Privacy vs. Expression

I was listening to a story on NPR about the meaning of the Wikileaks scandal. The First Amendment right is absolute. I tend toward the Hugo Black definition of the First Amendment. Hugo Black read the First Amendment as an absolute right, short of using expression as a weapon, like yelling "fire" in a movie theater. I accept that constitutional explanation of the right. After all, the words are clear. "Congress shall make no law" concerning freedom of expression. To read it otherwise is to take the words and add to them. By adding to them, we subtract from the perfection of the right.

The right to freedom of expression should be construed as an absolute. The framers saw a free marketplace of ideas. It shouldn't matter whether we agree with the idea or not. The marketplace has to be free in order to ensure that bad ideas are shown to be bad and good ideas are allowed to rise to the top. It is only by allowing the free exercise of expression that we ensure true freedom in its purest form.

The right to privacy has had a difficult birth. In Griswold v. Connecticut, the Supreme Court used unconvincing argument to create a right which should have been self-evident. The difficulty is when freedom of expression and freedom of privacy bump heads. Some might consider this the constitutional basis of the whole Wikileaks controversy. A lot of people think government has a right to privacy.

But this is a confusion between the right to privacy and the need for privacy. Obviously, governments need privacy in certain situations. However, this is very different from the right to privacy which is reserved for individuals.

However, there is probably a big difference between how we treat the Wikileaks founder and how we treat the private who leaked the sensitive communications. There is also a difference how we probably should treat the private who leaked these communications and the people who, in their jobs, allowed these private communications to be available to the troubled private who leaked them to Wikileaks.

I can't see punishing the Wikileaks founder for leaking these communications. The private, on the other hand, is a different situation. He deserves punishment for leaking these secrets. He had a responsibility to keep these matters secret. By leaking them, he violated his fiduciary duties, his professional duties.

It may be important to keep these private governmental communications secret, but there, perhaps, shouldn't be a constitutional right to privacy for governmental communications.

The marketplace must provide a forum.