The U.S. Supreme Court refused Monday to hear an appeal from New York Times reporter James Risen, who had asked them to overturn a lower court ruling that the First Amendment does not protect him from refusing to testify about a whistleblower that allegedly leaked classified information about the CIA’s efforts to disrupt Iran’s nuclear program.
The decision seemingly sets a precedent that journalists can be jailed for failing to reveal their sources, something that many say will have a chilling effect on public officials’ willingness to leak government secrets. But while the ruling further erodes the protections of potential Edward Snowdens and Chelsea Mannings, at least the media is still protected in publishing such classified information. Right?
Recent information from Pulitzer Prize-winner Glenn Greenwald’s new book, coupled with a lack of case law on the issue, might suggest otherwise.
In No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, Greenwald writes that attorneys for the largest publications in the country routinely advise editors that articles containing classified information must be vetted by the U.S. government.
“This consultative process with the government, the Guardian lawyers explained, is what enables newspapers to demonstrate they have no intent to harm national security by publishing top secret documents, and thus lack the requisite criminal intent to be prosecuted,” he said, adding that papers such as the New York Times and Washington Post often spend weeks having controversial stories reviewed by the feds.
Greenwald scoffs at what he regards as a subservient process, and even threatened his editors that he would publish the stories about the NSA’s massive surveillance system on his own website if they kowtowed to the government.
By Greenwald’s own account, Guardian US editor Janine Gibson did meet with the government officials, but decided over their protests to run his original story exposing that a FISA court had ordered Verizon to hand over millions of telephone records to the NSA, as well as each subsequent story after that.
But what would have happened if Gibson had acquiesced to political pressure, causing Greenwald to publish his stories independently? Would he have received his Pulitzer while sitting behind bars?
We really don’t know because there are no court precedents on the issue.
The U.S. has a nearly-100-year-old law called the Espionage Act that some have argued can indeed be used to punish the media for publishing classified information, despite its apparent contradiction with the First Amendment. The law has been used to prosecute data leakers 11 times in the country’s history – seven times under President Obama, including against Chelsea (formerly Bradley) Manning. So far, none of the targets of the law have been journalists.
A provision of the act outlaws the unauthorized possession and communication of national defense information, though. That provision has never been tested against the media, which may not be a good thing because established case law would at least let watchdogs know where they stand. Who knows what the courts might rule if such an issue is brought before them now?
Many people mistakenly think that the American press is protected by the 1971 decision in the famous Pentagon Papers case, where the Supreme Court ruled that the U.S. government did not have the authority to prevent the New York Times from printing classified documents revealing that the military had secretly bombed Cambodia and Laos in the Vietnam War, among other transgressions.
Granted, a very encouraging opinion in that case came from Justice William Douglas, who said he didn’t think the section of the Espionage Act (793) that criminalizes “willful communicating” and “unauthorized possession” of national defense information applies to journalists. He differentiated that section from others that specifically use the word “publish” when prohibiting the leakage of information about armed forces and military installation. In other words, Douglas only thought that the statute has the power to prevent publication of very specific information about military battle plans.
But at the end of the day, the justice was simply making those comments as an aside. The Pentagon Papers case only raised the issue of whether the U.S. had the power to issue an injunction against publication, not whether it could criminally prosecute someone after the fact. We still don’t know whether such a charge would withstand court scrutiny.
The inconclusive ruling even prompted legal scholars Harold Edgar and Benno Schmidt Jr. to declare that the Espionage Act remained a “loaded gun pointed at newspapers and reporters who publish foreign policy and defense secrets” in their 1973 analysis of the case in Columbia Law Review.
Fast-forward four decades, and that loaded gun seems to have the safety off. In 2006, the Bush Administration intimated that the New York Times may have violated the law when Risen and fellow reporter Eric Lichtlau published a story chronicling warrantless wiretapping of citizens’ phone calls. Bush called the story “shameful” and Attorney General Alberto Gonzales said he was investigating whether charges would be laid – they weren’t.
Bush seems downright benign compared to the heat that has been put on the press since Obama has taken office. Since the man who promised the most transparent administration in history took office, a Fox News journalist has been spied on by the Justice Department under the justification that he’s a criminal conspirator, Wikileaks creator Julian Assange has been declared “a hi-tech terrorist,” and Risen now faces jail for refusing to testify. Members of Congress have also called Greenwald a criminal.
There have been a few victories for the free press, so it’s not all bad news. In 2001 the Supreme Court ruled that a reporter wouldn’t be held liable for broadcasting a conversation that had been illegally taped, and in 2009 the case of U.S. v Rosen was dropped against two lobbyists charged under the Espionage Act for doing essentially what (good) journalists do: Trying to get government officials to reveal secret information. But it needs to be stressed that no ruling was established in the latter case. The government simply stopped pursuing prosecution because a judge wouldn’t allow evidence to be presented in secret, and evidently there were people in power who didn’t want to make it public.
So if the freedom of press is so vulnerable, why hasn’t the Justice Department pounced on someone like Greenwald for revealing the NSA’s electronic spying? Despite his initial frustration with the Guardian delaying publication of his articles, he said he later realized that prosecution would have been much more likely if he had put them up on a website of his own. Not only does the newspaper have a staff of lawyers on retainer, it also gave his stories an air of legitimacy.
And now that he’s won a Pulitzer, it would appear that he won’t be touched. Greenwald is publishing his information smartly and selectively, garnering support from all sides of the political spectrum, and any charge brought against him would come with a firestorm of negative publicity. Moreover, he’d have a better-than-good chance of winning such a case, and a ruling in his favor would be a huge blow to the effort to muzzle the media.
Instead, the Department is likely to bide its time and wait for the perfect case – when published information costs lives, helps suspected terrorists flee justice, or leads to some other scenario that causes public outcry for a crackdown on irresponsible reporters.
That’s when the feds will try to establish precedent that journalists can be prosecuted for publishing secret information. That’s also when the freedom of the press will need the most support.