Published by The Lawfare Institute
in Cooperation With
There is a great deal of hyperventilation---much of it self-interested on the part of the press---about the Administration’s “assault on the First Amendment.” In particular, the Administration has been roundly [criticized] for suggesting that a reporter who knowingly solicits classified information might be committing a crime. At the risk of violating the old adage about not picking a fight with someone who buys printer’s ink by the barrel, I want to take this on.The Department of Justice did not claim that the Fox News reporter in the [Stephen Jin-Woo] Kim case committed a crime merely by publishing classified information. According to the Government’s filing in the case, the reporter in question actively asked people with access to classified information to break the law by providing him classified information he could publish. He used false names and “dead drop” email accounts to do so. In other words, he wasn’t someone to whom a whistleblower came to disclose information; he was actively asking people to violate the law, and enabling them to do so. Remember, there’s no doubt that---assuming Mr. Kim is the guilty party---he violated the law if he disclosed properly classified information to a reporter. Let’s look at an analogy. If a reporter finds Justin Bieber’s private diary on the street and publishes it, that’s journalism (of a sort). But if she pays someone to break into Bieber’s house to steal the diary, hasn’t she has aided and abetted, or conspired in, a crime, even if her intent is to get material to publish? That’s exactly what the Government says happened here---a reporter soliciting, and aiding and abetting criminal activity. Now, it’s one thing to say someone may have committed a crime, and another thing to prosecute him for it. It’s noteworthy that the Department of Justice did not charge the Fox News reporter but simply used his potential criminal activity as a basis for a search warrant, and identified him as an unindicted co-conspirator. This was a damaging leak and the Government had every right to investigate to try to find the person who leaked it, and certainly there is a strong circumstantial case that they found him in this case. The fact that the First Amendment affords protection to the publication of truthful information doesn’t give reporters license to do anything they want to get that information.