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By Gene Policinski, First Amendment Center
Will the government ever do it — charge a reporter under the Espionage Act with endangering national security for disclosing classified information?
No journalist ever has been prosecuted for receiving and writing about such leaked information. Two recent controversies raised questions of how far the Department of Justice officials might go in investigations of such “leaks.”
But President Obama clearly stepped back from taking the issue to any constitutional cliff.
Facing wide criticism of how the Department of Justice handled two recent seizures of journalists’ phone and email communications, the President said the administration would be reviewing its guidelines on pursuing such information from reporters – and that “journalists should not be at legal risk” in gathering the news.
Obama’s statements came just days after the revelation that in 2010, the Department of Justice labeled Fox News correspondent James Rosen “… an aider, abettor and/or co-conspirator” in the leak of classified information about a pending North Korean missile launch; and that Justice officials in 2012 conducted a wide seizure of telephone records from Associated Press offices and some personal lines.
Obama said that Attorney General Eric Holder has agreed to review the department’s near 40-year-old “guidelines governing investigations that involve reporters” and to report back to the president by July 12. The review will include a meeting with top news executives.
“As Commander-in Chief, I believe we must keep information secret that protects our operations and our people in the field. To do so, we must enforce consequences for those who break the law and breach their commitment to protect classified information,” Obama said. “But a free press is also essential for our democracy. That’s who we are, and I’m troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable. Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law,” he said.
The government obtained a warrant for access to Rosen’s emails and phone records, in part, by noting that “from the beginning of their relationship, the Reporter asked, solicited and encouraged” a source “to disclose sensitive United States internal documents and intelligence information about the Foreign Country.”
While more recent court decisions likely protect journalists who simply receive and write stories about documents that are classified, the “co-conspirator” tag and the language claiming Rosen “asked, solicited and encouraged” disclosure of the classified documents raised loud complaints that Justice Department officials were attempting to criminalize the process of news reporting.
The Associated Press and Rosen incidents drew so much attention because direct moves against the news media are relatively rare in the nation’s history.
There’s a direct lineage from the current controversy back to the early days of the nation: The Sedition Act passed by Congress in 1798, providing for the jailing of editors who criticized the President or Congress.
During the Civil War, President Lincoln simply jailed some editors and publishers and threatened others in the North with prosecution who vigorously opposed the Union side. During World War I, the 1917 Espionage Act and the Sedition Act of 1918 – the foundations of today’s espionage laws, were enacted.
A number of Supreme Court decisions are particularly noteworthy: In Schenck v. United States (1919), Justice Oliver Wendell Holmes wrote that First Amendment rights could be restricted in the presence of a “clear and present danger.”
In Abrams v. United States (1919) Holmes modified his standard by saying “Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time, warrants making any exception to the sweeping command, ‘Congress shall make no law abridging the freedom of speech’.”
The Pentagon Papers case, New York Times v. United States (1971), involving the Times and other newspapers publication of a leaked classified report about the history of U.S. involvement in Vietnam to that point, generally is considered a victory over government “prior restraint” on publishing in almost any instance. Dissenting Justice Byron White noted that the court did not rule out that the news media might be held criminally liable after publication if a publication disclosed sensitive national secrets.
The following year, in Branzburg v. Hayes (1972) White wrote there was no constitutional right for journalists in federal court to refuse to identify confidential sources. White said journalists were asking the court to set out “a testimonial privilege that other citizens do not enjoy.” Still, in Branzburg, White did set out the idea that in seeking a subpoena compelling a journalist to testify, the government must “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.”
A guide on receiving and publishing classified material rests with a 2001 U.S. Supreme Court decision, Bartnicki v. Vopper, in which the court held that a journalist has a First Amendment right to publish “truthful information” on public issues as long as the journalist did not participate in an unlawfully obtaining the information. Justice John Paul Stevens wrote that a “stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”
But Bartnicki had to do with intercepted cell phone conversations between union officials during a teacher collective bargaining.
Courts may view the situation differently if the information involved threatened the nation’s safety that than just the Bartnicki issue of balancing the value of public discourse over personal privacy.
Even as Obama pressed this past week to revive proposals for a federal shield law that would address Branzburg v. Hayes, there remain First Amendment concerns that such a law would create a special category of press privilege that could be a de-facto form of “press licensing” not acceptable to the nation’s founders. Other hurdles include defining, in the digital age when all have access to mass audiences through websites and social media, exactly “who is a journalist?”
And since such a new law is all but certain to have some kind of exception for critical national security matters or an imminent terrorist threat — even a federal “shield law” might not have prevented the disputed investigative actions involving AP and Fox News.
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Gene Policinski, senior vice president and executive director of the First Amendment Center and president and chief operating officer of the Diversity Institute, is a veteran journalist whose career has included work in newspapers, radio, television and online.