Attorney General Jeff Sessions and Director
of National Intelligence Dan Coats held a press conference last week to
announce that the Department of Justice is tripling its efforts to identify and
prosecute leakers of classified and sensitive information. Stopping leakers, they
said, was necessary to protect our national security and to tell the leakers,
whatever their motivation ,to Stop It.
Fine. Let’s throw those criminal
leakers in jail. But I have a question: if leaking classified and sensitive information
to the press is a criminal act, why wouldn’t printing that information not also
constitute a criminal act? If a journalist prints leaked information that damages
the security of the United States, why shouldn’t that journalist be as liable
to criminal prosecution as the leaker?
The answer, we assume, is that the
journalist is protected by the Constitutional guarantee of the freedom of the
press. Now, a journalist can be sued for libel if he intentionally publishes
false information that he knows is false. But if what he publishes happens to
be factual, irrespective of the damage its release might cause, he would be
protected by the First Amendment. But should that amount to blanket immunity
from prosecution?
The Justice Department has always
been reluctant to force journalists to reveal their sources. But Deputy
Attorney General Rosenstein refused last week to rule out the possibility that
journalists would be prosecuted for publishing information obtained through
criminal leaks. This at least suggests that the Department of Justice is
considering it.
I think that leaks have become so
numerous and so damaging to the nation’s security, that the Justice Department
will be forced at some point to prosecute the publishers of the leaked
information. If that happens, it would challenge the Supreme Court to reexamine
the Constitution on the very meaning of Freedom of the Press.
I think it’s time for that to
happen.
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