Journalists and the Espionage Act: Prosecution risk is remote but real

By Alison Frankel
June 24, 2013

Meet the Press host David Gregory brought down¬†the wrath of fellow journalists¬†on Sunday when he asked a provocative question of Glenn Greenwald, the Guardian reporter who broke revelations from Booz Allen contractor Edward Snowden about the U.S. government’s monitoring of citizens’ phone and Internet data. After Gregory and Greenwald discussed the¬†Justice Department’s new Espionage Act charges¬†against Snowden,¬†Gregory asked, “To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?”

Gregory’s prosecutorial tone didn’t go over well with journalists trained to believe that the U.S. Supreme Court’s landmark 1971 ruling in¬†The New York Times v. United States¬†(better known as the Pentagon Papers case) gives them carte blanche to publish materials they’ve received lawfully from their sources, even if their sources broke the law to obtain the information. The court’s subsequent 2001 ruling in¬†Bartnicki v. Vopper¬†confirmed that the media cannot be punished for publishing information that sources obtained illegally, so long as the information is of public importance. But there’s actually a distinction in the law between the media’s right to publish sensitive national security information and the government’s right, at least in theory, to bring charges against reporters and publishers for possessing and disclosing classified information.

Gregory’s question, in other words, may have been inaptly posed but it addressed a legitimate, albeit remote, risk for reporters with hot national security stories. No journalist has so far been prosecuted under the Espionage Act for a story that reveals sensitive information (nor, for that matter, under other federal laws addressing classified information), and Attorney General¬†Eric Holder¬†has said publicly¬†that he doesn’t intend to start charging reporters for doing their job. Nevertheless, there’s enough uncertainty about criminal liability that the government has used the threat of prosecution to try to squelch reporting, according to a¬†fascinating 2008 paper, “National Security and the Press: The Government’s Ability to Prosecute Journalists for the Possession or Publication of National Security Information,” from the Communication Law & Policy journal.

“There remains a chill in the air that will not dissipate until journalists are protected when disseminating important information to the public,” wrote author Derigan Silver, who is now a journalism and law professor at the University of Denver. In a follow-up interview on Monday, Silver told me that the Espionage Act and at least three other federal laws restricting information “on their face, present the risk that journalists could be prosecuted.” Moreover, he said, as the definition of journalism expands, blurring the line between leakers and publishers, the risk of post-publication prosecution for revealing national security secrets is likely to increase.

That risk was actually discussed in the Supreme Court’s Pentagon Papers opinion, in which the court held in a 6-to-3 per curiam decision that The New York Times and The Washington Post could not be restrained from publishing classified information about the background of the Vietnam War, even though the information had purportedly been stolen from the government. The ruling wasn’t easy to come by: Each of the nine justices actually wrote his own opinion. In a concurrence joined by Justice¬†Potter Stewart, Justice¬†Byron White¬†wrote that when Congress drafted the Espionage Act in 1917, lawmakers drew a distinction between restraints on publication and subsequent prosecution for that disclosure. “Congress at that time was unwilling to clothe the president with such far-reaching powers to monitor the press,” White wrote. “However, these same members of Congress appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed.” The Pentagon Papers scenario was a perfect illustration of that dichotomy, White said. The press could not be enjoined from publishing purloined classified material,” he wrote, but “the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.”

Espionage Act defendants, in fact, have twice failed when they tried to cloak themselves in the First Amendment, with courts holding that protection against prior restraint doesn’t translate into a criminal defense. In 1987, the 4th Circuit Court of Appeals¬†affirmed the Espionage Act conviction¬†of Samuel Morison, a Naval Intelligence officer who worked on the side for the British defense journal Jane’s. Morison swiped satellite photos of a Soviet aircraft carrier and leaked them to Jane’s, which published the photos. In his defense, Morison argued (among other things) that he was not a classic spy and didn’t sell his purloined photos to a foreign enemy but merely leaked them to the press. The 4th Circuit found that to be no reason to excuse him from prosecution. “It would be frivolous to assert – and no one does in these cases – that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws,” the court said. “Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.”

Twelve years later, two lobbyists for the American Israel Public Affairs Committee also tried and failed to ward off prosecution under the Espionage Act by invoking the First Amendment. In¬†U.S. v. Rosen, U.S. District Judge¬†Thomas Ellis¬†of Alexandria, Virginia, agreed that the government’s “proposed categorical rule that espionage statutes cannot implicate the First Amendment” was overly broad, since “the conduct at issue – collecting information about United States’ foreign policy and discussing that information with government officials (both United States and foreign), journalists, and other participants in the foreign policy establishment – is at the core of the First Amendment’s guarantees.” But he also said that the First Amendment “must at times yield to the need for national security.”

Neither of those cases directly involved the prosecution of journalists who made use of leaks, but in both instances, courts concluded that there’s no exception in the Espionage Act for people acting as the instruments of journalism. There’s also evidence that executive branch officials have threatened to carry Espionage Act prosecution over to news organizations. Silver’s law journal article, for instance, discusses a 1986 case in which then Central Intelligence Agency director William Casey warned The Washington Post against publishing a scoop about a government eavesdropping program called Ivy Bells (proving that there’s nothing new under the sun). The Post, according to Silver, held the story until Ivy Bells was mentioned on the air by an NBC News correspondent. Casey formally asked the Justice Department to bring charges against the NBC reporter but he was not indicted. Perhaps he would have been under former Attorney General¬†Alberto Gonzales, who suggested in a 2006 television appearance that journalists can be prosecuted for revealing national security secrets.

Silver told me Monday that he’s concerned about the distinction that mainstream journalists sometimes try to draw between themselves and untraditional suppliers of information, as if to suggest that what Silver calls “legacy media” should enjoy protection that new media,¬†such as WikiLeaks, does not deserve. “Protection has to extend to people performing acts of journalism,” Silver said.

Ultimately, the saving grace for both leakers and the intermediaries who disclose information they’ve obtained is their state of mind. The language of the Espionage Act can be read to require an element of intentional harm to the United States. Journalists who have no motive to publish but to add to public discourse can always argue that their intention was not to harm the country but to enhance transparency in accordance with the First Amendment. That powerful defense is probably why no mainstream reporter has been prosecuted under the Espionage Act, but Silver believes that unless Congress codifies scienter as a requirement of proof in that law and the others dealing with classified documents, reporters and other information suppliers are at risk.

(Reporting by Alison Frankel)

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