Prosecuting the Press

Abstract

We live in interesting times. The press has accused the Obama Administration of waging an unprecedented “War on Journalism” for its efforts control leaks of classified information but the same administration has witnessed the massive leaks by Chelsea Manning and Edward Snowden. The reaction has been mixed, with some calling one or both of those leakers heroes and others traitors. More interestingly, for leakers have always spurred mixed emotions, has been the reaction of the press itself. David Gregory of NBC News famously asked Glenn Greenwald, who has written extensively on both the Manning and Snowden leaks, whether he might be criminally liable for printing such information. The Daily Mail has accused The Guardian, Greenwald’s employer, of treason for printing these secrets. Recently, DNI James Clapper has suggested that these newspapers might be Snowden's “accomplices”.But what does the law really say? This paper examines the Espionage Act, how it has been interpreted by the Supreme Court and how it has been balanced by the First Amendment. Its conclusion is that, for good or for ill, US law is clear that the press is liable for publishing government secrets – and of a much broader category than just the Top Secret kind Mr. Snowden released – and it is only political decisions, and perhaps a bit of prosecutorial discretion, that has limited the prosecutions thus far, a tenuous reed for any active journalist.