Brickbat: No Honor

New York Fire Department Lt. Daniel McWilliams has sued the department, saying his rights were violated when he was removed from a position on the color guard because he is not black. Williams was supposed to serve in the color guard for a mass for deceased members of the Vulcan Society, an organization for black FDNY members. But he says the head of the Vulcan Society had him removed at the last minute, saying she wanted an all-black color guard. The lawsuit says the FDNY’s Equal Employment Opportunity Office found “sufficient credible and corroborating evidence” he was excluded from the color guard because of his race.

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Brickbat: No Honor

New York Fire Department Lt. Daniel McWilliams has sued the department, saying his rights were violated when he was removed from a position on the color guard because he is not black. Williams was supposed to serve in the color guard for a mass for deceased members of the Vulcan Society, an organization for black FDNY members. But he says the head of the Vulcan Society had him removed at the last minute, saying she wanted an all-black color guard. The lawsuit says the FDNY’s Equal Employment Opportunity Office found “sufficient credible and corroborating evidence” he was excluded from the color guard because of his race.

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Theory of Revised Julian Assange Indictment Could Apply to Ordinary Reporters

The revised indictment, just handed down today, contains three sets of charges.

1. Count 18, which was the one charge in the initial indictment, alleges that Assange tried to help then-Bradley Manning crack a computer password; had the crack succeeded, the leaker would have been harder to identify. I think this poses little by way of First Amendment problems: Journalists and other speakers don’t have the right to help others break into offices, safes, or computers, even when the break-in would help reveal important information. And as a practical matter, I suspect that very few reporters actively help their sources crack passwords (even just to hide the sources’ own tracks), just as very few reporters provide sources with lock picks or instructions on breaking into safes.

2. Most of the other counts focus on Assange’s urging Manning to illegally leak information. Manning did commit a crime by leaking the information in violation of the duty that Manning had voluntarily assumed when going to work handling confidential government data. The government’s theory is that Assange himself commited a crime by essentially soliciting Manning’s crime.

This is a plausible theory: Usually, soliciting a specific crime—urging a particular person to kill another particular person, or to steal certain kinds of material, or to illegally leak certain kinds of information—is itself criminal, and unprotected by the First Amendment. “Offers to engage in illegal transactions are categorically excluded from First Amendment protection,” and that applies to solicitation of such illegal transactions as well (U.S. v. Williams (2008)).

“To be sure, there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality”; abstract advocacy is much more constitutionally protected under the Brandenburg v. Ohio (1969) test, which is limited to intentional advocacy or likely and imminent lawless conduct. But specifically asking a specific person for specific documents is not protected by the First Amendment, and parts of the indictment suggest that this is what Assange was doing:

After confirming that ASSANGE thoughtthey had value, on March 8, 2010, Manning told ASSANGE that she was “throwing everything [she had] on JTF GTMO [Joint Task Force, Guantanamo] at [Assange] now.” ASSANGE responded, “ok, great!” When Manning brought up the “osc,” meaning the CIA Open Source Center, ASSANGE replied, “that’s something we want to mine entirely, btw,” which was consistent with WikiLeaks’s list of “Most Wanted Leaks,” described in paragraphs 4-5, that solicited “the complete CIA Open Source Center analytical database,” an unclassified (but nonpublic) database.

To be sure, some of the charged solicitations were aimed at the public as a whole, and not just at Manning, e.g.:

To further encourage the disclosure of protected information, including classified information, the WikiLeaks website posted a detailed list of “The Most Wanted Leaks of 2009,” organized by country, and stated that documents or materials nominated to the list must “[b]e likely to have political, diplomatic, ethical or historical impact on release… and be plausibly obtainable to a well-motivated insider or outsider.”

As of November 2009, WikiLeaks’s “Most Wanted Leaks” for the United States included the following:

a. “Bulk Databases,” including an encyclopedia used by the United States intelligence community, called “Intellipedia;” the unclassified, but non-public, CIA Open Source Center database; and

b. “Military and Intelligence” documents, including documents that the list described as classified up to the SECRET level, for example, “Iraq and Afghanistan Rules of Engagement 2007-2009 (SECRET);” operating and interrogation procedures at Guantanamo Bay, Cuba; documents relating to Guantanamo detainees; CIA detainee interrogation videos; and information about certain weapons systems.

But it seems to me that calls to leak specific documents, even aimed at the public at large, would still be covered by the solicitation exception, rather than being mere abstract advocacy—just as calls to kill particular people or bomb particular buildings would be punishable solicitation, even if general abstract advocacy of revolutionary violence isn’t.

This having been said, I suspect that many a reporter has urged a source to leak particular documents, whether they are national defense secrets, trade secrets, confidential documents that are covered under some private nondisclosure agreement, or something like that. Perhaps all of this is solicitation of crime, or at least tortious inducement of breach of contract or something like that (if the leak isn’t itself criminal but just civilly actionable). Perhaps reporters shouldn’t be allowed to urge such illegal behavior. But at least the theory in these counts, more than the one mentioned in item 1 above, might indeed affect a good deal of newspaper behavior.

3. But the most striking counts are counts 15-17, which allege, in relevant part:

From in or about July 2010 …, [Assange], having unauthorized possession of, access to, and control over documents relating to the national defense [such as leaked Afghanistan and Iraq war activity reports and State Department cables], willfully and unlawfully caused and attempted to cause such materials to be communicated, delivered, and transmitted to persons not entitled to receive them.

Nothing in this count turns on Assange’s having helped or solicited Manning’s leaks. Rather, it relies simply on Assange having published (in violation of 18 U.S.C. § 793(e)) material that he knew was improperly leaked and was related to the national defense within the meaning of the statute. To convict on these counts, a jury wouldn’t have to find any complicity by Assange in the initial leak.

And reporters do routinely publish information that they know was illegally leaked by someone. In Bartnicki v. Vopper (2001), the Court made clear that third parties are generally free to publish material that they know was illegally gathered (there, by an illegal interception of a cell phone call), at least so long as the publishers weren’t themselves involved in the illegal gathering (and so long as the speech is on matters of public concern). That would presumably apply to other kinds of improperly gathered or leaked information as well.

But the government’s theory appears to be that this doesn’t apply to illegal leaks of national defense information. (The Pentagon Papers case (1971) didn’t resolve the issue, because it just overturned injunctions against publishing leaked information; a majority of the Justices left open the door to possible criminal prosecutions for such publication.) And indeed in U.S. v. Rosen (E.D. Va. 2006), the district court rejected a First Amendment challenge to the prosecution of two American Israel Public Affairs Committee (AIPAC) employees, who received illegally leaked information and then forwarded it to various journalists:

[D]efendants here contend that the First Amendment bars Congress from punishing those persons, like defendants, without a special relationship to the government for the disclosure of [national defense information]. In essence, their position is that once a government secret has been leaked to the general public and the first line of defense thereby breached, the government has no recourse but to sit back and watch as the threat to the national security caused by the first disclosure multiplies with every subsequent disclosure.

This position cannot be sustained. Although the question whether the government’s interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.

The charges were eventually dropped, though, so the case didn’t yield an appellate precedent. The Assange case, I expect, will be much more likely to go up on appeal, and to draw broad public attention. It might thus affect prosecutorial and media practices much more than Rosen did.

Whether and when the First Amendment bars this sort of third-party, arms-length publication of national defense information is a complicated question. (Compare the statement in Near v. Minnesota (1931) that “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops,” and note that the government argues that the publications jeopardized specific people identified in some of the documents as having helped America and its allies—but consider also the value of allowing news outlets to act as a check on government conduct, which is especially important precisely when it comes to matters of war and peace.) Here, though, I just want to explain what is at stake in the new Assange indictment, which is much broader than the old one.

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Theory of Revised Julian Assange Indictment Could Apply to Ordinary Reporters

The revised indictment, just handed down today, contains three sets of charges.

1. Count 18, which was the one charge in the initial indictment, alleges that Assange tried to help then-Bradley Manning crack a computer password; had the crack succeeded, the leaker would have been harder to identify. I think this poses little by way of First Amendment problems: Journalists and other speakers don’t have the right to help others break into offices, safes, or computers, even when the break-in would help reveal important information. And as a practical matter, I suspect that very few reporters actively help their sources crack passwords (even just to hide the sources’ own tracks), just as very few reporters provide sources with lock picks or instructions on breaking into safes.

2. Most of the other counts focus on Assange’s urging Manning to illegally leak information. Manning did commit a crime by leaking the information in violation of the duty that Manning had voluntarily assumed when going to work handling confidential government data. The government’s theory is that Assange himself commited a crime by essentially soliciting Manning’s crime.

This is a plausible theory: Usually, soliciting a specific crime—urging a particular person to kill another particular person, or to steal certain kinds of material, or to illegally leak certain kinds of information—is itself criminal, and unprotected by the First Amendment. “Offers to engage in illegal transactions are categorically excluded from First Amendment protection,” and that applies to solicitation of such illegal transactions as well (U.S. v. Williams (2008)).

“To be sure, there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality”; abstract advocacy is much more constitutionally protected under the Brandenburg v. Ohio (1969) test, which is limited to intentional advocacy or likely and imminent lawless conduct. But specifically asking a specific person for specific documents is not protected by the First Amendment, and parts of the indictment suggest that this is what Assange was doing:

After confirming that ASSANGE thoughtthey had value, on March 8, 2010, Manning told ASSANGE that she was “throwing everything [she had] on JTF GTMO [Joint Task Force, Guantanamo] at [Assange] now.” ASSANGE responded, “ok, great!” When Manning brought up the “osc,” meaning the CIA Open Source Center, ASSANGE replied, “that’s something we want to mine entirely, btw,” which was consistent with WikiLeaks’s list of “Most Wanted Leaks,” described in paragraphs 4-5, that solicited “the complete CIA Open Source Center analytical database,” an unclassified (but nonpublic) database.

To be sure, some of the charged solicitations were aimed at the public as a whole, and not just at Manning, e.g.:

To further encourage the disclosure of protected information, including classified information, the WikiLeaks website posted a detailed list of “The Most Wanted Leaks of 2009,” organized by country, and stated that documents or materials nominated to the list must “[b]e likely to have political, diplomatic, ethical or historical impact on release… and be plausibly obtainable to a well-motivated insider or outsider.”

As of November 2009, WikiLeaks’s “Most Wanted Leaks” for the United States included the following:

a. “Bulk Databases,” including an encyclopedia used by the United States intelligence community, called “Intellipedia;” the unclassified, but non-public, CIA Open Source Center database; and

b. “Military and Intelligence” documents, including documents that the list described as classified up to the SECRET level, for example, “Iraq and Afghanistan Rules of Engagement 2007-2009 (SECRET);” operating and interrogation procedures at Guantanamo Bay, Cuba; documents relating to Guantanamo detainees; CIA detainee interrogation videos; and information about certain weapons systems.

But it seems to me that calls to leak specific documents, even aimed at the public at large, would still be covered by the solicitation exception, rather than being mere abstract advocacy—just as calls to kill particular people or bomb particular buildings would be punishable solicitation, even if general abstract advocacy of revolutionary violence isn’t.

This having been said, I suspect that many a reporter has urged a source to leak particular documents, whether they are national defense secrets, trade secrets, confidential documents that are covered under some private nondisclosure agreement, or something like that. Perhaps all of this is solicitation of crime, or at least tortious inducement of breach of contract or something like that (if the leak isn’t itself criminal but just civilly actionable). Perhaps reporters shouldn’t be allowed to urge such illegal behavior. But at least the theory in these counts, more than the one mentioned in item 1 above, might indeed affect a good deal of newspaper behavior.

3. But the most striking counts are counts 15-17, which allege, in relevant part:

From in or about July 2010 …, [Assange], having unauthorized possession of, access to, and control over documents relating to the national defense [such as leaked Afghanistan and Iraq war activity reports and State Department cables], willfully and unlawfully caused and attempted to cause such materials to be communicated, delivered, and transmitted to persons not entitled to receive them.

Nothing in this count turns on Assange’s having helped or solicited Manning’s leaks. Rather, it relies simply on Assange having published (in violation of 18 U.S.C. § 793(e)) material that he knew was improperly leaked and was related to the national defense within the meaning of the statute. To convict on these counts, a jury wouldn’t have to find any complicity by Assange in the initial leak.

And reporters do routinely publish information that they know was illegally leaked by someone. In Bartnicki v. Vopper (2001), the Court made clear that third parties are generally free to publish material that they know was illegally gathered (there, by an illegal interception of a cell phone call), at least so long as the publishers weren’t themselves involved in the illegal gathering (and so long as the speech is on matters of public concern). That would presumably apply to other kinds of improperly gathered or leaked information as well.

But the government’s theory appears to be that this doesn’t apply to illegal leaks of national defense information. (The Pentagon Papers case (1971) didn’t resolve the issue, because it just overturned injunctions against publishing leaked information; a majority of the Justices left open the door to possible criminal prosecutions for such publication.) And indeed in U.S. v. Rosen (E.D. Va. 2006), the district court rejected a First Amendment challenge to the prosecution of two American Israel Public Affairs Committee (AIPAC) employees, who received illegally leaked information and then forwarded it to various journalists:

[D]efendants here contend that the First Amendment bars Congress from punishing those persons, like defendants, without a special relationship to the government for the disclosure of [national defense information]. In essence, their position is that once a government secret has been leaked to the general public and the first line of defense thereby breached, the government has no recourse but to sit back and watch as the threat to the national security caused by the first disclosure multiplies with every subsequent disclosure.

This position cannot be sustained. Although the question whether the government’s interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.

The charges were eventually dropped, though, so the case didn’t yield an appellate precedent. The Assange case, I expect, will be much more likely to go up on appeal, and to draw broad public attention. It might thus affect prosecutorial and media practices much more than Rosen did.

Whether and when the First Amendment bars this sort of third-party, arms-length publication of national defense information is a complicated question. (Compare the statement in Near v. Minnesota (1931) that “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops,” and note that the government argues that the publications jeopardized specific people identified in some of the documents as having helped America and its allies—but consider also the value of allowing news outlets to act as a check on government conduct, which is especially important precisely when it comes to matters of war and peace.) Here, though, I just want to explain what is at stake in the new Assange indictment, which is much broader than the old one.

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New Espionage Charges Against Assange Are Bad for Journalists, Worse for Citizens

The Justice Department this afternoon announced an 18-charge indictment against WikiLeaks founder Julian Assange, accusing him of violating U.S. espionage laws by releasing and publishing classified military reports he received from Chelsea Manning.

Assange had already been charged with violating the Computer Fraud and Abuse Act, a prosecution which was already troubling, as it was based entirely on giving Manning a suggestion on how to crack a password. Assange himself is not accused of direct hacking.

This new superseding indictment is a huge deal because it treats the publication of classified information by a media outlet as a federal crime. This is almost unheard of—the Espionage Act is typically used to punish the leakers themselves, people like Edward Snowden, Reality Winner, and most recently Daniel Hale. No journalist has been successfully prosecuted by the federal government for the act of publishing classified information (See: The Pentagon Papers).

If there’s any doubt that the federal government is trying to punish Assange for engaging in acts of journalism, here’s a piece of the Justice Department’s announcement (and there’s a link to the indictment itself at the bottom of the linked page):

After agreeing to receive classified documents from Manning and aiding, abetting, and causing Manning to provide classified documents, the superseding indictment charges that Assange then published on WikiLeaks classified documents that contained the unredacted names of human sources who provided information to United States forces in Iraq and Afghanistan, and to U.S. State Department diplomats around the world.  These human sources included local Afghans and Iraqis, journalists, religious leaders, human rights advocates, and political dissidents from repressive regimes.  According to the superseding indictment, Assange’s actions risked serious harm to United States national security to the benefit of our adversaries and put the unredacted named human sources at a grave and imminent risk of serious physical harm and/or arbitrary detention.

The superseding indictment alleges that beginning in late 2009, Assange and WikiLeaks actively solicited United States classified information, including by publishing a list of “Most Wanted Leaks” that sought, among other things, classified documents.  Manning responded to Assange’s solicitations by using access granted to her as an intelligence analyst to search for United States classified documents, and provided to Assange and WikiLeaks databases containing approximately 90,000 Afghanistan war-related significant activity reports, 400,000 Iraq war-related significant activities reports, 800 Guantanamo Bay detainee assessment briefs, and 250,000 U.S. Department of State cables.

Many of these documents were classified at the Secret level, meaning that their unauthorized disclosure could cause serious damage to United States national security.  Manning also provided rules of engagement files for the Iraq war, most of which were also classified at the Secret level and which delineated the circumstances and limitations under which United States forces would initiate or conduct combat engagement with other forces.

Regardless of how one might feel about Assange or Manning, this is clearly a threat to the First Amendment’s guarantee of freedom of the press. If the prosecution is successful, we could see President Donald Trump’s administration to attempt to go after other media outlets who reveal state secrets. Expect to see many, many responses about how this could be used to go after The New York Times or the Washington Post or any media outlet Trump may be feuding with.

I think it’s equally important to understand that fundamentally, it is also an attack on your right to know what your government is doing. You, as a citizen, have every right to know much more than your government has been telling you about what the government does in your name. That’s the ultimate threat here, so be wary when media outlets make this solely about them.

Furthermore, be extremely wary of the government attempting to tell you who is and is not a journalist. Government officials have insisted for years that Assange doesn’t count as a journalist, and they’re saying that again today (John Demers, head of DOJ’s National Security Division, bluntly said “Julian Assange is no journalist”). Journalism is an act, not just an occupation, and the government does not have the authority to decide who is and is not a legitimate journalist. Any number of media outlets have requested, received, and published classified information in the manner of WikiLeaks, and in fact, many media outlets have published stories based on information released by WikiLeaks and Assange.

Right now, Assange sits in jail in the United Kingdom for jumping bail in a Swedish rape case dating back years. The United States is looking to have him extradited here to stand trial.

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Alt-Right, Woke Left Join Forces to Cancel Kyle Kashuv for Past Comments He Regrets

The social media mob has come for Kyle Kashuv, a teenage conservative activist and survivor of the Parkland mass shooting. On Wednesday, critics of Kashuv circulated screenshots of old text and Skype messages in which he used racist language.

“I’m embarrassed by it,” said Kashuv in a statement. “But I want to be clear that the comments I made are not indicative of who I am or who I’ve become in the years since.”

Kashuv, who recently resigned as director of youth outreach for conservative organization Turning Point USA, said that the Parkland shooting transformed him as a human being, and he is no longer the “petty, flippant kid” who said those terrible things. (The texts in question were all sent before the massacre.)

The controversy was covered by both The Daily Beast and The Huffington Post, the latter of which anonymously quoted former classmates of Kashuv. On Twitter, author Sebastian Murdock sounded quite proud of himself for producing such a hit piece.

But it is not just the left out to cancel Kashuv: Some of the most furious denunciations are coming from the far-right. Alt-right troll Laura Loomer called for Harvard to rescind its acceptance of Kashuv, who plans to attend the university in the fall. David Wohl, father of the conspiracy theorist and failed far-right political operative Jacob Wohl, said the same. A few other arch-conservatives—CJ Pearson, Ali Alexander—have said that Kashuv’s apology does not go far enough. Some of the people in this far-right orbit have engaged in much worse behavior than what Kashuv is accused of, which makes these attacks fairly odd.

What Kashuv said was indeed horrible, and well-worth criticizing. But his claim that he is no longer the same person who made those remarks is quite plausible. Teenagers’ ideas, personalities, and viewpoints are constantly in flux. Learning right from wrong is part of growing up, and our society is far too unforgiving of kids who made mistakes that they regret. Alas, technology now makes it possible to keep a record of every bad thing an imperfect teenager says.

People on both the left and the right should probably be a little less eager to put kids on pedestals and anoint them as leaders of political movements. In any case, unless evidence emerges that Kashuv is being dishonest about his change of heart, it seems like the right thing to do is forgive him. It would be a shame if Kashuv’s enemies on the far-right and far-left got their way, and Harvard reconsidered its acceptance because of this. I wouldn’t expect Harvard to do that, but then again, I didn’t expect its administration to unilaterally surrender to activists demanding the firing of faculty dean Ronald Sullivan, and yet here we are.

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New Espionage Charges Against Assange Are Bad for Journalists, Worse for Citizens

The Justice Department this afternoon announced an 18-charge indictment against WikiLeaks founder Julian Assange, accusing him of violating U.S. espionage laws by releasing and publishing classified military reports he received from Chelsea Manning.

Assange had already been charged with violating the Computer Fraud and Abuse Act, a prosecution which was already troubling, as it was based entirely on giving Manning a suggestion on how to crack a password. Assange himself is not accused of direct hacking.

This new superseding indictment is a huge deal because it treats the publication of classified information by a media outlet as a federal crime. This is almost unheard of—the Espionage Act is typically used to punish the leakers themselves, people like Edward Snowden, Reality Winner, and most recently Daniel Hale. No journalist has been successfully prosecuted by the federal government for the act of publishing classified information (See: The Pentagon Papers).

If there’s any doubt that the federal government is trying to punish Assange for engaging in acts of journalism, here’s a piece of the Justice Department’s announcement (and there’s a link to the indictment itself at the bottom of the linked page):

After agreeing to receive classified documents from Manning and aiding, abetting, and causing Manning to provide classified documents, the superseding indictment charges that Assange then published on WikiLeaks classified documents that contained the unredacted names of human sources who provided information to United States forces in Iraq and Afghanistan, and to U.S. State Department diplomats around the world.  These human sources included local Afghans and Iraqis, journalists, religious leaders, human rights advocates, and political dissidents from repressive regimes.  According to the superseding indictment, Assange’s actions risked serious harm to United States national security to the benefit of our adversaries and put the unredacted named human sources at a grave and imminent risk of serious physical harm and/or arbitrary detention.

The superseding indictment alleges that beginning in late 2009, Assange and WikiLeaks actively solicited United States classified information, including by publishing a list of “Most Wanted Leaks” that sought, among other things, classified documents.  Manning responded to Assange’s solicitations by using access granted to her as an intelligence analyst to search for United States classified documents, and provided to Assange and WikiLeaks databases containing approximately 90,000 Afghanistan war-related significant activity reports, 400,000 Iraq war-related significant activities reports, 800 Guantanamo Bay detainee assessment briefs, and 250,000 U.S. Department of State cables.

Many of these documents were classified at the Secret level, meaning that their unauthorized disclosure could cause serious damage to United States national security.  Manning also provided rules of engagement files for the Iraq war, most of which were also classified at the Secret level and which delineated the circumstances and limitations under which United States forces would initiate or conduct combat engagement with other forces.

Regardless of how one might feel about Assange or Manning, this is clearly a threat to the First Amendment’s guarantee of freedom of the press. If the prosecution is successful, we could see President Donald Trump’s administration to attempt to go after other media outlets who reveal state secrets. Expect to see many, many responses about how this could be used to go after The New York Times or the Washington Post or any media outlet Trump may be feuding with.

I think it’s equally important to understand that fundamentally, it is also an attack on your right to know what your government is doing. You, as a citizen, have every right to know much more than your government has been telling you about what the government does in your name. That’s the ultimate threat here, so be wary when media outlets make this solely about them.

Furthermore, be extremely wary of the government attempting to tell you who is and is not a journalist. Government officials have insisted for years that Assange doesn’t count as a journalist, and they’re saying that again today (John Demers, head of DOJ’s National Security Division, bluntly said “Julian Assange is no journalist”). Journalism is an act, not just an occupation, and the government does not have the authority to decide who is and is not a legitimate journalist. Any number of media outlets have requested, received, and published classified information in the manner of WikiLeaks, and in fact, many media outlets have published stories based on information released by WikiLeaks and Assange.

Right now, Assange sits in jail in the United Kingdom for jumping bail in a Swedish rape case dating back years. The United States is looking to have him extradited here to stand trial.

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Alt-Right, Woke Left Join Forces to Cancel Kyle Kashuv for Past Comments He Regrets

The social media mob has come for Kyle Kashuv, a teenage conservative activist and survivor of the Parkland mass shooting. On Wednesday, critics of Kashuv circulated screenshots of old text and Skype messages in which he used racist language.

“I’m embarrassed by it,” said Kashuv in a statement. “But I want to be clear that the comments I made are not indicative of who I am or who I’ve become in the years since.”

Kashuv, who recently resigned as director of youth outreach for conservative organization Turning Point USA, said that the Parkland shooting transformed him as a human being, and he is no longer the “petty, flippant kid” who said those terrible things. (The texts in question were all sent before the massacre.)

The controversy was covered by both The Daily Beast and The Huffington Post, the latter of which anonymously quoted former classmates of Kashuv. On Twitter, author Sebastian Murdock sounded quite proud of himself for producing such a hit piece.

But it is not just the left out to cancel Kashuv: Some of the most furious denunciations are coming from the far-right. Alt-right troll Laura Loomer called for Harvard to rescind its acceptance of Kashuv, who plans to attend the university in the fall. David Wohl, father of the conspiracy theorist and failed far-right political operative Jacob Wohl, said the same. A few other arch-conservatives—CJ Pearson, Ali Alexander—have said that Kashuv’s apology does not go far enough. Some of the people in this far-right orbit have engaged in much worse behavior than what Kashuv is accused of, which makes these attacks fairly odd.

What Kashuv said was indeed horrible, and well-worth criticizing. But his claim that he is no longer the same person who made those remarks is quite plausible. Teenagers’ ideas, personalities, and viewpoints are constantly in flux. Learning right from wrong is part of growing up, and our society is far too unforgiving of kids who made mistakes that they regret. Alas, technology now makes it possible to keep a record of every bad thing an imperfect teenager says.

People on both the left and the right should probably be a little less eager to put kids on pedestals and anoint them as leaders of political movements. In any case, unless evidence emerges that Kashuv is being dishonest about his change of heart, it seems like the right thing to do is forgive him. It would be a shame if Kashuv’s enemies on the far-right and far-left got their way, and Harvard reconsidered its acceptance because of this. I wouldn’t expect Harvard to do that, but then again, I didn’t expect its administration to unilaterally surrender to activists demanding the firing of faculty dean Ronald Sullivan, and yet here we are.

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State May Punish “Faithless Electors,” Wash. Sup. Ct. Rules

Today’s decision (In the Matter of Guerra) relies heavily on the U.S. Supreme Court decision in Ray v. Blair (1952), which upheld a state requirement that electors pledge to support the party National Convention’s nominees: “Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge.” The Washington court summarized:

Article II, section 1 of the United States Constitution grants to the states plenary power to direct the manner and mode of appointment of electors to the Electoral College. We hold that the fine imposed pursuant to RCW 29A.56.340 falls within that authority. We further hold nothing under article II, section 1 or the Twelfth Amendment to the Constitution grants to the electors absolute discretion in casting their votes and the fine does not interfere with a federal function. Finally, an elector acts under the authority of the State, and no First Amendment right is violated when a state imposes a fine based on an elector’s violation of his pledge.

Justice Gonzalez dissented:

The State’s authority to penalize its electors is an issue of first impression. Ray v. Blair concerns only the broad authority to appoint electors. The Court addressed the constitutionality of requiring electors to make a pledge but did not address the elector’s discretion. In dissent, Justice Robert H. Jackson raised concerns about an elector’s freedom to exercise independent judgment as originally intended. I share his concerns. He opined, “No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the [individuals] best qualified for the Nation’s highest offices.”

There is a meaningful difference between the power to appoint and the power to control. “A power not expressly listed [in the Constitution] is granted only if incidental to an enumerated power.” The Constitution provides the State only with the power to appoint, leaving the electors with the discretion to vote their conscience. See U.S. Const. art. II, § 1. Therefore, the State cannot impose a civil penalty on electors who do not vote for the candidates nominated by their party.

 

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State May Punish “Faithless Electors,” Wash. Sup. Ct. Rules

Today’s decision (In the Matter of Guerra) relies heavily on the U.S. Supreme Court decision in Ray v. Blair (1952), which upheld a state requirement that electors pledge to support the party National Convention’s nominees: “Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge.” The Washington court summarized:

Article II, section 1 of the United States Constitution grants to the states plenary power to direct the manner and mode of appointment of electors to the Electoral College. We hold that the fine imposed pursuant to RCW 29A.56.340 falls within that authority. We further hold nothing under article II, section 1 or the Twelfth Amendment to the Constitution grants to the electors absolute discretion in casting their votes and the fine does not interfere with a federal function. Finally, an elector acts under the authority of the State, and no First Amendment right is violated when a state imposes a fine based on an elector’s violation of his pledge.

Justice Gonzalez dissented:

The State’s authority to penalize its electors is an issue of first impression. Ray v. Blair concerns only the broad authority to appoint electors. The Court addressed the constitutionality of requiring electors to make a pledge but did not address the elector’s discretion. In dissent, Justice Robert H. Jackson raised concerns about an elector’s freedom to exercise independent judgment as originally intended. I share his concerns. He opined, “No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the [individuals] best qualified for the Nation’s highest offices.”

There is a meaningful difference between the power to appoint and the power to control. “A power not expressly listed [in the Constitution] is granted only if incidental to an enumerated power.” The Constitution provides the State only with the power to appoint, leaving the electors with the discretion to vote their conscience. See U.S. Const. art. II, § 1. Therefore, the State cannot impose a civil penalty on electors who do not vote for the candidates nominated by their party.

 

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