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4.2.12
WC: 191694

the leaked documents speak for themselves. He allowed the chips to fall where they may and they
often fall on the head of the current office holders around the world.

Prosecuting Wikileaks or its founder for “the crime” of publishing classified information, while at
the same time rewarding -- with prizes, access, interviews, and status – “reputable” journalists and
newspapers for doing essentially the same thing, would constitute selective prosecution.
American law, as distinguished for example from German law, generally permits selective
prosecution of criminals, on the ground that resources are limited and prosecutors must have
some discretion in deciding how to expend their limited resources. In order to “get the most bang
for the buck”, prosecutors are generally free to pick and choose among the many who violate
broad, open-ended and often vague criminal statutes, such as tax, regulatory and criminal
negligence laws. They are not free to exercise this discretion in a partisan manner: going after
members of the opposing political party. Nor can they properly do so on the basis of race,
religion or other protected categories. But they may select for prosecution the most visible or
notorious offenders, since such prosecutions are likely to have the greatest deterrent effect on
other potential law violators. For example, Leona Helmsley, one of the most famous women in
America, was indicted for tax evasion on April 15th!

One area in which it is dangerous and wrong to permit selective prosecution is the publication of
classified information by the media. If the government can pick and choose the few it decides to
prosecute among the many who publish classified information, it will have far too much power
over the content of what the media reports.48 The First Amendment recognizes no distinction
between the patriotic and unpatriotic, the responsible and irresponsible, the favorable or
unfavorable, media. It was precisely these improper distinctions that were employed by the John
Adams administration when it selectively enforced the Alien and Sedition laws against
“Jeffersonians”, “Jacobins”, and other perceived enemies of the Federalists. It took more than a
century and a half for the Supreme Court to declare that although “.. the Sedition Act was never
tested in this court, the attack upon its validity has carried the day in the ‘court of history’, citing
“a broad consensus that the act was inconsistent with the First Amendment”. (I was a law clerk
when that opinion was issued in 1964.)

48 The Supreme Court has recognized, in the context of the First Amendment, that a law purporting to regulate
speech or press, in order to survive the “strict scrutiny” standard of review required by the First Amendment, must
not be overinclusive or underinclusive. See Brown v. Entertainment Merchants Assn.: “Underinclusiveness raises
serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a
particular speaker or viewpoint…And finally, the Act’s purported aid to parental authority is vastly overinclusive.
Not all of the children who are forbidden to purchase violent video games on their own have parents who care
whether they purchase violent video games. While some of the legislation’s effect may indeed be in support of
what some parents of the restricted children actually want, its entire effect is only in support of what the State
thinks parents ought to want. This is not the narrow tailoring to “assistant parents” that restriction of First
Amendment rights requires…California’s legislation straddles the fence between (1) addressing a serious social
problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect
First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously
overinclusive. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993) As a means of
protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it
excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a
means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights
of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the
overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as
this, which is neither fish nor fowl, cannot survive strict scrutiny.”

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