When Speech Is Outlawed, Only Outlaws Speak

Should reporters who use classified information be treated like spies?

Jacob Sullum | May 24, 2006

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Since the Espionage Act ostensibly criminalizes much innocuous speech, the government has to consider a violation's actual impact on national security in deciding whether to prosecute. And on that score, the case against the Times is weak. It amounts to the claim that, although terrorists certainly were aware that the U.S. might be monitoring their communications long before the NSA surveillance story broke, the public discussion provoked by the Times reminded them of this possibility.

Maybe, but that discussion also brought much-needed attention to important questions about privacy, executive power, and the rule of law. No doubt the president would have preferred to avoid this controversy, but that does not mean it imperils national security.

Presidents of both parties tend to conflate threats to their own power with threats to the nation. Likewise, intelligence agencies have long been known to classify information for reasons unrelated to national security, even to the point of trying to withdraw material that was publicly available for years.

When the executive branch decides what information is secret and whether any given person should be prosecuted for discussing it, the potential chilling effect on reporting and public debate is enormous. So is the potential for unconstitutional favoritism, since classified material is routinely used by journalists both sympathetic and hostile to the current administration.

Largely for such reasons, the Justice Department has never prosecuted a journalist for using classified information in a story. It should not start now.