Schoenfeld said the Justice Department risks looking “impotent” if it brings charges against Assange, only to see them thrown out on a technicality or stymied by the court. “There’s a cost for going down a path that may not end up well,” he said.
Even if US officials could arrest Assange, he has created in Wikileaks an elaborate network able to survive without him. Its ability to obtain, store and distribute information through a highly sophisticated operation, defies easy detection and seems to exist outside the reach of American and international law…
“The reason the government hasn’t acted to take down WikiLeaks is it knows, as does every First Amendment scholar, that would run afoul of the Supreme Court’s decision in the Pentagon Papers case,” said Kevin Bankston of the Electronic Frontier Foundation. He was referring to the landmark 1971 Supreme Court ruling that rejected the Nixon administration’s attempt to stop the New York Times from printing leaked, high-level military reports on the Vietnam War.
“Under the First Amendment, the legal presumption is strongly in favor of free speech and against prior restraint,” Bankston said. “The government would have the burden of demonstrating serious, really imminent harm, and would have to do so for each document it wants to enjoin.”
Even if a court could be persuaded to take down the site, the order would almost certainly fail.