Fight WikiLeaks Case in Court, Not Cyberspace

By Jim Astrachan and Eric B. Easton

If WikiLeaks founder Julian Assange conspired with Bradley Manning to acquire and disseminate classified government documents, the United States should indict, extradite, and prosecute him.  But the United States government should not use extra-legal means to coerce or bribe American companies into withholding services from WikiLeaks.com as long as that organization’s First Amendment right to disseminate information remains an unresolved issue.

To be sure, we don’t know whether the government has pressured PayPal, Amazon, DNS.net, and others to sever ties with the rogue web site WikiLeaks.com after it began disseminating classified State Department cables.  The White House has refused to comment despite reporters’ requests to clarify widespread speculation.

We do know that, whatever prompted those Internet service companies to drop the controversial site, the United States government now has egg all over its face.  Not only did WikiLeaks activate dozens of mirror sites around the world, but other radical transparency advocates launched denial of service attacks on the American companies that couldn’t or wouldn’t take the heat.  And it didn’t take long for the mainstream media to dig up a recent speech by Secretary Clinton praising the Internet’s ability to  help people discover new facts and make governments more accountable.

But the matter of extra-legal coercion goes beyond its ineffectiveness or the government’s hypocrisy regarding the Internet.  Where First Amendment issues are involved, such conduct by the government is just plain wrong.

At this point, we do not know for sure whether WikiLeaks broke any U.S. laws, at least any that can survive constitutional scrutiny.  Attorney General Eric Holder has repeatedly said the Department of Justice had undertaken a major investigation, but no charges have been filed at this writing.  Allegations of sexual misconduct in Sweden by WikiLeaks’ Julian Assange and extradition proceedings in London have bought Mr. Holder some time, but sooner or later he will have to come up with specific charges.

The last time the Department of Justice tried to use the Espionage Act to prosecute a “middle-man” like Assange – the late AIPAC prosecution – the case blew up in their faces.  Receiving “stolen” property has long been held inapplicable to information, where the owner is not deprived of the property.  And copyright infringement analogies suggested by some are certainly inapposite where, as here, there is no copyright. 

Still, there may be a viable case against Assange.  Perhaps there is evidence that he solicited the information or provided the necessary software, or perhaps the laws protecting national security information do constitutionally reach disseminators like Assange.

If the government truly has a valid cause of action against WikiLeaks because it violated the law, or because the Nation’s security is at stake, it should pursue the case through the courts, not start a surreptitious cyberwar that it should not and probably cannot win.  Such tactics may be acceptable to frustrate Iran’s nuclear weapons program, but not to chill what must be described as protected speech until found otherwise.

If the government does take WikiLeaks to court, though, it must be mindful of the Pandora’s box it may open.  For example, some commentators have gone to great lengths to distinguish WikiLeaks from its mainstream outlets:  the Guardian, Der Speigel, and The New York Times.  Journalistically, they are very different.  These mainstream publications routinely exercise editorial judgment and, presumably, restraint.  Well established communication channels, not duress, can mitigate serious security leaks.

But the New York Times and WikiLeaks.com are exactly the same under First Amendment law as we know it.  When Daniel Ellsberg of Pentagon Papers fame was prosecuted under the Espionage Act, the government opted not to pursue the Times and The Washington Post.  But it might have, according to some of the separate  opinions of Supreme Court Justices, who collectively refused to enjoin publication. The Ellsberg prosecution was ultimately scrapped when the White House plumbers were discovered, and the Espionage Act dodged a modern First Amendment analysis.

In any event, the Supreme Court has repeatedly found that the press’s right to gather and publish information is the same as yours or mine or Julian Assange’s; the state cannot punish us for publishing the information unless we break the law to acquire it.  Does national security information stand on different ground?  We don’t know, but a successful prosecution of WikiLeaks.com for publishing national security information that it acquired legally could open the door to prosecuting the Times for publishing all the national security leaks it gets on a daily basis.  Our concept of a free press would surely be jeopardized.

Freedom of speech is one of our most sacred and important rights, particularly where that speech involves the press’s gathering and reporting news about governmental activities.  Should the government attempt to take WikiLeaks to court over these embarrassing, and even harmful, publications – at least without evidence of complicity in the leak – that right could be compromised.  Still, it is better to raise this issue in open court than to attack freedom of speech by the back door.


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This commentary ran in the December 27, 2010 issue of The Daily Record.

So Sue Me, Hon!

The recent revelation that Café Hon owns the trademark HON has stirred controversy among persons who think HON belongs to the residents of the City of Baltimore and should not, or cannot, be monopolized by one entity for its commercial gain.  What’s a “Hon”? And does Café Hon have the right to enforce its HON trademark?  Definitions of Hon abound because of its common and well-known usage.  The Lexicon of Bawlamarese (How to co-moon-icate wiff the natives), defines Hon as “The universal name…Like Sir, Ms. ..interchangeable with any name.”  My usual waitress at the Sip-n-Bite emporium of fine dining has been calling me Hon for six years.  She has no idea of my name, nor does she care.  We are all Hons to her, regardless of age or gender.

Wikipedia defines “honey” with a tip of its hat to Baltimore.  “…’Honeybun’ and the abbreviation ‘hon’ has become a term endearment in most of the English-speaking world…In…Baltimore, Maryland, [Hon] is used when addressing casual acquaintances or even strangers.”  A visitor to World Reference Forums opines that, “I am fond of terms of endearment and use them cheerfully.  I call most of my friends hon, honey, sweetie, dear, anything like that…”.  English-Test.net relates that “The short form of honey is hun, or sometimes it’s spelled hon.”
   
The Culture of Baltimore Wikipedia adds, “Between the 1950s and 1970s, it was common to see working class local women dressing in bright, printed dresses with outdated glasses and beehive hairdos…Hon (…an abbreviation of honey) was a common informal name for someone else.”

The hon culture predates Café Hon, the restaurant in Hampden that has obtained federal trademark registrations for CAFÉ HON and simply HON.  John Waters has extensively and with accuracy parodied Baltimore’s hon culture in movies like Pink Flamingo and Hairspray. Even the most cursory Internet search reveals that there are many, many other references to Hon and Hon with reference to Baltimore.  The Welcome to Baltimore, Hon! website celebrates all things Bawlamer, and dedicates its title to the Hon, indicating, perhaps, that there is no other word that best describes Baltimore. 

The owners of Café Hon have properly registered the marks CAFÉ HON for restaurant services.  Mention Café Hon to most Baltimoreans and that quirky restaurant in Hampden comes to mind to the exclusion of all other cafes.  That’s what trademarks are intended to do – they designate a single source of goods or services to consumers because they are distinctive.  But Café Hon has also registered the mark HON for use with retail stores, paper goods and the like.  My first objection to this registration is that the word is hardly distinctive, is generic and generic words can never serve as trademarks.  HON should not serve to describe the source of gift shops or paper napkins – it describes those ladies in bright glasses with out-of-date glasses and beehive hair does.  It describes that waitress at the Sip-n-Bit who plops down the pie and calls me “Hon” even though she doesn’t know me.  It describes the culture of Baltimore in one word and unlike apple and APPLE  computers, ivory and IVORY soap, or shell and SHELL petroleum, Hon belongs to all of us because it is a part of our culture and the city in which we live.  We use the term in so many ways, and so frequently, that it can never serve to designate a source of napkins.

HON should remain in the public domain where it was born, discovered and cleverly exploited by Café Hon.  Granting to Café Hon a monopoly over the word, even if used with stores and napkins, is the equivalent to removing the word from the public’s use, risking that each time a person uses the word, commercially, he or she would be improperly subjected to a claim of trademark infringement regardless of how the mark is used.  Evidencing that this is a real risk is the recent report that Café Hon “allowed” the Maryland Mass Transit Administration to use HON (not CAFÉ HON) on ads but insisted on creative control as if it was the owner of the word, which apparently it thinks it is.

The only way that a generic term can be elevated into trademark status – that is, it comes to mean the source of the goods – is through a radical change in how consumers perceive the use of the word.  Given how popular Hon is in this town, it is highly unlikely that, despite Café Hon’s efforts to the contrary, Hon will ever come to mean other than the universal name, the abbreviation for honey or a way to address casual acquaintances.

My second objection is that the HON mark is very weak.  If a trademark challenge occurs and a court is not inclined to find that Café Hon’s use of the HON mark is generic, it will still understand that all marks are not equal.  Some are strong and they enjoy the highest level of protection.  Some are weak and they receive little protection.  Strength is measured by consumer perception.  Weak marks are relatively unknown or very much like other marks, or words, already in use.  They exist in a crowded field.  A weak mark does not identify goods sold under the mark as emanating from a particular source.  The word HON is in the lexicon and as such it is in common and frequent usage.  It will be very difficult, if not impossible, for HON to achieve the status of strength that allows protection of it as a mark.
   
Finally, the use of HON to adorn napkins and shirts may be inconsistent with a trademark’s role as an identifier of source.  Instead this use of a word to enhance a product may be seen as functional and as a product in itself.  Trademark law might not protect such a use.
   
For the same reason that Ninth Circuit Justice Alex Kozinski quipped in his introduction to an opinion some years back, “ no one can tell me I can’t put a BAND-AID on a problem”, no one can tell me I can’t use HON in any fashion I please.  The word is not entitled to the grant of a monopoly or protection – not in this town, anyway.  As the bumper sticker reads: “So Sue Me, Hon”.

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This article ran in the December 20, 2010 issue of The Daily Record.