Leaks and the Media


by Lata Nott, Executive Director, First Amendment Center

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What’s a leak?

A leak occurs when a government insider (an employee, former employee, or contractor) shares secret information about the government with a journalist. For the most part, the insider is not authorized to share this information, and wishes to stay anonymous.

Is leaking illegal?

Sometimes.  It depends on what information leaked (and sometimes, why the information was leaked).

There are a number of criminal laws that apply to leakers, but these three cover most of the information that might be leaked:

*It’s a crime to disclose information related to national defense with the intent of injuring the United States or aiding a foreign nation.  If a document is classified, that might be an indicator that it’s related to the national defense and could injure the United States were it released.  But that’s not always the case; not all classified documents would fall into this category of information.

*It’s also a crime to disclose classified information about communication intelligence (the procedures and methods used to intercept and obtain information from communications), knowingly and willfully.   This is much easier to prove than it is to prove that someone intended to injure the U.S. or aid a foreign nation.

*It’s a crime to steal, sell, or convey, “any record, voucher, money, or thing of value” to the United States.  (Here, it’s only necessary to prove that someone intended to use the property in an improper manner.)  While this would certainly apply to physical records and documents, there is some disagreement on whether it applies to the information written on the physical documents. The 4th Circuit and 2nd Circuit say that the law applies to intangible information as well, but the DOJ does not prosecute the theft of intangible property.

Does leaking happen a lot?

Yes. A landmark survey of current and former senior government officials called the Willard Report indicated that 42% of the survey group had leaked information to the press at least once.

What’s the difference between leaking and whistleblowing?

Some leakers are considered whistleblowers, if they disclose information about a government agency violating the law, wasting money, or abusing its authority. Whistleblowing is not illegal, and the Whistleblower Protection Act is supposed to protect whistleblowers from being fired, demoted, or otherwise retaliated against by the agencies they work for.


How often do leakers get prosecuted?

Not very often. The first law against leaking, the Espionage Act, was enacted in 1917.  Since then, the federal government has prosecuted about a dozen people.  Eight of those people were prosecuted during the Obama Administration.

That seems strange. Why aren’t leakers usually prosecuted?

There are a few possible explanations:

*It can be difficult to identify leakers. Any given classified program involves a large number of people, and journalists often gather and aggregate information from multiple sources.

*Even if leakers are identified, prosecuting them may require even more sensitive information to be revealed in court.

*The  government may have an incentive not to crackdown on leaks too harshly, as leaking allows the government to use the media to convey anonymous statements for its own advantage.  


Can the government stop a journalist from publishing leaked information?

Very rarely. In order to stop a journalist from publishing leaked information, the government has to prove that publication will result in direct, immediate, and irreparable harm to the United States.

But can a journalist go to jail after publishing the information?

There’s no official standard for when it’s a crime for a journalist to publish leaked information, because the government has never prosecuted such a case. But there’s speculation that the “direct, immediate, and irreparable harm” standard would apply. Also, a journalist can’t be punished for publishing info that was obtained illegally, as long as the journalist didn’t do anything illegal.

Why do journalists get so much protection for publishing classified information?

Because the founders of the United States believed that a free press was essential to democracy, and granted the press a great amount of protection via the First Amendment.

The purpose of the press is to serve as a watchdog on government, and share and distribute information on government conduct so that the public will be able to hold the government accountable.  Courts have recognized that sometimes this requires publishing information the government doesn’t want shared.

“The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press, must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.  These are troubled times.  There is no greater safety valve for discontent and cynicism about the affairs of government than freedom of expression in any form.”

 Judge Murray Gurfein

 

It’s worth noting that a journalist can be jailed if the government demands that she reveal the identity of her source and she refuses.  While many states have“shield laws” that prevent the government from forcing journalists to reveal their sources, there is no equivalent federal law. Vice President Mike Pence, as a Congressman, authored and co-sponsored a proposed federal shield law several times, but it remains stalled in Congress.


Landmark Supreme Court Cases about leaks

Schenck v. United States

(Supreme Court found that the Espionage Act, which made it a crime to transmit information related to national defense, did not violate the First Amendment because it involved cases where speech created “clear and present danger”)

Near v. Minnesota

(Supreme Court said that the government could not stop a newspaper from being published without proving that its publication would be a “clear and present danger” to society)

New York Times Co. v. United States

(Supreme Court said that the government could not stop a newspaper from publishing a confidential document related to national security unless it could establish that the publication would cause “direct, immediate and irreparable damage to the nation or its people”)

Branzburg v. Hayes

(Supreme Court found that journalists do not have a constitutional privilege that protects them from being forced to reveal information about their confidential sources)

Bartnicki v. Vopper

(Supreme Court found that the First Amendment protects the disclosure of illegally intercepted communications by parties who did not participate in the illegal interception)

Want to learn more?

The Law of Leaks (Lawfare)

The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information (Harvard Law Review)

Whistleblowers, Leaks, and the Media: The First Amendment and National Security (ABA Standing Committee on Laws and National Security)