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ACLU LENS: WikiLeaks Hearing: ACLU Says First Amendment Protects Third Party Publishers

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December 17, 2010

Yesterday, the House Judiciary Committee held a hearing to consider the constitutional issues surrounding the proposed prosecution of WikiLeaks for its publication of government documents and a proposal to expand the Espionage Act. The ACLU submitted written testimony to the committee warning of First Amendment concerns that would surround any efforts to prosecute a third-party publisher of classified information, and warned that broadening the Espionage Act would exacerbate the First Amendment deficiencies already in the current law.

Our testimony states:

“If the Espionage Act were to be applied to publishers, it would have the unconstitutional effect of infringing on the constitutionally protected speech rights of all Americans, and it would have a particularly negative effect on investigative journalism — a necessary and fundamental part of our democracy.

“In the current environment, it would be all too easy for inflamed public passions to serve as the basis for arguments to justify broadening even further the proscriptions of the law. Instead, Congress should stand clear-eyed and firm against arguments based on passion, not reason — and narrow the Espionage Act to those who leak properly classified information.

“[W]e urge Congress to resist the urge to broaden the Espionage Act’s already overbroad proscriptions and, instead, to narrow the Act’s focus to those responsible for leaking properly classified information to the detriment of our national security.”

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