Apparently, Glenn Greenwald and Laura Poitras–two of the journalists most directly involved in the dissemination of Edward Snowden’s revelations regarding various NSA surveillance programs–are returning to the United States today for the first time since before those stories broke last summer, in order to participate in the Polk Awards ceremony in person. Although the Obama Administration has already (and repeatedly) disavowed such a possibility, their return will almost certainly provoke at least some calls from commentators that they be arrested and prosecuted on the ground that their conduct violated the Espionage Act of 1917. Indeed, it’s not hard to see the claim that those responsible for the Snowden stories violated at least two statutes: First is 18 U.S.C. § 793(e), which makes it a crime for:
Whoever having unauthorized possession of, access to, or control over any . . . information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted . . . to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.
Second, 18 U.S.C. § 798(a)(3) makes it a crime for “Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information . . . concerning the communication intelligence activities of the United States or any foreign government.”
But as Marty Lederman explained in detail in a post back in September, “The fact that newspapers publish such stories without serious fear of prosecution is largely a function of the fact that our constitutional understandings are very different today than they were in 1942 or 1950. A newspaper defendant in a section 798 case undoubtedly would raise a First Amendment defense, and that defense might well be successful,” even though the only two Supreme Court Justices to have opined on the question concluded to the contrary. More generally, Marty explained, “it’s a fair bet we’ll never find out the answer to that constitutional question, since we now (thankfully) live in a culture of a very different constitutional ethos, in which both the public and government officials have a more robust appreciation of the risks of starting to go down that road.”
Just to underline Marty’s point, I suspect that this ethos is indeed what’s responsible. Moreover, this reality is not the least-bit specific to the Obama Administration; no Justice Department, regardless of party, would today prosecute a reporter for conduct along the lines of that of Greenwald and Poitras. What Marty didn’t say, but I’ll say now, is that those who think reporters like Greenwald and Poitras should be prosecuted also benefit from this ethos. After all, for those who worry that journalists publish too much classified information, the worst possible scenario is a judicial decision formally recognizing at least some kind of First Amendment defense to a publication-based prosecution. Of course, it’s possible that such a prosecution will have the opposite effect if it results in recognition of no First Amendment defense–but that seems far less likely in the current political and judicial climate, all the more so given the impossible line-drawing problems that would follow from such a holding with respect to the difference between the First Amendment rights of Greenwald and Poitras, on one hand, and their readers, on the other.
So while we should keep in mind Marty’s cogent explanation for why no reporter will be prosecuted under the Espionage Act anytime soon, we should also keep in mind that, for those who think reporters are too well protected, this status quo is actually preferable to the alternative; and for those who think reporters are in too much fear of prosecution, a failed effort in that regard could actually portend a decisive expansion in the freedom of the press. That’s why we’re stuck in what Professors Edgar and Schmidt described in 1973 as a state of “benign indeterminacy” with regard to the Espionage Act. It’s certainly indeterminate; whether or not it’s benign is another matter…