Harvard law professor Yochai Benkler says that WikiLeaks clearly qualifies as a media entity, and argues that by pursuing Bradley Manning for aiding the enemy, the government is putting journalism at risk as well as whistle-blowing.


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.”

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

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  1. well, I do not think that there is any big issue in it. They should not be guilty for this act !

  2. This isnt a story I have followed very closly but people seem to be forgetting that Manning gave up many of his rights when he signed up for the army as every military member does. Second, he is being tried in a military court that works under a different set of rules and laws.

    1. The author of this post is talking primarily about the New York Times and other media outlets. Your comment doesn’t deal with that.

    2. Why aren’t those responsible for the massacres he revealed being subject to military court as well. Is it truly a punishable offense to reveal such barbaric acts, but not to commit them. Is that our notion of a fair nation?

      1. Like I said, I don’t follow this story very close but I am unaware of any “massacres” that were revealed by the information that was given to wiki Leaks by Manning.

    3. You bring up a couple other issues: Demoting of civil standing (giving up rights) while serving the country, and the military having its own rules and laws. Sounds like the military is clearly not part of us and doesn’t have anyone’s interests in mind but theirs. Cancerous.

      1. The military holds themselves and those in it to a high standard. They also require many of their member to do things most people are not allowed to do. They are also always in the spot light for the world to see, representing our country. This requires them to be able to hold all of their members to that high standard and accountable at all times. I’m not saying it works all the time, but it is the idea. It is also why it is such a big deal when members do not follow these standards.

  3. ..except the New York Times wasn’t employed by the US government, nor trusted to keep the sensitive information manning was entrusted with away from unauthorized personnel. So yeah, I think Wikileaks gets a free pass. Bradley Manning not so much.

  4. It’s dim to equate Manning’s prosecution to Wiki Leaks’ likely non-prosecution. Indeed Wiki Leaks and the NY Times are protected by the first amendment, but a soldier or diplomat who swore to protect state secrets and interests does not enjoy first amendment protection if he chooses to steal and indiscriminately release hundreds of thousands of classified diplomatic and military cables and documents. Manning should and will be prosecuted for violating his oath and US law.

    Manning and Wiki Leaks fail in my estimation to meet the definition of whistle-blower and journalist respectively because there is no coherent message, no discrimination, no commentary in their acts. They released a massive trove designed to injure the interests of the US, including many things no sane person would suggest helps any legitimate interest. Wiki Leaks will skate by the benefit of first amendment protections because it’s impossible to LEGALLY discriminate their shoddy document dump of a web site from a real journalist like the Times, but Manning has no legal refuge for his traitorous act.

  5. Well, uh, hate to intrude into the left-wing cause célèbre thought-bubble with logic, but … did the journalists at the New York Times all volunteer to join the U.S. Army? Did they all raise their hands and swear allegiance to the U.S. government? Did they all swear not to disclose information classified by the U.S. government, based upon classifications made entirely in the U.S. government’s sole discretion? And, speaking of “disclosure,” perhaps Mr. Yochai Benkler can disclose his position about whether members of Shin Bet or Mossad should be imprisoned for releasing classified Israeli documents — I bet dollars to donuts that he sees that “different.”

  6. Reprinting stolen documents isn’t journalism. It’s pathetic. To call this man a whistle blower is ridiculous he took information that he swore to protect and released it because he felt like it and in doing so risked the lives of countless people. He’s nothing but a coward.

  7. Maybe this logic spares WikiLeaks, but if we are comfortable sending former CIA officers to jail for their leaks to the media – I am fine with this – Manning should go down too.

  8. This matter show more than any before, that the US doesn’t really believe in a free press. If Manning was guilty he would have been tried in a civilian court, instead he is being tried by the military master that run the US.

    1. Active duty soldiers are always tried in a military court for a violation of UCMJ. Your statement is utterly incorrect, in addition to being illogical.

    2. confused/bemused Guest Monday, March 4, 2013

      He’s being tried in a military court because it was a military offense dingbat. By your “logic?” all those who are tried in military courts are by definition not guilty. I guess that makes Assan not guilty of mass murder as well. Otherwise he would be tried in a civilian court. Correct? Does that also mean that if one is tried in a civilian court that they are by definition guilty?

  9. Here is a thought: Why not try and have the case thrown out because there is, simply, no ‘enemy’ to aid? The argument is this: the crime of aiding an enemy requires the US be at war and have an enemy that is identifiable on that basis. No declaration of war has been made, ergo, one cannot aid an enemy as the US currently has none.

    1. That might work in a civilian court but as another commenter pointed out, Manning is being tried in a military court that works under a different set of rules and laws.

  10. Darren McKinney Monday, March 4, 2013

    Mr. Ingram and Prof. Benkler set up a strawman here in order to confuse the issue and thereby promote their well left-of-center views on free speech. For the government has not and is not likley to file charges against WikiLeads. So whether one views WikiLeaks and the New York Times as comparable is wholly irrelevant.

    A ne’er-do-well little loser who couldn’t find steady employment elsewhere voluntarily turned to the U.S. Army, pledging loyalty in return for promised benefits. For him then to turn around and sell out to an anti-American anarchist and alleged sexual pradator the Army, other armed service members, diplomats and undercover allies on the ground in Iraq and Afghanistan is treasonous behavior that warrants the death penalty. To argue otherwise or conflate this immutable truth with esoteric discussions about the extent to which “journalists” should be held accountable for irresponsible discisions is an academic exercise all too representative of the “scholarship” emanating these days from the Ivy League law schools’ ivory towers.

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