First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
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.

Friday, July 12, 2013

The First Amendment protects the media when disclosing classified material

Last month, U.S. Representative Peter King (R-NY), who sits on the House Committee on Homeland Security, made clear on CNN and Fox News that he believes members of the media should be criminally prosecuted for disclosing confidential information in the course of reporting the news. 

Should the First Amendment protect the mainstream and not-so-mainstream media (e.g., WikiLeaks) from criminal prosecution for the disclosure of classified material?  Yes, it should and it does.

Unless you read the First Amendment literally ("Congress shall make no law ..."), the reasons why the First Amendment protects the media for disclosing classified information are not yet set out in a formal test.

I propose one here.

In order to prosecute a reporter for disclosing classified information, the government should be required to prove all of the following beyond a reasonable doubt:
  1. A bad faith intent
  2. To cause direct, immediate and irreparable injury 
  3. That is inevitable or that has already occurred
This is, and should be, a heavy burden to satisfy.  It is the government's job to figure out how to keep truly classified information secret.  It is the media's job to inform the public.

The "bad faith intent" element comes from Gorin v. U.S., where the Supreme Court held that the Espionage Act of 1917 (the law that would most likely be used to prosecute the media) requires the government prove the defendant acted "in bad faith".  It is hard to imagine the mainstream American media acting with a "bad faith" intent to damage the United States.  After all, American reporters live here, too.

The second two elements are derived from the Pentagon Papers case and Bartnicki v. Vopper.  In the Pentagon Papers case, Justice Brennan came the closest to articulating a test for stopping the publication of supposedly classified reports: such reports may only be enjoined with "proof that publication must inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea."

And, in Bartnicki, the Court held that, absent a need of the highest order, an individual may not be punished for publicly disseminating newsworthy information even where the underlying material was obtained unlawfully by a third party.

How is this applied in, for example, the Bradley Manning case?  There is no there there. Former Secretary of Defense Robert Gates called the concerns over the Manning/WikiLeaks disclosures "overwrought," adding "is this embarrassing?  Yes. Is it awkward?  Yes.  Consequences for U.S. policy?  I think fairly modest?" 

And as for the material leaked by Edward Snowden ... so far there is a lot of yelling, but no evidence -- and certainly none beyond a reasonable doubt -- of bad faith, or inevitable, direct, immediate and irreparable injury from media reports. 

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