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The First Amendment protects journalists using Snowden’s documents. But what about Snowden?

On Access by Peter ScheerI am often asked whether Edward Snowden’s leaking of classified documents about NSA surveillance programs is protected by the first amendment. My answer is no, his handing over of classified information to reporters at The Guardian, the Washington Post and the New York Times enjoys no constitutional protection or privilege.

Snowden is a source who leaks information, not a journalist who receives leaks. The difference is crucial: in the transaction between source and journalist, constitutional protections extend only to the latter.

Specifically, the government is legally powerless to get a court injunction barring a journalist from publishing a story based on leaked information. And post-publication, too, journalists have special protections: first amendment principles, doubts about the application of federal statutes, and a tradition of prosecutorial forbearance—all these combine to create huge obstacles to the bringing of criminal charges against journalists for reporting on leaked, classified information.

This double-standard—exposing government leakers to punishment while insulating the journalists who publicize their leaks—may seem unfair, arbitrary, even offensive. The double-standard is nonetheless necessary.

It is necessary because all legal authorities protecting journalists’ confidential sources—from state shield laws, to the Justice Department’s internal guidelines, to the few remaining court decisions recognizing first amendment protection for sources—have, at their core, the requirement that government investigators must “exhaust all alternative means” for identifying a leaker before they can force a journalist to name a source.

One cannot fault prosecutors for failing to “exhaust all alternative means” for identifying a journalist’s confidential source, yet also forbid them from interrogating potential sources, and even taking intrusive investigatory steps (for example, polygraph tests for suspected government employees) to identify a leaker. If prosecutors are forbidden, under the first amendment, from questioning journalists except as a last resort, they must be given the latitude to pursue legal measures to investigate suspected leakers.

Moreover, the unfairness of the source-journalist double-standard is mitigated, in most cases, by journalists’ obligation to protect the confidentiality of a confidential source. This is a matter of honor, ethics and, in my view, a legal responsibility deriving from first amendment principles. When the government demands disclosure of a journalist’s confidential source, the journalist is obligated to refuse to cooperate, even to the point of paying fines and going to jail rather than naming the source.

Snowden’s case doesn’t exactly fit this paradigm because he has chosen NOT to be a confidential or anonymous source. From the beginning of the NSA revelations, Snowden has been public and up-front about his role in obtaining the documents, illegally copying them, and making them available to favored reporters.

Does this difference alter the analysis? I don’t think so. Snowden’s motives for going public remain unclear. His taking credit for the NSA leaks might reflect a belief that he is obligated, morally if not legally, to stand up and take responsibility for his actions rather than hide behind the “anonymous” descriptor. Less charitably, his decision to be front-and-center in the NSA controversy may have more to do with ego than principle.

In any case, Snowden will have more credibility, and therefore more influence over US policy, if he gives up his political asylum (in Russia of all places!) and returns to the US to take up the time-honored role of conscientious objector. Although he will have to face charges of violating the Espionage Act, Snowden will have at his side the best defense lawyers in the country. That, and his apparently genuine belief that his leaks have caused no harm to US security interests, may substantially limit his exposure in a trial.

I worry about Snowden. I worry that, like Julian Assange, his politics may have  clouded his judgment and he is now more concerned about neutralizing US military and intelligence capabilities than he is about exposing excesses and wrongdoing. But Snowden has also caused the Obama administration to reexamine NSA programs and to take steps to open some national security decision-making to public scrutiny. These are positive and important developments.

If it also turns out that Snowden is correct that his disclosures have not  harmed American security interests—and time will tell whether he is correct about that—then, frankly, he will be seen as an American hero, and deservedly so. –PETER SCHEER

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here are his alone; they do not necessarily reflect the opinions of the FAC Board of Directors.

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3 Responses to The First Amendment protects journalists using Snowden’s documents. But what about Snowden?

  1. Peter Attwood October 23, 2013 at 9:25 pm #

    This advice that Snowden should return to the US to face a show trial and decades in a supermax to prove something reminds me of Satan’s advice to Jesus to jump off the temple if he were really the son of God.

    I don’t remember defectors from the Soviet Union and other such places being advised to return home.

    The whole government apparatus has already denounced Snowden as a traitor, committed outrageous deeds like air piracy against the Bolivian President, and put in place unconstitutional laws like the NDAA. The NSA has hoovered up everyone’s personal information, and whichever judge gets his case will be made aware of what that means for him.

    Easy for you to advise Snowden to walk into the dragon’s mouth. In his place, would you take it?

    • Peter Scheer October 23, 2013 at 9:49 pm #

      well, yes, i would return to the US if I were Snowden. i might wait a few more months to let the dust settle on the NSA disclosures. but if I were Snowden, and I believed the leaks had not done damage to US national security (and that may be true, in fact), then i would return to face a trial that the whole world would watch.

      It would be a fair trial–even Snowden’s biggest critics would insist on that. He would have the best criminal defense lawyers in the country. (I can predict right now that he will be represented by John Keker and his law firm in CA). I would bet money (just a little) that Snowden actually would be acquitted.

      i would like to tell you that if I were Snowden, I’d come back and face trial even if I thought I would be convicted and go to prison. But I’m not that brave.

  2. Bruce Joffe October 28, 2013 at 2:39 pm #

    It seems like every week Snowden drops another bombshell on the NSA by revealing yet another act of systematic, mass-spying on innocent people. I applaud his actions and wish that he will be recognized as a national whistleblowing hero. I guess he’ll have to come home and face trial before that could ever happen. I hope that he will have top-notch lawyers working on his behalf at that time.

    Could Snowden have revealed this important cache of secrets differently? better? I don’t know. I heard an interview with Daniel Ellsberg, who recounted how he wasted years trying to reveal the Pentagon Papers material through official channels to no avail. During that time, thousands of people died in Vietnam. Perhaps, Ellsberg said, the war would have ended sooner if he had gone directly to the NY Times.

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