If Bradley Manning and WikiLeaks are guilty, then so is the New York Times

While the trial of Bradley Manning has sparked some interest in certain circles, many people probably think the former U.S. Army private’s case will have little impact on either them or American society as a whole. Harvard law professor Yochai Benkler, however, argues that they are wrong — and that if Manning is found guilty of “aiding the enemy” for releasing classified documents to WikiLeaks, it could change the nature of both journalism and free speech forever.

Why? Because as Benkler points out, the charge for which Manning is being court-martialed could just as easily be applied to someone who leaks similar documents to virtually any media outlet, including the New York Times or the Washington Post. In other words, if the U.S. government has seen fit to go after Manning and WikiLeaks, what is to stop them from pursuing anyone who leaks documents, and any media entity that publishes them?

WikiLeaks is a media entity just like the Times

I’ve argued in the past that WikiLeaks is a media entity, and a fairly crucial one in this day and age, and Benkler clearly agrees. As the Harvard professor (who will likely be testifying at Manning’s trial) describes in his piece:

“Someone in Manning’s shoes in 2010 would have thought of WikiLeaks as a small, hard-hitting, new media journalism outfit — a journalistic ‘Little Engine that Could’ that, for purposes of press freedom, was no different from the New York Times.”

And we don’t have to hypothesize about whether the government would have gone after Manning for leaking documents directly to the New York Times instead of to WikiLeaks: as Benkler notes, the chief prosecutor in the case was asked that exact question by the judge in January and responded “Yes ma’am.” In other words, for the purposes of the government’s case against Manning, there is no appreciable difference between WikiLeaks and the Times, or any other traditional media outlet.

Benkler argues that the government’s behavior constitutes “a clear and present danger to journalism in the national security arena” — not just because it is trying to penalize a whistleblower, but because the state is arguing that Manning is guilty of “aiding the enemy,” a charge that could put him in prison for life. Benkler also notes that unlike the other charges against Manning, aiding the enemy is something even civilians can be found guilty of.

Isn’t the New York Times aiding the enemy too?

So if handing documents over to a media entity that subsequently publishes them qualifies as “aiding the enemy” in the eyes of the government, then giving them to the New York Times would fit that description just as well as giving them to WikiLeaks. And if providing classified documents to a publisher can qualify, then wouldn’t the entity that actually published them be guilty as well — regardless of whether it’s WikiLeaks or the Times?

The First Amendment would seem to protect the NYT in a case like this, and I’ve argued before that it should protect WikiLeaks as well — an argument that former Times‘ executive editor Bill Keller has said he agrees with. But the U.S. government continues to pursue WikiLeaks for its role in publicizing the documents that Manning leaked, and some U.S. legislators have mused aloud about whether espionage charges could be laid against other media entities like the New York Times as well.

Benkler’s warning shouldn’t be taken lightly: if Manning is guilty of aiding the enemy for simply leaking documents, then anyone who communicates with a newspaper could be guilty of something similar. And if the leaker is guilty, then the publisher could be as well — and that could cause a chilling effect on the media that would change the nature of public journalism forever.

/Images courtesy of Shutterstock / Nata-lia and Flickr user jphilipg