Does Wikileaks Have a First Amendment Case Against Joe Lieberman?

Amazon made headlines last week when it abruptly cut off service to Wikileaks, allegedly on the grounds that the site had violated Amazon’s terms of acceptable use. However, Amazon’s decision to terminate Wikileaks came less than 24 hours after Amazon received a phone call from Senate Homeland Security Committee staff (at the behest of Sen. Joe Lieberman) inquiring about the firm’s relationship with Wikileaks. According to a report in The Guardian, Amazon’s decision to terminate service to Wikileaks was a “reaction to heavy political pressure.”

That’s not all. Glenn Greenwald reported last week on Salon.com that another Internet company, Tableau Software, also decided to disable service to Wikileaks because of pressure from Joe Lieberman. Unlike Amazon, Tableau admitted that its decision was directly prompted by pressure from Lieberman. From Tableau’s statement:

Our decision to remove the data from our servers came in response to a public request by Senator Joe Lieberman, who chairs the Senate Homeland Security Committee, when he called for organizations hosting WikiLeaks to terminate their relationship with the website.

It’s difficult to see Joe Lieberman’s “public request” as anything but a thinly-veiled threat. Case in point: In addition to his staffers’ phone calls, Lieberman went on MSNBC last week, stating bluntly, “we’ve got to put pressure on any companies … which provide access to the Internet to Wikileaks.”

As Chairman of the Senate Homeland Security Committee, Lieberman is in a uniquely powerful position to push for legislation that might harm private firms like Amazon. He can also hold Congressional hearings, which frequently turn into public spectacles and garner massive media coverage. A company’s CEO enduring a congressional grilling on Capitol Hill can significantly impact that firm’s public image — and, in some cases, its stock price as well. While no individual Senator has the power to enact laws, promulgate rules, or enforce regulations, a single crusading politician can arguably cause cognizable harm to any U.S. company that pushes back against “requests” to suppress unfavorable content.

How does this implicate the First Amendment? As EFF’s Rainey Reitman and Marcia Hofmann pointed out on the DeepLinks blog, “The First Amendment to the Constitution guarantees freedom of expression against government encroachment — but that doesn’t help if the censorship doesn’t come from the government.”

There’s an important caveat to this point, however: When government coerces private entities into suppressing protected speech, it can trigger First Amendment scrutiny. Via my colleague (and First Amendment guru) Hans Bader:

In First Amendment cases, not only the party bound by a settlement or regulation, but also people whose speech or access to information is affected by it, have the right to challenge its restrictions. (See Korb v. Lehman, 919 F.2d 243 (4th Cir. 1990) (A private employee could sue a government official under the First Amendment for pressuring his private employer to fire him for his speech, even though private employers can voluntarily terminate employees for their speech when the employer is not operating under government pressure); and Truax v. Raich, 239 U.S. 33 (1916) (The Supreme Court held a state government liable under the Constitution for pressuring a private employer to fire a private employee based on his being an alien, even though his employer could have voluntarily dismissed him without violating any law)).

Of course, as an elected legislator, Lieberman enjoys fairly broad First Amendment rights to express his own political views. As the Supreme Court ruled in Bond v. Floyd:

The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy.

While Lieberman’s tirade against Wikileaks was certainly related to matter of public policy, was he actually expressing an opinion on policy? Or was he simply threatening private firms for facilitating the dissemination of speech he didn’t like? Legislators rightly enjoy broad leeway to speak their mind about legislative matters and criticize their political opponents, but should a legislator’s own First Amendment rights enable him to trample the First Amendment rights of private citizens engaged in political discourse?

If the First Amendment doesn’t protect Sen. Lieberman’s attack on Wikileaks, he may still enjoy immunity from suit. Under the doctrine of qualified immunity, legislators cannot be held personally liable or forced to stand trial for committing unlawful actions in their official, non-legislative capacity unless they violate “clearly established law.” (Legislators enjoy absolute immunity for actions they undertake in a legislative capacity).

As an attorney and former state Attorney General, Sen. Lieberman should have known full well that his actions were directly antithetical to Wikileaks’ First Amendment rights. As such, he may not enjoy the protections of qualified immunity. Consider this excerpt from a ruling by the Eighth Circuit in Zilich v. Longo (34 F.3d 359):

We also agree with the findings of the district court that Zilich’s First Amendment right of free speech was “clearly established” for qualified immunity purposes. The law is well settled in this Circuit that retaliation under color of law for the exercise of First Amendment rights is unconstitutional, and “retaliation claims” have been asserted in various factual scenarios.

Even if Lieberman did not violate any “clearly established law,” Wikileaks might still be able to obtain an injunction to prevent Lieberman from making any further statements pressuring private companies to terminate service to Wikileaks. This wouldn’t undo the harm the site has already suffered on account of Lieberman’s “public request,” of course, but at least it would mark an important symbolic victory for Wikileaks — and for the First Amendment.

A crucial question in determining whether Wikileaks has grounds for a First Amendment claim against Lieberman is whether the site’s ongoing dissemination of the 250,000 leaked cables is protected by the First Amendment. On one hand, Julian Assange may be guilty of violating the Espionage Act of 1917, as Sen. Dianne Feinstein argues forcefully in an op-ed in today’s The Wall Street Journal. On the other hand, the Wikileaks website may well enjoy the same First Amendment protection that the Pentagon Papers were found by the Supreme Court to enjoy in New York Times Co. v. United States. Via the WSJ Law Blog, which recently interviewed Jack Balkin of Yale Law School:

On the First Amendment question, Balkin said most First Amendment lawyers would say that preventing the publication of material “is justified only where absolutely necessary to prevent almost immediate and imminent disaster. It’s an extremely high standard.”

Balkin said that the standard for exacting criminal punishment or winning a civil injunction after publication, as might be the situation in the WikiLeaks case, is less settled. “But one assumes the standard is going to be very very high too.”

An interesting 2005 opinion from the Eighth Circuit (Dossett v. First State Bank, 399 F.3d 940) suggests that Wikileaks might even have a case against Amazon as well, depending on the specific nature of the interactions between Amazon and Sen. Lieberman’s office. Under 42 U.S.C. § 1983, private entities may face civil action if they conspire with government to deprive anybody within U.S. jurisdiction of their constitutional rights. Under Dossett, if Amazon “willfully participated with state officials and reached a mutual understanding concerning the unlawful objective of a conspiracy,” Wikileaks may be able to collect damages for harm it incurred due to Amazon’s termination of its service.

Whether Lieberman’s actions are legal or not — and whatever you think about Wikileaks in general — his efforts to coerce private companies to terminate service to Wikileaks should deeply concern anybody who cares about free speech. As Glenn Greenwald put it:

That Joe Lieberman is abusing his position as Homeland Security Chairman to thuggishly dictate to private companies which websites they should and should not host — and, more important, what you can and cannot read on the Internet — is one of the most pernicious acts by a U.S. Senator in quite some time.

Unfortunately, this is just the latest instance of a politician “thuggishly” pressuring a private firm to stifle speech. A few months ago, I wrote about a group of state attorneys general successfully bullying Craigslist into terminating its legal “adult services” section. And back in 2008, I wrote about former New York Attorney General Andrew Cuomo strong-arming Usenet providers into shutting down dozens of newsgroups in their entirety simply because they contained a handful of illegal files.

A victory for Wikileaks against Joe Lieberman would set a powerful precedent discouraging thuggish politicians from campaigning against Internet sites protected by the First Amendment.

Cross-posted on Technology Liberation Front. Image credit: EUCOM’s flickr photostream.