Discussing the Constitutional Legitimacy of the WikiLeak

UC Irvine School of Law Dean Erwin Chemerinsky debated the constitutional implications of WikiLeaks with Professor John Eastman, Donald P. Kennedy chair in law at Chapman University School of Law. The discussion covered the acts of Bradley Manning, Julian Assange and The New York Times, and was held at a luncheon hosted by the World Affairs Council of Orange County in Irvine on Friday.

Both scholars of constitutional law, Chemerinsky and Eastman discussed the public’s right to know balanced with the need for government privacy in relation to national security. While Chemerinsky advocated the press as a means for government transparency, Eastman challenged the press’ publication of secrets in the interest of national security.

The quasi-debate took the form of a candid question and answer discussion, with both scholars fielding questions from moderator Andrew Sussman, member of the World Affairs Council Board of Trustees, and from the audience.

The long-time colleagues Eastman and Chemerinsky humorously made two rare points of agreement: that there is constitutionally no difference between the press and individuals, and that some things in government can be classified, but too much is classified. The large points of their disagreement, however, stemmed from how classified information should be treated, and whether the press or the government should have the authority over what to publish.

“Far too much information is classified,” Chemerinsky said.

The first major controversial release of information on WikiLeaks in July indicated that the war in Afganistan was not going well.

“It’s important that the American people know about that,” Chemerinsky said.

Eastman pushed for elected officials to make those decisions rather than bloggers, journalists or media groups, saying:
“Can anything be properly classified, and if so, who do we want to make that call … the people we elect with appropriate oversight, or a wild west free for all and anybody who can publicize via Internet on news?”

Chemerinsky responded that the rights of newspapers must be preserved.

“The Espionage act has never been used to prosecute a reporter or newspaper … newspapers throughout history make a choice.”

He added that in the day of Internet media, “I think it’s almost impossible to identify who is the press today.”
Chemerinsky said that in many of his talks he dispenses the advice, “In a world of internet, there’s no such thing as privacy.”
In response to the actions of WikiLeaks founder Julian Assange, Chemerinsky expressed disapproval but remained firm in the belief that he should not be prosecuted.

“I find it disturbing and I do think some of the things he’s done are disturbing, even if he shouldn’t be prosecuted,” said Chemerinsky.

“[Assange] threatened to release dangerous information if prosecuted … I don’t like being threatened.”
Despite Chemerinsky’s reservations about Assange’s character, he stated, “I think one of the great things about our democracy is that we can question our government.”

Of particular interest to Chemerinsky was the role of The New York Times, whose republication of several WikiLeaks documents has come under fire for disseminating classified information.

Chemerinsky noted that the entire Columbia School of Journalism faculty signed a letter in support of The New York Times, urging the government not to restrict the press in such a manner.

Chemerinsky stated that it is the job of the elected government to decide what is classified, and the duty of newspapers to decide what to publish.

“That’s what newspapers have done throughout American history, and hopefully it continues that way.”

The conference was formally titled, “WikiLeaks, International Law and American Jurisprudence: A Debate Between Erwin Chemerinsky and John Eastman.” It was the first major event hosted by the World Affairs Council of Orange County. In attendance were approximately 150 Orange County community members and World Affairs Council Members, as well as notable attendee council member Beth Krom.

Throughout the year the group features keynote speakers about international current events, the next of which will be a panel discussion about U.S. immigration policy in early February.