Loyola of Los Angeles

ENTERTAINMENT LAW REVIEW

2011

Volume 31

Number 3

http://elr.lls.edu/

Copyright © 2011

Loyola of Los Angeles Entertainment Law Review

919 Albany Street, P.O. Box 15019

Los Angeles, CA 90015

http://elr.lls.edu

ISSN 0273-4249

Printed in the United States of America

All Rights Reserved

TABLE OF CONTENTS

Editorial Board & Staff

Law School Faculty

NOTES & COMMENTS

Life, Liberty, and the Pursuit of Entertainment?

by Erica N. Lucero

WikiLeaks: Balancing First Amendment Rights with National Security

by Melissa Hannah Opper

Loyola of Los Angeles

Entertainment Law Review

Volume Thirty-One

2011

Number 3

EDITORIAL BOARD

Brandon Wyman

Editor-in-Chief

Matthew Mejia

Executive Editor

Jaime Massar

Managing Editor

Luke Hasskamp

Chief Technical Editor

Ryan Sullivan

Chief Note & Comment Editor

James Matthew Carter

Chief Production Editor

Joel Cook

Chief Research Editor

Jacqueline Lechtholz-Zey

Chief Articles & Symposia Editor

Jay Fragus

Senior Articles & Symposia Editor

Note & Comment Editors

Shian Velie Brisbois

Aaron Miles Carter

Paulo de Almeida

Scott Goldman

Daniel Hauptman

Jacquelyn Mohr

Rotem Nicole Moran

Christopher Pitoun

Ricardo Rozen

Kara Taylor

Senior Production Editors

Jared Ahern

Harmoni Chinen

Alistair Khalessi

Jennifer Uezu

Production Editors

David Ajnassian

Courtney Conner

Amanda McGee

Brennan Mitch

Amy-Lyn Morse

Ryan Mowry

Michael Rubinstein

Matthew Taylor

Yujin Yi

Research Editors

Matthew Case

Edith Castaneda

Jasey Kang

Hiroyuki Senda

Elizabeth Treckler

STAFF

Eileen Aghnami

Haig Arabian

Elan Bloch

Matthew Brady

Eli Fink

Patricia Ford

Lauren Gabbaian

Charles Dignam Garnsey

Frances Hagan

Erica Herczeg

Jenna Spatz

Brooke-Sidney Jackson

Margaret Jennings

Betty Karmirlian

Lior Katz

Jonathan Lin

Erica Lucero

Ryan Moore

Erin Murphy

Gabriella Naysan

Justin Nussen

Melissa Opper

Lauren Partipilo

Rina Restaino

Emily Ruby

Jimmy Sauz

Fletcher Schmidt

Geno Seropian

Michelle Soliman

Jennifer Soria

Carly Strocker

Miri Stucker

John Toton

Karen Tso

Corina Valderrama

Tyler Vanderpool

Ruben Vidaurreta

Armineh Yousefian

Marti Reynolds

Financial/Administrative Advisor

F. Jay Dougherty

Faculty Advisor

Bridget A. Klink

Law Review & Academic Coordinator

LOYOLA LAW SCHOOL LOS ANGELES

919 Albany Street, Los Angeles, California 90015

THE ADMINISTRATION

David W. Burcham, B.A., M.A., J.D.

President, Loyola Marymount University

and Professor of Law

Victor J. Gold, B.A., J.D.

Fritz B. Burns Dean and Professor of Law;

Senior Vice President, Loyola Marymount University

Debra J. Martin, B.S.

Associate Dean for Finance and Administration

Sean M. Scott, B.A., J.D.

Associate Dean for Faculty and Professor of Law

Michael E. Waterstone, B.A., J.D

Associate Dean for Research and Academic Centers,

Professor of Law and J. Howard Ziemann Fellow

Jean Boylan, B.S., J.D.

Associate Dean for Clinical & Experiential Programs

and Clinical Professor of Law

Michiko M. Yamamoto, B.A.

Associate Dean for Student Affairs

John Hoyt, B.A., M.B.A.

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Jannell D. Roberts, B.A., M.A.

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Graham Sherr, B.A., J.D.

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Assistant Dean for Advancement

Christian W. Butzen, B.A.

Registrar

THE FACULTY OF LAW

Ellen P. Aprill, B.A., M.A., C. Phil., J.D.

John E. Anderson Professor in Tax Law

Cindy Archer, B.A., J.D.

Clinical Professor of Law

Jeffery Atik, A.B., J.D., Ph.D.

Professor of Law and Sayre Macneil Fellow

Susan Smith Bakhshian, B.S., J.D.

Clinical Professor of Law

Sarah R. Bensinger, B.A., M.A., J.D.

Clinical Professor of Law

Robert W. Benson, A.B., J.D.

Professor Emeritus

Carlos Berdejo, B.A., J.D., PhD.

Associate Professor of Law

Linda S. Beres, B.S., M.S., J.D.

Professor of Law

Barbara A. Blanco, B.A., J.D.

Clinical Professor of Law and

Faculty Clinical Director

Jean Boylan, B.S., J.D.

Associate Dean for Clinical & Experiential Programs and Clinical Professor of Law

Robert D. Brain, B.S., M.S., J.D.

Clinical Professor of Law

Samantha Buckingham, B.A, J.D.

Associate Clinical Professor of Law

Sande L. Buhai, B.A., J.D.

Clinical Professor of Law and

Director of the Public Interest Law Department

Aaron H. Caplan, B.A., J.D.

Associate Professor of Law

Anders B. Christiansen, B.A., J.D.

Visiting Assistant Professor of Law in Taxation

Brietta R. Clark, B.A., J.D.

Professor of Law

William G. Coskran, B.S., J.D.

Professor Emeritus

Jan C. Costello, B.A., M.A., J.D.

Professor of Law

Donald W. Cowen, A.B., LL.B., LL.M.

Professor Emeritus

Garrett K. Craig, B.A., J.D.

Associate Clinical Professor of Law

Mary B. Culbert, B.S., J.D.

Clinical Professor of Law and Director of the Center For Conflict Resolution

Mary F. Dant, B.A., J.D.

Clinical Professor of Law

F. Jay Dougherty, B.A., J.D.

Professor of Law

Aimee E. Dudovitz, B.A., J.D.

Associate Clinical Professor of Law

Roger W. Findley, A.B., J.D.

Professor Emeritus

Judy A. Fonda, B.A., J.D.

Clinical Professor of Law

Edith Z. Friedler, J.D.

Professor Emeritus

George C. Garbesi, B.S., LL.B., LL.M., J.S.D.

Professor Emeritus

David W. Glazier, B.A., M.A., J.D.

Professor of Law

Victor J. Gold, B.A., J.D.

Fritz B. Burns Dean and Professor of Law;

Senior Vice President, Loyola Marymount University

Charlotte Goldberg, B.A., J.D.

Professor of Law

Stanley A. Goldman, B.A., J.D.

Professor of Law and Director of the Center for the Study of Law and Genocide

Simona Grossi, M.A. (L.U.I.S.S. University), LL.M.

Associate Professor of Law

Michael D. Guttentag, A.B., MBA, J.D.

Professor of Law

Richard L. Hasen, B.A., M.A., J.D., Ph.D.

William H. Hannon Distinguished Professor of Law

Christopher C. Hawthorne, A.B., J.D.

Clinical Professor of Law

Paul T. Hayden, B.A., J.D.

Professor of Law and Jacob J. Becker Fellow

David Horton, B.A., J.D.

Associate Professor of Law

Bryan D. Hull, B.A., J.D.

Professor of Law

Allan Ides, B.A., M.A., J.D.

Christopher N. May Professor of Law

Jennifer S. Kamita, B.S., J.D.

Clinical Professor of Law and Director of Academic Support

Gideon Kanner, B.M.E., J.D.

Professor Emeritus

Kathleen C. Kim, B.A., J.D.

Associate Professor of Law

Jennifer M. Kowal, B.S., J.D.

Clinical Professor of Law and

Director of the Tax LL.M. Program

Lary Lawrence, B.A., J.D.

Harriet L. Bradley Professor in Contract Law

Daniel E. Lazaroff, B.A., J.D.

Leonard E. Cohen Professor in Law and Economics and Director of the Sports Law Institute

Laurie L. Levenson, A.B., J.D.

David W. Burcham Professor in Ethical Advocacy and Director of the Center for Ethical Advocacy

Justin M. Levitt, B.A., J.D./MPA

Associate Professor of Law

Jojo C. Liu, A.B., J.D.

Clinical Profess of Law

Hon. Frederick J. Lower, Jr., B.S., J.D.

Professor and Dean Emeritus

Karl M. Manheim, B.S., J.D., LL.M.

Professor of Law

Daniel W. Martin, B.A., M.L.S., J.D.

Professor of Law and Director of the William M. Rains Law Library

Christopher N. May, A.B., LL.B.

Professor Emeritus

Therese H. Maynard, B.A., J.D.

Professor of Law and Leo J. O’Brien Fellow

John T. McDermott, A.B., J.D.

Professor of Law

Gerald T. McLaughlin, A.B., LL.B.

Professor and Dean Emeritus

Yxta Maya Murray, B.A., J.D.

Professor of Law

Alexandra Natapoff, B.A., J.D.

Professor of Law

Douglas NeJaime, B.A., J.D.

Associate Professor of Law

John T. Nockleby, B.A., J.D.

Professor of Law and Director of the Civil Justice Program

Maureen T. Pacheco, B.A., J.D.

Associate Clinical Professor of Law and Assistant Director of the Center for Juvenile Law and Policy

Paula D. Pearlman, B.A., J.D.

Visiting Associate Professor of Law and Executive Director of the Disability Rights Legal Center

Lee Petherbridge, B.S., M.A., Ph.D., J.D.

Professor of Law

Samuel H. Pillsbury, A.B., J.D.

Professor of Law and William M. Rains Fellow

Susan Poehls, B.A., J.D.

William C. Hobbs Clinical Professor of Law and Director of Trial Advocacy

Katherine T. Pratt, B.A., J.D., LL.M.

Professor of Law

Florrie Young Roberts, B.A., J.D.

Professor of Law

Cesare P.R. Romano, M.A., D.E.S. (University of Geneva), LL.M., Ph.D

Professor of Law and Director of the Masters of Law Program in American Law and International Legal Practice and W. Joseph Ford Fellow

Gerald P. Rosen, A.B., J.D.

Professor Emeritus

Jennifer E. Rothman, A.B., MFA, J.D.

Professor of Law and Joseph Scott Fellow

Dan S. Schechter, B.A., J.D.

Professor of Law

Sean M. Scott, B.A., J.D.

Associate Dean for Faculty and Professor of Law

Daniel P. Selmi, B.A., J.D., M.P.A.

Fritz B. Burns Professor in Real Property

Theodore P. Seto, B.A., J.D.

Professor of Law and William M. Rains Fellow

Arnold I. Siegel, B.A., J.D.

Clinical Professor of Law and Director of Legal Writing and Ethical Lawyering Programs

Joseph V. Sliskovich, B.A., J.D., LL.M.

Professor of Law

Clemence M. Smith, A.B., LL.B.

Professor Emeritus

Michael J. Smith, B.A., J.D.

Associate Clinical Professor of Law

Daniel L. Stewart, B.A., J.D., M. Litt., Ph.D.

Professor Emeritus

Marcy Strauss, B.S., J.D.

Professor of Law

Peter M. Tiersma, B.A., Ph.D., J.D.

Hon. William Matthew Byrne, Jr. Professor of Law and Director of International Programs

Katherine A. Trisolini, B.A., M.A., J.D.

Associate Professor of Law

David C. Tunick, B.A., J.D.

Professor of Law

Georgene M. Vairo, B.A., M.Ed., J.D.

Professor of Law and William M. Rains Fellow

Michael E. Waterstone, B.A., J.D.

Associate Dean for Research and Academic Centers, Professor of Law and J. Howard Ziemann Fellow

Anne E. Wells, B.A., J.D.

Associate Clinical Professor of Law

Kimberly West-Faulcon, B.A., J.D.

Professor of Law

Gary C. Williams, B.A., J.D.

Johnnie L. Cochran, Jr. Professor in Civil Rights

Lauren E. Willis, B.A., J.D.

Professor of Law

Michael E. Wolfson, B.A., M.S.E., J.D.

Professor Emeritus

Scott E. Wood, B.A., M.A., J.D.

Clinical Professor of Law

Cyn Yamashiro, B.A., J.D.

Clinical Professor of Law and Executive Director of the Center for Juvenile Law and Policy

Harry N. Zavos, B.A., Ph.D., J.D.

Professor Emeritus

ADJUNCT FACULTY

Rabbi Jeffrey D. Adlerstein

Eduardo A. Angeles

Jeffrey Atkin

Michael Bazyler

Jack Beard

Michael J. Berger

Ronald L. Blanc

Elizabeth Bluestein

David S. Boyce

Casey Boyle

David Brandon

Marc E. Brown

Robert Buch

Daniel J. Buckley

David Burch

Edward M. Burgh

Mark Burnett

Sara Campos

John Caragozian

Steve Cerveris

Joseph Charney

Roxanne Christ

M. Erik Clark

Katie Codon

Jerilyn Cohen

Danielle Colon

Hon. David J. Cowan

Jeffrey DeFrancisco

Rebecca Delfino

Erica Deutsch

Stuart B. Esner

Vince Farhat

George Fatheree

David B. Fischer

David Fontana

Tracey Freed

Richard C. Fung

John Garman

Robin C. Gilden

James W. Gilliam

David F. Glassman

Theresa E. Glenn

Steve Goldstein

Joseph Goodman

James M. Harris

Hon. Rex Heeseman

Thomas W. Henning

Jamon R. Hicks

Marielena Hincapie

Benjamin Hofilena

Sanford Holo

John Horn

Guy Iversen

Maureen G. Johnson

Perlette M. Jura

Robert A. Kahn

Sean K. Kennedy

David Kesselman

Dean J. Kitchens

Mary Elizabeth Kors

Tannaz Kouhpainezhad

Miriam Krinsky

Moshe J. Kushman

Babak Lalezari

Allen Lanstra

Michael Larkin

Alexander Lee

David S. Lessoff

Jessica Levinson

Peter Levitan

Leonard Levy

Graham LippSmith

Katherine Lyons

Kevin Masuda

Paula M. Mitchell

Robert Morrow

Thomas M. Neches

Michael J. Niborski

Victor Nieblas Pradis

Hon. Beverly Reid O'Connell

Shawna Parks

Nicole M. Perez

Joshua Phillips

Nora Preciado

James Prendergast

Michael Purleski

Robert Pushaw

Alan B. Rabkin

Cristian M. Ramorino

Hon. Alex Ricciardulli

A. Joel Richlin

Edward M. Robbins

Keith Rohman

Charles B. Rosenberg

David Roth

Robert H. Rotstein

Sandor E. Samuels

Dawn Schock

Craig Shaltes

Roland G. Simpson

Carol Sobel

Gregory J. Soukup

David Steele

Christine Steiner

Marc M. Stern

N. Lee Straus

Scott Street

Jeffrey M. Tolin

Michael Treiman

Katherine Tucker

Karen Tumlin

Howard Unterberger

Dirk Vincent

Dorothy Vinsky

Paul Von Blum

Alan D. Wallace

Brian Walton

Donald E. Warner

Stephen Weerts

Donald R. Weigandt

Joel B. Weinberg

Joe Wohrle

Susan M. Woolley

Derrick Zandpour

NOTES & COMMENTS

LIFE, LIBERTY, AND THE PURSUIT OF ENTERTAINMENT?

This comment focuses on the case Arizona ex rel Goddard v. Harkins Amusement Enterprises and uses it to explore whether the Americans with Disabilities Act (“ADA”) is being distorted and misused if theater owners are required to install and provide equipment so as to fully accommodate hearing- and vision impaired customers. The comment begins by outlining the ADA using case examples and detailing the analytical framework courts use to evaluate claims asserted under the Act. It then discusses the accommodations the motion picture industry currently provides disabled patrons, and, after evaluating these existing accommodations, outlines the financial and technical effect full compliance under the ADA would have on the motion picture industry. Lastly, the article suggests possible action for courts and the public to take in order to balance the interests of disabled Americans and the motion picture industry, ultimately concluding that full compliance under the ADA would place an undue burden on the motion picture industry.

I. INTRODUCTION

In 2000, famed actor and director Clint Eastwood made headlines when he took a politically incorrect stance: he litigated a case against a disabled woman who claimed that under the Americans with Disabilities Act (“ADA”) his Mission Ranch resort was not wheelchair-accessible.[1] “‘If you’re right, you’ve got to hold your ground,’ Eastwood said. ‘I also fought for the businessmen and businesswomen who own small businesses who are trying to get by and they get worked over by those people.’”[2]

The plaintiffs in the case were Diane and Michael zum Brunnen, visitors of Mr. Eastwood’s resort in Carmel, California.[3] At that time, the resort had two wheelchair-accessible bathrooms, a wheelchair-accessible suite, and a handicap-accessible parking space.[4] The plaintiffs claimed that the bathrooms were 240 feet from the Mission Ranch Restaurant without signs directing the way, the suite was too expensive, the hotel office was not wheelchair accessible, and the parking space was not properly marked.[5] To make up for these inadequacies, the zum Brunnens’ attorneys demanded a $577,000 settlement from Eastwood.[6] Rather than pay up, though, Eastwood fought the claim.[7] Besides showing up daily in federal court, he testified before a Congressional committee in May 2000, urging lawmakers to stop frivolous lawsuits by amending the ADA to require that plaintiffs notify business owners of access problems and give them ninety days to make improvements before filing suit.[8]

Criticism against Eastwood was scathing.[9] The vast majority of ADA cases are settled out of court where business owners often pay cash to plaintiffs while quietly making the disabled access improvements to their businesses.[10] Sid Wolinsky, the director of litigation services for Disability Rights Advocates in Oakland, scoffed, “‘[H]e’s being Mr. Clint Eastwood “make my day” Mr. Tough Guy . . . . It’s ridiculous for him to say he didn’t know what needed to be done’ to eliminate physical barriers for the disabled . . . . ‘I can’t think of an area that is more clear-cut.’”[11] Unintentionally, however, Mr. Wolinsky hit upon the crux of the problem with the ADA. There is nothing clear-cut about ADA requirements, as evidenced by the current debate rocking the motion picture industry: movie theater access for vision- and hearing-impaired patrons.[12]

In 2005, two disabled Arizonans filed complaints that would dramatically change the movie theater industry.[13] Frederick Lindstrom and Larry Wanger lodged their complaints against Harkins Amusement Enterprises (“Harkins”), a movie theater chain with over eighty percent of its theaters located in Arizona.[14] Each plaintiff separately attempted to attend a movie at a Harkins movie theater location.[15] However, Harkins was unable to accommodate them because of their disabilities, leading each patron to file a complaint of public accommodation discrimination with Arizona’s Civil Rights Division.[16]

The State of Arizona sued Harkins in 2008, and theater patrons Lindstrom and Wanger intervened as plaintiffs.[17] Harkins removed the case to federal court, which granted its motion to dismiss.[18] The State and the two patrons then appealed to the Ninth Circuit Court of Appeals.[19] That court reversed the motion to dismiss, holding that as a matter of law, the suit fell under the purview of the ADA.[20] In addressing the issue of what specific technology theaters might be required to have, the Ninth Circuit ruled “open captioning is not mandated by the ADA as a matter of law.”[21] However, the Court left open whether theaters are required by law to provide closed captioning and descriptive narration.[22]

In a press release posted to his website, Arizona Attorney General Terry Goddard announced the Ninth Circuit’s “[g]roundbreaking [r]eversal in [the] [m]ovie [t]heater [d]isability [c]ase.”[23] In the release, he stated, “[t]his is a groundbreaking legal decision because it is the first time that a Circuit Court of Appeals has ruled on whether the Americans with Disabilities Act requires captions or descriptions in movie theaters.”[24] Goddard then expressed his appreciation, stating,

We are gratified that the Ninth Circuit rejected Harkins’ argument that the ADA . . . require[s] only that individuals with disabilities gain entrance to the theater, but not access to the soundtrack or key visual features of the films shown . . . . This decision makes it clear that the ADA is about more than physical access to a public accommodation—it is also about ensuring access to the services that the public accommodation provides.[25]

Due in large part to Arizona ex rel. Goddard v. Harkins Amusement Enterprises, movie theater access for the disabled is currently garnering a great deal of attention. The Department of Justice (“DOJ”) recently announced that it

is considering revising its regulation implementing Title III of the Americans with Disabilities Act in order to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by movie theater owners or operators at movie theaters accessible to individuals who are deaf . . . or who are blind . . . by screening movies with closed captioning or video description.[26]

In a notice handed down to the motion picture industry, the DOJ provided “advance notice” and sought comments on the issue.[27] A variety of blogs discuss the need for closed captioning and descriptive narration.[28] Some even dispense tax advice, informing small businesses of tax cuts available to them should they decide to embrace closed captioning.[29] In Alameda County, California, a class action lawsuit has been filed against movie theater giant Cinemark, alleging the theater chain discriminates against the deaf by not providing captioned movies.[30] The issue is officially ripe, and the time has come to reach a consensus that takes into account the interest of the motion picture industry and its disabled patrons.

American theaters are now facing a complicated issue: should theater owners be required to install and provide equipment in order to fully accommodate their hearing and visually impaired customers under the ADA? Regulations promulgated under the ADA are failing to balance the competing interests of disabled Americans with those who provide entertainment facilities to the public. At some point a line must be drawn. As the First Circuit pointed out in United States v. Hoyt Cinemas Corp., “[t]he ADA places substantial emphasis on equality of access. As a matter of common sense, this cannot be absolute equality; a tilt-back chair for ordinary patrons does not therefore entail a tilt-back platform for a wheelchair.”[31] Recent trends tilting the balance in favor of the disabled are imposing prohibitive burdens on private enterprise,[32] and Arizona ex rel. Goddard v. Harkins Amusement Enterprises presents the Ninth Circuit with the perfect opportunity to bring equity back to regulations under the ADA.[33]

The purpose of this paper is to discuss whether the ADA is being distorted and misused. Part II of this article outlines the ADA and, using case examples, discusses the analytical framework courts use to evaluate claims asserted under the Act. The paper also provides specific examples of the ways in which the motion picture industry has made allowances for its disabled patrons. Part III of this article discusses the current implications of the ADA and its effect on the motion picture industry, specifically focusing on the financial impact ADA compliance would have on the industry. Lastly, Part IV suggests possible action for courts and the public to take in attempting to balance the interests of disabled Americans and the motion picture industry.

II. LEGAL BACKGROUND

A. The Americans with Disabilities Act

In 1990 Congress passed the Americans with Disabilities Act (“ADA”) based on congressional findings about the status of disabled Americans.[34] Congress declared that, “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination.”[35] Finding that discrimination against disabled individuals exists in a wide variety of “critical areas,”[36] Congress stated, “individuals with disabilities continually encounter various forms of discrimination, including . . . the discriminatory effects of architectural . . . [and] communication barriers . . . [and] failure to make modifications to existing facilities and practices.”[37] Thus, the Act placed the federal government in the role of enforcer by invoking the “sweep of congressional authority” in an effort “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,” and sought “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.”[38]

Title III of the ADA outlaws discrimination by public accommodations, stating that discrimination includes

a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.[39]

To prevail on a discrimination claim under Title III, the plaintiff must establish a prima facie case that: “(1) [the plaintiff is] disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his [or her] disability.”[40]

There is an analytical framework for any party making a claim of discrimination under the ADA. First, the plaintiff must prove that a modification was requested, and that such modification is reasonable.[41] To meet this burden, the plaintiff must introduce “evidence that the requested modification is reasonable in the general sense.”[42] The burden then shifts to the defendant who will be expected to produce evidence that the requested modification is unreasonable.[43] If the court finds that the plaintiff has met his or her burden, the defendant must then make the requested modification, unless the defendant can meet the additional burden of proving that the modification would either constitute an undue burden or that it would fundamentally alter the nature of the public accommodation.[44] Although the term “undue burden” is not specifically defined in the statute, the Department of Justice (“DOJ”) suggests that the term be interpreted in the same way as the “undue hardship” standard.[45] Used in the employment provisions of the ADA, “undue hardship” is defined as a “significant difficulty or expense.”[46]

The case Coleman v. Zatechka illustrates the protections of the ADA.[47] In Coleman, a handicapped student with cerebral palsy was admitted to the University of Nebraska, Lincoln, in 1991.[48] Due to the paresis in both her legs, she required the services of a personal attendant to assist her with such tasks as dressing, showering, and toileting.[49] The summer before Coleman began her schooling, she submitted a housing contract application to secure dormitory housing.[50] However, rather than submit her name to the general lottery to be randomly assigned a roommate, the University automatically assigned her to a room without a roommate.[51] Coleman later learned that the University’s policy was not to assign roommates to students who required a personal attendant.[52] In the ensuing lawsuit, the University repeatedly stated that it would “not require another student to be [Coleman’s] roommate.”[53]

First, Coleman successfully established a prima facie case: 1) she, the plaintiff, was disabled within the meaning of the ADA because cerebral palsy is recognized as a disability under the Act;[54] 2) the University of Nebraska, the defendant, is a private entity operating a place of public accommodation, as the Nebraska Legislature established the school as a state institution;[55] and 3) she was denied public accommodations when the school prevented her from living in a residence hall with a roommate because she had cerebral palsy.[56]

The court ruled that the school’s conduct was unacceptable, stating that “[t]he ADA’s Findings and Purposes illustrate that Congress, in enacting the statute, aimed to bring people with disabilities into society’s mainstream, to cause the kinds of interaction which might facilitate recognition of the true equality of human worth as between individuals—regardless of disabilities.”[57] As implemented, the University’s policy unnecessarily separated students with disabilities from those without disabilities, striking at the essence of the ADA by specifically violating the statute’s stated purpose: “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”[58] In essence, the court used the Act to ensure that Coleman had the same opportunity as her peers—that is, to live in her university’s dormitory housing with a roommate.[59] This case perfectly illustrates how the findings and purposes of the ADA are applied.

In Tennessee v. Lane, the Supreme Court upheld a more controversial application of the ADA.[60] In an opinion authored by Justice Stevens, the Court staunchly supported the goals of the ADA by upholding it in the face of an Eleventh Amendment challenge.[61] George Lane and Beverly Jones, two paraplegics, filed suit in 1998 against the state of Tennessee, alleging that they were denied access to the state court system by reason of their disabilities.[62] Lane alleged that he was compelled to appear in court to answer to criminal charges, but upon attempting to access the second floor of the courthouse, he found that there was no elevator and was forced to crawl up two flights of stairs to enter the courtroom.[63] On a second visit to the courthouse, he refused to crawl or be carried and was consequently arrested and jailed for failure to appear.[64] Jones, a certified court reporter, alleged that she had been unable to gain access to a number of Tennessee state courthouses, and had therefore lost work and the opportunity to participate in the judicial process.[65] Tennessee moved to dismiss the suit on the ground that the Eleventh Amendment barred the claims.[66]

The Court began by stating,

Congress may abrogate the State’s Eleventh Amendment immunity. To determine whether it has done so in any given case, we “must resolve two predicate questions: first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority.”[67]

According to the Court, the first question was “easily answered” because the ADA specifically states that no state shall be immune under the Eleventh Amendment.[68]

The Court continued, “Congress can abrogate a State’s sovereign immunity when it does so pursuant to a valid exercise of its power under section 5 of the Fourteenth Amendment.”[69] This, as “[it] ha[s] often [been] acknowledged, is a broad power indeed.”[70] The Court then commented on the nature of Title II, saying it “seeks to enforce . . . [a] prohibition on irrational disability discrimination . . . [and] a variety of other basic constitutional guarantees . . . like the right of access to the courts at issue in this case, that are protected by the Due Process Clause of the Fourteenth Amendment.”[71]

In evaluating the constitutionality of Title II, the Court stated that Title II’s validity must be judged against the backdrop of the historical experience it reflects.[72] One of the numerous examples the Court provided addressed voting: “Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights. For example, ‘[a]s of 1979, most States . . . categorically disqualified “idiots” from voting, without regard to individual capacity.’”[73]

The Court ultimately held that Title II of the ADA constitutes a valid exercise of Congressional authority.[74]

Tennessee v. Lane continues to be a powerful opinion, not only for the majority’s endorsement of the ADA in the face of an Eleventh Amendment challenge, but also for the dissent’s powerful denunciation of the majority.[75] In an opinion authored by Chief Justice Rehnquist, the dissent attacked Congress’ ADA findings.[76] Calling the majority’s examples of wrongs dealt to the disabled a “digression,” Rehnquist critically states that the majority’s recounting of “historical discrimination against the disabled through institutionalization laws, restrictions on marriage, voting, and public education, conditions in mental hospitals, and various other forms of unequal treatment in the administration of public programs and services” is “outdated” and “generalized.”[77] The dissent then goes on to state that this “unexamined, anecdotal evidence does not suffice,”[78] and that “[t]he Court’s attempt to disguise the lack of congressional documentation with a few citations to judicial decisions cannot retroactively provide support for Title II.”[79]

In conclusion, the dissent explicates that Title II of the ADA suffers from “massive overbreadth,”[80] and that

[e]ven if the anecdotal evidence and conclusory statements relied on by the majority could be properly considered, the mere existence of an architecturally “inaccessible” courthouse . . . does not state a constitutional violation. . . . We have never held that a person has a constitutional right to makes his way into a courtroom without any external assistance.[81]

B. Motion Picture Industry Allowances

Nationwide, theaters have already made allowances for disabled patrons under the ADA.[82] The alteration of theater architecture is especially demonstrative of this.[83] The Architectural and Transportation Barriers Compliance Board (the “Access Board”) is a congressionally appointed board under the ADA tasked with drafting regulations relating to architectural and transportation barriers for the disabled for the DOJ.[84] The regulations are then either adopted or modified by the DOJ, and must at least be “consistent with the minimum guidelines and requirements” that have been drafted by the Access Board.[85] In 1991, the Access Board provided the DOJ with accessibility guidelines “that required wheelchair seating to be located to provide lines of sight comparable to those for all viewing areas.”[86] The Access Board solicited comments on sightlines at entertainment venues where patrons might frequently stand, such as at sporting events, but did not propose any regulations.[87] Ultimately, however, when the DOJ thereafter promulgated Standard 4.33.3, it omitted any reference to the issue of standing spectators.[88]

The issue of standing spectators did not arise again until 1993 during the DOJ’s investigations into the facilities for the 1996 Olympic Games, to be held in Atlanta, Georgia.[89] At that time, the DOJ made the concrete statement that “‘lines of sight comparable to those for members of the general public’ meant ‘line[s] of sight over standing spectators.’”[90]

As a result of this statement, the Paralyzed Veterans of America filed suit in 1996 against the owners of the MCI Center,[91] a venue being constructed in downtown Washington D.C. designed to host football games, basketball games, concerts, and other special events.[92] As the Court of Appeals for the District of Columbia stated,

Because the games and events will be exciting affairs and the patrons are expected, even encouraged at times, to stand and cheer for the home teams, wheelchair users are understandably concerned about whether the seats available to them will allow them to see the action during the most dramatic moments.[93]

Before suit was filed, D.C. Arena ensured, on their own initiative, that sixty percent of the wheelchair seating had sightlines over standing spectators.[94] Despite these efforts, the District Court found the plan deficient, stating that the owners needed to provide sightlines over standing areas in seventy-five to eighty-eight percent of the areas where there was disabled seating.[95] These numbers, the court deemed, would qualify as “substantial compliance.”[96]

Both parties appealed. D.C. Arena argued that Standard 4.33.3 did not require any of the wheelchair areas to have such sightlines, and the Paralyzed Veterans of America took the stance that one hundred percent compliance was the only way the owners could avoid violating the ADA.[97] The Court of Appeals affirmed the lower court’s ruling, reasoning that one hundred percent compliance could only be achieved by having all wheelchair seating areas separate from the rest of the spectators.[98] This result would also violate the ADA, as the Act requires wheelchair seating to be integrated with the seating for the other spectators.[99] Therefore, separating disabled seating from the seats of non-disabled patrons “would merely exacerbate wheelchair users’ physical and social isolation from the rest of the audience.”[100]

The issue of architecture and disabled seating eventually affected the motion picture industry. In 1999, the government filed suit against AMC Entertainment, a nationwide theater chain,[101] alleging that AMC violated the ADA by restricting handicapped seating to only the front sections of its stadium-style movie theaters.[102] The court found that AMC discriminated against handicapped patrons by not placing accessible seating in areas where lines of sight were comparable to those for members of the general public.[103] AMC Entertainment was given five years, beginning January 10, 2006, to implement changes to all future and existing theaters.[104] The opinion contained a lengthy list of retrofitting that AMC was required to undertake, listing specific changes for each and every auditorium.[105] For example, the Order for Lakes Square 12 in Leesburg, Florida stated “Auditoriums 3, 4, 5, and 6: AMC shall remove two Wheelchair Spaces from the front row of the Traditional Section and relocate them to the last row of this Section adjacent to the two existing Wheelchair and Companion Spaces.”[106]

However, what the court only implicitly acknowledged was that AMC had already made allowances for the disabled.[107] In the subsequent appeal, the court stated that “theaters built in 1995 require the most significant retrofitting, including installing ramps, removing mini-risers and constructing new seats, whereas other newer theaters, having been altered to respond to customer complaints, require less retrofitting.”[108] This statement indicates that AMC made efforts to accommodate its disabled patrons without the threat of legal action. As a direct result of theaters making increasing allowances throughout the years, less retrofitting was needed in newer than in older theaters.

After the district court ordered AMC to retrofit all of its theaters, AMC appealed on the ground that it was “not told the rules of building stadium-seating theaters until, at the earliest, the government published its view of Section 4.33.3.”[109] Section 4.33.3 of the Code of Federal Regulations states, “[w]heelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public.”[110] Because this regulation pre-dated the construction and subsequent popularity of stadium-style movie theaters by several years, it was unclear whether stadium-style theaters were required to comport to the same regulation.[111] What resulted was inaction by the DOJ, with the Ninth Circuit stating, “the Access Board and the DOJ failed to provide clear direction as to the precise meaning of Section 4.33.3.”[112] The Ninth Circuit held that the lower court had abused its discretion and, in doing so, violated AMC’s due process rights by requiring the retrofitting of theaters regardless of their date of construction.[113]

What is evident from both Paralyzed Veterans of America v. D.C. Arena and United States v. AMC Entertainment, Inc. is that the owners of the entertainment venues did take their disabled patrons into account prior to being subjected to legal action.[114] What the patrons found unsatisfactory was that the owners refused to fully comply with their wishes. Accordingly, the patrons proceeded to file suit to force the companies to make greater accommodations than they had originally proposed.[115]

Theater owners now face the next frontier of disabled accommodations in closed captioning and descriptive narration. In the past several years, courts have handed down conflicting rulings.[116] For example, in Ball v. AMC Entertainment, Inc., a Washington, D.C. District Court held that, although the ADA did not explicitly require movie theaters to provide its patrons with closed captioning,[117] congressional intent clearly indicated that “the ADA might require new technology be used, as it is developed, to further accommodate disabled individuals.”[118] In stark contrast, the court in Cornilles v. Regal Cinemas, Inc. held that Regal Cinemas was not required to accommodate its disabled patrons with closed captioning because “requiring Defendants to expend thousands of dollars per auditorium to install new technology [would be] unduly burdensome.”[119] To prevent costly future battles faced by both sides in reaching a consensus about the allowances the motion picture industry must make for its disabled patrons, it is important for the DOJ to act now and make an educated and realistic choice about what its stance on the issue will be.

C. Current Application

After the Ninth Circuit’s holding in Arizona ex rel. Goddard v. Harkins Amusement Enterprises, the Law Office of Lainey Feingold announced that its clients, Fredrick Lindstrom and Larry Wanger, would soon be re-filing their case.[120] Lindstrom is a nearly deaf patron who alleges that three specific technologies would aid him in his movie-going experience.[121] The first option is open captioning, a system that displays every spoken word of a movie in text that appears at the bottom of the screen.[122] This occurs either by engraving text onto each individual frame of a film[123] or by using a separate projection system to project captions onto the movie screen.[124] Secondly, Lindstrom added that closed captioning, a relatively new technology, would also aid him in his movie-going experience.[125] Closed captioning displays captions to viewers through personal devices on an individual basis, so that the only patrons seeing the captions are those who request them.[126]

Wanger is a nearly blind patron and alleges that only one type of technology, descriptive narration combined with headphones, would allow him to enjoy movies:

Descriptive narration is a way of making visual media more meaningful to people with vision loss. Narrated descriptions provide information about key visual elements such as actions, settings, facial expressions, costumes, on-screen text and scene changes. The descriptions are inserted into pauses in the soundtrack and do not interfere with the dialogue.[127]

The Harkins court held that movie captioning and audio descriptions are “clearly” auxiliary aides and services that therefore fall under the purview of the ADA.[128] However, the DOJ’s Code of Regulations specifically states that theaters are not required to provide open captioning as a matter of law.[129] The court, however, left the issue of closed captioning requirements open.[130] In arguing against having to provide closed captioning, Harkins relied on interpretations of the ADA contained in the Federal Register, in which the DOJ only showed that the matter was still being debated.[131] The court did not find this argument dispositive, declining “to give deference to Access Board guidelines that have not yet been adopted by the DOJ.”[132]

In holding that the plaintiffs’ claim fell under the purview of the ADA, the Ninth Circuit enabled the plaintiffs to re-file their suit, alleging discrimination under the ADA for Harkins’ failure to provide closed captioning and descriptive narration.[133] However, the court did make one very important statement for the defense:

Our holding does not necessarily mean that Plaintiffs will be entitled to closed captioning and descriptive narration in Harkins’s theaters. Harkins may still be able to avail itself of several defenses, such as the contention that the devices would fundamentally alter the nature of its services or constitute an undue burden.[134]

III. IMPLICATIONS

The Department of Justice (“DOJ”) recently issued a notice of proposed rulemaking in which it seeks to institute regulations that would require all theaters in the United States to accommodate disabled movie theater patrons by providing both closed captioning and descriptive narration.[135] As a follow up, the DOJ recently included the topic in the appendix of the proposed rulemaking, stating that the Department “was considering the possibility of requiring public accommodations to exhibit all new movies in captioned format and with video description at every showing.”[136] It then asked for public comment, concluding that

rather than issue specific regulatory text at this time, the Department has determined that it should obtain additional information regarding issues raised by commenters . . . supplemental technical information, and updated information regarding the current and future status of the conversion to digital cinema by movie theater owners and operators.[137]

To this end, the DOJ is planning to engage in rulemaking relating specifically to movie captioning under the Americans with Disabilities Act (“ADA”).[138]

In analyzing the prima facie case for a discrimination claim under Title III of the ADA, it is clear that the third requirement, in which the defendant denies the plaintiff public accommodations because of his or her disability, is at issue in Arizona ex rel. Goddard v. Harkins Amusement Enterprises.[139] Harkins’ best defense would be that the devices would constitute an undue burden.[140] Harkins, as well as any theater confronted with such a lawsuit, will be able to show undue burden by demonstrating to the court the exact costs incurred in making their screens compliant.[141] Arts Access, an organization whose fundamental goal is to “encourage [individuals with disabilities] to participate fully in the rich cultural and artistic life throughout the state,”[142] offers training services to theaters on ADA compliance.[143] However, what the website fails to acknowledge is that the costs would be prohibitive.[144]

A. Digital v. Film Screens

Standardized technology that operates closed captioning and descriptive narration in conjunction with film screens does not exist.[145] Therefore, before a theater can accommodate the disabled, it must make the initial step of converting its film screens to digital screens.[146] Currently, estimates of the number of cinema screens in the United States that are equipped with digital projectors vary.[147] Industry experts state that the number of digital screens is approaching approximately one third of all screens in the U.S.,[148] whereas the DOJ claims that approximately 5,000 of 38,794 screens have been converted.[149] Regardless of the source of statistics, digital screens are the minority, meaning that most cinema screens in the United States are still equipped with film projectors.[150] Further, estimates vary as to how long it will take most theaters, excluding specialty theaters, to be equipped with digital screens.[151] For example, according to one commenter who presented findings to the DOJ, it will be approximately ten or more years before all of the screens in the United States are digital.[152] On the other hand, industry experts predict that in three to five years, over ninety percent of screens will have converted to digital.[153] However, this conversion depends on a variety of factors, including the financial situation of movie theater owners and operators, the state of the economy, and incentives being offered to promote the digital change.[154]

What is not disputed is the high cost to convert a film screen to a digital screen.[155] Conversion estimates, provided by commenters to the DOJ, range from $70,000 to $100,000, which is the cost per screen, not per cinema complex.[156] Therefore, a theater complex owner looking to convert his entire complex into one with digital screens would only be able to do so at great expense. The additional costs do not end there; maintenance costs for digital projectors are much higher than those of film projectors, costing $5,000 to $10,000 more per year to maintain, which is approximately five times more than the annual maintenance cost for film projectors.[157] Therefore, theaters are not only looking at higher short term costs, they are also looking at permanently higher operating costs.

B. Closed Captioning

Unlike open captioning, which is visible to the entire audience,[158] closed captioning makes it possible for exhibitors to provide captions to its patrons on an individual basis.[159] There are three main types of closed captioning systems currently being produced.[160] The first is called rear window display.[161] The rear window captioning system produces a digital, lighted display that is mounted on the back wall of a movie theater.[162] Patrons are then given a transparent acrylic panel that can be mounted in the cup holder of a theater seat.[163] The panel reflects the captions from the rear window display on the back wall of the theater so that the captions are superimposed either below or on the movie screen, in the typical place one might see subtitles.[164] There is no need for special prints or special screenings, as the rear window display is its own functioning machine that works in tandem with a digital projector.[165]

Ultra Stereo Labs is a manufacturer of the second type of closed captioning system, the Infrared Emitter System (“IR Emitter System”).[166] The IR Emitter System is composed of two pieces.[167] The first piece is an infrared emitter device, which transmits closed caption text over infrared wavelengths.[168] The list price is $1,450 per device.[169] The second piece of the system is the infrared receiver, which can come in several forms.[170] Two of the most popular forms are a personal infrared receiver display and infrared receiving glasses.[171] The personal display is a small box with a light-emitting diode (“LED”) light text display that clips to the armrest of a patron’s seat.[172] The cost is $430 per personal display.[173] The infrared receiving glasses, which are worn by the patron, also use an LED light display and angled glass to overlay closed caption text on top of the movie image.[174]

A third type of closed captioning system is produced by Doremi Cinema and is called the CaptiView Closed Captioning System.[175] As a preliminary requirement for the system, a theater must employ the Doremi Digital Cinema Server, which has a list price of $18,400.[176] Once this preliminary hurdle has been passed, the system has two separate components.[177] The first component is a software application that is loaded onto the digital cinema server at a price of $950 per server.[178] The software then enables the server to wirelessly transmit closed captions via a WiFi network to individual CaptiView display devices which retail at $525 each.[179] The device “consists of a small, OLED display on a bendable support arm” that can be mounted into the cup holder of a theater seat.[180] The display is equipped with a privacy visor so that it can be positioned in front of the patron and cause minimal distraction to those seated near that patron.[181] A theater with ten screens would first need to purchase ten Doremi digital cinema servers, costing a total of $184,000. Once these servers are purchased, the theater would need to purchase a software package for each of the ten servers at a total cost of $9,500. Lastly, the theater would need to buy enough personal display devices to meet demand at a cost of $525 each. Assuming each theater demands one such device, a single theater complex would be spending a total of $198,750 to outfit its complex with the CaptiView Closed Captioning System.

Moreover, beyond the prohibitive cost, there are major logistical issues that must be addressed before theaters should be required to provide disabled patrons with closed captioning. Currently, there are no standards in place that regulate or make uniform the interaction of closed captioning equipment and digital theater equipment.[182] When a digital movie is delivered to a theater, it is loaded onto a playback server.[183] Because there are multiple manufacturers of both playback servers and closed captioning systems, standards are necessary to dictate how a playback server communicates with a closed captioning device.[184] Additionally, movie distributors have not been provided with delivery standards.[185] On its website, Ultra Stereo Lab describes its IR Emitter System as a system that “complies with DCI and SMPTE draft standards.”[186] As illuminated by the use of the word “draft,” there are currently no official standards, and as a result, distributors are currently limping along by using subtitling standards.[187] Therefore, the multitude of logistical issues resulting from a lack of concrete standards makes it highly impractical for theaters to provide closed captioning.

C. Descriptive Narration

Disabled rights advocates claim that unlike closed captioning, descriptive narration does not require a digital theater system.[188] However, what these advocates fail to note is that there is currently no technology that could enable descriptive narration to run with a film projection system.[189] It is, therefore, more costly for a theater with a film projector to broadcast descriptive narration than it is for a digital theater.[190] Like closed captioning systems, the cost of descriptive narration systems for digital theater owners is often high. Descriptive narration can be achieved in one of two ways.[191] The first way would be to install chairs equipped with audio jacks in theaters.[192] This solution would enable a patron to plug a headset into the outlet and listen to the descriptive narration of the movie. However, this solution would likely be extremely costly.[193] If disabled patrons could sit anywhere in the theater, theater owners would be required to wire every single seat and purchase more expensive seats equipped with audio jacks for the entire theater.[194]

The second alternative is much more cost-effective. This method provides wireless headphones to each patron upon request and allows patrons to tune into the descriptive narration using a variety of possible methods.[195] One method would be for the patron to tune in to a specific FM channel through which the descriptive narration soundtrack is broadcast.[196] Another method could be utilized via a WiFi or Bluetooth network provided by the theater for the specific purpose of transmitting the narration.[197] Lastly, headphones are available through Ultra Stereo Systems for $80, which work with the same infrared emitter device that transmits closed caption text over infrared wavelengths (list price $1,450 per device).[198] The cost to equip a one hundred-seat movie theater with the system made by Ultra Stereo Systems would be $9,450. Equipping a ten-screen movie theater complex with the system would therefore cost $94,500.

Although descriptive narration is less costly than closed captioning, it is potentially fraught with regulatory problems, since wirelessly transmitting descriptive narration will likely raise a variety of piracy issues. For example, an individual outside of a theater could tune into the radio channel broadcasting the descriptive narration and obtain a high quality soundtrack of a recently released movie.[199] In addition, the FCC would have to monitor what channels theaters could use; these channels are in-demand commodities with a limited supply.[200] Accordingly, like its counterpart closed captioning, descriptive narration is plagued with logistical issues, making it difficult to implement in theaters.

IV. SUGGESTED ACTION

The question remains: should theater owners be required to install and provide equipment to fully accommodate its hearing and visually impaired customers under the Americans with Disabilities Act (“ADA”)? Theater owners should not have to fully accommodate their hearing and visually impaired customers under the ADA. Full compliance, as previously demonstrated, would come at a prohibitive cost.[201] It would result in a misuse of the ADA because it would fail to balance both the interests of disabled Americans and the interests of those providing entertainment facilities to the public. It is time for courts to end the recent trend tilting the balance in favor of the disabled by imposing prohibitive burdens on private enterprise. To that end, there are three paths of action that would serve to strike a compromise between both interests: limited compliance, postponement, and shared obligation.

A. Limited Compliance

The website for the National Association of the Deaf lists a variety of issues that disabled Americans face today, one of which is technology.[202] Movie captioning is one such issue, about which the Association states,

People who are deaf or hard of hearing want to be able to attend any showing of any movie in any theater at any time, to sit anywhere in the movie theater with their family and friends, and to have equal access to the movie soundtrack through high quality captioning that is consistently reliable.[203]

Although ideal, this statement is highly impractical because, as demonstrated, this would come at an incredible cost to theater owners.[204] Courts should not force this unrealistic expectation on theater owners. A limited number of showings and a limited amount of equipment should be sufficient to serve a limited population. Theater owners should not have to purchase an excessive amount of equipment to avoid a lawsuit alleging a violation of the ADA whenever the theater cannot serve a single disabled patron. As the Court in Cornilles v. Regal Entertainment, Inc. elucidated, “there is no evidence that . . . non-disabled customers have the ability to request that certain movies be played in the theaters.”[205] Consequently, disabled customers should not be able to dictate the terms of their movie watching.

Theaters should be able to implement a system that efficiently exploits a limited amount of equipment while making movie theater visits as convenient as possible for their disabled patrons. For example, this could be achieved by calling in or purchasing a ticket that indicates a closed captioning or descriptive narration device will be required for the disabled patron’s use. If the limited amount of ADA-compliant equipment runs out, the disabled patron will be informed and can then pick a future showing. Ultimately, theaters should not be in relentless fear of a lawsuit solely because they are unable to guarantee the constant accessibility of equipment for its disabled patrons. A limited, but standard amount of equipment should be decided upon, and theaters should be confident that by meeting that number, they are fully compliant.

Theaters should also have less stringent compliance requirements based on their geographic locations. For instance, rural areas are less populous than urban areas and the smaller population has a corresponding decrease in the number of disabled individuals. Therefore, it would be unfair for courts to place the same standards for accommodation on rural theater locations as they do on urban theater locations. Requiring theater owners to make costly improvements for very few people would be an unfair burden to place on private enterprise. Additionally, placing a lighter burden on rural theater locations would enable theater owners to funnel their money to their urban locations, where their equipment for disabled individuals will have a greater impact by serving a greater portion of the disabled population.

B. Postponement

Regardless of compromises and agreements reached by theaters and their disabled customers, providing equipment to accommodate hearing and visually impaired customers should be postponed for three particular reasons. First, as previously mentioned, the majority of screens in the United States are not digital.[206] Predictions for when all screens in the United States will become digital range anywhere from three to ten years.[207] Since the technology to run closed captioning and descriptive narration on film screens does not exist,[208] and it is very expensive to convert a film screen to a digital screen,[209] postponement seems sensible. Because it would be less burdensome for theater owners to provide auxiliary aids to their disabled customers without first having to pay for an expensive digital conversion, a better balancing under the ADA would take place once the huge financial hurdle of conversion has taken place.

Secondly, standards for assistive devices have not yet been promulgated for the industry,[210] and devices are still unreliable and in development.[211] Ultra Stereo Labs, a producer of IR emitter devices, states on its website that standards have not yet been developed.[212] The website uses the term “draft” standards, indicating that while the Society of Motion Picture and Television Engineers is currently working on standards, they are not yet complete.[213] Until such standards are developed, theater owners should not be required to invest in technology that may become outdated or even unusable should the devices not comply with the particular industry standards that are ultimately set.

Lastly, it is unrealistic to burden theater owners at this time with a requirement to make their theaters compliant with imperfect and still developing technology.[214] As the Cornilles court posited, “is something better just around the corner?”[215] Closed captioning systems are relatively new products—Doremi Cinema’s CaptiView system was only introduced in April 2010.[216] Until technology catches up with the goals of disabled advocacy groups, theater owners should be given a respite from these unrealistic demands.

C. Shared Obligation

There are limits on a public accommodation’s obligations to provide auxiliary aids and services.[217] Even though the ADA requires public accommodations to provide auxiliary aids and services, “it does not require a public accommodation to supply individually prescribed devices for persons with disabilities.”[218] For example, a public accommodation would not be required to provide a disabled individual with a wheelchair.[219] However, ramps to allow a disabled individual to access the public accommodation with ease would be required.

While theater owners may be required to provide access to the movie theaters, in applying the concept of limited obligation to closed captioning and narrative description in movie theaters, they should not be required to provide personal devices by which to view movies. For example, with regard to closed captioning, a theater may be required to provide either a Rear Window device on the back wall of its theater or an IR emitter device. However, it would be the responsibility of the patron to take advantage of this access by providing his or her own acrylic panel or infrared receiver. Likewise, regarding descriptive narration, patrons would be responsible for providing their own headphones, while the theater would be obligated to broadcast descriptive narration for the patrons to access. Another solution might be for theaters to offer such devices for a small fee, one that would essentially only cover the purchase of new devices and their upkeep.

It is also possible that the government would be willing to share this obligation. In the recent Twenty-First Century Communications and Video Accessibility Act of 2010, President Obama signed a bill into law that, in his words,

make[s] it easier for people who are deaf, blind, or live with visual impairment to do what many of us take for granted—from navigating a TV or DVD menu to sending an email on a smart phone. It sets new standards so that Americans with disabilities can take advantage of the technology our economy depends on.[220]

A provision of the Act grants authority to the FCC to set up programs that “distribute specialized equipment used to make telecommunications and Internet-enabled communication services accessible to individuals who are deaf-blind. . . .”[221] This support is capped at $10 million per year.[222] However, this government program has a huge potential impact on the issue of closed captioning and descriptive narration in theaters. It shows that the United States government is amenable to subsidizing equipment for the disabled, and that consequently, similar programs could perhaps be set up to enable low-income disabled theater patrons to acquire their own auxiliary aids for viewing movies or to help theaters purchase equipment. Although contingent upon standards being developed for closed captioning and descriptive narration, disabled theater patrons could easily purchase equipment that would work in any theater across the United States. In this way, the costs of providing greater disabled theater access would be balanced between both parties.

V. CONCLUSION

The Americans with Disabilities Act’s (“ADA”) purpose of providing “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities”[223] has unquestioned validity. However, in seeking to end discrimination against individuals, it is important not to merely redirect that discrimination elsewhere. Theater owners cannot be made to bear the undue burden of complete accommodation without greatly distorting and misusing the ADA.

Erica N. Lucero[*]

1. Alan Gathright & Maria Alicia Gaura, Eastwood Wins Suit Over ADA, S.F. Chron., Sept. 30, 2000, at A15 [hereinafter Gathright & Gaura].

2. Id.

3. Id.

4. Id.

5. Id.

6. Id.

7. Gathright & Gaura, supra note 1.

8. Id.

9. See id.

10. Id.

11. Id.

12. See infra Part II.

13. See infra Part II.C.

14. See Harkins Theaters, http://www.harkinstheatres.com/theatres.aspx (last visited Aug. 12, 2011).

15. Arizona ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666, 669 (9th Cir. 2010) [hereinafter Goddard].

16. Id.

17. Id.; see also Arizona v. Harkins Amusement Enters., 548 F. Supp. 2d 723 (D. Ariz. 2008).

18. Goddard, 603 F.3d at 669.

19. Id.

20. Id. at 671, 675.

21. Id. at 673, 668 (defining open captioning as a system that displays every spoken word of a movie in text that appears at the bottom of a movie theater screen).

22. See id. at 675, 668 (explaining closed captioning displays that transmit captions to viewers through personal devices on an individual basis, so that the only patrons seeing the captions are those who request them); Frequently Asked Questions, MoPix Motion Picture Access, http://ncam.wgbh.org/mopix/faq.html (last visited Aug. 14, 2011) (“Narrated descriptions provide information about key visual elements . . . . The descriptions are inserted into pauses in the soundtrack and do not interfere with the dialogue.”).

23. Press Release, Ariz. Att’y Gen. Terry Goddard, Terry Goddard Announces Groundbreaking Reversal in Movie Theater Disability Case (Apr. 30, 2010), available at http://www.azag.gov/press_releases/april/2010/Press%20Release%20-%20Terry%20Goddard%20Announces%20Groundbreaking%20Reversal%20in%20Movie%20Theater%20Disability%20Case.html.

24. Id.

25. Id.

26. Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description, 75 Fed. Reg. 43467, 43467–43476 (July 26, 2010) (to be codified at 28 C.F.R. pt. 36).

27. Fact Sheet: Advance Notice of Proposed Rulemaking on Movie Captioning and Video Description, U.S. Dep’t of Justice (Aug. 3, 2010), http://www.ada.gov/anprm2010/factshtcrt_movie_captions_anprm_2010.htm.

28. E.g., ClosedCaptioning.net, http://www.closedcaptioning.net (last visited Aug. 14, 2011); Closed Captioning Blog, http://abercap.com/blog/ (last visited Aug. 14, 2011).

29. E.g., Ask Your Tax Man, ClosedCaptioning.net (Jan. 19, 2010), http://www.closedcaptioning.net/techtips/ask-your-tax-man.

30. Vic Lee, Hearing Impaired File Class Action Against Cinemark, KGO Bay Area News (Nov. 30, 2010), http://abclocal.go.com/kgo/story?section=news/local/east_bay&id=7817681.

31. United States v. Hoyt Cinemas Corp., 380 F.3d 558, 567 (1st Cir. 2004).

32. See infra Part III.

33. See generally Goddard, 603 F.3d 666.

34. See generally 42 U.S.C. § 12101 (2010).

35. Id. at § 12101(a)(1).

36. Id. at § 12101(a)(3).

37. Id. at § 12101(a)(5).

38. Id. at § 12101(b).

39. 42 U.S.C § 12182(b)(2)(A)(iii) (2010) (emphasis added).

40. Arizona ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666, 670 (9th Cir. 2010) [hereinafter Goddard].

41. Access Now, Inc. v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357, 1363 (S.D. Fla. 2001).

42. Id. (quoting Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052 (5th Cir. 1997)).

43. Id.

44. Id.; see also Goddard, 603 F.3d at 675.

45. 1–3 ADA: Public Accommodations § 3.02 (Matthew Bender & Co., LEXIS 2010).

46. Id.

47. Coleman v. Zatechka, 824 F. Supp. 1360 (D. Neb. 1993).

48. Id. at 1362.

49. Id.

50. Id.

51. Id. at 1363.

52. Id.

53. Coleman, 824 F. Supp. at 1365.

54. Id. at 1367.

55. Id. at 1367–68.

56. Id. at 1362–63.

57. Id. at 1373.

58. Id. (citing 42 U.S.C. § 12101(b)(1)).

59. Coleman, 824 F. Supp. at 1372–73.

60. Tennessee v. Lane, 541 U.S. 509 (2004).

61. See id. at 533–34.

62. Id. at 513.

63. Id. at 513–14.

64. Id. at 514.

65. Id.

66. Lane, 541 U.S. at 514; see also U.S. Const. amend. XI (“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”).

67. Lane, 541 U.S. at 517 (quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000)).

68. Id. at 518.

69. Id.

70. Id. (citation omitted).

71. Id. at 522–23.

72. Id. at 523.

73. Lane, 541 U.S. at 524 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 464 (1985)).

74. Id. at 533–34.

75. See id. at 538–54.

76. See id. at 541, 545–46.

77. Id. at 541.

78. Id. at 542 (citation omitted); see also Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 370 (2001).

79. Lane, 541 U.S. at 543.

80. Id. at 551.

81. Id. at 546–47.

82. See, e.g., Accessibility, AMC Theatres, http://www.amctheatres.com/AMCInfo/Accessibility/?WT.mc_id=nh_about (last visited Aug. 14, 2011).

83. See United States v. AMC Entm’t, Inc., 549 F.3d 760, 763 (9th Cir. 2008).

84. David McArdle, Using the Americans with Disabilities Act to Inform “Access to Sporting Venues” Under the Disabilities Convention, 27 B.U. Int’l L.J. 317, 320 (2009); see also Adam A. Milani, “Oh, Say, Can I See—and Who Do I Sue if I Can’t?”: Wheelchair Users, Sightlines over Standing Spectators, and Architect Liability Under the Americans with Disabilities Act, 52 Fla. L. Rev. 523, 529 (2000).

85. McArdle, supra note 84; see also Milani, supra note 84 (citing 42 U.S.C. § 12186(c)).

86. McArdle, supra note 84, at 321 (citation omitted); see also Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities, 56 Fed. Reg. 2296, 2314 (proposed Jan. 22, 1991) (codified at 36 C.F.R. pt. 1191).

87. McArdle, supra note 84, at 321–22; see also Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities, 56 Fed. Reg. 2296, 2314 (proposed Jan. 22, 1991) (codified at 36 C.F.R. pt. 1191).

88. Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 581 (D.C. Cir. 1997).

89. Id.

90. Id.

91. Id. at 582.

92. Id. at 580.

93. Id.

94. McArdle, supra note 84, at 323.

95. Paralyzed Veterans of Am., 117 F.3d at 588.

96. Id.

97. McArdle, supra note 84, at 324; see also Paralyzed Veterans of Am., 117 F.3d at 582.

98. Paralyzed Veterans of Am., 117 F.3d at 588.

99. Id. at 589.

100. McArdle, supra note 84, at 325; see also Paralyzed Veterans of Am., 117 F.3d at 582.

101. AMC Theatres, http://www.amctheatres.com (last visited July 26, 2011).

102. United States v. AMC Entm’t, Inc., No. CV-99-01034-FMC(SHx), 2006 U.S. Dist. LEXIS 6119, at *4 (C.D. Cal. Jan. 10, 2006).

103. Id. at *4, *13.

104. Id. at *6.

105. Id. at *15–60.

106. Id. at *26.

107. See id.

108. AMC Entm’t, Inc., 549 F.3d at 767–68.

109. Id. at 768.

110. 28 C.F.R. pt. 36, app. A, § 4.33.3 (2010).

111. AMC Entm’t, Inc., 549 F.3d at 764.

112. Id.

113. Id. at 768.

114. See id. at 763 (modifying designs for future theaters to accommodate the disabled); see also Paralyzed Veterans of Am., 117 F.3d at 582 (“[S]ome, but not all, of the wheelchair seating in the chosen designs would have lines of sight over standing spectators.”).

115. See AMC Entm’t, Inc., 549 F.3d at 763 (modifying designs for future theaters to accommodate the disabled); see also Paralyzed Veterans of Am., 117 F.3d at 582 (“[S]ome, but not all, of the wheelchair seating in the chosen designs would have lines of sight over standing spectators.”).

116. See Ball v. AMC Entm’t, Inc., 246 F. Supp. 2d 17, 22 (2003). But see Cornilles v. Regal Cinemas, Inc., 14 Am. Disabilities Cas. (BNA) 563, 563 No. 00-173-AS, (D. Or. Mar. 12, 2002).

117. Ball, 246 F. Supp. 2d at 22; see also 1–3 ADA: Public Accommodations § 3.02, supra note 45.

118. Ball, 246 F. Supp. 2d at 23; see also 1–3 ADA: Public Accommodations § 3.02, supra note 45.

119. Cornilles, 14 Am. Disabilities Cas. (BNA) at 569; see also 1–3 ADA: Public Accommodations § 3.02, supra note 45.

120. Federal Appeals Victory for Blind Movie Goers, Law Office of Lainey Feingold: Disability Rights Legal Advocacy (May 9, 2010), http://lflegal.com/2010/05/harkins-opinion#excerpt.

121. Goddard, 603 F.3d at 668.

122. Id.

123. Id.

124. Id.

125. Id. at 669.

126. Id. at 668.

127. MoPix Motion Picture Access, supra note 22 (describing descriptive narration).

128. Goddard, 603 F.3d at 670.

129. Id. at 673; see also 28 C.F.R. § 36.303 (2010).

130. See Goddard, 603 F.3d at 675.

131. Id. at 674.

132. Id.; see also Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1027 n.1 (9th Cir. 2008).

133. See Federal Appeals Victory for Blind Movie Goers, supra note 120.

134. Goddard, 603 F.3d at 675 (citations omitted).

135. Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description, 75 Fed. Reg. 43467, 43467 (July 26, 2010) (to be codified at 28 C.F.R. pt. 36).

136. Id. at 43469.

137. 28 C.F.R. pt. 36 app. A (2010).

138. Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description, 75 Fed. Reg. at 43467.

139. Arizona ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666, 670 (9th Cir. 2010).

140. See id. at 675.

141. See generally id. (stating that Harkins may still be able to avail itself of several defenses, such as the contention that the devices would fundamentally alter the nature of the services or constitute an undue burden).

142. About Arts Access, Arts Access, Inc., http://www.artsaccessinc.org/about.html (last visited Aug. 12, 2011).

143. ADA Compliance Training, Arts Access, http://www.artsaccessinc.org/training.shtml (last visited Aug. 12, 2011).

144. See infra Part III.A–C.

145. Interview with Bryce Alden, Eng’r, Jim Whittlesey, Senior Vice President of Tech. & Operations, & John Wolski, Vice President of Exhibitor Servs., Deluxe Digital Cinema, in Burbank, Cal. (Sept. 29, 2010) [hereinafter Interview with Alden].

146. Id.

147. Compare id. with Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description, 75 Fed. Reg. at 43473.

148. Interview with Alden, supra note 145.

149. Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description, 75 Fed. Reg. at 43473.

150. See also id. (stating the DOJ’s understanding that the vast majority of U.S. movie theaters currently exhibit film-based movies). See generally Interview with Alden, supra note 145 (stating digital screens are only one third of all screens in the U.S. and growing).

151. See Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description, 75 Fed. Reg. at 43473.

152. Id.

153. Interview with Alden, supra note 145.

154. See generally Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description, 75 Fed. Reg. at 43467–43476.

155. See id. at 43473.

156. Id.

157. Id.

158. MoPix Motion Picture Access, supra note 22 (discussing how rear window captions differ from open captions).

159. Id.

160. See infra Part III.B.

161. See MoPix Motion Picture Access, supra note 22 (describing how rear window captioning systems work).

162. Id.

163. Id.

164. Id.

165. Id.

166. See Infrared Closed Caption System, USL, Inc., http://www.uslinc.com/images/products/download/CCS-OneSheet.pdf (last visited July 26, 2011) (describing and displaying the features of the company’s closed captioning device).

167. See id.

168. Id.

169. E-mail from Clint Koch, Sales Director, Ultra Stereo Labs, to Erica N. Lucero (Oct. 22, 2010, 10:33 PST) (on file with author) [hereinafter Koch E-mail].

170. See USL, Inc., supra note 166 (describing and picturing the features of the company’s closed captioning device).

171. Id.

172. Id.

173. Koch E-mail, supra note 169.

174. Interview with Alden, supra note 145.

175. James Gardiner, Showest 2010 – 08 – Doremi CaptiView Closed Captioning System, Cine Tech Geek (Apr. 22, 2010, 12:50AM), http://www.cinetechgeek.com/2010/04/22/showest-2010-–-08-–-dorami-captiview-closed-caption-system/.

176. E-mail from Michael Archer, Vice President of Digital Cinema, Doremi Labs, Inc., to Erica N. Lucero (Oct. 27, 2010, 16:21 PST) (on file with author) [hereinafter Archer E-mail].

177. Id.

178. Id.

179. Gardiner, supra note 175; see also Archer E-mail, supra note 176.

180. Gardiner, supra note 175.

181. Id.

182. Interview with Alden, supra note 145.

183. Id.

184. Id.

185. Id.

186. See Infrared Closed Caption System, supra note 166 (describing and displaying the features of the company’s closed captioning device) (emphasis added).

187. Interview with Alden, supra note 145.

188. Frequently Asked Questions, supra note 22 (describing how the descriptive narration is synchronized to a film).

189. Interview with Alden, supra note 145.

190. Frequently Asked Questions, supra note 22 (discussing the cost to install descriptive narration equipment).

191. Interview with Alden, supra note 145.

192. Id.

193. Id.

194. Id.

195. Id.

196. Id.

197. Interview with Alden, supra note 145.

198. Koch E-mail, supra note 169; see also Infrared Closed Caption System, supra note 166 (describing and displaying the features of the company’s closed captioning device).

199. Interview with Alden, supra note 145.

200. Charles W. Logan, Jr., Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of Broadcast Regulation, 85 Cal. L. Rev. 1687, 1697 (1997).

201. See supra Part III.A–C.

202. Movie Captioning, National Association of the Deaf, http://www.nad.org/issues/technology/movie-captioning (last visited Aug. 12, 2011) (describing the Association’s commitment to achieving captioned movies in every theater in America).

203. Id.

204. See supra Part III.A–C.

205. Cornilles v. Regal Cinemas, Inc., No. 00-173-AS, 2002 U.S. Dist. LEXIS 7025, at *19, (D. Or. Jan. 3, 2002).

206. Interview with Alden, supra note 145.

207. Id.; see also Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description, 75 Fed. Reg. 43467, 43473 (July 26, 2010) (to be codified at 28 C.F.R. pt. 36).

208. Interview with Alden, supra note 145.

209. Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description, 75 Fed. Reg. at 43473.

210. See Interview with Alden, supra note 145.

211. Id.

212. Infrared Closed Caption System, supra note 166 (stating that the closed captioning system complies with DCI and SMPTE draft standards and operates with any compliant digital cinema server).

213. Id.

214. Interview with Alden, supra note 145.

215. Cornilles, 2002 U.S. Dist. LEXIS 7025, at *22.

216. Gardiner, supra note 175.

217. 1–3 ADA: Public Accommodations § 3.02, supra note 45.

218. Id.

219. Id.

220. Press Release, The White House, Remarks by the President at the Signing of the 21st Century Communications and Video Accessibility Act of 2010 (Oct. 8, 2010), available at http://www.whitehouse.gov/the-press-office/2010/10/08/remarks-president-signing-21st-century-communications-and-video-accessib.

221. 21st Century Communications and Video Accessibility Act, National Association of the Deaf, http://www.nad.org/issues/civil-rights/communications-act/21st-century-act (last visited July 26, 2011) (describing the 21st Century Communications and Video Accessibility Act).

222. Id.

223. 42 U.S.C. § 12101(b)(1) (2010).

* J.D. Candidate, Loyola Law School, 2012; B.A., University of Southern California, 2008. The author would like to thank Wendy Aylsworth and Bryce Alden for not just participating in the entertainment industry, but being scholars of it as well, and generously sharing their knowledge. The author would also like to thank Jim Whittlesey and John Wolski for kindly sharing their expertise. This article would not have been possible without the tireless work of Professor Sarah Bensinger and the editors and staff of the Loyola of Los Angeles Entertainment Law Review; their continuous efforts are greatly appreciated. Finally, a special thank you to Ed, Wendy, and Jackie Lucero, without which nothing would be possible.

WIKILEAKS: BALANCING FIRST AMENDMENT RIGHTS WITH NATIONAL SECURITY

In July 2010, Private First Class Bradley Manning released thousands of classified documents with the help of WikiLeaks, a private website created to expose government and corporate corruption. During the months that followed, WikiLeaks disseminated several thousand additional classified documents, including the whereabouts of U.S. troops and diplomatic cables. Public concern grew over the rapid release of the documents into Internet space. Lawmakers and government officials questioned whether the release of such information would compromise national security and foreign relations and violate the Espionage Act of 1917. While not all of the information distributed by WikiLeaks violated the law, the vast majority of the documents should not have been released. If asked, the Supreme Court should hold that WikiLeaks did violate the Espionage Act, and should be held accountable. Furthermore, lawmakers should change the existing laws to conform to modern times by including sections regarding the dissemination of classified information over the Internet.

I. INTRODUCTION

With the click of a mouse, it is now possible to access anything—a video of a friend across the country, a favorite recipe, or a street view of a city thousands of miles away. The Internet has created a realm of opportunities and access to an abundance of information that was unimaginable only two decades ago. For the most part, this information is incredibly beneficial—in an instant, people can easily keep in touch with their friends or find the nearest Starbucks––but few people imagined that the same click of a mouse could also allow a foreign enemy to instantaneously access classified national security information.

On July 25, 2010, this scenario became a reality when Private First Class Bradley Manning released thousands of classified documents through WikiLeaks,[1] a website that encourages whistleblowers[2] to share documents in order to expose government or corporate misconduct.[3] This incident immediately garnered national attention and reignited an ongoing debate regarding the tension between the First Amendment[4] and the Freedom of Information Act (“FOIA”)[5] on the one hand, and the need for national security on the other.[6]

WikiLeaks, a website registered in Sweden and run by The Sunshine Press,[7] leaks mass amounts of information regarding places where governments, corporations, and institutions are under intense scrutiny by the global community.[8] Australian citizen Julian Assange founded the site in 2006 and is considered the website’s public face.[9] While the site’s primary objective is “exposing oppressive regimes in Asia, the former Soviet Bloc, Sub-Saharan Africa and the Middle East,”[10] it also encourages users from any region to provide documents for release.[11] The site asserts that such exposure leads to “reduced corruption, better government[,] and stronger democracies.”[12] Furthermore, WikiLeaks contends that by providing documents and information to the international community, it is furthering the principle “that it is not only the people of one country that [sic] keep their government honest, but also the people of other countries who are watching that government.”[13]

Scrutiny both by a country’s citizens and the international community is important, and at times necessary, to ensure a government is free of corruption; however, “[t]he unveiling of government secrets through the media channels has long been a controversial issue.”[14] Now more than ever, websites such as WikiLeaks pose a significant threat to national security in the United States, predominantly because the general public can intentionally disseminate documents and information via the Internet within seconds. The First Amendment was established to ensure the freedom of the press and allow citizens to expose and criticize the government.[15] Later, Congress created the FOIA, grounded in the underlying principle that people have the right to obtain information from their government. Accordingly, the FOIA requires the U.S. government and its agencies to release documents and information to the public.[16] However, an appropriate balance must be struck, as it is equally important to withhold classified documents and information when disclosure could compromise national security.[17]

Such concern for national security has led commentators and government organizations alike to propose the imposition of a prior restraint on classified information distributed by sites such as WikiLeaks.[18] Jeh Charles Johnson, general counsel of the U.S. Department of Defense, wrote on behalf of the department, “[t]he department demands that nothing further be released by WikiLeaks, that all of the U.S. government classified documents that WikiLeaks has obtained be returned immediately, and that WikiLeaks remove and destroy all of these records from its databases.”[19] The issue has not yet been brought before the U.S. Supreme Court; however, the Court has previously held that due to the longstanding essential role of free speech and press in the U.S. democracy, “‘[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’ . . . The Government ‘thus carries a heavy burden of showing justification for the imposition of such a restraint.’”[20] With such a heavy burden weighing on the government, the military’s request to stop the dissemination of its classified documents may not prevail. Conversely, the contents of the leaks juxtaposed with the medium by which the documents were and will continue to be disseminated—that is, the Internet—presents new concerns that may allow the government to justify a prior restraint.

The mass leak of military documents and diplomatic cables highlights the problems with the release of classified information over the Internet. First, the document leaks pose threats to national security.[21] While information regarding the general operations of American soldiers is important to facilitate public scrutiny and debate, tactical details chronicled in the Afghan War Diary 2004–2010 (“Afghan War Diary”)[22] could provide enemies with too much information about soldiers, consequently endangering those soldiers’ lives.[23] The leaked documents also included videos and other information detailing American war strategies in Afghanistan,[24] which, if received by foreign enemies, might be life-threatening and could significantly hinder international war efforts against the Taliban and other terrorist organizations.[25] As a result, the United States may be forced to alter war strategies or retreat entirely from various locations identified in the disclosed documents.[26]

Second, the speed at which the Internet allows documents to be dispersed creates additional problems. Posting such documents on the Internet, as opposed to printing them in traditional media sources such as newspapers, allows the classified information to be viewed rapidly around the world without the intermediation of “judgment” by seasoned journalists and editors.[27] Once the documents are distributed to the virtual abyss, it is nearly impossible to track the identity of every Internet user who has accessed the information through the use of proxies and anonymizers.[28] This means that when a current document is leaked, enemies can use the information immediately.[29]

The Internet also makes it is impossible to retract the posted documents in the case of a mistake or problem.[30] WikiLeaks does not generally censor its document collection, as its goal is to have viewers analyze and determine the truth and significance of the documents for themselves.[31] Because all documents are released,[32] a document that might be borderline or outright top secret could be published on the website and spread around the world, and WikiLeaks would have no way of undoing the damage.

As the Internet continues to expand and more websites like WikiLeaks begin to disseminate classified information, the line becomes blurred as to what information is protected under the FOIA and First Amendment, and what information is illegal to distribute in the name of national security. The problem is exacerbated because WikiLeaks and its web servers may be outside the jurisdiction of American courts and executive agencies.[33]

This Comment examines the security risks created by the rapid dissemination of information over the Internet as well as the protection the First Amendment and the FOIA provide. Furthermore, this Comment will analyze the legal solutions to this vast and instantaneous international circulation. Part II provides a background and history of the publication of classified government documents through various media sources. Part III analyzes the problems with the application of the FOIA and the First Amendment in the Internet age. The arguments against limitations on the FOIA and First Amendment as a means of protecting civil liberties are then assessed and disputed. Part IV proposes several legal solutions the U.S. may implement to stop such distribution. Finally, Part V concludes with the next possible step toward stopping unlawful distribution of classified documents.

II. BACKGROUND

A. The Right to Information Granted by

the First Amendment and Freedom of Information Act

Courts have sought to define the scope of the First Amendment since the Constitution’s inception. There is no doubt the freedom was introduced as a means of abolishing the restrictions imposed by the English on freedoms of speech and the press.[34] In fact, “[t]he Government’s power to censor the press was abolished so that the press would remain forever free to monitor the Government.”[35] As such, the fundamental purpose of the First Amendment is to encourage “the free flow of ideas and opinions on matters of public interest and concern.”[36] More specifically, “[i]n determining the extent of the constitutional protection, it has been generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints on publication.”[37] Honoring the framers’ intent, the Supreme Court tends to uphold First Amendment rights by frequently tipping the scales in favor of protecting speech and press.[38] However, these rights are not absolute, and the government’s interest in protecting national security is also central to the survival of the United States, particularly in times of war.[39]

The creation of the Freedom of Information Act (“FOIA” or “Act”) in 1966 established another avenue to protect the people’s right to censure the government.[40] The primary purpose of the FOIA, which generally provides for disclosure of agency records and information, is to open the administrative processes to the scrutiny of the press and general public.[41] The FOIA was the first law to allow Americans access to the records of government agencies.[42] The Act is necessary, as the Supreme Court has held that there is no First Amendment right to access such information.[43] There have been several revisions since the Amendment’s enactment, most conspicuously in 1974 after the Watergate scandal.[44] The scandal, which involved high-ranking government officials, including President Richard M. Nixon, led to a general distrust of the government and a demand by the people that the government adhere to the FOIA.[45] The Privacy Act Amendments[46] were added to the FOIA as a means of ensuring that the government produces documents to avoid incidents such as Watergate.[47] Since then, many additional amendments have been included to guarantee the government agencies’ proper disclosure of documents and information.[48]

In addition to amendments aiding the enforcement of the Act, there have also been several exemptions limiting the FOIA. Currently, there are nine exemptions in place to ensure that under certain circumstances the government agencies are not required to release information and documents.[49] Such exemptions include: (1) when an Executive Order has been issued to keep the information a secret “in the interest of national defense or foreign policy;”[50] (2) “[information] related solely to the internal personnel rules and practices of an agency;”[51] and (3) “geological and geophysical information and data, including maps.”[52] These exemptions expressly call for the limited availability of information to be available to the public on various issues involving national security.[53] Information released on WikiLeaks in connection with U.S. Army operations, especially those like the Afghan War Diary 2004–2010 (“Afghan War Diary”), may fall under one of the latter two exemptions. Because such limitations are explicitly defined in the law and have been analyzed and expanded in judicial opinions, there appears to be room to place a lawful limit, or simply enforce the current limit, on WikiLeaks’ continuous broad disclosure of potentially classified information.

B. Judicial and Legislative History of the Protection of National Security

Together, the First Amendment and the FOIA create a solid foundation for rights to access and publish a majority of the U.S. government’s information.[54] Still, the Supreme Court in Schenck v. United States[55] and Near v. Minnesota[56] recognized that government has an interest in national security[57] that necessarily places limits on the information accessible to the public. Congress codified this same interest by enacting the Espionage Act of 1917 (“Espionage Act”)[58] and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, also known as the U.S.A. P.A.T.R.I.O.T. Act of 2001 (“Patriot Act”).[59]

1. The Near Troop/Ship Exception.

Near v. Minnesota,[60] an early landmark case for the First Amendment freedom of the press, established, in dicta, one of the most important limitations to the First Amendment.[61] In that case, Near challenged a Minnesota statute which “provide[d] for the abatement, as a public nuisance, of a ‘malicious, scandalous and defamatory newspaper, magazine or other periodical.’”[62] The Supreme Court held the Minnesota statute unconstitutional.[63] The Court explained, “In the first place, the main purpose of such constitutional provisions is ‘to prevent all such [previous restraints] upon publications as had been practiced by other governments.’”[64] Thus, the Constitution necessarily requires a heavy burden to show justification for the restraint,[65] and any limitation on the freedom of the press must be subject to strict scrutiny.[66]

Despite ruling in favor of the press, the Court outlined an exception to the First Amendment’s protection in its discussion.[67] In the midst of a lengthy argument against the Minnesota law, the Court provided that “the protection even as to previous restraint is not absolutely unlimited.”[68] The Court expanded on this point by recognizing that the limitation shall only be recognized in “exceptional cases.”[69] “Exceptional cases” specifically referred to the following:

“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.[70]

The Court thus clearly outlined an exception to the First Amendment during times of war[71] by distinguishing war as a specific time when the First Amendment and its protections may be limited.[72]

The Court’s finding that specific details of military operations need not be published is relevant to the present case involving WikiLeaks.[73] This constraint classifies a type of information not always protected by the First Amendment. Specifically, the exception sets apart military information as a specific category of speech or publication that is more likely to meet the strict scrutiny standard that governs content-based restrictions on the First Amendment.[74] This exception is evidence of the Court’s firm interest in national security.

2. The Espionage Act.

The Espionage Act, passed into law shortly after the United States entered World War I,[75] made it a crime to disclose or distribute information that would hinder the operations or success of U.S. military forces or, alternatively, abet the success of U.S. enemies.[76] Though the Act had the support of President Woodrow Wilson, many people felt—even against the backdrop of fear of a worldwide German takeover—that such a law was unconstitutional.[77] The law sparked an ongoing congressional debate over the boundaries of First Amendment rights when juxtaposed with national security.[78] First, there were concerns that the statutory text was vague and could be construed too broadly, thereby granting too much power to both the Department of Justice and the War Department.[79] Proponents of civil liberties were also apprehensive of the Act’s infringement on U.S. citizens’ First Amendment rights.[80] Even though Schenck v. United States upheld the Act in 1919,[81] several courts have since raised concerns about its constitutionality. The law has never been explicitly overturned, but it was examined and questioned in New York Times Co. v. United States[82] and United States v. Progressive, Inc.[83]

Despite the contentious nature of the law, its “inartful language” was later transferred to the U.S. Code and remains current law.[84] The Espionage Act is now codified in 18 U.S.C. § 793(d) and (e) and was the source of 18 U.S.C. § 794(a).[85] Today, the law still calls for criminal punishment of individuals who violate the modern Espionage Act by a fine or up to ten years in prison.[86] Subsections (d) and (e) provide that a person who possesses information regarding U.S. national defense that could injure the United States or promote the advantage of a foreign nation[87] and who “willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it,”[88] shall be deemed in violation of the law.[89] The two subsections are distinct in that subsection (d) refers to individuals who possess the information lawfully,[90] while subsection (e) refers to individuals who possess the information unlawfully.[91]

The modern Espionage Act remains a viable means of prosecuting individuals for the transmission of unlawful information, and the Supreme Court has not made any recent rulings regarding its constitutionality or application.[92] Though the Court has not examined subsections (d) and (e) exclusively,[93] the Act in its entirety has withstood numerous challenges for vagueness and overbreadth.[94] This firm history indicates the law is “pertinent and instructive.”[95]

The criminal sanctions within the Espionage Act are important in preventing U.S. citizens, such as Private First Class Bradley Manning,[96] and non-citizens, such as WikiLeaks founder Julian Assange, from distributing classified government information to various sources. However, these laws are in need of additional support to counter the rise of cyber-warfare.[97] The punishments asserted in the Espionage Act, such as incarceration and fines, may be unable stop the spread of this information by entities masked as websites. Part IV of this Comment proposes additional solutions for combating such cyber-warfare and document leaks.

III. ANALYSIS

A. The “Near Troop/Ship Exception” Applies to WikiLeaks

Although WikiLeaks illuminates several modern problems with disclosing classified government documents through a media avenue, the limits on freedom of speech to benefit national security have been litigated before, and therefore the problem is not entirely without precedent.[98] The dicta in the Near decision explicates that the First Amendment may be limited in times of war, particularly with regard to the publication of information concerning military operations.[99] Though the Court ultimately held in favor of the press, this limitation left room for national security as a compelling government interest.[100] There is no doubt the Court has been careful to implement the national security limitation on the First Amendment;[101] however, the Near exception should apply to WikiLeaks’s dissemination of various documents from both the War in Afghanistan and the War in Iraq.[102]

First, it is presently a time of war.[103] While the current “War on Terror” has not been formally declared by Congress, it caused the deployment of troops to Afghanistan and Iraq.[104] Specifically, Congress authorized the War in Afghanistan despite a formal declaration of war.[105] In addition, the Iraq War was authorized by Congress and the United Nations Security Council,[106] and Congress passed legislation providing significant funds and troops to support the war effort.[107] Although Congress rarely formally declares war,[108] the president is nevertheless able to conduct a war without a formal declaration.[109] Many modern conflicts, which have posed significant threats to the United States’ national security, have gone undeclared.[110] Additionally, the government rarely declares formal war, since “war” is not a public-relations friendly term.[111] For purposes of applying the Near exception, these “conflicts” are still extreme financial and military investments for the government, and it is thereby presumable that as investments, the United States’ interest in national security extends to undeclared wars.

Assuming it is presently a time of war, the Near analysis should be applied. As the Court in Near held, times of war are distinct from times of peace.[112] The WikiLeaks controversy stemmed from a leak of documents regarding the War in Afghanistan.[113] By its nature, wartime means clear and present dangers are more likely to exist.[114] For example, the release of documents regarding an army base during a time of peace presents very little danger,[115] whereas during a time of war the same information may provide the enemy an opportunity to endanger the lives of soldiers on the base.[116] Moreover, in leaking extensive and detailed documents regarding the War in Afghanistan, WikiLeaks calls to mind the “hindrance” to the nation’s effort to which the dicta in Near[117] alluded and which the Schenck decision described in detail.[118] The Court’s unwavering distinction between times of war and times of peace is important in understanding how some of WikiLeaks’ posts may, in fact, be illegal.[119]

Though to classify the present state of affairs at a time of war is important in analyzing the effect of the leaked information, the WikiLeaks disclosures are mainly unlawful in their content. According to Near, although the First Amendment might protect the disclosure of specific details of military positioning, strategies, and tactics, the government may justify a prior restraint on the publication of such information if it satisfies strict scrutiny.[120]

All content-based restrictions of the First Amendment are subject to strict scrutiny,[121] and the WikiLeaks disclosures are no exception. This heightened scrutiny aims to preserve the original intent of the First Amendment,[122] protecting freedom of speech as a method to censure the government,[123] thereby fostering democracy.[124] To satisfy the strict scrutiny standard, the restriction or law must be: (1) justified by a compelling state interest; (2) narrowly tailored to achieve that interest; and (3) the least restrictive way of achieving that interest.[125] A restriction on the WikiLeaks disclosures would meet this high standard of review.

First and foremost, the government has a compelling interest to restrict classified military information during a time of war.[126] As mentioned previously, the Supreme Court has stated that the protection of troops and war strategies justifies a First Amendment limitation.[127] In the present case, the Department of Defense and the Pentagon, as well as other government agencies and officials, notified WikiLeaks and other media sources that the release of classified documents regarding the wars in Afghanistan and Iraq endangers troops and exposes war strategies to enemies of the United States.[128] The agencies and individuals have concurred that the release of U.S. soldiers’ names and locations may put troops at further risk.[129] As the wars in Afghanistan and Iraq are ongoing, it is an inappropriate time to release information that may result in harm.

Conversely, there is general public concern that the current wars are unnecessary and resulted in the unwarranted loss of troops and taxpayer dollars.[130] Individuals and organizations that support the release of such information via WikiLeaks and other similar media contend that the public deserves to know what is happening in Iraq and Afghanistan.[131] There is no doubt the public deserves to know details of the war, and the Supreme Court has confirmed this notion.[132] At some point, however, the information being dispersed to the public must be limited. For instance, the public should not know the names and locations of troops, facts that were leaked in the Afghan War Diary 2004─2010 (“Afghan War Diary”).[133] The details disclosed provided the public with little information on the general war efforts and costs, the primary concern of opponents,[134] but instead compromised soldiers’ lives and the U.S. war efforts.[135] The government’s desires to protect U.S. troops and to end the wars quickly are compelling government interests.[136] If and when a formal restriction is issued to stop WikiLeaks from disseminating classified U.S. military documents, the restriction must be narrowly tailored and must use the least restrictive means possible to maintain this compelling government interest.[137]

The Freedom of Information Act (“FOIA”) requires the disclosure of all government documents,[138] including U.S. military documents.[139] However, the FOIA has a specific exception for information concerning an agency’s operation and for Executive Orders regarding national security.[140] Thus, the Near exception[141] does not conflict with the FOIA’s mandate to disclose government documents.[142] In releasing the documents provided by Private First Class Bradley Manning regarding the day-to-day account of the War created by military officials in the course of duty, WikiLeaks violated the Near Troop/Ship Exception.[143]

B. The Effect of WikiLeaks is More Detrimental than that of

the Pentagon Papers

1. Background of the Pentagon Papers Case

Arguably the most famous contest between national security considerations and the First Amendment occurred in 1971 with the release of the Pentagon Papers,[144] the government’s classified, extensive study regarding the Vietnam War. The New York Times and the Washington Post sought to publish the study but the government attempted to have them enjoined from doing so.[145] The Supreme Court overturned the injunction the District Court granted in the New York Times case,[146] and refused to reverse a different District Court’s denial of an injunction in the Washington Post case.[147] The Supreme Court held that the government did not meet the heavy burden required for the imposition of such a restraint.[148] In stark contrast to its opinion in Schenck, in which the Court established that clear and present dangers justify a limitation on the freedom of speech and press,[149] the Court in New York Times upheld the principles of the First Amendment despite the ongoing state of the Vietnam War.[150]

Invoking the First Amendment in its broadest capacity, several justices looked to the Framers’ intent to safeguard basic freedoms[151] as well as the necessity for transparency in a democracy.[152] Justice Black elaborated on the superiority of the First Amendment, generally finding the content of the documents to be immaterial.[153] Justice Douglas, concurring with Justice Black, asserted that the First Amendment, specifically the liberty of the press, served as an important check on the government.[154] Justices Stewart and White argued to the contrary that in areas of national defense, the President is given great deference to protect information as needed;[155] however, both Justices agreed:

In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry—in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people.[156]

Though the minority cited national security concerns, the Court largely upheld the notion that an informed citizenry is an essential check on executive power in foreign affairs.[157]

2. Distinctions Between the Current Wars and the Vietnam War

The Court in New York Times Co. v. United States accurately interpreted the First Amendment’s guarantees for the freedom of the press, even during a time of a war.[158] Though there are many parallels, the documents posted on WikiLeaks are distinct from the Pentagon Papers for many reasons.[159] First, the nature of the War in Afghanistan and the greater “War on Terror”[160] is different from the Vietnam War. The U.S. entered into the Vietnam War, despite a military policy to fight only defensive wars, as part of a greater containment policy and to prevent communism from spreading to South Vietnam.[161] The Vietnam War was mainly prompted by fear of the spread of communism.[162] The War in Afghanistan, in contrast, was a direct response to the attacks by al-Qaeda on September 11, 2001,[163] which occurred on U.S. soil and resulted in 2,996 casualties[164]—the majority of whom were civilians.[165] The subsequent invasion of Afghanistan was a means of stopping terrorist threats and attacks throughout the world following the September 11, 2001 attacks.[166] As evidenced by continuing attacks by groups such as al-Qaeda, the threats to the U.S. in the current “War on Terror” are legitimate, and there is not the same need to expose the details of the war.[167] During the Vietnam War, U.S. citizens felt left in the dark while the government acted in an improper manner by concealing vast amounts of information from the American public.[168] The Pentagon Papers[169] allowed the nation to see exactly what was happening in Vietnam; they “revealed a ‘credibility gap’ between the Johnson administration’s public statements and its private actions.”[170] Supporters argue that the recent WikiLeaks disclosures function as the Pentagon Papers did in the 1970s by exposing the U.S. government’s deception.[171] As a result of modern technology, this is not the case.

Today, live broadcasts of American soldiers around the world, Facebook[172] updates, video chats with soldiers abroad, and other media sources are able to show U.S. civilians what is actually happening in the “War on Terror.”[173] These new media sources affect a heightened public awareness about the war, particularly in comparison to the Cold War and Vietnam War eras.[174] Soldiers are now able to broadcast their experiences and frustrations from overseas without publishing thousands of documents.[175] Additionally, figures about the war, including the total number of deaths and the amount of money spent, are readily available on the Internet.[176] With such information readily accessible, the argument that the public is in the dark is less persuasive than in prior decades.

A further distinction between the “War on Terror” and the Vietnam War is if the U.S. government has been concealing current war information from the nation, the fact that the information was disseminated over the Internet may render the leaks far more detrimental than the publication of similar information by a newspaper.[177] Depending on who is running the website, online content such as WikiLeaks may be irreversible.[178] Even if a website is removed, the information may have already been downloaded or remain on a corporate server or may have been moved to a mirror website, thus allowing the content to continue spreading.[179]

3. The Content of the Leaks and the Pentagon Papers

Even assuming the medium of current leaks over the Internet is not substantially different from the print medium of newspapers, the content of WikiLeaks is nonetheless vastly different from the material in the Pentagon Papers.[180] The Pentagon Papers “disclosed official secrets, such as the covert bombing of Laos and Cambodia, and outright lies, such as Lyndon Johnson’s plans to widen the war in 1964 despite an explicit campaign pledge to the contrary.”[181] Conversely, the WikiLeaks documents have not revealed the same kind of hidden agenda from either the Bush or Obama Administration.[182] It was clear that even though many people opposed President Bush’s decision to invade Iraq and Afghanistan, his agenda was to end terrorism.[183] With this mission in mind, “the Afghan documents don’t specifically contradict official statements and administration policies, as the Pentagon Papers did.”[184]

Additionally, the leaks differ in that the Pentagon Papers painted a quite different picture from what news reports had been portraying;[185] conversely, the WikiLeaks documents “are a loosely related collection of material covering nearly six years (early 2004 through late 2009) that leaves out important context,”[186] thus adding very little to most Americans’ notions of the war.[187] Since the documents include after-action summaries and details described in raw material without context,[188] the leaks actually deceive the American public rather than shed light on a controversial situation. An argument may be made that the recent release of diplomatic cables by WikiLeaks illuminated how certain diplomats felt about other countries, but these statements were not new information.[189] Since the start of the “War on Terror,” many countries have declared public opposition to the U.S. stance, and releasing the cables may embarrass or isolate important allies, stirring further controversy with foreign nations.[190] Furthermore, the cables have exposed nations acting in contravention to their asserted positions on certain foreign policies, causing obvious tension between traditional allies.[191] Even though the cables do not present the direct threats that the information in the Afghan War Diary and Iraq leaks contained, the release of such information may be detrimental to U.S. foreign relations.[192] In the case of the Pentagon Papers, foreign relations were not at issue, and the goal was to expose U.S. deception rather than embarrass public officials. For these reasons, the Pentagon Papers and the WikiLeaks documents are fundamentally different.

4. Leakers Are Distinct from Classic Journalists

Journalists and “leakers” are also distinct from one another. A journalist takes time to research the facts of his or her article prior to publication.[193] Moreover, when publishing a controversial document in a newspaper, there is usually time for the government to stop the document’s release, or at least halt its release temporarily as was true in the case of the Pentagon Papers.[194] The newspaper publication process also allows one or more editors to evaluate prospective articles and controversial publications.[195] Although the news media inherently supports First Amendment rights, the process is structured, deliberate and lawful.[196] The New York Times remained consistent in its goal not to harm national security interests when it decided not to publish certain documents.[197] Though it described the documents in some detail,[198] it did not disclose the names and locations of soldiers, which is a primary issue in the present case against WikiLeaks.[199] Perhaps this is an indication that such documents fall within the unlawful distribution of classified information and outside the protection of the First Amendment, as a reputable news source such as the New York Times would certainly want to publish notable documents about the war if they were truthful, honest, and controversial.

5. The WikiLeaks Documents Lack Proper Authenticity

As part of its goal of exposing various governments, WikiLeaks has amended its authentication process to allow the average person to legally post documents.[200] WikiLeaks originally stated it would not authenticate sources, as the “best way to truly determine if a story is authentic, is not just our expertise, but to provide the full source document to the broader community—and particularly the community of interest around the document.”[201] However, now WikiLeaks asserts that the site uses a detailed procedure along with skilled journalists to authenticate documents before they are released.[202] The website currently states:

We use traditional investigative journalism techniques as well as more modern [technology-based] methods. Typically we will do a forensic analysis of the document, determine the cost of forgery, means, motive, opportunity, the claims of the apparent authoring organization, [sic] and answer a set of other detailed questions about the document. We may also seek external verification of the document . . . .[203]

It is unclear which of the two processes is the website’s true authentication policy; however, it is clear that the authentication process is conducted by WikiLeaks “journalists” and not by the agencies or corporations by which they are created.

Additionally, documents disseminated by WikiLeaks are never censored or scrutinized before posting.[204] WikiLeaks’ goal in posting all documents as an effort to encourage the public to analyze primary sources is very different from the New York Times’ desire to publish an in-depth look at the Vietnam War via the Pentagon Papers. The publication of the Pentagon Papers was an effort to expose the war and was conducted in an objectively lawful manner as determined by the United States Supreme Court,[205] whereas the posting of the Afghan War Diary on WikiLeaks is likely an illegal posting of a mixture of lawful and unlawful documents.[206]

In failing to authenticate or censor the documents properly,[207] a naïve Internet user viewing the WikiLeaks documents may read false information about the war, assume it to be true, and begin to take action. The First Amendment was undoubtedly established to protect public criticism of the government and its actions;[208] however, speaking falsely has not been constitutionally tolerated, particularly when it may lead to a clear and present danger.[209] In this case, speaking out falsely against the war may upset military morale or lead to a general misunderstanding of the war. It could even lead the public to vote an alternative way on certain issues, such as federal spending, than it would otherwise be inclined to do if the true facts were illuminated. For all of these reasons, the WikiLeaks case should not be examined and analyzed in the same light as the Pentagon Papers, and a leak should be restricted from publication in part or in its entirety.

IV. POSSIBLE SOLUTIONS TO STOP VIOLATIONS BY

WEBSITES SUCH AS WIKILEAKS

Assuming the government is able to obtain an injunction to stop the disclosure of military documents, there are several problems in enjoining a site such as WikiLeaks. Primarily, WikiLeaks is run by the Swedish-based company PRQ, whose central server is in Stockholm, Sweden.[210] Additionally, as a result of recent cyberattacks, the site is no longer registered under the .org domain and now instead has several mirror sites that are run by other domains such as .ch.[211] Since the Swedish-based, Czech-domained website lies outside U.S. jurisdiction, WikiLeaks would have no incentive to follow an injunction even if one were issued.[212] Consequently, the U.S. Supreme Court has no way of enforcing an injunction against the website to stop the dissemination of classified war documents.[213] In order to stop such leaks, the government must turn to alternative solutions to enjoin the sites from mass distribution.

A. Legislative Solution: Revise the Espionage Act

A revision to the language of the Espionage Act of 1917 (“Espionage Act”)[214] would be the most effective way to stop and/or punish leakers. While the Freedom of Information Act (“Act” or “FOIA”) could be revised to place extra limitations on what information should be provided to the public, its revision would not likely affect the dissemination of information over websites such as WikiLeaks.[215] The Espionage Act is arguably the best way to prosecute leakers.[216] If Julian Assange is delivered to U.S. authorities, it is thought that he would also be prosecuted under the Espionage Act.[217] As discussed above, the Act holds distributors of information pertaining to national defense criminally liable for their actions.[218] While this provision would allow for the prosecution of those who supplied the information to WikiLeaks, “prosecutors . . . have never successfully prosecuted recipients of leaked information for passing it on to others—an activity that can fall under the First Amendment’s strong protections of speech and press freedoms.”[219] If a case cannot be made for Mr. Assange’s aid in extracting the documents, it will be nearly impossible to prosecute him under the Act.[220] Therefore, the language must be changed to include distributors.

Senator Joseph Lieberman recently initiated a proposed change to the Espionage Act called the SHIELD Act (Securing Human Intelligence and Enforcing Lawful Dissemination Act).[221] The goal of the Act is to “make it a crime for any person knowingly and willfully to disseminate, ‘in any manner prejudicial to the safety or interest of the United States,’ any classified information ‘concerning the human intelligence activities of the United States.’”[222] While this change is the most effective way to prosecute classified document distributors such as Julian Assange, it is likely unconstitutional under the First Amendment.[223] Banning the dissemination of any classified information would “risk too great a sacrifice of public deliberation.”[224]

However, Senator Lieberman’s proposed change to the Espionage Act, adding a clause indicating that such prosecution could only take place if there was a “clear and present danger,” may avoid this risk.[225] This addition would use the Court’s language to limit the application of the law to times of war.[226] A broader definition of “times of war,” as discussed above, would allow for the prosecution of individuals such as Mr. Assange without compromising First Amendment protection.[227]

Perhaps another option is only to prosecute the disseminator if the source is not disclosed. This alternative would deter people from exposing classified information because it would eliminate the anonymity of WikiLeaks. Additionally, codified language that would allow for the prosecution of distributors of unauthentic or diplomatic opinions would allow non-fact based opinions, such as the ones in the recent diplomatic cable leaks, to be banned on their face.[228] These types of documents do not fall under information necessary to the public under the FOIA, and therefore are not necessary or relevant to one’s ability to effectively censure the government.[229] These revisions would be an effective deterrent for third party distributors such as Mr. Assange, thus incentivizing individuals to seek government approval prior to disseminating classified information.[230] Assuming this solution stops “leaks” from occurring in the first place, additional technical solutions, discussed below, would be necessary to remove the material.

B. Technical Solutions: Cyber-Warfare

An alternative to terminating WikiLeaks is through cyber-warfare.[231] Using advanced hacking technology, the government would terminate the WikiLeaks site making its contents inaccessible.[232] In fact, Marc Thiessen, a renowned author and a former member of White House Senior Staff,[233] recently confirmed, “[t]he United States has the cyber capabilities to prevent WikiLeaks from disseminating those materials.”[234] Furthermore, “[t]he Pentagon probably has the ability to launch distributed denial-of-service attacks against WikiLeaks’ public-facing servers.”[235] Using this method, the government could stop future leaks by shutting down the website and removing any questionable content that currently exists within the domain name.[236] Cyber-warfare effectively addresses the immediacy required to stop the instantaneous mass dissemination of information.

While efficient, the cyber-warfare solution poses problems with public perception.[237] The government may move past this obstacle by hiring an unofficial third party individual to take down the website on its behalf,[238] but this solution would come at a price to that individual—most likely, a prison sentence. Hence, while many see cyber-warfare as an optimal solution, it cannot operate without extreme distaste by many citizens and public organizations that view it as unacceptable censorship.

C. International Treaty

A diplomatic solution in the form of an international treaty, either on its own or concurrently with the prosecution of leakers under the Espionage Act, could stop the dissemination of classified government information from any country without permission. An international treaty may provide the collaborative effort necessary to prevent the leak of classified information by establishing an avenue to prosecute in international court leakers who operate out of other countries.[239] The treaty could be under the supervision of the Internet Governance Forum (IGF).[240] The IGF was mandated by the World Summit on the Information Society (“WSIS”),[241] and adopted formally by the United Nations (“UN”) in 2006.[242] The IGF’s purpose is to provide a forum for dialogue on Internet policy issues.[243] At the 2009 meeting in Sharm El Sheikh, Egypt, participants in the Security, Openness and Privacy session discussed the need for more policies on Internet security.[244] These specific policies have yet to be drafted or put in place by the IGF.[245] At the most recent IGF summit in Vilnius, Lithuania, the European Union proposed an international treaty that identifies “12 ‘principles of internet governance.’”[246] The proposed treaty encourages “cross-border co-operation between countries to identify and address security vulnerability and protect the network from possible cyber attacks or cyber terrorism.”[247] While this particular proposal is the first step in establishing an international governance of the Internet, the treaty does little to stop sites such as WikiLeaks since its focus is primarily on stopping cyber-terrorists and hackers.[248] For the treaty to effectively halt WikiLeaks, the treaty must address websites that post classified information and use language resembling the Espionage Act.

In theory, an international treaty is a viable means of preventing the dissemination of classified information. Nevertheless, there are several problems with its implementation and ability for success. First, there is no guarantee, and it is unlikely, that all countries will sign on to such a treaty. Even the U.S. may be wary of an Internet treaty as it could be seen as a means of limiting the First Amendment.[249] However, assuming the U.S. did sign the treaty, it would not be useful without the support of all countries with Internet access signing the treaty, which is unlikely, and still there is no guarantee. Participation of all countries is essential; otherwise, the information may be disseminated over the Internet without consequence by a country not privy to the treaty.

Additionally, the process of drafting and implementing a treaty can be very lengthy. For instance, the IGF was founded in 2006 and yet there is only one proposed treaty regarding any type of Internet protection.[250] Moreover, the IGF also has many different issues it must focus on, and security will not likely be the first topic it addresses.[251] A treaty may be the best way to align international forces to solve the problem posed by WikiLeaks; however, its feasibility must be scrutinized carefully.

V. CONCLUSION

While a lawsuit enjoining the publication of classified documents in conjunction with an international treaty is an optimal solution to the problems WikiLeaks poses, these solutions lack the ultimate efficiency necessary for the Internet Age, particularly in light of the fact that mirror sites can be posted instantaneously.[252] In order to permanently halt WikiLeaks and similar websites from disclosing classified documents, a combination of all three methods should be applied.

Changes in U.S. laws and the creation of an international treaty are excellent long-term goals. First, the Espionage Act of 1917,[253] as expanded by a law such as the proposed SHIELD Act,[254] will more effectively enable the prosecution of distributors of WikiLeaks and the hosts of mirror sites. However, as mirror sites arise under new domain names,[255] the U.S. will ultimately need to use cyber-warfare if classified information continues to spread faster than the registries can remove it. Finally, an international treaty would make it easier to prosecute individuals such as Julian Assange for violating various laws. By combining these methods, lawmakers would achieve a balance to preserve civil liberties by restraining public information only when justified while also protecting national security interests.

Melissa Hannah Opper[*]

1. Elisabeth Bumiller, Army Broadens Inquiry into Disclosure of Reports to WikiLeaks, N.Y. Times, July 31, 2010, at A4; Christine Delargy, Impact of Leaked WikiLeaks Docs Still Uncertain, CBS News (July 26, 2010), http://www.cbsnews.com/8301-503544_162-20011720-503544.html.

2. A “whistleblower” is “one who reveals something covert or who informs against another.” Whistleblower Definition, Merriam Webster’s Collegiate Dictionary 1348 (10th ed. 1999). In this Comment, the term whistleblower will refer to individuals who provide information about the government to WikiLeaks.

3. See About: What Is WikiLeaks? § 3.2, WikiLeaks, http://www.wikileaks.ch/About.html (last visited July 31, 2011); Ashley Fantz, WikiLeaks’ Growing Impact, CNN News Blog (Nov. 29, 2010, 1:35 PM), http://news.blogs.cnn.com/2010/11/29/what-is-wikileaks-2/. WikiLeaks’ original website at www.wikileaks.org has been removed from the Internet; the website’s information has been moved over to “mirror” websites, primarily to www.wikileaks.ch. While most of the WikiLeaks content remains the same, the website’s original “About Us” and “Introduction to WikiLeaks” articles cease to exist as they did in July 2010.

4. U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .”).

5. Freedom of Information Act, 5 U.S.C. § 552 (2006) (requiring government agencies, in certain circumstances, to disclose information to the public).

6. See generally Kristen Wyatt, Sotomayor to Denver Students: WikiLeaks Supreme Court Case Likely, Huffington Post (Aug. 26, 2010), http://www.huffingtonpost.com/2010/08/26/sotomayor-to-denver-stude_n_696253.html; Gilead Light, WikiLeaks: Lawbreaker? Website that Releases U.S. Government Secrets May Be Protected from Prosecution, Balt. Sun, Sept. 2, 2010, at 17; Bumiller, supra note 1.

7. About: What is WikiLeaks?, supra note 3, § 1.5; see also WikiLeaks and the Sunshine Press, Educational CyberPlayground (Mar. 27, 2010, 11:47 PM), http://blog.edu-cyberpg.com/2010/03/28/Wiki+Leaks+And+The+Sunshine+Press.aspx (“Our publisher, The Sunshine Press, is an international non-profit organization funded by human rights campaigners, investigative journalists, technologists, lawyers and the general public.”).

8. About: What is WikiLeaks?, supra note 3.

9. Fantz, supra note 3.

10. See Unpluggable; How WikiLeaks Embarrassed and Enraged America, Gripped the Public and Rewrote the Rules of Diplomacy, Economist, Dec. 4, 2010, at 33; WikiLeaks, RationalWiki, http://rationalwiki.org/wiki/WikiLeaks (last modified Feb. 9, 2011) (originally available at http://WikiLeaks.org/wiki/WikiLeaks:About).

11. About: What Is WikiLeaks?, supra note 3, § 1.3.

12. WikiLeaks, supra note 10.

13. About WikiLeaks, Tactical Media Files, http://www.tacticalmediafiles.net/article.jsp?objectnumber=47815 (last visited July 31, 2011).

14. Doug Meier, Note, Changing with the Times: How the Government Must Adapt to Prevent the Publication of Its Secrets, 28 Rev. Litig. 203, 205 (2008).

15. N.Y. Times Co. v. United States, 403 U.S. 713, 717 (1971).

16. Memorandum from Ramsey Clark, Att’y Gen.’s Memorandum on the Pub. Info. Section of the Admin. Procedure Act (June 1967) (on file with the U.S. Dep’t of Justice), available at http://www.justice.gov/oip/67agmemo.htm (“This legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the Nation permits.”).

17. Id. (“[T]he welfare of the Nation or the rights of individuals may require that some documents not be made available. As long as threats to peace exist, for example, there must be military secrets.”).

18. Adam Entous, Pentagon Rebuffs Negotiations with WikiLeaks, Wall St. J. Wash. Wire Blog (Aug. 18, 2010, 7:35 PM), http://blogs.wsj.com/washwire/2010/08/18/pentagon-rebuffs-wikileaks-request-for-help/.

19. Id.

20. N.Y. Times Co., 403 U.S. at 714 (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) and Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)).

21. Geoff Morrell, The Defense Department’s Response, N.Y. Times, Oct. 23, 2010, at A9 (“By disclosing such sensitive information, WikiLeaks continues to put at risk the lives of our troops, their coalition partners and those Iraqis and Afghans working with us.”); see Tom Vanden Brook, Pentagon Braces for WikiLeaks Disclosure on Iraq, USA Today (Oct. 19, 2010), http://www.usatoday.com/news/military/2010-10-19-wikileaks19_ST_N.htm; see also Delargy, supra note 1.

22. Afghan War Diary, 2004–2010, WikiLeaks, http://mirror.wikileaks.info/wiki/Afghan_War_Diary,_2004-2010/ (last visited July 31, 2011) (describing the Afghan War Diary as a detailed compilation of thousands of documents that provide a dismal picture of the War in Afghanistan. The documents were released by the WikiLeaks website on July 25, 2010, sparking a debate over their legality as free speech and press or, alternatively, as the illegal leaking of classified documents. The information in the documents includes names and location of soldiers, videos, and other details of the war.).

23. Gates: Posting Classified War Documents Was Morally Wrong, CNN, Aug. 1, 2010, http://www.cnn.com/2010/POLITICS/08/01/gates.wikileaks/index.html.

24. See Afghan War Diary, 2004–2010, supra note 22.

25. Morrell, supra note 21, at A9; see also Delargy, supra note 1.

26. Morrell, supra note 21, at A9 (“[WikiLeaks] does expose secret information that could make our troops even more vulnerable to attack in the future. . . . [W]e know our enemies will mine this information, looking for insights into how we operate, cultivate sources and react in combat situations, even the capability of our equipment. This security breach could very well get our troops and those they are fighting with killed.”).

27. See Joby Warrick, Exposing Secrets Through Secrecy; Cloaked in the Virtual World, Wikileaks Gives Whistleblowers A Powerful Platform, Wash. Post, May 20, 2010, at A01 (“There’s a difference between journalism and just putting out information.”).

28. See Andrew Kantor, It’s A Big Internet, but You Can Still Be Tracked Down, USA Today: CyberSpeak (June 17, 2004, 7:02 PM), http://www.usatoday.com/tech/columnist/andrewkantor/2004-06-17-kantor_x.htm.

29. Morrell, supra note 21, at A9.

30. See, e.g., Maria Aspan, How Sticky Is Membership on Facebook? Just Try Breaking Free, N.Y. Times, Feb. 11, 2008, at C1 (discussing that even when a Facebook account is deleted, Facebook is able to keep all of the user’s information and posts).

31. About: What is WikiLeaks?, supra note 3, § 1.2.

32. Id.

33. Ashlee Vance, WikiLeaks Struggles to Keep a Step Ahead of Hackers, N.Y. Times, Dec. 4, 2010, at A8 (“WikiLeaks was directing users to Web addresses in a number of European countries, including Switzerland, Germany, Finland and the Netherlands. This was WikiLeaks’s effort to solve the problems caused when EveryDNS.net dropped it.”).

34. Erwin Chemerinsky, Constitutional Law: Principles and Policies 922 (3d ed. 2006).

35. N.Y. Times Co. v. United States., 403 U.S. 713, 717 (1971) (Black, J., concurring).

36. Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 50 (1988).

37. Near v. Minnesota, 283 U.S. 697, 713 (1931).

38. Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 767 (1986).

39. United States v. Progressive, Inc., 467 F. Supp. 990, 992 (W.D. Wis. 1979) (“First Amendment rights are not absolute.”); see United States v. Brown, 250 F.3d 907 (5th Cir. 2001); see also Am. Commc’ns Ass’n v. Douds, 339 U.S. 382, 412 (1950) (holding that when the freedom of speech or press poses a clear and present danger, the right is not absolute); Near, 283 U.S. at 716 (stating that the right of the press to be free from “previous restraint is not absolutely unlimited,” as that right could be limited in times of war).

40. Freedom of Information Act, 5 U.S.C. § 552 (2006).

41. Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 17 (1974); see also NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (“The basic purpose of the FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”).

42. History of the Freedom of Information Act, PBS, http://www.pbs.org/now/politics/foia.html (last visited July 31, 2010).

43. Houchins v. KQED, Inc., 438 U.S. 1, 14–15 (1978) (“‘The Constitution itself is [not] a Freedom of Information Act . . . .’ Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control.” (citation omitted)). See generally Branzburg v. Hayes, 408 U.S. 665, 684–85 (1972) (“It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”).

44. “The Watergate scandal” refers to the incident in which President Richard M. Nixon and several members of his staff were caught conducting illegal activities. They were exposed when members of the president’s staff were caught breaking into the Democratic National Committee’s headquarters. As a result, the American public demanded that government agencies produce documents in hopes that the increased scrutiny would deter future scandalous behavior. 1 William B. Dickinson, Jr., Watergate: Chronology of a Crisis (1973).

45. History of the Freedom of Information Act, supra note 42.

46. The “Privacy Act Amendments” refers to several amendments made to the Freedom of Information Act in 1974 as a way to enforce the Act. See Dan Lopez, et al., Veto Battle 30 Years Ago Set Freedom of Information Norms, National Security Archive, Nov. 23, 2004, http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB142/index.htm#_ednref4.

47. See FOIA Legislative History, National Security Archive, http://www.gwu.edu/ ~nsarchiv/nsa/foialeghistory/legistfoia.htm (last visited July 31, 2011); Amendments, What Is FOIA?, http://www.whatisfoia.org/amendments1.html (last visited July 31, 2011).

48. See, e.g., Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048 (1996).

49. Freedom of Information Act, 5 U.S.C. § 552 (2006).

50. Id. § 552(b)(1)(A).

51. Id. § 552(b)(2).

52. Id. § 552(b)(9).

53. Id. § 552. See generally Adm’r, FAA v. Robertson, 422 U.S. 255, 262 (1975) (explaining that the Act gives no intimation that all information must be disclosed. The purpose, rather, is to permit access to certain official information which Congress thought had unnecessarily been withheld and to protect certain information where confidentiality is necessary to protect legitimate governmental functions that would be impaired by disclosure.).

54. See generally U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .”); Freedom of Information Act, 5 U.S.C. § 552 (2006).

55. Schenck v. United States, 249 U.S. 47, 52 (1919) (“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.”).

56. Near, 283 U.S. at 716 (stating that the right of the press to be free from “previous restraint is not absolutely unlimited,” as that right could be limited in times of war); see infra Part II.B.1.

57. See Near, 283 U.S. at 716 (stating that the right of the press to be free from “previous restraint is not absolutely unlimited,” as that right could be limited in times of war); Freedom of Information Act, 5 U.S.C. § 552(b)(1)(A)–(B) (2009) (“This section does not apply to matters that are . . . (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.”).

58. 18 U.S.C. § 793 (2006) (originally enacted as Espionage Act of 1917, Pub. L. No. 65-24, 40 Stat. 217).

59. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (U.S.A. P.A.T.R.I.O.T.) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).

60. Near, 283 U.S. at 716 (finding a Minnesota law limiting freedom of press to be unconstitutional).

61. Id. at 716 (stating that the right of the press to be free from “previous restraint is not absolutely unlimited,” as that right could be limited in times of war).

62. Id. at 701–02 (quoting Mason’s Minn. Stat. §§ 10123-1–10123-3 (1927)).

63. Mason’s Minn. Stat. §§ 10123-1–10123-3 (1927) (invalidated by Near, 283 U.S. at 722–23).

64. Near, 283 U.S. at 714 (quoting Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis omitted)).

65. United States v. Quattrone, 402 F.3d 304, 309–10 (2d Cir. 2005). See generally Near, 283 U.S. at 714–15 (stating that the chief purpose of freedom of the press is to prevent prior restraints on publication); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (stating that the imposition of a prior restraint carries a “heavy presumption against its constitutional validity”).

66. See generally Near, 283 U.S. at 714–15 (stating that the chief purpose of freedom of the press is to prevent prior restraints on publication); Bantam Books, Inc., 372 U.S. at 70.

67. Near, 283 U.S. at 716 (stating that the right of the press to be free from “previous restraint is not absolutely unlimited,” as that right could be limited in times of war).

68. Id.

69. Id.

70. Id. (quoting Schenck, 249 U.S. at 52; citing Zechariah Chafee, Freedom of Speech 10 (1920)).

71. Id. (stating that the right of the press to be free from “previous restraint is not absolutely unlimited,” as that right could be limited in times of war).

72. Id.

73. Near, 283 U.S. at 716 (stating that the right of the press to be free from “previous restraint is not absolutely unlimited,” as that right could be limited in times of war).

74. Id.

75. See 18 U.S.C. § 793 (originally enacted as Espionage Act of 1917, Pub. L. No. 65-24, 40 Stat. 217); Harold Edgar & Benno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73 Colum. L. Rev. 929, 939–42 (1973) (providing an overview of the legislative history of the Espionage Act from its inception to the present law).

76. 18 U.S.C. § 793 (originally enacted as Espionage Act of 1917, Pub. L. No. 65-24, 40 Stat. 217).

77. Edgar & Schmidt, supra note 75, at 939–42 (providing an overview of the legislative history of the Espionage Act from its inception to the present law).

78. Id.

79. Id.

80. Id.

81. Schenck, 249 U.S. at 52 (upholding the criminal conviction of a defendant who believed he was exercising his First Amendment rights when speaking out against the draft during World War I). A defendant’s criminal conviction was deemed Constitutional under the new “clear and present danger” test; the Court held that “[t]he question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Id. The Court then elaborated, “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” Id. In amending the FOIA to include limitations on information pertaining to national security, the legislature followed the Court in Schenck, thereby affirming the necessity for such a limitation. See Freedom of Information Act, 5 U.S.C. § 552 (2006).

82. See N.Y. Times Co., 403 U.S. 713; see infra Part III.B.1.

83. See Progressive, Inc., 467 F. Supp. at 1000 (issuing a temporary injunction against Progressive to halt the publication of an article revealing secret information about the atomic bomb).

84. Edgar & Schmidt, supra note 75, at 939.

85. Id. at 939–42 (providing an overview of the legislative history of the Espionage Act from its inception to the present law).

86. 18 U.S.C. § 793(a)–(f).

87. Id. § 793(d)–(e).

88. Id. § 793(d)–(e).

89. Id. § 793(d)–(e).

90. Id. § 793(d).

91. Id. § 793(e).

92. See generally United States v. Rosen, 445 F. Supp. 2d 602, 613 (E.D. Va. 2006) (finding that the litigation history of 18 U.S.C. § 793 is sparse).

93. Id. (stating that 18 U.S.C. § 793(d) and (e) have not yet been considered by the Supreme Court).

94. See, e.g., Gorin v. United States, 312 U.S. 19 (1941); United States v. Morison, 844 F.2d 1057 (4th Cir. 1988). See generally Rosen, 445 F. Supp. 2d at 613 (stating that 18 U.S.C. § 793(d) and (e) have not yet been considered by the Supreme Court).

95. See, e.g., Gorin, 312 U.S. 19; Morison, 844 F.2d 1057. See generally Rosen, 445 F. Supp. 2d at 613 (stating that 18 U.S.C. § 793(d) and (e) have not yet been considered by the Supreme Court).

96. See supra Part I.

97. “Cyber-terrorism” is “[a] criminal act perpetrated by the use of computers and telecommunications capabilities, resulting in violence, destruction and/or disruption of services to create fear by causing confusion and uncertainty within a given population, with the goal of influencing a government or population to conform to a particular political, social, or ideological agenda.” See Cyber-terrorism Definition, U.S. Army Training & Doctrine Command, Assistant Deputy Chief of Staff for Intelligence—Threats, DCSINT Handbook No. 1.02—Cyber Operations and Cyber Terrorism Glossary-1 (2005).

98. See, e.g., Schenck v. United States, 249 U.S. 47, 52 (1919) (finding limitations on the freedom of the press justified when a clear and present danger exists); Abrams v. United States, 250 U.S. 616, 619 (1919) (holding leaflets intending to promote violence were not protected by the First Amendment); Near v. Minnesota, 283 U.S. 697, 716 (1931) (stating that the right of the press to be free from prior restraints is not absolutely unlimited, as that right could be limited in times of war, but ultimately holding the publication lawful under the First Amendment); Brandenburg v. Ohio, 395 U.S. 444, 447–50 (1969) (holding the government may not prohibit or punish inflammatory speech unless it is directed to incite violence or imminent lawless action); N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (holding the government did not meet its heavy burden to justify a prior restraint on the publication of classified documents from the Vietnam War).

99. Near, 283 U.S. at 716 (stating the right to prior restraints of the press is not absolutely unlimited, and should be recognized particularly during times of war); see supra Part II.A.

100. Near, 283 U.S. at 716.

101. Id. (“[T]he limitation has been recognized only in exceptional cases . . . .”).

102. See supra Part I.

103. President George W. Bush, Address to the Nation Regarding the September 11, 2001 Attacks (Sept. 20, 2001) (transcript available at http://articles.cnn.com/2001-09-20/us/gen.bush.transcript_1_joint-session-national-anthem-citizens?_s=PM:US) (coining the term “War on Terror”).

104. Id. (coining the term “War on Terror”).

105. Authorization For Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 498 (2002); see Lieut. General Greg Newbold, Why Iraq Was a Mistake, Time, Apr. 17, 2006, at 42.

106. Authorization For Use of Military Force Against Iraq Resolution of 2002.

107. Id.

108. See John Dean, FindLaw Forum: President Needs Congressional Approval to Declare War on Iraq, CNN (Aug. 30, 2002,12:12 PM) http://archives.cnn.com/2002/LAW/08/columns/fl.dean.warpowers/ (“In the almost 30 years since Congress adopted the War Powers Resolution, presidents have regularly employed our Armed Forces in hostilities without consulting with Congress.”); Major John L. Beacon, The Declaration of War: One For The History Books, (1991) (unpublished seminar paper, National Defense University) available at http://www.globalsecurity.org/military/library/report/1991/BJL.htm (“The declaration of war . . . is, in reality, a seldom used concept . . . .”).

109. Editorial, Who Can Declare War?, N.Y. Times, Dec. 15, 1990, at 26.

110. See id.

111. See Norman Soloman, War Needs Good Public Relations, FAIR (Oct. 25, 2001), http://www.fair.org/media-beat/011025.html.

112. Near, 283 U.S. at 716 (“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” (quoting Schenck, 249 U.S. at 52)).

113. See supra Part I.

114. See supra Part II.B.2, note 83. See generally Schenck, 249 U.S. 47.

115. But see Greer v. Spock, 424 U.S. 828, 836, 839 (1976) (holding constitutional tradition supports the notions that the military is free to be insulated from partisan political campaigns and that “[t]he guarantees of the First Amendment have never meant ‘that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.’” (quoting Adderley v. Fla., 385 U.S. 39, 48 (1966))).

116. See Schenck, 249 U.S. at 52 (“But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”).

117. Near, 283 U.S. at 697.

118. Schenck, 249 U.S. at 52.

119. Near, 283 U.S. at 716 (“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” (quoting Schenck, 249 U.S. at 52)).

120. Id. (“No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and locations of troops.”).

121. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 680 (1994) (holding content-based restrictions on the First Amendment to be subject to strict scrutiny).

122. See Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (holding the First Amendment means that the government has no power to restrict expression because of subject matter or content); Turner Broad. Sys., Inc., 512 U.S. at 680.

123. See generally N.Y. Times Co., 403 U.S. at 716.

124. See generally id. at 717.

125. United States v. Carolene Prods. Co., 304 U.S. 144, 152–53 n.4 (1938).

126. See Near, 283 U.S. at 716 (“No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.”); Schenck, 249 U.S. at 52 (approving limitations on the freedom of the press when a clear and present danger exists).

127. See Near, 283 U.S. at 716 (“No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.”); Schenck, 249 U.S. at 52 (approving limitations on the freedom of the press when a clear and present danger exists).

128. Morrell, supra note 21, at A9 (“[W]e know our enemies will mine this information, looking for insights into how we operate, cultivate sources and react in combat situations, even the capability of our equipment. This security breach could very well get our troops and those they are fighting with killed.”).

129. Id. (“By disclosing such sensitive information, WikiLeaks continues to put at risk the lives of our troops, their coalition partners and those Iraqis and Afghans working with us.”).

130. See, e.g., R.M., Eight Questions for Daniel Ellsberg, The Economist Democracy in America Blog (July 31, 2010, 6:34 PM), http://www.economist.com/blogs/democracyinamerica/2010/07/daniel_ellsberg_interview.

131. See, e.g., id.

132. N.Y. Times Co., 403 U.S. at 714 (holding that the government did not meet its burden to justify a prior restraint on publication of classified documents from the Vietnam War).

133. Gates: Posting Classified War Documents Was Morally Wrong, supra note 23.

134. See generally, R.M., supra note 130.

135. Morrell, supra note 21, at A9 (“[W]e know our enemies will mine this information, looking for insights into how we operate, cultivate sources and react in combat situations, even the capability of our equipment. This security breach could very well get our troops and those they are fighting with killed.”).

136. Id. (“By disclosing such sensitive information, WikiLeaks continues to put at risk the lives of our troops, their coalition partners and those Iraqis and Afghans working with us.”).

137. Turner Broad. Sys., Inc., 512 U.S. at 680 (holding that content-based restrictions on the First Amendment are subject to strict scrutiny); see also Carolene Prods. Co., 304 U.S. at 152–53 n.4 (establishing the test for strict scrutiny).

138. Freedom of Information Act, 5 U.S.C. § 552 (2006).

139. Id. § 552(f)(1).

140. Id. § 552(b)(1)(A)–(B) (“This section does not apply to matters that are . . . specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . are in fact properly classified pursuant to such Executive order . . . .”).

141. See supra Part II.B.1.

142. Freedom of Information Act, 5 U.S.C. § 552 (2006).

143. See supra Part II.B.1.

144. Dep’t of Defense, United States-Vietnam Relations 1945–1967 (1971).

145. N.Y. Times Co., 403 U.S. at 714.

146. United States v. N.Y. Times Co., 444 F.2d 544 (2d Cir. 1971), vacated, N.Y. Times Co., 403 U.S. 713.

147. United States v. Wash. Post Co., 446 F.2d 1327 (C.A.D.C. 1971), vacated, N.Y. Times Co., 403 U.S. 713.

148. N.Y. Times Co., 403 U.S. at 714.

149. Schenck, 249 U.S. at 52 (approving limitations on the freedom of the press when a clear and present danger exists).

150. N.Y. Times Co., 403 U.S. at 714 (holding the government did not meet its heavy burden to justify a prior restraint on the publication of classified documents from the Vietnam War).

151. Id. at 715.

152. Id. at 724.

153. Id. at 720 (Douglas, J., concurring) (“It should be noted at the outset that the First Amendment provides that ‘Congress shall make no law abridging the freedom of speech, or of the press.’ That leaves, in my view, no room for governmental restraint on the press.” (citing U.S. Const. amend. I)).

154. Id. at 720–24 (Black, J., concurring).

155. Id. at 727–40 (Stewart, J. & White, J., concurring).

156. N.Y. Times Co., 403 U.S. at 728 (Stewart, J. & White, J., concurring).

157. Id.

158. Id. at 714 (holding that the government did not meet its heavy burden to justify a prior restraint on the publication of classified documents from the Vietnam War).

159. Paul Farhi & Ellen Nakashima, The Pentagon Papers, Part 2? Parallels, and Differences, Exist, Wash. Post, July 27, 2010, at C1.

160. Bush, supra note 103 (coining the term “War on Terror” after the September 11, 2001 attacks on the United States).

161. See Presidential News Conference of Dwight D. Eisenhower (Apr. 7, 1954) (transcript available at http://www.presidency.ucsb.edu/ws/index.php?pid=10202#axzz1HFtG9GBT) (coining the “Domino Theory” that influenced U.S. military policy in Southeast Asia for the next decade). See generally President Harry S. Truman, Address Before a Joint Session of Congress Recommending Assistance to Greece and Turkey: The Truman Doctrine (Mar. 12, 1947) (articulating the containment policy, which required the United States to react to Soviet initiatives and gave the President greater military power in order to respond quickly to crises).

162. Denise M. Bostdorff & Steven R. Goldzwig, Idealism and Pragmatism in American Foreign Policy Rhetoric: The Case of John F. Kennedy and Vietnam, 24 Pres. Stud. Q. 515, 516 (1994) (describing President John F. Kennedy’s policies with regard to Vietnam and communism).

163. On September 11, 2001, two U.S. commercial airplanes were hijacked by al-Qaeda terrorists and flown into the World Trade Center towers in New York City. A third plane was hijacked and flown into the Pentagon, and a fourth plane was hijacked and crashed in a Pennsylvania field. These attacks were the first on the U.S. mainland since the Civil War. The incident instilled fear in many Americans and initiated an international “War on Terror.” See generally September 11: Chronology of Terror, CNN (Sept. 12, 2001), http://edition.cnn.com/2001/US/09/11/chronology.attack/.

164. Dale Challener Roe, What is 2996?, Project 2,996, http://project2996.wordpress.com/what-is-2996/ (last visited Aug. 6, 2011) (describing Project 2996 as a tribute to the 2996 victims of the September 11, 2001 attacks).

165. Accord The Unofficial Homepage of FDNY, http://nyfd.com/9_11_wtc.html (last visited Aug. 6, 2010); see We Remember . . . , Project 2,996, http://project2996.wordpress.com/we-remember (last visited Aug. 6, 2011) (listing each victim of the September 11, 2001 attacks).

166. President George W. Bush, Presidential Address to the Nation (Oct. 7, 2001), available at http://georgewbush-whitehouse.archives.gov/news/releases/2001/10/20011007-8.html.

167. See Homeland Security Advisory System, Dept. of Homeland Security, http://www.dhs.gov/files/programs/Copy_of_press_release_0046.shtm (last visited Nov. 20, 2010) (relaying the U.S. government’s current national threat level).

168. See generally Martin Arnold, Pentagon Papers Charges Are Dismissed; Judge Byrne Frees Ellsberg and Russo, Assails “Improper Government Conduct”, N.Y. Times, at A1 (May 12, 1973) (reporting on the judge’s dismissal of the Pentagon Papers trial based on what he called “improper Government conduct shielded so long from public view . . . .”).

169. H. Comm. on Armed Servs., United States-Vietnam Relations, 1945–1967: Study Prepared by the Department of Defense (Comm. Print 1971).

170. Farhi & Nakashima, supra note 159, at C1.

171. See id.

172. Facebook, http://www.facebook.com (last visited Aug. 6, 2011) (existing as a social utility to connect people with others who live, study, and work around them).

173. See, e.g., rainsong14, US Soldier Speaks Out Against The War in Iraq 1 of 3, YouTube (May 31, 2009), http://www.youtube.com/watch?v=TuCIiIig0Do; see also Afghanistan: Key Facts and Figures, BBC News (July 5, 2010), http://news.bbc.co.uk/2/hi/uk_news/8143196.stm.

174. See Eric Blair, WikiLeaks Being Used to Justify “Patriot Act” Legislation for Internet, The Intel Hub, http://theintelhub.com/2010/12/07/breaking-wikileaks-being-used-to-justify-patriot-act-legislation-for-internet/ (last visited Feb. 28, 2011) (indicating that anything leaked by WikiLeaks was not new news to today’s Internet savvy public).

175. See, e.g., rainsong14, supra note 173.

176. See, e.g., Afghanistan: Key Facts and Figures, supra note 173.

177. See generally Aspan, supra note 30 (discussing the permanence of information disseminated on the Internet via Facebook).

178. See, e.g., id. (discussing that even when a Facebook account is deleted, Facebook is able to keep all of the user’s information and posts).

179. See generally id. (discussing the permanence of information disseminated on the Internet via Facebook).

180. Farhi & Nakashima, supra note 159.

181. Id.

182. Id. (“The headlines from the publication of the Pentagon Papers were more consistent: The administration had deceived the public about the war.”).

183. Bush, supra note 166.

184. See Farhi & Nakashima, supra note 159 (“The headlines from the publication of the Pentagon Papers were more consistent: The administration had deceived the public about the war.”).

185. Id.

186. Farhi & Nakashima, supra note 159.

187. See Blair, supra note 174 (stating that the WikiLeaks content revealed “nothing new that wasn’t already known or well suspected.”).

188. Farhi & Nakashima, supra note 159.

189. Id.

190. Glenn Kessler, U.S. Warns Allies About WikiLeaks, Wash. Post, Nov. 26, 2010, at A02.

191. Id.

192. Id.

193. See Code of Ethics, Soc’y of Prof. Journalists, http://www.spj.org/pdf/ethicscode.pdf (last visited Aug. 6, 2011).

194. Finding WikiLeaks or Journalists Liable Could Prove Difficult, WUSTL Law Professor Says, Wash. Univ. in St. Louis Newsroom (Dec. 9, 2009), http://news.wustl.edu/news/Pages/21621.aspx (reporting that the government could potentially impose liability on WikiLeaks or the New York Times for publishing the contents of the leaked documents).

195. Bob Wilson, How Newspapers Work, How Stuff Works, http://www.howstuffworks.com/newspaper.htm (last visited Aug. 6, 2011); see also Piecing Together the Reports, and Deciding What to Publish, N.Y. Times, July 25, 2010, at A8.

196. See Piecing Together the Reports, and Deciding What to Publish, supra note 195 (reporting that the New York Times “spent about a month mining the data for disclosures and patterns, verifying and cross-checking with other information sources, and preparing the articles that [were] published”).

197. Id.

198. Secret Dispatches from the War in Iraq, N.Y. Times, http://www.nytimes.com/interactive/world/iraq-war-logs.html (last visited Aug. 6, 2011).

199. Vanden Brook, supra note 21.

200. About: What is WikiLeaks?, supra note 3, § 1.2.

201. WikiLeaks: About (Translation), WikiLeaks, http://www.wikileaks.ch/wiki/About_Wikileaks (last visited Aug. 6, 2011) (translating a previous “WikiLeaks: About” text).

202. About: What is WikiLeaks?, supra note 3, § 1.4.

203. Id.

204. Id. § 2.4.

205. See generally N.Y. Times Co., 403 U.S. 713.

206. See Charlie Savage, Building Case for Conspiracy by WikiLeaks, N.Y. Times, Dec. 16, 2010, at A1.

207. About: What is WikiLeaks?, supra note 3.

208. N.Y. Times Co., 403 U.S. at 717 (Black, J., concurring).

209. Schenck, 249 U.S. at 52. See generally U.S. Const. amend. I.

210. David F. Gallagher, Wikileaks Site Has a Friend in Sweden, N.Y. Times Bits (Feb. 20, 2008, 10:21 AM), http://bits.blogs.nytimes.com/2008/02/20/wikileaks-site-has-a-friend-in-sweden/.

211. Vance, supra note 33, at A8.

212. See generally Gallagher, supra note 210.

213. Rob Stengel, The Government Can’t and Shouldn’t Stop WikiLeaks, Wash. Square News (Nov. 28, 2010), http://nyunews.com/opinion/2010/11/28/29stengel/.

214. 18 U.S.C. § 793 (2010) (This section is based on Act June 15, 1917, ch. 30, Title I, BB1, 6, 40 Stat. 217, 219).

215. See WikiLeaks, http://www.wikileaks.ch/ (last visited Aug. 6, 2011).

216. See Kevin Poulsen, Lieberman Introduces Anti-WikiLeaks Legislation, Wired Threat Level (Dec. 2, 2010, 6:32 PM), http://www.wired.com/threatlevel/2010/12/shield/.

217. Ellen Nakashima & Jerry Markon, WikiLeaks Founder Could Be Charged Under Espionage Act, Wash. Post (Nov. 30, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/11/29/AR2010112905973.html.

218. 18 U.S.C. § 793(f)–(h).

219. Savage, supra note 206.

220. Id.

221. Poulsen, supra note 216.

222. Geoffrey R. Stone, A Clear Danger to Free Speech, N.Y. Times, Jan. 4, 2011, at A19.

223. Id.

224. Id.

225. See id.

226. See id.

227. See generally id.

228. See generally Stone, supra note 222.

229. See 5 U.S.C.S § 552(b) (2010); 37A Am. Jur 2d Freedom of Information Acts § 77 (2010).

230. See Stone, supra note 222, at A19.

231. See Cyber-terrorism Definition, supra note 97.

232. Poulsen, supra note 216.

233. Biography of Marc Thiessen, http://www.marcthiessen.com/biography (last visited Aug. 6, 2011).

234. Marc A. Thiessen, Op-Ed, Time for Obama to Shut Down WikiLeaks’ Assange, Wash. Post Postpartisan (Aug. 13, 2010, 9:59 AM), http://voices.washingtonpost.com/postpartisan/2010/08/time_for_obama_to_shut_down_wi.html.

235. Poulsen, supra note 216.

236. Id. (opining that preventing service from “public-facing servers” would effectively shut down the WikiLeaks website).

237. David Kravets, Judge Backtracks: WikiLeaks Resumes U.S. Operations, Wired: Threat Level (Feb. 29, 2008, 1:37 PM), http://www.wired.com/threatlevel/2008/02/post/ (discussing a U.S. district court judge’s decision to reinstate WikiLeaks, after having taken it down, as a result of First Amendment concerns).

238. See generally Michael Walzer Participates in Tikvah Center Conference on His Influential Book and Delivers Straus Institute Lecture (VIDEO), NYU School of Law News, http://www.law.nyu.edu/news/WALZER_CONFERENCE_LECTURE (last visited Aug. 6, 2011) (“[T]he argument that if you stick to the rules of engagement prescribed by international humanitarian law or the Geneva Conventions or just war theory, if you fight like the good guys are supposed to fight, you won’t win . . . . That’s the most worrying argument that was made.”).

239. See About the Internet Governance Forum, The Internet Governance Forum, http://www.intgovforum.org/cms/aboutigf (last visited Nov. 20, 2010).

240. See The Internet Governance Forum, http://www.intgovforum.org/cms/ (last visited Nov. 20, 2010).

241. About the Internet Governance Forum, supra note 239.

242. Id.

243. Id.

244. The IGF 2009 Meeting, The Internet Governance Forum, http://www.intgovforum.org/cms/2009-igf-sharm-el-sheikh (last visited Aug. 6, 2011).

245. Claudine Beaumont, Global “Internet Treaty” Proposed, Telegraph (Sept. 20, 2010), http://www.telegraph.co.uk/technology/internet/8013233/Global-internet-treaty-proposed.html.

246. Id.; see also About the Internet Governance Forum, supra note 239.

247. Beaumont, supra note 245.

248. Id.

249. See, e.g., Kravets, supra note 237.

250. Beaumont, supra note 245. See generally The Internet Governance Forum, supra note 240.

251. See generally The IGF 2009 Meeting, supra note 244.

252. See, e.g., WikiLeaks, supra note 215.

253. 18 U.S.C. § 793 (2010) (originally enacted as Espionage Act of 1917, Pub. L. No. 65-24, 40 Stat. 217).

254. Poulsen, supra note 216.

255. See, e.g., WikiLeaks, supra note 215. See generally Mirrors, WikiLeaks, http://wikileaks.ch/Mirrors.html (last visited Aug. 6, 2011).

** J.D. Candidate, Loyola Law School, 2012; Bachelor of Arts, Columbia University, 2007; Bachelor of Arts, Jewish Theological Seminary of America, 2007. The author would like to thank her parents, Lorraine and Michael, and brother, Stephen, as well as her entire extended family for their love, support, insight, and humor throughout the author’s life. This article is dedicated to them. A special thanks goes to the Honorable Ronald S. Coen for his mentorship and constant inspiration and motivation to succeed in the legal profession. Additional thanks goes to the author’s mentors: attorneys Beth Silverman, Jeffrey S. Pop, and Minh Nguyen, for their guidance. The author would also like to thank Loyola Law School Professor Karl Manheim for his continuous help with developing and editing this article. Finally, the author would like to acknowledge and thank editors Dan Hauptman and Emily Ruby, Chief Production Editors Jenna Spatz and Matt Carter, along with the rest of the editors and staffers of the Loyola of Los Angeles Entertainment Law Review for their tireless efforts and help in making this publication possible. In loving memory of KC Opper and Sy Opper.

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