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.”