2 SCOTUS Judges in 1971: Espionage Act Doesn't Apply to the Press

Justices Hugo Black and William O. Douglas specifically addressed a section of the law at issue today.

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FBI agent Reginald B. Reyes got to snoop through the email of Fox News correspondent James Rosen by persuading a judge that there is probable cause to believe he violated the Espionage Act of 1917, a World War I era law intended to stop state secrets from being passed to foreign governments.

To be more specific, he stands accused in this search warrant application of violating 18 U.S.C.§ 793 (d). Glenn Greenwald explains what that means in plain English. "The DOJ specifically argued that by encouraging his source to disclose classified information - something investigative journalists do every day - Rosen himself broke the law," he writes. "Under US law, it is not illegal to publish classified information. That fact, along with the First Amendment's guarantee of press freedoms, is what has prevented the US government from ever prosecuting journalists for reporting on what the US government does in secret. This newfound theory of the Obama DOJ - that a journalist can be guilty of crimes for 'soliciting' the disclosure of classified information - is a means for circumventing those safeguards and criminalizing the act of investigative journalism itself."

This is a radical legal theory*.

As it happens, it has also been directly addressed and discredited by past Supreme Court justices. Concurring in the Pentagon Papers case, Justice William O. Douglas (and Hugo Black, who joined him) expressed his belief that Section 793 doesn't apply to the press. He noted that the U.S. Congress considered and rejected an alternative version of Section 793 that reads as follows:

During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the enemy.

"During the debates in the Senate," Douglas notes, "the First Amendment was specifically cited, and that provision was defeated."

He continues:

Moreover, the Act of September 23, 1950, in amending 18 U.S.C. § 793 states in § 1(b) that: "Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to 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." Thus, Congress has been faithful to the command of the First Amendment in this area.

The bygone analysis of two Supreme Court Justices doesn't end this debate, but it does provide another data-point that supports this conclusion: the Obama Justice Department is using a WWI-era espionage law to criminalize journalism in a way that its authors never intended. Elsewhere, I cite Hugo Black in support of the proposition that they're also transgressing against the 1st Amendment. For even more on this case, see Steven Aftergood at Secrecy News.

Update: UCLA's Eugene Volokh, one of America's foremost 1st Amendment experts, emphatically disagrees with this conclusion. Please click through to read his reasoning, which I don't think that I can succinctly and accurately summarize. He additionally notes that "if there's a First Amendment right to solicit, aid, and conspire in leaks of classified defense information, then there'd be such a right to solicit, aid, and conspire in leaks of tax return information, leaks of attorney-client confidences, leaks of psychotherapist-patient confidences, illegal interception of cell phone conversation, illegal breakins into people's computers, illegal rifling through people's desks, and so on."

*Given Volokh's analysis, it is perhaps better to say that this is a legal theory that has radical implications for the ability of journalists reporting on the federal government to do their jobs as they have for generations.