Snowden, Journalists and the First Amendment

The 2013 disclosure of secret NSA documents to the media by Edward Snowden has renewed questions about First Amendment protections for reporting on leaked information. As explained in the Huffington Post, journalists are protected when publishing stories based on leaked documents, but the source of the leak is not. For someone like Snowden, who illegally obtained and shared classified information with the press, anonymity is often the best form of protection. The statutes and court decisions that protect journalists’ confidential sources say that investigators must “exhaust all alternative means” for finding a leaker before forcing a journalist to name a source. Journalists are also (generally) ethically obligated to protect their sources, and thereby would have to go against the investigator’s wishes. So those statutes make sense, in saving investigators and journalists some time and hassle. However, since Snowden is not an anonymous source, that aspect doesn’t quite apply, but journalists are still protected in publishing the leaked material.

One of the landmark cases protecting the freedom of the press to publish classified information is New York Times Co. v. United States (1971). President Richard Nixon had exercised executive authority to stop the New York Times from printing the classified Pentagon Papers, and the question came to the court of whether or not the government’s interest in protecting the classified information superseded First Amendment protections of the free press. The court ruled in favor of the New York Times, though there was not consensus among the justices on the reasoning behind it, and many concurring and dissenting opinions were published. Some justices felt that the case was decidable from the absolute superiority of the First Amendment to government interests of security, while others felt that “an enlightened citizenry” is the only balancing power against relatively unchecked executive powers.

While the New York Times v. United States decision weighed First Amendment protections for the freedom of the press against national security concerns, it did not delve into how the information in question was obtained by the press. In Bartnicki v. Vopper (2001), the question arose whether First Amendment protection is afforded to speech that discloses the contents of an illegally intercepted communication. In that case, a third party intercepted a cell phone conversation between the president of a teachers union and Bartnicki, a negotiator for that union. A recording of the conversation was delivered to local radio stations, and was played on air by Vopper, a commentator critical of the union negotiations. The court decided that First Amendment protection did extend to Vopper’s playing of the recording even though it was illegally obtained by a third party, concluding that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” The fact that the disclosed information was of public interest was critical in both the New York Times case and the Bartnicki case.

Even with this case history protecting journalist disclosure of classified information, there are always concerns about whether the current administration will try to abridge freedom of the press in some way. According to the First Amendment Center, President Obama issued a statement saying that journalists should not be prosecuted for “doing their job,” and that questions about the balance between protecting classified material and ensuring a free press are entirely appropriate. This was in response to questions raised about whether it’s appropriate for a journalist who publishes leaked information to be “treated as a potential criminal.” The question was related to two cases; one where the Associated Press had its phone records secretly subpoenaed, and another where prosecutors obtained a search warrant for the private emails of Rosen, a Fox News reporter as they were looking to identify his source in a story on North Korea. In the Rosen case, an official was indicted for revealing classified information, but Rosen was not charged with anything. While these incidents are troubling, perhaps they should be expected, as it seems that the debate between the freedom of the press and the secrecy of national security information is still being argued.