First, Australians acting in Australia are not protected by the First Amendment (whic is an American law). Australia is investigating Wikileaks, not America.
Right, but there is a lot of discussion about extradition to America.
Second, source
confidentiality is not protected by the First Amendment. Reporters can be and are tossed into jail for refusing to reveal sources.
I phrased that poorly. The First Amendment protects Assange's ability to publish the material leaked to him. He can keep his sources confidential, and, in fact, can be sued by the sources if he fails to do so, unless a court orders otherwise. In
Cohen v. Cowles Media Co., the reporter had to pay his source $200,000 for revealing his identity.
In
Branzburg v. Hayes the Supreme Court held, "news gathering is not without First Amendment protections." Thus, on some level sources are protected by the First Amendment, it's just not very clear how. THis is why there's a lot of clamoring for more detailed shield laws.
See also the 2nd Circuit decision in
Baker v. F & F Investment. It holds:
...compelling a newsgatherer to disclose confidential sources “unquestionably threatens a journalist’s ability to secure information that is made available to him only on a confidential basis.” “The deterrent effect such disclosure is likely to have on future ‘undercover’ investigative reporting,” the court continued, “threatens freedom of the press and the public’s need to be informed ... [and] undermines values which traditionally have been protected by federal courts applying federal public policy.”
http://www.firstamendmentcenter.org/press/topic.aspx?topic=shield_laws
The bolded is obviously a First Amendment protection. Some Courts have made the First Amendment source of protection clear, others have argued against it:
Like the court in Baker, many federal courts have recognized a “qualified” newsgathering privilege, that is, a privilege, which can be overcome in certain circumstances, against testifying or producing information. These courts have held that such a privilege is rooted in the First Amendment and supported by the decision in Branzburg. Other federal courts, however, have rejected the existence of such a privilege, saying that neither the First Amendment nor Branzburg requires that newsgatherers be treated differently than other citizens who receive a subpoena.
In order to defeat the privelage and force testimony concerning sources, the Court must find:
-The information is highly material and relevant to the case at issue.
-A compelling need exists for the information.
-The information cannot be obtained by other means.
So yes, sources are protected by the law and the source of that protection is the First Amendment.
The first amendment is not absolute protection against disclosures. Obviously, government officials who leak confidential documents can be prosecuted for violations of secrecy laws, notwithstanding the First Amendment.
It's not complete, but it's quite a ways beyond the First Amendment protections extended to fencing stolen property.
I don't know if American secrecy laws allow for prosecution of newspapers that publish materials they know to be protected by secrecy laws. I don't know if it is illegal for people to receive information they know to be protected by secrecy laws. That's why I asked people to let me know if they think there's a law out there that was violated by my reading the New York Times coverage of this story.
There is no such law.
There are laws that make it illegal to posses certain things, like child pornography, no matter how they're obtained, but that's very limited.
