Why does it seem no one's mentioning that the government activity here is a First Amendment violation?
Wednesday, Amazon stopped hosting Wikileaks on their cloud server, citing indeterminate Terms of Service violations. This happened, coincidentally, right after Senator Lieberman, chair of the Senate Committee on Homeland Security called, asking them to pull the plug. Lieberman later also said: "I call on any other company or organization that is hosting WikiLeaks to immediately terminate its relationship with them." Yesterday, Paypal decided it would no longer accept donations to Wikileaks, citing a clause in its terms of service that says it will not deal with people/organizations, that among other things, "encourage" illegal activity. Vimeo.com, a video hosting site, removed the leaked video "Collateral Murder," saying that it will not host videos depicting illegal activity or extreme violence. Now this rationale is a little different, because it's talking about the content of the video, not saying it was obtained illegally, but that's neither here nor there for this discussion.
From the perspective of the First Amendment, private actors can essentially do whatever they want. You need state action to make it a constitutional problem. So, for example, when Paypal cuts people off for "encouraging" illegal activity, that's fine. However, when there is government involvement, we have another story. It is beyond clear that with respect to the First Amendment, encouragement of illegal activity is not a reason the government can shut down speech. From Brandenburg v. Ohio (1969):
[W]e are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments.The law is clear that an incitement with the purpose and imminent likelihood of lawbreaking is required for government to ban speech. Given the cables were already leaked, it's not clear what new lawbreaking would be prevented by censoring them. So, assuming we have the requisite state action here, this is a clear First Amendment violation.
The state action problem is a little trickier because, at least in theory, the private parties have a choice not to roll over and immediately please the government, but in all honesty, that's simply not how this works. The government here has all the power - they can affect Amazon and Paypal much more than the average citizen can, so there is really no incentive for them not to cooperate. Given how predictable it is, and given the precedent with the telecom industry and warrantless wiretapping (only Qwest refused to cooperate in the spying and they were denied contracts later), we really can't say that a phone call from the top Homeland Security guy in the Senate is not enough to be coercive.
Unfortunately, it seems very unlikely that any court will be willing or able to stop Lieberman from doing this. For one, someone would have to have standing to sue. For those who don't know, standing is the doctrine that says that not everyone can sue - you need to be an injured party, and generalized injuries that anyone can claim (like not having access to Wikileaks dumps) don't count. You'd almost have to have Amazon sue in order to get into court, but if Amazon et al. were willing to sue, the argument for state action would be a lot weaker, since it's clear they'd have a spine, and thus the coercion argument makes no sense. Also, courts find all sorts of reasons to defer to state power, whether or not they make sense doctrinally, because we all seem to believe the state is above the law.
So yeah, maybe this is why no one seems to be talking about it. It really doesn't make a practical difference. But for those inclined to care - Lieberman's almost certainly violating the First Amendment.
Oh, and incidentally, Glenn Greenwald has another post up about the lawlessness of the various attacks on Wikileaks - the intimidation of contributors and punishments being privately doled out, as well as noting the typical subservience of the media in this. (They stopped calling Wikileaks "whistleblowers.")
