Some government officials have been pushing the theory that journalists who write stories based on leaked classified documents—think Glenn Greenwald, for example—are engaging in the “fencing” of stolen property.
Mike Rogers, the Republican chair of the House Intelligence Committee, made this point yesterday when questioning FBI Director James Comey at a congressional hearing. Rogers asked,“So if I’m a newspaper reporter for — fill in the blank — and I sell stolen material, is that legal because I’m a newspaper reporter?”
The question, which Comey, to his credit, declined to answer, echoed a comment last week by Director of National Intelligence James Clapper. In Senate testimony, Clapper used the word “accomplices” to refer to journalists working with Edward Snowden, the indicted leaker of records on NSA’s surveillance programs.
Is there anything to this? The short answer is no. Any theory of liability for journalists, predicated on a leaker’s “theft” of government records, would be so broad as to criminalize the very business of journalism. All journalists who report seriously on government would be subject to indictment for doing what they are paid to do.
Just as absurd, criminal liability would also extend to consumers of news. Under his own “fencing” theory, Congressman Rogers is himself a suspect. He takes a serious risk whenever he thumbs through a copy of the Washington Post: the reading of news stories that are clearly based on leaked information could be construed (and prosecuted as) the knowing receipt of stolen property. See 18 U.S.C. § 2315 of the federal criminal code.
Come to think of it, that’s not such a bad idea . . .
But seriously, the soundbites from Congressional hearings highlight a legal vulnerability for journalists, especially journalists who write about national security, defense and foreign policy matters. The fact that federal prosecutors, historically, have refrained from charging journalists for their use of classified or other leaked information does not mean that the first amendment definitely forbids criminal sanctions in such cases.
Prosecutorial forbearance is just that—a policy choice not to indict reporters, not an acknowledgement of a constitutional immunity for investigative journalism. Contrary to what many reporters think, the Supreme Court has never interpreted the first amendment to bar prosecutors from charging journalists. While the Court has built huge obstacles to court injunctions purporting to deny public access to a news story, the Court has not foreclosed criminal punishment of journalists, or their employers, after publication.
Not yet.
And until the Court changes the ground rules, journalists writing about sensitive government matters need to understand that their work is not without legal risk.
-PETER SCHEER