Ann Coulter Watch: "Like a Condom, The First Amendment Can't Always Protect You."

This week, our favorite local virgin published her most vapid screed yet at Human Events, her "editorial home." Wondering why our nation's top "legal eagles" have yet to make a compelling case for the criminal prosecution of Wikileaks founder Julian Assange, she draws on her lawyerly training to make the case herself.

"Since [Eric] Holder apparently wasn't watching Fox News a few weeks ago," writes Coulter, with her trademark specificity:

... I'll repeat myself and save the taxpayers the cost of Holder's legal assistants having to pore through the federal criminal statutes starting with the A's.

Among the criminal laws apparently broken by Assange is U.S.C. 793(e), which provides:

"Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, (etc. etc.) relating to the national defense, ... (which) the possessor has reason to believe could be used to the injury of the United States or the advantage of any foreign nation, willfully communicates (etc. etc.) the same to any person not entitled to receive it, or willfully retains the same (etc) ...

Shall be fined under this title or imprisoned not more than ten years, or both.

(Note: She didn't actually start with the "A's.")

Coulter, perhaps sensing that this is an historically weak foundation upon which to base an argument for prosecution outright (more on that in a moment), subtly switches theses after another paragraph, arguing suddenly not for the prosecution of Julian Assange, but against the notion that the First Amendment protects acts of all kinds. Which is a bit obvious, if you think about it. "New York Times reporters are agitators intent on damaging the government," writes Coulter. And though they have the freedom to agitate to their hearts' content,  ""[t]hat doesn't mean they have carte blanche to hunt endangered species, refuse to pay their taxes, or embezzle money. The First Amendment isn't a Star Trek 'energy field' that protects journalists from phasers, photon torpedoes, lasers, rockets and criminal prosecution."

Coulter continues in this vein, just in case you're unclear. "If Paul Krugman shoots his wife" while writing a "silly column, that's a crime ... Journalists can't run red lights, they can't print Coca-Cola's secret formula, they can't torture sources for information, and -- as Gawker recently discovered when it published a story on the new iPhone before it was released -- journalists can't misappropriate lost property."

If the image of Paul Krugman shooting his wife strikes you as less than germane to the subject, that's only because you're not crazy. Wife-shooting, like torture and the running of red lights, is not generally considered a kind of "speech." Ergo, the First Amendment doesn't protect it.

By lumping all kinds of obvious crimes and misdemeanors under the heading of "Shit the First Amendment doesn't protect," Coulter practices a subtle deception. She wants to make it seem as though the limits of the First Amendment are obvious -- as though there is a clearly-visible line of demarcation between "free speech" and criminal agitation.There isn't.

Coulter is sufficiently unimpressed with her readers' sense of history that she is willing to name-drop the Pentagon Papers without mentioning that, by her standards, those documents -- which proved that the Johnson administration lied us into Vietnam -- ought never have been published either. "The government isn't trying to put a prior restraint on Assange's publication of the documents, as in the Pentagon Papers case," she writes, as though it makes a difference. Like the Wikileaks Afghan documents and diplomatic cables, the Pentagon Papers were stolen property. They damaged the government. They had a short-term negative impact upon American national security. In Coulter's ambiguity-free universe, that would have made their publication illegal. Which it wasn't. To this day, Daniel Ellsberg, the man who leaked the Pentagon Papers to the New York Times, walks free.

To be fair, Ellsberg's freedom may be a fluke. He walks free because of the Nixon White House's illegal attempts to undermine his character and sour his case, which resulted in Ellsberg's mistrial (as well as in the botched Watergate burglary). Private Bradley Manning, who leaked the classified documents to Julian Assange (and to whom Coulter constantly refers as "a gay in an 'awkward place'"), is languishing in solitary confinement. And maybe that's just. Beyond the letter of the law, which both Ellsberg and Manning almost certainly violated, there is a clear difference between Ellsberg's and Manning's subversions. Ellsberg absconded with irrefutable evidence of a massive conspiracy; Manning simply saw a mass of files labeled "Classified" and turned them over to an Australian with a website. The distinctions between the two are subjective and moral, not objective and technical.

But Julian Assange's opposite number in the Pentagon Papers scandal is The New York Times, which went to court over the Pentagon Papers in 1971 -- to protest prior restraint placed upon it by the Nixon administration, which sought desperately to keep the Papers' contents off the Times' front page. This time, there was no mistrial. The case was heard by the Supreme Court of the United States, which ruled that the very law Coulter cites in her article -- the "Espionage Act of 1917" -- was insufficient to prevent a news organ from disseminating information on America's foreign wars, no matter what the information's provenance. The First Amendment won out. Which isn't to say it would allow the Sulzbergers to shoot each other or run red lights. It just allowed them to report on secret government documents. As they did. And as Assange has done.

American law wasn't handed down on Sinai. It is the collaborative effort of thousands, frequently working at cross-purposes and across generations. Despite our best efforts to the contrary, it is not always internally consistent, and it is irritatingly open to interpretation. (Which is why Justices Harlan, Blackmun, and Burger dissented in the Times case in 1971.) And sometimes the very laws that enable a great moral good -- such as the publishing of the Pentagon Papers -- can also serve to protect unpleasant venalities, as Assange's Wikileaks may yet prove to be. As Coulter surely understands, freedom isn't free; what she may not know is that the asking price is sometimes the toleration of uncomfortable ambiguity, or the omnipresence of annoying ideologues with whom we disagree. Or the occasional leak. As has been noted elsewhere, Assange has facilitated no document dumps from the Chinese or North Korean militaries. Nevertheless, I doubt Coulter plans to relocate.


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