It is time for the United States to drop the case against WikiLeaks. Pressing forward with efforts to prosecute an Internet publisher at home while standing up for an open Internet in Egypt and the world at large is an increasingly tenuous position. The WikiLeaks case endangers the reputation of the United States as a defender of free speech and an open Internet globally, while forcing the Obama administration to take uncomfortable constitutional positions better suited to the Nixon administration. The importance of this issue is hard to overstate: At a time when the Internet is increasingly recognized as a medium of global resistance to authoritarian rule and when protestors in Tahrir square are holding up signs that say "Thank you, Facebook!", the Obama administration and the United States must make sure that they stand on the right side.
The timing is important. Just over a year ago, Secretary of State Hillary Clinton paved the way with her notable speech on "Internet Freedom." More recently, she explicitly condemned Egypt's Internet shutdown. Her message -- that an open Internet is an issue of fundamental freedom in the 21st century -- has been complicated by the actions of other branches of the U.S. federal government, especially the Justice Department's plans to prosecute WikiLeaks for its role in publishing leaked U.S. State Department diplomatic cables.
While the Justice Department's original plan to rely on the Espionage Act apparently has been dropped, it is still considering the prosecution of either Julian Assange personally or media organizations that published documents obtained by Wikileaks based on a theory of conspiracy or solicitation.
Yet so far, no clear evidence has emerged that would support an allegation that anyone in the media conspired with Bradley Manning, the alleged leaker who is already in military prison, to obtain documents. Unfortunately, that won't necessarily stop the Justice Department since as every prosecutor knows, conspiracy is relatively easy to allege, requiring nothing more than some evidence of an agreement to commit a crime and an overt act by one of the conspirators (Manning, in this case). When you think about it, publication nearly always requires some kind of agreement. The federal statutes' broad definition of conspiracy is what makes it so dangerous.
Needless to say, labeling the act of publishing a criminal conspiracy would be a strong challenge to the U.S. Constitution's First Amendment's protections.
I should state that I have no particular sympathy for Assange or his website's activities. But if the First Amendment stands for anything, it is that a government's dislike for individuals' speech ought not be taken as legal grounds for their imprisonment.