Skip to main content

Toobin: First Amendment may not protect WikiLeaks

By Ashley Fantz, CNN
Click to play
Many questions in case against Assange
  • Toobin: Federal prosecutors could pursue criminal charges against WikiLeaks director
  • Julian Assange could be held criminally liable for leaks on
  • U.S. soldier Bradley Manning is suspected of leaking intel to the Web site
  • Toobin says he is "certain there will be further charges against others, especially Assange'

(CNN) -- Since this summer, WikiLeaks has published huge tranches of classified U.S. intelligence. The online organization's actions have ignited fierce debate over whether the First Amendment's free speech rights will keep its members and its founder, Julian Assange, safe from prosecution.

Jeffrey Toobin Video, CNN's senior legal analyst, says federal prosecutors could pursue criminal charges against Assange, an Australian citizen. Lawyers for the U.S. government could argue WikiLeaks and Assange have jeopardized national security and make their case. Further, Interpol has recently named the 39-year-old Assange in a most-wanted persons alert. That alert is related to a sex crimes investigation of Assange in Sweden, not to the WikiLeaks affair.

Assange's whereabouts, at the time this story was published, is unknown.

Bradley Manning, a 23-year-old Army Pfc., is suspected in the leaks. He has been charged with eight counts of violating U.S. criminal code, and is being held in Quantico, the Marine Corps. prison in Virginia.

White House responds to WikiLeaks latest
WikiLeaks scandal in Russia

David Coombs, an attorney for Manning, told CNN in September Video that "there's nothing that I have seen that indicates that there is any evidence tying [Manning] to any of these leaks."

Here are Toobin's answers to some questions about the WikiLeaks affair:

Q: What is the likelihood the Department of Justice can pursue legal action against WikiLeaks, both in civil and/or criminal court? How?

A: There already is a criminal case against Manning, and I am certain there will be further charges against others, especially Assange. I would not be at all surprised if there was a sealed arrest warrant currently in existence against him. The question is whether the American authorities can find him and bring him back to the United States for trial. I think civil charges are less likely, given the peculiar nature of WikiLeaks as a corporation and Web site. There probably is not much to sue.


Q: If WikiLeaks can be defined as a disseminator of information -- or a medium through which information is shared -- isn't it afforded the same constitutional protections as the New York Times, CNN and other news organizations?

A: WikiLeaks has the same First Amendment rights as any company or group of individuals. But the First Amendment is not a license to break the law -- for WikiLeaks, the New York Times or anyone else.


Q: Could the Department of Justice pursue Assange separately from WikiLeaks, the organization? How?

A: The U.S. government will almost certainly pursue Assange separately from WikiLeaks. Prosecutions of corporations are rare; they usually involve attempts to recover heavy fines. Since there is not much money at stake in WikiLeaks -- it's not a very big company -- the only real issue is the criminal complicity of the people involved in it. That will be the major focus of the criminal investigation.

Q: Do the government's options against pursuing Assange personally or WikiLeaks as an organization change if the U.S. can demonstrate that Assange or WikiLeaks provided help in downloading intel?

A: Espionage and unauthorized distribution of classified information are crimes. I can't speculate about the many ways those crimes can be committed. There is a lot we don't know about how WikiLeaks obtained and distributed these documents.

Q. How does Assange's foreign national status affect a civil or criminal case that might be brought against him?

A: Assange's lawyers have been saying for some time that he has been willing to cooperate with the Swedish authorities, so there is no reason to force him back to Sweden. I have no idea if that is actually true.

Part of complete coverage on
What next for Julian Assange?
What next for WikiLeaks editor and founder Julian Assange, now that he's been released on bail in the UK?
Assange condemns investigations
Julian Assange says the sexual misconduct charges against him are little more than an effort to discredit him and his organization.
Assange released on bail
WikiLeaks editor walks out of London court after being freed on bail nine days after being arrested for questioning about alleged sex crimes in Sweden.
Assange's apparent online dating life
In 2006, Julian Assange was apparently looking for a date. After launching WikiLeaks, he evidently created a profile on
Assange finds celebrity support
A court in London found itself in the world's spotlight, as a small army of celebrities turned up to offer support -- and bail money -- to Julian Assange.
WikiLeaks rival set to launch
The founders of say they are former WikiLeaks members unhappy with the way the organization is being run under Julian Assange. attack planned
Hackers who support WikiLeaks want others to replicate the attacks they say took down the websites of MasterCard and Visa.
Expert: 'Poison pill' can't be stopped
Does Julian Assange's threat to release "Doomsday Files" from Wikileaks carry validity?