by Matthew L. Schafer
It may not be the end of the show yet, but it is definitely an intermission. On Monday, WikiLeaks founder Julian Assange formally announced that WikiLeaks would cease publishing in order to pursue fundraising. In a statement, WikiLeaks blamed the “unlawful financial blockade . . . imposed by Bank of America, VISA, MasterCard, PayPal and Western Union.”
The statement went on to argue that the banking blockade prevents the association of WikiLeaks supporters with WikiLeaks itself. It further alleged that the banks and credit card companies that have stopped processing payments to WikiLeaks are politically motivated.
Visa first announced that it would stop processing donations heading to WikiLeaks on December 8, 2010 after WikiLeaks began publishing United States diplomatic cables that proved embarrassing to several countries, including the United States.
Visa also commissioned an investigation of WikiLeaks. That independent investigation came to the conclusion that WikiLeaks was not, in fact, violating any laws. WikiLeaks cites this conclusion, among others, in its statement to argue that the banking blockade is not only illegal, but unfounded.
“In the US, our publishing is protected by the First Amendment, as has been repeatedly demonstrated by a wide variety of respected legal experts on the US Constitution,” WikiLeaks said. “In January 2011 the U.S. Secretary of the Treasury, Timothy C. Geithner, announced that there were no grounds to blacklist WikiLeaks. There are no judgements, or even charges, against WikiLeaks or its staff anywhere in the world.”
The backlash against WikiLeaks after it began publishing the United States diplomatic cables was, in sum and substance, extraordinary. At the time, Sen. Joseph Lieberman [I-CT] called for investigations into WikiLeaks, The New York Times, and other news organization that chose to publish information on the classified documents. Rep. Allen West [R-FL] even advocated for broad censorship of American news organizations.
Last year, in midst of the backlash, the House Judiciary Committee held a hearing examining the legality of WikiLeaks. The witnesses on hand for that hearing were largely against pursuing WikiLeaks.
“If WikiLeaks can be prosecuted for espionage for these leaks, there is no legal or logical reason why a similar prosecution could not lie against all of the mainstream news organizations that routinely receive and publish protected ‘national defense information,’” Kenneth Wainstein, a partner at O’Melveny & Myers LLP said at the time.
Despite government inaction, the private action against WikiLeaks in the form of the banking blockade has been nevertheless effective. Indeed, WikiLeaks, in Monday’s statement, suggested that the blockade has resulted in a loss of 95% of the organization’s funding.
“The blockade is outside of any accountable, public process,” WikiLeaks said. “It is without democratic oversight or transparency. The US government itself found that there were no lawful grounds to add WikiLeaks to a US financial blockade. But the blockade of WikiLeaks by politicized US finance companies continues regardless.”
Of course, private companies can do whatever they like within the bounds of the law. They are not violating the Constitution when they shun WikiLeaks, because banks and credit card companies are not the government and are not, then, constrained by the First Amendment.
If nothing else, however, the result in this case seems unsavory. It seems strange that private companies can so disable organizations, which have not been held legally liable otherwise, that those organizations can no longer operate. Whether individuals support WikiLeaks is not the issue here. Instead the issue is whether the public writ large condones–as a general proposition–private companies unilaterally punishing other organizations that they for whatever reason do not agree with.
“The newspapers, magazines, and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity,” Justice Sutherland said more than 75 years ago. “[A]nd since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgment of the publicity afforded by a free press cannot be regarded otherwise than with grave concern.”