By Stacy Allen
On October 16, 2007, the U.S. House of Representatives, with a veto-proof vote of 398 to 21, passed H.R. 2102, a federal shield law titled the “Free Flow of Information Act.” If enacted, the bill will grant journalists a qualified privilege against being compelled to reveal their confidential sources. A similar bill of the same title, S.R. 2035, is currently pending in the U.S. Senate.
Regardless of whether Congress passes the Free Flow of Information Act, federal prosecutors intent on deterring leaks to reporters may have found a means of doing so. In 2006, former U.S. Attorney General Alberto Gonzales disclosed that the Department of Justice was considering whether journalists could be prosecuted under the Espionage Act for revealing information that poses a risk to national security. A controversial federal criminal statute enacted against the backdrop of the First World War in 1917, the Espionage Act, 18 U.S.C. งง 792 et seq., makes it unlawful to obtain and/or convey classified government information relating to national defense, regardless of whether the information was obtained and/or conveyed within the United States or abroad. Of the various activities prohibited by the Espionage Act, two provisions may prove troublesome for journalists: Section 793(e) makes it a crime for anyone to “willfully retain” information relating to national defense and “fail to deliver it to [an authorized] officer or employee of the United States”, in addition to criminalizing the act of publication itself. Utilizing a theory of conspiracy to violate the Espionage Act, Section 793(d) criminalizes the act of encouraging a government employee to leak classified information.
Given the penalties available to a zealous prosecutor, the mere threat of indictment under the Espionage Act could do more to chill news gathering and the protection of confidential sources than the prospect of being held in contempt of court does now.
Of even greater concern is the possibility that a member of the press may be held criminally liable as an accomplice to another’s violation of the Espionage Act. 18 U.S.C. งง 3 (“[w]hoever, knowing that an offense against the United States has been committed … assists the offender in order to hinder or prevent his … trial or punishment, is an accessory after the fact”) and 792 (“[w]hoever … conceals any person he knows, or has reasonable grounds to believe or suspect, has committed, or is about to commit, an offense under [certain provisions of the Espionage Act], shall be fined … or imprisoned not more than ten years, or both”). And regardless of the charge, a journalist indicted under the Espionage Act may find little comfort in the First Amendment, since communication of secret defense material may not qualify as protected speech. U.S. v. Rosenberg, 195 F.2d 583, 591 (2d Cir. 1952).
Only time will tell whether the federal government will use indictment under the Espionage Act to coerce journalists into revealing their confidential sources. However, a recent decision handed down by a federal district court in which espionage indictments are typically brought suggests this application of the Espionage Act may become a useful alternative to prosecutors in the event the Free Flow of Information Act becomes law. U.S. v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006) (upholding the constitutionality of indictments of two lobbyists for receiving and transmitting classified information leaked by a government employee, including aiding and abetting the transmission of the classified information).
Significantly, the federal shield law in its current form does not address or limit the potential liability faced by journalists accused of violating the Espionage Act. On the contrary, the bill carves out exceptions for matters of “national security” which federal prosecutors may argue are consistent with the imposition of criminal liability. Given the penalties available to a zealous prosecutor, the mere threat of indictment under the Espionage Act could do more to chill news gathering and the protection of confidential sources than the prospect of being held in contempt of court does now, and reporters and their publishers would do well to seek advice from knowledgeable counsel when investigating stories which implicate defense or national security interests.
— Stacy Allen is a partner at Jackson Walker. He can be reached at firstname.lastname@example.org.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.