By Paul Rosenzweig, The George Washington University Law School
While journalists often like to stand up for their First Amendment rights and are sometimes depicted as heroes for doing so, criminal subpoenas are serious business—and reporters are only human after all. Some First Amendment activists go beyond to suggest that even the extrinsic physical evidence of a journalist’s activities ought to be out of bounds because it is essential to the performance of their jobs.
The Samuel L. Morison Case
Let’s consider the 1988 prosecution of Samuel L. Morison—a staffer at the Naval Intelligence Support Center and a part-time writer for Jane’s Defence Weekly. He was charged and convicted under the Espionage Act for providing Jane’s with a classified photo of a Soviet aircraft carrier.
Now, some might say that he did the country a service by making Soviet military capabilities transparent and call him a First Amendment hero. Others might say he leaked classified information to the news media, and he was a traitor.
The Fourth Circuit Court of Appeals in Virginia recognized that there was some truth to both perspectives. They said The First Amendment’s interest in informed popular debate does not simply vanish at the invocation of the words national security. But public security can thus be compromised in two ways: by attempts to choke off the information needed for democracy to function; and by leaks that imperil the environment of physical security, which a functioning democracy requires.
New York Times Company v. the United States
Back in 1971, in the Pentagon Papers case—which is formally called New York Times Company v. the United States—the newspaper published a confidential report of how the US became involved in and conducted the Vietnam War.
The court refused to halt publication, something that goes by the name of prior restraint. The court said that the government had failed to show that publishing the report would cause direct, immediate, and irreparable harm to the nation or its people, and it allowed the Times to proceed. But, Justice Byron White noted that news media might be held criminally liable after publication for disclosure of sensitive national secrets.
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The AIPAC Case
Nonetheless, only once in its nearly 100-year history has the Espionage Act been used to prosecute a third-party recipient of national defense information, as opposed to the government employee who disclosed it.
That was in 2005, in the indictment of two lobbyists for AIPAC—the American Israel Public Affairs Committee—for facilitating a State Department employee’s leaking of national security secrets to Israel. And that prosecution was abandoned after a U.S. district court, motivated largely by First Amendment concerns, imposed a heavy evidentiary burden upon the government in pretrial rulings.
And so, past conflicts between the government and the news media have not converged in criminal prosecutions. Rather, they’ve emerged in efforts of government investigators to expose the news media’s confidential sources in leaks of national security and other sensitive information.
News Media’s Sources
The government has relied on the common-law precept that the public has a right to every man’s evidence, except for those protected by a constitutional, common-law, or statutory privilege.
And the government has argued that the press has no privilege and may even be liable for publishing state secrets. Justice Byron White, again, helped define the legal landscape when he wrote the majority opinion in a 1972 case called Branzburg v. Hayes.
There, the question was whether or not the First Amendment right to publish carried with it a constitutional right to promise confidentiality to sources. The court rejected that idea.
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The Prosecution of Sterling and Risen
During the War on Terrorism, the government’s prosecution of an intelligence officer named Jeffrey Sterling, who was on the Iran desk at the CIA, shows how the tension of direct subpoenas to a newspaper writer might play out in real life.
Sterling was accused and later convicted of having leaked to James Risen of The New York Times classified information about a covert CIA program. This was a CIA operation in which a former Russian scientist intentionally provided Iran with flawed nuclear component schematics.
Sterling contended that the scheme was poorly managed, reckless, and might have inadvertently even helped the Iranian nuclear program. Nobody really knows the truth of the matter, but Sterling brought his allegations to Risen, who published details of the plot in his 2006 book State of War: The Secret History of the CIA and the Bush Administration.
When Sterling was prosecuted, the Department of Justice subpoenaed Risen for an order that would have required the journalist to testify and disclose the identity of his source. Only the last-minute intervention of Attorney General Eric Holder resulted in the subpoena being withdrawn and saved Risen from a contempt of court charge and possible time in jail.
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Eric Lichtblau
Risen’s colleague, Eric Lichtblau, told about how his work with Risen had led to surveillance of his own activities and how that had affected him.
Lichtblau told The New Republic, “I heard from various news sources that the FBI had been monitoring my phone and Internet communications with certain people as part of its leak investigation into our NSA story.” Lichtblau said subpoena threats from the Department of Justice were the trigger that eventually caused him to quit writing national security stories to cover money and politics instead.
While the Justice Department never made good on the threat—Lichtblau said—it certainly made it more difficult to do my job in dealing with confidential sources when you realize you may be forced to testify before a grand jury or risk going to jail to protect a source.
Common Questions about National Security and First Amendment Rights
Samuel Morison might be considered a First Amendment hero because he had served his country. On the other hand, he might be considered a traitor for leaking classified photos.
According to the Fourth Circuit Court of Appeals, Samuel Morison was both a hero of the First Amendment and a traitor. Because the tendency of the First Amendment to popular debate doesn’t disappear only by advocating the words “national security”.
In 2005, a case was opened against two lobbyists for leaking classified information to Israel. This information was breached by two lobbyists for AIPAC. But the prosecution abandoned the case due to First Amendment concerns.
