Julian Assange and Information Rights: Part 2

As I stated in the previous post, Julian Assange is clinging to free speech rights and access to information rights to defend his release of government documents. He’s being held criminally for releasing such information and violating presumed security rights of the state.

All speech is free speech except for that which is justifiably constrained. The nature of this constraint and meaning of “justifiably constrained” is what we will explore here for the moment. We begin with the entering assumption that freedom of expression is a basic human right and if we are going to error than we will error on the side of free expression. So, we take the most well-known example of yelling “fire” in a crowded theater when there is no fire, people rush to the exits and hundreds are trampled to death, and then “free speech” is your defense of what you did. You do not of course have the right to freedom of expression when it endangers so many people. You obviously cannot be responsible for the deaths of hundreds of moviegoers and stroll away comfortably on the basis of freedom of speech.

Moreover, the most specific constraint on freedom of expression is “imminence.” This means that you cannot cause imminent or immediate danger as a result of your expressive behavior. So the Nazis and skinheads have a right to express their political opinions (noxious as they might be) but they do not have the right to express those opinions while marching through a Jewish neighborhood creating imminent danger and clearly provoking violence. One of the legal arguments against Assange is that he retrieved government documents that had been classified and were not available to the public. But it is easy to “classify” something. And even though we cannot have individuals making their own decisions about what justifies being classified and what does not, the principle of available access to information and free expression does require justification if your rights are going to be constrained. Last February on this blog I wrote about bloggers and new media with respect to their contribution to the Arab Spring. I retrieved from Wikileaks a copy of a briefing (reference ID 09CAIRO544) about bloggers broadening their discourse. The briefing from 2009 warned that Egypt’s bloggers were playing an increasingly important role in broadening the scope of the acceptable political communication. Bloggers’ discussion of sensitive issues such as the military and politics represented a significant change from the previous five years and had influenced society.

As recently as 2009 the cable noted that a more open atmosphere had been created. Bloggers were influencing independent media to break important news and cover previously ignored or forbidden topics. One personal rights activist in Egypt stated that the youth were able to express their views about social and political issues in ways they never could before. Free speech tends to produce free speech, and the accumulation of effects from blogs in Egypt is apparent.

This post about blogs was an effort to explain how more information was circulating in Egypt and that was at least partially responsible for political uprising demanding even more freedoms. Was the release of a cable that reported on the general state of bloggers in Egypt a security matter? Surely such a cable does not rise to the level of significance of military secrets or something that can directly affect the safety of the state. In fact, if a government is tracking bloggers and writing reports about blogging in an effort to thwart access to certain information then this should be known to the public. It does not threaten the security of the state.

It does hold, and is imperative, that if citizens of a state are going to monitor the conduct of their government and engage fully democratically then they have to have access to state information – at least certain types of state information. Moreover, government should not be allowed to impose limitations on the citizenry under the pretext of national security and their rights to “classify” information.

The burden, if you will, must be not on access to information but on the government’s decisions to constrain that access by classifying information; that is, freedom of information and symbolic expression is the default political condition and the burden of proof that communicative rights must be limited is on the state. Below are a few more specific principles:

  1. As much as possible any restrictions on freedom of information must be prescribed by law beforehand. Restriction conditions should be drawn as precisely as possible.
  2. There must be opportunities for independent courts to judge the quality of safeguards for freedom of information.
  3. To restrict freedom of expression or information there must be a compelling explanation for the protection of national security. Some examples are in cases of war or military threat, internal sources of discord, or incitement to overthrow the government. This explanation must not only be compelling but able to show specific harm.

I’m not defending Julian Assange per se. His methods are of course illegal and of all the thousands of documents he gained access to and released there are probably more than a few that could have been classified as genuine security threats. But it becomes a little easy to accept government restrictions on freedom of information rather than honor the rights of a democratic society. A good way to keep the proper balance between democratic rights and security is to remember the principles below:

  1. People have the right to information about public officials in the workings of the state. Limitations on those rights must be clearly and strongly justified. A security justification designed to deny information must be unequivocal with respect to protecting national security interests.
  2. The public’s right to know is the most foundational assumption.
  3. There should be a clear system in place which provides independent review and credible oversight of situations where information rights are limited.
  4. If a person discloses information that is not harmful and is found not to pass the test of legitimate constraints, then that person should not be criminally charged.
  5. It should be possible for the public’s right to know to outweigh the importance of disclosed information.
  6. Confidential sources should be protected.
  7. New technology should make information as available as possible and open to scrutiny by the public.

Assange is not the newest hero for freedom of information. He not only has a grandiose ego and sees himself as the great liberator of information, but Assange goes at the problem with a machete rather than a scalpel. He captured access to thousands of documents with no concern for the nuances of their importance. Still, he has infused new energy into a tired but important democratic principle.

About Donald Ellis

Professor emeritus at the University of Hartford.

Posted on September 6, 2012, in Democracy and tagged , , , . Bookmark the permalink. Comments Off on Julian Assange and Information Rights: Part 2.

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