New at Reason

Jacob Sullum starts sizing up crusading journalists for handcuffs.

Comments

Jason Ligon | May 24, 2006, 8:49am | #

I would say, though, that if the call is to exonerate journos from any possible legal consequences resulting from the publication of classified information, I'm not on board. If you get a field agent killed or some such, there should be consequences.

MP | May 24, 2006, 9:02am | #

Jason,

Why limit it to the government stamp of confidentiality? Why wouldn't a journalist who publishes private information about any individual that leads to their demise be culpable? I'm not necessarily sure that a journalist should be liable in either case, but I just don't see a reason for carving out a special exception for governmentally determined confidentiality.

Phileleutherus Lipsiensus | May 24, 2006, 9:05am | #

Jason Ligon,

Not to be meanspirited, but don't spies assume those sorts of risks?

taktix | May 24, 2006, 9:10am | #

My article was better. Kyle Conspiracy

Larry Anderson | May 24, 2006, 9:19am | #

Phil,

By this logic, it is ok to let off a cop killer because, "Hey, the officer knew the job was dangerous?" How about an arsonist who sets a fire that kills a firefighter? Also a dangerous job.

MP | May 24, 2006, 9:23am | #

Larry,

You can't equate direct liability with indirect liability.

Pro Libertate | May 24, 2006, 9:34am | #

I can't recall which case it was, but one of the Supreme Court's speech cases mentions publication of "troop movements" as being a possible justification for a prior restraint of publication. However, that standard is supposed to be much higher than any action taken after publication (meaning that post-publication punishment is more acceptable than prior restraint of publication). Maybe it was New York Times Co. v. U.S. (the Pentagon Papers case)?

From my point of view, I think that the liability and moral responsible mostly belong to the person who leaked the information. Certainly, if the press releases information that could harm someone in our service--particularly if such publication serves no other compelling goal--it's not a good thing, but our interest in having a free press is great enough that it's a risk that we have to accept. From everything I've heard, the media will usually listen when the government says that publication could endanger someone. One of the big problems is that when the government thinks that everything should be secret, it would rather keep the secret and allow publication, even if it means losing a few lives. Who is to blame, then?

This sort of thing could have quite a chilling effect on speech. Not to mention that the designation of something as "classified" or being part of "national security" is arbitrary and could easily be used to protect information that an administration didn't want disclosed for not-so-noble reasons.

Phileleutherus Lipsiensus | May 24, 2006, 9:55am | #

Pro Libertate,

It is the deeply fractured Pentagon Papers Case (NYT v. US). Only one of the justices mentioned the "troop movements" argument. The holding, that is the per curiam decision, basically states that the government holds a "heavy burden" in a prior restraint case which the government hadn't met. I guess you could take the facts of that case and use that as a measure of the sort of "burden" the government would have to overcome. As the Pentagon Papers were largely historical in nature and were more a political embarressment than anything else overcoming that burden may not be that difficult.

Phileleutherus Lipsiensus | May 24, 2006, 9:56am | #

MP,

Thanks.

Bubba Zanetti | May 24, 2006, 10:07am | #

To continue MP's line of thinking, you can't equate the initial disclosure with subsequent, natural dissemination of the initial disclosure.

Sullum's argument rests on his contention that any and all speech regarding a classified disclosure is de facto (and de jure) illegal under the 1950 act, and that assertion is weak.

We can debate the first amendment rights of the reporter who revelas the classified info. Suggesting that all post-initial disclosure conversations are at risk is a scare tactic. Even in his authoritarian heart of hearts, Gonzales knows that's a non-starter in terms of prosecution.

Pro Libertate | May 24, 2006, 10:07am | #

As is anything relating to national security, nothing is really settled. Arguably, the government could vaguely allege that someone, somewhere might be harmed by publication, and a court might very well uphold even a prior restraint on that basis.

Strictly speaking, the legal authority of Congress or the Executive to issue laws or regulations that criminalize speech is highly questionable. I'm not a complete free speech absolutist and agree that there might be times where some restrictions are necessary, but there's no explicit "national security exception" to any of our freedoms, especially the freedom of speech/the press. As I said earlier, the amount of discretion that the government has in deeming information classified is too broad to be used to criminalize publication.

SR | May 24, 2006, 10:59am | #

"but there's no explicit 'national security exception' to any of our freedoms"

Actually, there kind of is -- the Third and Fifth Amendments both include specific qualifiers for how their protections are decreased in "time of war". However, that increases the strength of the argument that no such exception can be read into the other Amendments, since it demonstrates that the drafters understood the concept that rights could be diminished in time of war but then chose not to write such an exception into the First Amendment.

Jason Ligon | May 24, 2006, 11:45am | #

I'll have to think about this some more. My knee jerk is that we may be granting a blanket press pass exemption to actual espionage cases.

Should the government have any ability whatsoever to prosecute the dissminator of classified information? I know we are talking about non serious cases here, but what about those things that actually are pertinent to national security? Are we all at the point where we don't think any such things exist?

Joe Plame | May 24, 2006, 11:57am | #

the NYTimes and most here can agree there should be a neocon exception to the 1st amendment when certain warmongers out our most secretest agent just because someone spoke mint tea to power. otherwise, not so much.

Pro Libertate | May 24, 2006, 12:08pm | #

I feel much more comfortable with the status quo. Most government employees and officials with access to classified information are liable for communicating that information to third parties. They can be legally prosecuted and subjected to civil liability. If the sources can be restrained, then the press won't have access to the information in the first place. Furthermore, the degree to which information is classified or implicates national security is not something usually known with any precision by the media. Should they have to clear anything that might be sensitive with the government before publication? I think that's a seriously bad idea.

Of course, the reality is that if the people making such disclosures are acting in a whistleblower role, few juries are likely to convict or to find civil liability for the disclosure(s). Which protects us from a system where no one would ever leak any information out of fear of prosecution.

R C Dean | May 24, 2006, 12:22pm | #

And, of course, we're still waiting for our first prosecution of anyone in the media for publishing classified leaks.

Just a little perspective, folks. Not even the Plame case, with the press baying at the moon for scalps on the wall and a prosecutor who apparently agreed that the leak was criminal, resulted in any media indictments.

MP | May 24, 2006, 12:43pm | #

Not even the Plame case, with the press baying at the moon for scalps on the wall and a prosecutor who apparently agreed that the leak was criminal, resulted in any media indictments.

I expect better of you than to blatantly ignore an open-ended jailing due to a contempt citing. Regardless of the validity of the contempt charge, there is clear evidence of the press being put under governmental pressure.

Whose perspective is skewed?