The Age of National Security Journalism: Why the Free Press Reigns Supreme Over the Espionage Act

In May 2021, three Washington Post reporters discovered that Justice Department officials authorized seizure of their phone records due to their reporting during the Trump-Russia election interference probe [1]. Such federal inquisitions are not unique to the Trump Administration. Indeed, the Obama Administration similarly conveyed its willingness to investigate and threaten reporters to unmask government leak sources [2]: The New York Times reporter James Risen was engaged in a seven-year legal battle from 2008-2015 over whether he faced a legal obligation to reveal the identity of an anonymous government source in the intelligence community [3]. Ultimately, the Justice Department did not force Risen to testify against his confidential source, but free press advocates argue that such threats could directly violate the First Amendment [4] by imposing a “chilling effect” on journalists’ free speech [5]. A chilling effect describes the tendency of targeted speech restrictions to deter future expressions of free speech. Often relying on tips and leaks of classified information, national security journalists are especially at risk of facing the negative consequences of chilling effects in their line of work. Under the Espionage Act, the U.S. federal government can prosecute individuals responsible for leaks of confidential or potentially damning information that adversely affects the country and aids foreign nations [6]. However, despite the federal government’s attempts to suppress or intimidate journalists, the Espionage Act affirms that journalists should not be expected to withhold their contributions to an American free press establishment for the sake of Espionage Act compliance.

Former Central Intelligence Agency Analyst Edward Snowden and WikiLeaks founder Julian Assange are infamous examples of individuals who have been indicted for leaking classified information to the public. In response to charges of Espionage Act violations, Assange argued that he was a journalist and publisher, having previously been awarded The Economist’s New Media Award in 2008 and the Martha Gellhorn Prize for Journalism in 2011 [7]. Typically, government officials, and not the journalists who publish the classified information they provide, face prosecution for distributing classified materials; however, Assange’s eventual indictment in 2019 incited panic in the national security journalism sphere. To this day, no American journalist has been found guilty of Espionage Act violations, as the Espionage Act’s application to journalists is much more ambiguous than it is to ordinary citizens or government officials. However, Assange’s criminal actions in obtaining classified information firsthand invalidate any potential defense as a self-proclaimed journalist. Still, some fear that the Assange case has facilitated new pathways for government prosecution of national security journalists.

The American government bestowed freedoms upon the press to ensure that a non-governmental institution could hold them accountable for their actions. As late Associate Justice of the Supreme Court Potter Stewart once remarked, the basic function of the free press, as constructed by the First Amendment, was to establish an institution that would provide “an additional check on the three official branches” [8]. In times of political unrest or distrust in the government, the press would be instrumental in bridging the government with the public to ensure that major concerns were heard. Journalists are the sole named profession in the constitution and thus the only profession upon which the government has offered specific constitutional protections [9].

In the realm of national security and international affairs, the free press is especially critical in ensuring that Americans remain informed on otherwise obscured political entanglements. Max Frankel, who served as The New York Times’ Washington Bureau Chief during the 1971 Supreme Court “Pentagon Papers Case,” once stated that “there could be no adequate diplomatic, military, and political reporting of the kind our people take for granted, either abroad or in Washington, and there could be no mature system of communication between the Government and the people,” in a world where journalists faced the threat of Espionage Act prosecution [10]. Journalists, especially national security journalists, perform a constitutionally-protected duty in rendering events and controversies of the American government publicly available. Despite this constitutional protection, some legal scholars and officials have nonetheless taken the Act’s lack of a specific reference to journalists to mean that journalists ought to be among those implicated by the Act [11].

While the Espionage Act itself makes no reference to journalism-specific protections, Congress has indirectly acknowledged the unique position of journalists in Espionage Act deliberations. Section 793(e) of the statute defines those liable for an Espionage Act violation as having had “unauthorized possession of, access to, or control over any document … or note relating to the national defense” and having “communicated, delivered, or transmitted” said document [12]. However, Section 793(e) of the Espionage Act, the most consequential section of the statute for journalists, was effectively revised by Congress’s Internal Security Act of 1950. The Internal Security Act of 1950’s opening proviso makes a direct reference to the question of the section’s applicability to journalists, stating that “Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect” [13]. Therefore, journalists who have obtained classified material from outside sources do not fall under the scope of Section 793(e)’s specific references to the communication, delivery, or transmission of classified information.

Further, national security journalists cannot be held liable for the act of “publication” given its omission in the statutory construction of Section 793(e). In fact, both former Supreme Court Justices William Douglas and Hugo Black alluded to the statute’s inapplicability to journalists in their concurring opinion issued during the 1971 Pentagon Papers Case. In contrast with other statutes throughout the Espionage Act, where the phrase “publication” appears alongside communication, delivery, and transmission, Section 793(e) specifically omits the phrase, further conveying that it “does not apply to the press” and was never intended to apply to the press [14]. Federal guidelines on statutory construction emphasize that Congress indicates a purposeful and intentional distinction by including specific language or phrases in one area of a statute but not another [15]. Therefore, the act of publication also falls outside of the scope of Section 793(e), rendering legitimate journalists blameless for reliance on or incorporation of classified materials in their reporting.

Having established the statute’s inapplicability to those exercising the freedom of the press, administrations’ past and future threats against journalists incorporating classified sources into their reporting are invalid and contrary to American legal values. Perhaps the vaguest component of Section 793(e) is in the requirement that any leaked information be “used to the injury of the United States” [16]. Would leaked information harming an administration’s political interests, but benefiting the American public, pose an “injury” to the U.S.? The unconstitutional vagueness of the statute, coupled with clear threats to America’s free press, calls into question the executive branch’s mis-observance of the Act’s provisions. In 1917, Congress emphasized that the Espionage Act should not be construed as restricting American citizens in “any just rights [they] have under the Constitution and laws of this Nation” [17]. Asking journalists to halt the course of their reporting and publication — elements enshrined in the freedom of the press — would only serve to frighten them and effectively obstruct the open publication of American national security insights.

References

[1] Somin, I. (2015). The Grasping Hand: “Kelo v. City of New London” and the Limits of Eminent Domain. Cato.org. Retrieved from https://www.cato.org/commentary/grasping-hand-kelo-v-city-new-london-limits-eminent-domain

[2] U.S. Const. amend. V

[3] Kelo et al. v. City of New London et al, 545 U.S. 469, 505 (2004)

[4] Ibid. at 509.

[5] Ibid.

[6] Treanor, William. 2010. "The Original Understanding Of The Takings Clause". Scholarship.Law.Georgetown.Edu. https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1001&context=gelpi_papers.

[7] Kelo et al. v. City of New London et al, 545 U.S. 469, 520 (2004)

[8] Ibid. at 509.

[9] While a reasonable judge may realize that this is a stretch, the point that is being made is that there really is no coherent limiting factor to the interpretation that a taking must provide some sort of public benefit as almost anything can successfully be argued to provide a public benefit.

[10] Ibid. at 479.

[11] Ibid. at 479.

[12] There is no correct answer to this dilemma. The Supreme Court is not strictly bounded by precedent as they can and often do overturn them, but there is an expectation of general deference to precedent. The extent to which a justice strictly adheres to precedent in their rulings depends on their own interpretation of what the Supreme Court’s function is.

[13] Ibid. at 515.

[14] Ibid. at 479.

[15] Ibid. at 521.

[16] Ibid. at 521.

[17] Ibid. at 521.