When the New York Times recently published classified information revealing the Bush Administration's warrantless wiretapping program, Attorney General Alberto Gonzales claimed that this action might lead to prosecution. Were he to do so, it would be be the first time in American history that a journalist was prosecuted under such a theory.
Writing in the Harvard Law and Policy Review, University of Chicago Law Professor Geoff Stone asks whether or not it would even be constitutional for such a prosecution to be brought:
At this point, it is necessary to return to the three ways in which journalists might obtain classified information from public employees: (1) bribery, coercion, or fraud; (2) solicitation, persuasion, or incitement; and (3) passive receipt. In the real world, of course, the lines blur, for the relationships between journalists and their sources are subtle and complex. Nonetheless, unless we embrace an all-or-nothing approach for the sake of simplicity, distinctions must be made.
Situations (3) and (1) are the most straightforward. Situation (3) is illustrated by the Pentagon Papers case, in which Daniel Ellsberg sent the Papers unsolicited to Neil Sheehan of the New York Times. A similar situation arose in Bartnicki v. Vopper, in which Vopper, a radio commentator, aired a tape recording of an unlawfully intercepted telephone conversation that an anonymous source had mailed to him. In both cases, the journalists passively received the information, though both knew or should have known that it had been obtained and disclosed to them unlawfully.
Under traditional criminal law principles, both Sheehan and Vopper knowingly received “stolen” property. Nonetheless, because the information in both cases involved matters of public concern, both Sheehan and Vopper were protected by the First Amendment. As the Court explained in Bartnicki, when a journalist receives information “from a source who has obtained it unlawfully,” the journalist may not be punished for the receipt or publication of the information, “absent a need . . . of the highest order.”
In rejecting the argument that the government can punish journalists in order to deter those who unlawfully intercept conversations, the Court in Bartnicki reasoned that if “the sanctions that presently attach to [the unlawful acts] do not provide sufficient deterrence,” then “perhaps those sanctions should be made more severe,” but “it would be quite remarkable to hold” that a law-abiding journalist can constitutionally be punished merely for receiving and publishing that information “in order to deter conduct by a non-law-abiding third party.”
Thus, in the passive receipt situation, neither the journalist nor the publisher can be criminally punished for receiving or possessing unlawfully disclosed information, the publication of which could not constitutionally be punished.
Situation (1) seems equally straightforward. The government has a legitimate interest in expecting its employees to obey the law. For a jour-nalist to bribe, coerce, or defraud a public employee to disclose classified national security information unlawfully seems analogous to the wiretapping and burglary examples. Like wiretapping and burglary, bribery, coercion, and fraud are well-established crimes, far removed from the traditional processes of newsgathering. Although it might be useful for reporters to bribe and extort classified information from public employees, and although such conduct would sometimes result in the disclosure of valuable information, the government’s legitimate interest in not having its employees bribed, coerced, or defrauded seems sufficiently weighty to justify the prohibition of such conduct.
Situation (2) is the trickiest. Like bribery, coercion, and fraud, solicitation is ordinarily unlawful. But that is also true of receiving stolen property and, as we have seen, that an act is ordinarily unlawful does not provide a conclusive answer in the First Amendment context. Although it would be easy to envision a legal regime in which journalists would be prohibited from encouraging public employees to reveal classified information, such a regime would disregard the need to strike a proper balance between government secrecy and an informed public.
Just as we grant the government “too much” authority to protect secrecy at its source, we must also grant the press “too much” authority to probe that secrecy. To make it a crime for journalists to attempt to persuade public employees to disclose classified information that might contribute to public debate would place too much weight on the secrecy side of the scale. The standard that defines the government’s power to punish its employees for disclosing classified information (“potential harm to the national security”) was not designed to determine the balance between government secrecy and freedom of the press.
Indeed, building upon the Court’s reasoning in Bartnicki, it would seem that the appropriate government response to such solicitations is not to prosecute journalists, but to increase the penalties for government employees who violate the law. Moreover, an effort to apply the crime of solicitation to the myriad interactions between journalists and their sources would prove just as messy as an effort to regulate more precisely the relationship between the government and its employees. Because it is often difficult to define when a conversation passes the line between a discussion of policy and a solicitation of a crime, the enforcement of solicitation law in this setting would be uncertain, confusing, and treacherous. The interjection of the government into the very heart of the journalistsource relationship could have a serious chilling effect on journalist-source exchanges.
One way to address these concerns (indeed, probably a constitutional requirement), would be to limit the crime of solicitation in this context to express incitement of unlawful conduct (e.g., “give me that classified document, the disclosure of which is unlawful”). But as First Amendment history and doctrine teach, even a requirement of express incitement is aninadequate safeguard. The Court has held (at least in the context of public speech) that even express incitement of unlawful conduct cannot constitutionally be proscribed, unless it creates a likely and imminent danger of serious harm.
The most sensible course is to hold that the government cannot constitutionally punish journalists for encouraging public employees unlawfully to disclose classified information, unless the journalist (a) expressly incites the employee unlawfully to disclose classified information, (b) knows that publication of this information would likely cause imminent and serious harm to the national security, and (c) knows that publication of the information would not meaningfully contribute to public debate.
Adhering to these guidelines would not render the government powerless. As in Bartnicki, the government retains its ability to protect its legitimate interests by punishing its employees for disclosing classified information.
The United States has made it through more than two hundred years without ever finding it necessary to prosecute a journalist for soliciting a public employee to disclose confidential national security information. This is not because such solicitations have never occurred, but because employees have usually complied with the law and, when they have not, the press has either acted responsibly or the resulting harm has not been thought sufficiently serious to justify an intrusion into the freedom of the press.