In the Wall Street Journal, Gordon Crovitz tries to explain why Wikileaks is different from the New York Times:
The Espionage Act requires willfully endangering the U.S. It may seem unusual to consider intent in the context of how information flows, but without focusing on intent, the law would raise serious First Amendment issues. Many academics and media commentators—and perhaps overly cautious prosecutors—have missed the point that WikiLeaks is different from the New York Times. It's the political motivation of Mr. Assange that qualifies him to be prosecuted.
Right, it's not like the New York Times has any political motivation. Not like the paper, say, publishes editorials expressing strong opinions on political matters. Or like the reporters or editors there have any opinions.
Then there's this, from Mr. Crovitz:
The Espionage Act's requirement of an intention to harm the U.S. provides the clear line. Indeed, no news organization has ever been charged under the law. Bill Keller, top editor of the New York Times, earlier this year detailed how his staff carefully filtered the WikiLeaks documents to protect U.S. interests, redacting many names and editing out "any details that might reveal ongoing intelligence-gathering operations, military tactics or locations of material that could be used to fashion terrorist weapons."
Somehow the Times and Mr. Keller had fewer compunctions when it came to disclosing ongoing intelligence-gathering operations when it was the Bush administration's wiretapping and banking surveillance programs that were at issue.
I'm not saying that either Wikileaks or the Times should be immune, and I am not saying that both should be prosecuted, but what I am saying is that the two are more similar cases than Mr. Crovitz claims.
What's more, Mr. Crovitz's claim that the First Amendment issues raised would somehow be less "serious" if prosecutors took intent into account seems questionable to me. The First Amendment just says "Congress shall make no law...abridging the freedom of speech, or of the press." It doesn't say Congress shall make no law abridging the freedom of speech or of the press so long as the speakers or journalists are well intentioned and aren't politically motivated.
In fact, a politically motivated press was precisely the sort that the First Amendment was set up to protect, because at the time the Amendment was written, there was no other kind; the newspapers were fiercely partisan and highly political. The idea of a journalist without political motivations, as Mr. Crovitz describes Bill Keller, would have been entirely foreign to the framers of the First Amendment. Restricting the Amendment's protections only to journalists who can prove they mean well and aren't too political would be an assault on First Amendment freedom that would strike right at the core of it, limiting freedom of the press only to those news organs whose motivation or politics, or the lack of them, meet with governmental approval. It's a high-speed railway to tyranny.