Holmes, writing for a unanimous court, established the “clear and present danger” test for regulating speech.95 At the time of it was written, the test considered a law to be consistent with the First Amendment if it prohibited speech that posed a clear and present danger to the United States.96 Later that same year in Abrams v. United States,97 Holmes, in a dissent from the court joined by Brandeis, expanded the clear and present danger test to provided more forceful protection of free speech.98 In Abrams, Holmes described free speech as essential to the free trade of ideas and therefore only if the speech “imminently threatened immediate interference with the lawful and pressing purposes of the law” could its
94 95 96

97 98

249 U.S. 47 (1919). Id. at 52. Holmes described the inquiry thusly: 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 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. Id. 250 U.S. 616 (1919). Id. at 624 (Holmes, J., dissenting).

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suppression be justified.99 It is from this line of thought that Brandeis’s conception of emergency, the fifth motif of his First Amendment theory, emerges. In Whitney, Justice Brandeis wrote of emergency: Fear of serious injury cannot alone justify suppression of speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that evil to be prevented is a serious one.100 Brandeis evoked the memory of witch trials to illustrate his point that fear can lead to irrational action. Because of this possibility, he argued that any decision on controversial speech must be tempered with “calmness” and “good judgment.”101 Brandeis then expanded the clear and present danger test

99

Id. at 630 (Holmes, J., dissenting). Whitney, 274 U.S. at 376. 101 Schaefer, 251 U.S. at 482-83.
100

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beyond the point to which it had been developed by Holmes. Brandeis explained that “even imminent danger cannot justify resort to prohibition” of free speech.102 To Brandeis, such suppression is a measure so strict and serious that it should only be reserved for the gravest emergencies.103 Additionally, Brandeis recognized the possibility that any suppression based on fear could unjustifiably curtail freedom.104 He therefore argued that individuals should always have the opportunity to challenge a law abridging free speech by showing that no emergency existed to justify it.105 This proposition provides the beginning for the defense of the WikiLeaks disclosures based on the emergency motif of Brandeis’s First Amendment theory. It 1964, New York Times v. United States made clear that the federal government must go to great lengths in order to provide adequate proof of emergency to justify the suppression of speech.106 In his concurrence, Justice Brennan wrote that “only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order.”107 Under such a high level of scrutiny,
102 103 104 105 106 107

Whitney, 274 U.S. at 377. Id. Id. Id. New York Times v. United States, 403 U.S. 713 (1971). Id. at 726-7 (Brennan, J., concurring).

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how could the suppression of the WikiLeaks disclosures be justified? The federal government has yet to provide proof that any release by WikiLeaks has imperiled lives.108 Furthermore, seeking to place a blanket suppression upon the WikiLeaks organization would serve to suppress hundreds of thousands of documents worth of information. Is it possible that the dissemination of any of those documents would result in the type of emergency contemplated by Justice Brandeis? It is highly unlikely given the volume of information. Therefore, unless the government can provide proof of a grave and imminent danger created by WikiLeaks actions, the suppression of the organization would be inconsistent with the emergency motif of Justice Brandeis’s First Amendment theory. VI. Advocacy vs. Incitement The difference between advocacy and incitement is the final motif rounding out Justice Brandeis’s First Amendment

108

See, e.g., Katie Connolly, Has Release of WikiLeaks Documents Cost Lives?, BBC NEWS (December 1, 2010), http://www.bbc.co.uk/news/world-us-canada-11882092 (“After this latest release a Pentagon official, who wished to remain anonymous due to the sensitive nature of the material involved, told the McClatchy newspaper group that even three months later the US military still had no evidence that people had died or been harmed because of information gleaned from Wikileaks documents”); Ellen Nakashima, Pentagon: Undisclosed Wikileaks Documents ‘potentially more explosive,’ THE WASHINGTON POST (August 11, 2010), http://voices.washingtonpost.com/checkpointwashington/2010/08/pentagon_undisclosed_wikileak.html (“We have yet to see any harm come to anyone in Afghanistan that we can directly tie to exposure in the WikiLeaks documents”); Mark Hosenball, US Officials Privately Say WikiLeaks Damage Limited, REUTERS (January 18, 2011), http://www.reuters.com/article/2011/01/18/wikileaks-damageidUSN1816319120110118 (“Internal U.S. government reviews have determined that a mass leak of diplomatic cables caused only limited damage to U.S. interests abroad, despite the Obama administration's public statements to the contrary”).

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jurisprudence.109 Borrowing from Judge Learned Hand’s 1917 district court opinion in Masses v. Patten,110 Brandeis argued that speech which merely discussed violence but fell short of a call for specific action could not be silenced pursuant to the First Amendment.111 It is at this point that the Justice makes the distinction between advocacy and incitement. In Whitney, Brandeis used the example of trespassing to illustrate the difference he sees between the two types of speech: [A] state might, in the exercise of its police power, make any trespass upon the land of another a crime, regardless of the result or of the intent or purpose of the trespasser. It might, also, punish an attempt, a conspiracy, or an incitement to commit the trespass. But it is hardly conceivable that this court would hold constitutional a statute which punished as a felony the mere voluntary assembly with a society formed to teach that pedestrians had the moral right to cross unenclosed, unposted, waste lands and to advocate their doing so,
109

Urofsky, supra n. 5, at 559 (commenting on Brandeis’s use of Judge Hand’s notion of direct incitement in his Whitney dissent). 110 Masses Publishing Co. v. Patten, 244 F. 541 (S.D.N.Y. 1917) (arguing that the key inquiry is whether, in taking its words to their utmost latitude, the challenged speech may be considered to advocate resistance to the draft). 111 Urofsky, supra n. 5, at 559 (citing Justice Brandeis’s use of the notion of direct incitement previously put form by Judge Hand).

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even if there was imminent danger that advocacy would lead to the trespass. The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression.112 With this example, Brandeis draws the distinction between speech that contemplates some action that may be illegal and speech that makes a direct call to commit the action.113 He admitted that any expression of thought that speaks ill of a particular law or policy makes it more likely that individuals will act in defiance.114 That fact, however, does not justify suppression when advocacy falls short of incitement.115 This issue of advocacy as opposed to incitement comes into play in the WikiLeaks controversy with the argument that allowing the organization to continue to operate will incite individuals to break laws
112 113 114 115

Whitney, 274 U.S. at 377-8. Id. Id. at 376. Id. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it further. But even advocacy of violation, however reprehensible morally, is not a justification for denying speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. Id.

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by leaking protected information.116 WikiLeaks actions, however, do not reach the level of incitement that would justify suppression under Brandeis’s conception of the First Amendment. In Gitlow v. New York,117 Brandeis joined Justice Holmes’s concurrence in arguing that every idea is an incitement and whether or not it is believed is dependent upon the strength of the idea.118 Underlying the objectives of the WikiLeaks organization is the expectation that more transparent government will lead to eradication of corruption and will thus allow democracy to gain strength.119 Nowhere on the organization’s website does it call for specific individuals to leak specific information.120 Without such solicitations, this type of advocacy does not raise to the level of incitement that may be curtailed under Brandeis’s conception of the First Amendment. Conclusion
116

“We are extraordinarily disappointed that [WikiLeaks is] making the same mistake twice — that they are leaking classified information — in fact that they induce people to break the law to leak classified information and then share that information with the world, including our enemies." Cheryl Pellerin, Press Secretary Calls WikiLeaks Release Shameful, ARMED FORCES PRESS SERVICE (Oct. 22, 2010), http://www.defense.gov//News/NewsArticle.aspx?ID=61395. See also Josh Gerstein, U.S. Officials Talk Tough Against Assange – But is it Bluster?, POLITICO (Dec. 2, 2010), http://www.politico.com/blogs/joshgerstein/1210/US_officials_talk_tough_against_Assa ngebut_is_it_bluster.html; Julian E. Barnes & Evan Perez, Assange Probe Hits Snag, WALL STREET JOURNAL (Feb. 9, 2011), http://online.wsj.com/article/SB10001424052748703313304576132543747598766.ht ml?mod=rss_whats_news_us. 117 268 U.S. 652 (1925). 118 Id. at 673 (Holmes, J., dissenting). 119 Supra Part I. 120 WIKILEAKS (April 23, 2011), http://www.wikileaks.org. Additionally, Julian Assange has denied encouraging espionage or soliciting illegally obtained information from specific individuals. Julian Assange Says He Didn’t Encourage Leak of Secrets, BOSTON HAROLD (January 29, 2011), http://news.bostonherald.com/news/us_politics/view/20110129julian_assange_says_h e_didnt_encourage_leak_of_secrets/.

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In this Article, I have argued that an interpretation of the First Amendment consistent with Brandeis’s theories on free speech must lead to the protection of WikiLeaks. I have offered an explanation for why facts are at the heart of the First Amendment and the United States democracy in general. In doing so, I laid out the major motifs of Brandeis’s thoughts on free speech and applied them as accurately as possible to the WikiLeaks organization. The theoretical underpinnings of his arguments and practical rules found in his opinions provide an ample basis for a constitutional defense of organizations that disseminate illegally obtained information. Developing and honoring Justice Brandeis’s thoughts on free speech provides notable advantages. Using such analysis allows for arguments to be made independent from emotions that embroil an issue as controversial as the one grappled with here. Additionally, the heavy reliance of recent Courts on Brandeis’s Whitney concurrence assures us that the application of his beliefs holds merit.121 The limitations of this approach should be recognized as well. The advent of the internet and other forms of communication have made the ability to keep sensitive documents private evermore difficult. Dissemination of information can occur so rapidly that it is

121

See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2730 (citing Whitney v. California, 274 U.S. 357, 375 (1927)(Brandeis, J., concurring)); Morse v. Frederick, 551 U.S. 393, 438 (2007)(Stevens, J., dissenting)(citing Whitney v. California, 274 U.S. 357, 376 (1927)(Brandeis, J., concurring)); Virginia v. Black, 538 U.S. 343, 358 (2003)(citing Whitney v. California, 274 U.S. 357, 374 (1927)(Brandeis, J., concurring)).

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nearly impossible to quell it once it has begun. Whether or not these factors would change Brandeis’s calculus on the issue is unascertainable. Even with these limitations, however, I hope that the argument presents a new lens through which to view the controversy surrounding WikiLeaks. It is logical to return to the foundations of First Amendment jurisprudence before coming to a conclusion about a novel issue that implicates free speech. In the end, freedom of speech “is the matrix, the indispensible condition, of nearly every other form of freedom.”122

122

Palko v. Connecticut, 302 U.S. 319, 327, (1937).

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