Are journalists legally subject to prosecution for publishing leaked, classified information?

“Actually, if they–if they knew that this was classified information–I think action should be taken, especially on something of this magnitude. I know that the whole issue of leaks has been gone into over the last month. I think something on this magnitude, there is an obligation, both moral but also legal, I believe, against a reporter disclosing something which would so severely compromise national security.” – New York Republican Rep. Peter King

My initial reaction to Rep. King’s statement was one of disgust.

Reasoning with my gut, I incorrectly assumed precedent had already been established in the matter of protecting journalists from prosecution for publishing leaks.

Further investigation into the issue yielded no clear legal consensus. Of course, I was not considering the Law and Order, courtroom drama style obstruction of justice charges for journalists protecting sources, only cases of classified leaks.

Distinct from of my own opinions, here are a few relevant rulings, statutes and statements I looked over while briefly researching the subject. Some cases are more well known than others.

Relevant rulings:

Selections from Justice William Douglas’ concurring opinion in New York Times Co. v. United States, 403 U.S. 713 (1971)

“These disclosures may have a serious impact. But that is no basis for sanctioning a previous restraint on the press.”

“Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions, there should be “uninhibited, robust, and wide-open” debate.”

Selections from Chief Justice Burger’s dissenting opinion

“Would it have been unreasonable, since the newspaper could anticipate the Government’s objections to release of secret material, to give the Government an opportunity to review the entire collection and determine whether agreement could be reached on publication? Stolen or not, if security was not, in fact, jeopardized, much of the material could no doubt have been declassified, since it spans a period ending in 1968. With such an approach — one that great newspapers have in the past practiced and stated editorially to be the duty of an honorable press — the newspapers and Government might well have narrowed the area of disagreement as to what was and was not publishable, leaving the remainder to be resolved in orderly litigation, if necessary.”

Selections from Justice Byron White’s opinion in Branzburg v. Hayes 408 U.S. 665 (1972)

“We do not question the significance of free speech, press, or assembly to the country’s welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated.”

“It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”

Selections from Chief Justice Warren Burger’s opinion Richmond Newspapers, Inc. v. Virginia 448 U.S. 555 (1980)

It is not crucial whether we describe this right to attend criminal trials to hear, see, and communicate observations concerning them as a “right of access,” or a “right to gather information,” for we have recognized that, “without some protection for seeking out the news, freedom of the press could be eviscerated.” 

Relevant Statues: 

US Constitution – Amendment 1

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Espionage Act of 1917 18 U.S.C. § 793(e)

“Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it…”

Relevant, non-binding statements: 

White House Press Secretary Jay Carney, 21 May 2013

“I can’t comment on the specifics of any ongoing criminal matter,” Mr. Carney told reporters. “But if you’re asking me whether the president believes that journalists should be prosecuted for doing their jobs, the answer is no.” 

“It is also vital to our democracy — and the president believes this deeply — that the press is allowed to pursue investigative journalism freely.”

Attorney General Eric Holder, 6 June 2013 

“The department has not prosecuted, and as long as I’m attorney general, will not prosecute any reporter for doing his or her job.”

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