brandeis on wikileaks--brian joseph stief

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Brian StiefAugust 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 Amendments protection. Justice Louis Brandeiss

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 Brandeiss 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 eventual1 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 FirstAmendment law).2

This Article will not encompass the issue of jurisdiction presented by WikiLeaks asan international organization with no operations in the United States. For furtheranalysis of this issue, see generallyDoug Meier, Changing with the Times: How theGovernment Must Adapt to Prevent the Publication of its Secrets, 28 Rev. Litig. 203(2008).3See 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. UnitedStates, 251 U.S. 466, 482 (1920) (Brandeis, J., dissenting).

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acceptance of Justice Brandeiss 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 Brandeiss free speech philosophy in terms of

several motifs.6

Self-government and civic responsibility represent the two

broadest of these motifs and underpin Brandeiss 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

4 New York Times v. Sullivan, 376 U.S. 254 (1964). In Sullivan, the courtstrengthened the freedom of the press protections granted under the FirstAmendment. Id. Justice Brennan, delivering the opinion of the court, quoted a largeportion of Justice Brandeiss Whitneyconcurrence, stating that it provided theclassical formulation of the free speech principle. Id. at 270.5 Richards, supra note 1, at 1328 (citing Justice Brennans use of Brandeiss counter-speech argument from Whitney).6 For examples of analysis on Brandeiss free speech theory, see generallyALPHEUSTHOMAS MASON, BRANDEIS: A FREE MANS LIFE (1946); MELVIN I. UROFSKY, LOUIS D. BRANDEIS: A LIFE(2009); THE WORDSOF JUSTICE BRANDEIS (Solomon Goldman ed., Henry Schuman 1953);Vincent Blasi, The First Amendment and the Ideal of Civic Courage: The BrandeisOpinion 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, 45Brandeis L. J. 659 (2007).7See Urofsky, supra n. 5, at 566 (noting that even when Brandeis disagreed withpolicy, he desired implantation based on citizens asserting their beliefs through theirrepresnetatives).8Id. 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 political9Id. at 400-01.10Id. at 401.11Id.12Id. at 568 (stating Brandeiss passionate response to Hudsons claim that moralprinciples were no more than generalizations from the mores or accepted notions ofa particular time or place).13Id. at 556-7. Holmes adopted the argument that truth is identifiable with powerand that the best test of truth is its power to be accepted among other ideas in themarketplace. 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 freespeech theory, see generallySteven 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 Brandeiss own writing, typified by

his famous, fact-intensive brief presented to the Supreme Court in the

case ofMuller 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 Brandeiss First Amendment

philosophy. Expanding on Justice Holmess 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 Hands

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: AnExamination of John Stewart Mills and Justice Oliver Wendell Holmess Free SpeechDefenses, 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).20Whitney, 274 U.S. at 377 (Brandeis, J., concurring).21See 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 Brandeiss 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 Justices writings not be reached. I intend to argue

that each of the previously mentioned grounds of Brandeiss 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 Brandeiss First

Amendment theory. In Part II, I explain Brandeiss conception of self-

government and how it plays an essential role in a successful

democracy. In Part III, I explore the Justices 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

23Whitney, 274 U.S. at 376 (Brandeis, J., concurring).24 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-war-logs-free-speech-supreme-court).

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theoretical background of Brandeiss 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 sites philosophy appeared in its About page.30

The page detailed the belief that public scrutiny reduces corruption25 274 U.S. 357 (Brandeis, J., concurring).26 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.28Id.29 WikiLeaks: About, WIKILEAKS.COM,http://web.archive.org/web/20080314204422/http://www.WikiLeaks.org/wiki/WikiLeaks:About (Last visited March 22, 2011)30Id.

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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

31Id.32Id.33 Massimo Calabresi, WikiLeaks War on Secrecy: Truths Consequences, TIME(December 2, 2010), http://www.time.com/time/world/article/0,8599,2034276-3,00.html (discussing Julian Assanges past and jsutifications for creating WikiLeaks).34 Stefan Mey, Leak-o-nomy: The Economy of Wikileaks(Interview with Julian Assange), MEDIEN-KONOMIE-BLOG (January 1, 2010), http://stefan-mey.com/2010/01/04/leak-o-nomy-the-economy-of-WikiLeaks/ (explaining thelogistics of WikiLeaks, including the status of its workforce and the makeup of itshierarchy).35Id. In an interview in January of 2010, Assange explained that the sites steadfastsupporters, mostly news organizations, provide legal aid and not funding. Id.Assange speculated that this aid is a result of WikiLeaks making those media outletsjobs easier and the possibility that any sanction of the site could provide a stepping-stone to their own outlet. Id.36 Assange estimated that the site costs about $200,000 to run per year with the costrising 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 in37See, i.g., Elinor Mills, Researcher detained at U.S. border, questioned aboutWikiLeaks, CNET (July, 28 2010), http://news.cnet.com/8301-27080_3-20012253-

245.html (detainment and interrogation of a researcher who spoke on behalf of JulianAssange 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 organizations German spokesman, Daniel Domscheit-Berg, was suspended by Assange and subsequently left WikiLeaks after publicallycriticizing Assange. Theunis Bates, WikiLeaks' Woes Grow as Spokesman Quits Site,AOLNEWS (September 28, 2010), http://www.aolnews.com/2010/09/28/WikiLeaks-woes-grow-as-spokesman-quits-site/ (citing unrest in the ranks of WikiLeaks and theresignation of one of the organizations representatives).39 Michael Trapido, WikiLeaks:Is Julian Assange a hero, villain or simply dangerouslynave?, 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 whichWikiLeaks verifies information it receives and raising the argument thatmisinformation 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

43 The Justice Department weighs a criminal case against WikiLeaks, THE WASHINGTONPOST, (August 18, 2010),http://www.washingtonpost.com/wp-

dyn/content/article/2010/08/17/AR2010081705225.html.44Wikileaks Julian Assange to Fight Swedish Allegations, BBC NEWS (December 5,2010), http://www.bbc.co.uk/news/world-europe-1192108045 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).46Id. at 25.47Id. at 13.48Id. at 25 (noting the resemblance between Judge Hands opinion in Masses andJustice Brandeiss 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

Brandeiss 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 . . .51Brandeis 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

49Whitney, 274 U.S. at 375 (Brandeis, J. concurring).50 Blasi, supra n. 5, at 672.51Pierce, 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

52See Urofsky, supra note 5, at 562-3 quoting Gilbert, 254 U.S. at 337-8 (Brandeis, J.,

dissenting).53 Supra, Part I, 8-9.54Gilbert, 254 U.S. 338.55See Ryan Singel, Sensitive Guantanamo Bay Manual Leaked through Wiki Site,WIREDMAGAZINE (Nov. 14, 2007),http://www.wired.com/politics/onlinerights/news/2007/11/gitmo.56See Nick Davies, Jonathan Steele & David Leigh, Iraq War Logs: Secret Files ShowHow 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 Brandeiss 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

Brandeiss 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

57 William Swindler, Constitutional Retrospect: The First Series of Cutler LecturesRevisited, 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 self-governing society to John Milton, John Stuart Mill, Oliver Wendell Holmes, andBrandeis).59Id. at 1571.60Whitney, 274 U.S. at 375.61Id. at 375, 377.62 Blasi, supra n. 5, at 673.

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on a personal level, courage was a lasting theme in Brandeiss life.63

In his Whitneydissent, 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 Whitneythat

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 Brandeiss view,

allow for instrumental contributions, to be made to the collective well

63See PHILIPPA STRUM, BRANDEIS: BEYOND PROGRESSIVISM (University Press of Kansas 1995)(discussing the perseverance of Brandeis when his eyes gave out while he attendedlaw school).64Whitney, 275 U.S. at 375.65Id.66 Blasi, supra n. 5, at 676.67Id. Blasi goes on the explain that noxious doctrine is most likely to flourish whenits opponents lack the personal qualities of wisdom, creativity, and confidence. Andthose qualities . . . are best developed by discussion and education, not by lazy andimpatient reliance on the coercive authority of the state. Id. at 674-5. Blasisexplanation on this point is valuable because it speaks directly to how Brandeiswould suggest combating dissenters, such as those who utilize the services ofWikiLeaks.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 Whitneyof 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 Brandeiss mind, civic

courage is the ability to experience or anticipate change without losing

perspective or confidence.75

With an eye to applying Brandeiss arguments on civic character

and courage to the WikiLeaks case, Urofskys explanation of the

Justices 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 each69 Blasi, supra n. 5, at 1569.70 Urofsky, supra n. 5, at 308-9.71 Blasi, supra n. 5, at 679.72Whitney, 274 U.S. at 377.73See supra n. 2.74Whitney, 274 U.S. at 377.75 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 Brandeiss

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,

76 Urofsky, supra n. 5, at 641.77Whitney, 274 U.S. at 377.78 PHILIPPA STRUM, LOUIS D. BRANDEIS: JUSTICEFORTHE PEOPLE, 329 (Harvard University Press1984)(Brandeis understood the power of ideas; indeed it was precisely becauseideas 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 Chafees influential book, Freedom of Speech,81 which is suspected

of heavily influencing Justice Brandeiss 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 inpolitical truth between Holmes and Brandeis, see generallyMurray 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 AmendmentTradition, 95 Yale L. J. 875 (1986); Steven Heyman, Righting the Balance: An Inquiryinto the Foundations and Limits of Freedom of Expression, 78 B.U. L. Rev. 1275(1998).80 ZECHARIAH CHAFEE, FREEDOMOF SPEECH, 156 (1920).81Id.82 Strum, supra n. 5, at 690.Brandeis read at least part of [Freedom of Speech] in page proofs, and David Rabbanattributes some of the ideas in Brandeiss Gilbert opinion to a letter from Chafee thataccompanied the proofs. Brandeis sent a copy of the opinion to Frankfurter with arequest: Tell me frankly whether you or Chaffee [sic] see any flaw in the reasoningin the dissent. . . . It is clear that Chafee was much admired by Brandeis. Id. (citationomitted).

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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 Brandeiss

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.

Holmess 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 organizations 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

83

Id. at 156.84 Justice Holmess concurrence in Gilbertprovides an illustration of curtailment offree speech resulting from an evaluation falling short of that of Brandeis. Gilbert, 254U.S. 334 (Holmes, J., concurring). In a note to Justice Brandeis, Holmes argued thatBrandeis had gone too far with his dissent in the case. See Note from Holmes toBrandeis (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 inGilbertthat found constitutional a statute that made it unlawful to discourage theenlistment of men in the military or naval forces of the United States. Gilbert, 254U.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 Brandeiss profound belief in the need for facts.85

The necessity of facts is the fourth motif of Brandeiss 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 Brandeiss 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 ofMuller v.

85 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 ofBrandeis. So it is appropriate if, for my summation, I go to the great words in theGospel according to John: the truth shall make you free. Id.86 DAVID LAURENCE FAIGMAN, LABORATORYOF JUSTICE: THE SUPREME COURTS 200-YEAR STRUGGLETOINTEGRATE SCIENCEAND LAW, 101 (Macmillan 2004). Justice Holmes wrote to his friendFrederick Pollack: Brandeis the other day drove a harpoon into my midriff withreference 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 dont you trysomething new, study some domain of facts. Id.87 Urofsky, supra n. 5, at 566.88Id. 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

werent 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 Brandeiss

belief in the vitality of facts. The Justices 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 Brandeis, supra n. 17.90 Clyde Spillenger, Revenge of the Triple Negative: A Note on the Brandeis Brief inMuller v. Oregon, 22 Const. Com. 5, 5 (2005).91Id. at 6.92See Pierce, 252 U.S. at 256-64 (Brandeis, J., concurring) (quoting The Price WePay 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 inAbrams 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 InAbrams,

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

94 249 U.S.47 (1919).95Id. at 52.96 Holmes described the inquiry thusly:

The question in every case is whether the words usedare used in such circumstances and are of such a natureas to create a clear and present danger that they willbring about the substantive evils that Congress has aright to prevent. It is a question of proximity and degree.When a nation is at war many things that might be saidin time of peace are such a hindrance to its effort thattheir utterance will not be endured so long as men fightand that no Court could regard them as protected by anyconstitutional right. Id.

97 250 U.S. 616 (1919).98Id. at 624 (Holmes, J., dissenting).

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suppression be justified.99 It is from this line of thought that Brandeiss

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

99Id. at 630 (Holmes, J., dissenting).100Whitney, 274 U.S. at 376.101Schaefer, 251 U.S. at 482-83.

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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 Brandeiss 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,

102Whitney, 274 U.S. at 377.103Id.104Id.105Id.106 New York Times v. United States, 403 U.S. 713 (1971).107Id. 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 Brandeiss First

Amendment theory.

VI. Advocacy vs. Incitement

The difference between advocacy and incitement is the final

motif rounding out Justice Brandeiss First Amendment

108See, e.g., Katie Connolly, Has Release of WikiLeaks Documents Cost Lives?, BBCNEWS (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 dueto the sensitive nature of the material involved, told the McClatchy newspapergroup that even three months later the US military still had no evidence that peoplehad died or been harmed because of information gleaned from Wikileaksdocuments); Ellen Nakashima, Pentagon: Undisclosed Wikileaks Documents

potentially more explosive, THE WASHINGTON POST (August 11, 2010),http://voices.washingtonpost.com/checkpoint-washington/2010/08/pentagon_undisclosed_wikileak.html (We have yet to see anyharm come to anyone in Afghanistan that we can directly tie to exposure in theWikiLeaks documents); Mark Hosenball, US Officials Privately Say WikiLeaksDamage Limited, REUTERS (January 18, 2011),http://www.reuters.com/article/2011/01/18/wikileaks-damage-idUSN1816319120110118 (Internal U.S. government reviews have determined thata mass leak of diplomatic cables caused only limited damage to U.S. interestsabroad, despite the Obama administration's public statements to the contrary).

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jurisprudence.109 Borrowing from Judge Learned Hands 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 Brandeiss use of Judge Hands notionof direct incitement in his Whitneydissent).110 Masses Publishing Co. v. Patten, 244 F. 541 (S.D.N.Y. 1917) (arguing that the keyinquiry is whether, in taking its words to their utmost latitude, the challenged speechmay be considered to advocate resistance to the draft).111 Urofsky, supra n. 5, at 559 (citing Justice Brandeiss use of the notion of directincitement 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

112Whitney, 274 U.S. at 377-8.113 Id.114Id. at 376.115 Id.

Every denunciation of existing law tends in somemeasure to increase the probability that there will beviolation of it. Condonation of breach enhances theprobability. Expressions of approval add to the

probability. Propagation of the criminal state of mind byteaching syndicalism increases it. Advocacy of law-breaking heightens it further. But even advocacy ofviolation, however reprehensible morally, is not ajustification for denying speech where the advocacy fallsshort of incitement and there is nothing to indicate thatthe advocacy would be immediately acted on. The widedifference between advocacy and incitement, betweenpreparation and attempt, between assembling andconspiracy, 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

Brandeiss conception of the First Amendment. In Gitlow v. New

York,117 Brandeis joined Justice Holmess 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 organizations 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 Brandeiss conception

of the First Amendment.

Conclusion

116 We are extraordinarily disappointed that [WikiLeaks is] making the same mistaketwice that they are leaking classified information in fact that they induce peopleto break the law to leak classified information and then share that information withthe world, including our enemies." Cheryl Pellerin, Press Secretary Calls WikiLeaksRelease 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_Assangebut_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.html?mod=rss_whats_news_us.117 268 U.S.652 (1925).118Id. at 673 (Holmes, J., dissenting).119Supra Part I.120 WIKILEAKS (April 23, 2011), http://www.wikileaks.org. Additionally, Julian Assangehas denied encouraging espionage or soliciting illegally obtained information fromspecific individuals. Julian Assange Says He Didnt Encourage Leak of Secrets, BOSTONHAROLD (January 29, 2011),http://news.bostonherald.com/news/us_politics/view/20110129julian_assange_says_he_didnt_encourage_leak_of_secrets/.

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In this Article, I have argued that an interpretation of the First

Amendment consistent with Brandeiss 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

Brandeiss 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 Brandeiss 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 Brandeiss Whitneyconcurrence

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

121See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2730 (citingWhitney 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, 538U.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 Brandeiss 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

122Palko v. Connecticut, 302 U.S. 319, 327, (1937).