The First Amendment and “Newsgathering Crimes”

It might be pleasant for writers and publishers to suppose that First Amendment principles of freedom of speech and freedom of the press are absolute and will prevail in every circumstance.  But that is clearly not the case.

For one thing, the Supreme Court has specifically excluded obscenity, child pornography, and certain other forms of communication from First Amendment protections.  (See “Freedom of Speech and Press: Exceptions to the First Amendment” (pdf), Congressional Research Service, updated October 16, 2009.)  Moreover, courts have repeatedly upheld the constitutionality of prohibitions in the Espionage Act against the unauthorized disclosure of certain types of classified information (most recently in a 2006 ruling [pdf] in the AIPAC case, USA v. Rosen and Weissman).

The intersection of national security law and ordinary newsgathering remains a bit murky, and is contested in some quarters even where it is fairly clear.  Although “the right of the press to publish confidential information is well established, [t]here is… a paucity of constitutional doctrine protecting newsgathering activities that seek the leaking of confidential information,” according to a recent law review article.

“Ethics codes for news organizations state that reporters must not commit crimes such as trespassing or stealing information but are silent on inchoate crimes such as solicitation,” wrote Prof. William E. Lee of the University of Georgia last year.  “And while news organizations have elaborate rules about relations with confidential sources, they do not address the propriety of promising confidentiality as an inducement to the disclosure of classified information.”

“Although there are practical and political difficulties in prosecuting reporters for solicitation or conspiracy, there is little First Amendment precedent in support of the argument that reporters should be exempt from generally applicable criminal laws.”   See “Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes” by William E. Lee, American Journal of Criminal Law, vol. 36, no. 2, Spring 2009.

The longstanding conflict over press publication of national security information is revisited in the forthcoming book “Necessary Secrets” by Gabriel Schoenfeld (Norton Books, May 2010).

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