Advancing a Free Society

Problems with the Espionage Act

Thursday, December 2, 2010

Amid the proliferating cries for prosecuting Julian Assange and shutting down Wikileaks–for which, I should note, I harbor no small sympathy–a few people have noted that the Espionage Act has, well, some problems as a legal instrument for the project. As Josh Gerstein’s story in the Politico notes, the First Amendment would have something–nobody is quite sure what–to say about a prosecution of something kind of like a media organization for the dissemination of something kind of like news. What’s more, the law is very old–World War I era–and very vague.

The law also has two additional problems that receive relatively little attention but which are important in contemplating its use. The first is that it contains no limiting principle in its apparent criminalization of secondary transmissions of proscribed material.

Continue reading Benjamin Wittes at Lawfare