|
||||
Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes
By William E. Lee, Professor, Henry W. Grady College of Journalism and Mass
Communication, University of Georgia IntroductionI'm not supposed to know this. The unprecedented indictment charges hit Washington in August 2005 like a bombshell. Steven Rosen and Keith Weissman, lobbyists for the American Israel Public Affairs Committee (AIPAC), one of the capital's most influential lobbying groups, were charged with violating the Espionage Act by conspiring with Defense Department official Lawrence Franklin to pass classified information to reporters and Israeli government officials. Journalists watched the case with alarm, as coverage of diplomacy and national security relies heavily on the receipt and disclosure of classified information.2 Indeed, Rosen and Weissman claimed that by receiving information from Franklin and passing it on to others, they merely did what "members of the media, members of the Washington policy community, lobbyists and members of congressional staffs do perhaps hundreds of times every day."3 The potential of the Espionage Act to reach journalists was emphasized by Judge T. S. Ellis III when he sentenced Franklin to more than twelve years in prison: So, all persons who have authorized possession of classified information, and persons who have unauthorized possession, who come into possession in an unauthorized way of classified information, must abide by the law. They have no privilege to estimate that they can do more good with it. So, that applies to academics, lawyers, journalists, professors, whatever. They are not privileged to disobey the laws, because we are a country that respects the rule of law, and that's the real significance.4 The AIPAC lobbyist trial promised to provide an inside view of the way classified information flows from government officials to reporters, lobbyists, and others, a view perhaps even more revealing than the 2007 trial of Bush administration official Scooter Libby for lying to a grand jury investigating the leaking of Valerie Piarne' s CIA affiliation. Rosen and Weissman's lawyers intended as part of their defense to focus on Bush administration practices concerning classified national security information.5 Rosen and Weissman received permission to subpoena highlevel former officials, such as former Secretary of State Condoleezza Rice, to show that U.S. government officials frequently disclosed classified information to various non-governmental entities to advance U.S. foreign policy interests.6 On May 1, 2009, the government moved to dismiss charges against Rosen and Weissman, stating that a trial risked the disclosure of classified information and that Judge Ellis changed the landscape of the case by imposing heightened scienter requirements that the statute does not require.7 Unstated in the government's motion to dismiss, but disclosed to the New York Times, was the fact that government policy makers were "clearly uncomfortable" with the prospective testimony of senior officials.8 It is one thing for officials to decry leaks in settings such as press conferences but quite another for them to testify under oath about their frequent use of this communication technique. Journalists were relieved by the dismissal of the charges; if Rosen and Weissman were criminals, then, according to the Wall Street Journal, "half [of] the Beltway press corps could be indicted."9 But the relief at the dismissal of the charges may be short-lived; there remain serious questions about Judge Ellis's reading of the statute.10 Recent events highlight the potency of conspiracy and similar charges against journalists. A fear of being prosecuted for conspiracy with a source animates the recent Fifth Amendment plea of David Ashenfelter, a reporter for the Detroit Free Press.11 In addition, federal judge Jack Weinstein recently denounced New York Times reporter Alex Berenson for conspiring with two others to obtain and publish sealed documents in knowing violation of a court order not to do so. In an opinion bristling with outrage, Judge Weinstein described Berenson' s behavior as "reprehensible,"12 and claimed that Berenson was "deeply involved in the effort to illegally obtain the documents."13 Eli Lilly, a global pharmaceutical company whose documents were illegally acquired and disclosed, obtained an injunction against Berenson' s co-conspirators, but chose not to pursue an injunction against Berenson or the Times. u Yet another pharmaceutical giant, Mylan, recently filed suit against the Pittsburgh Post-Gazette and two of its reporters, accusing the reporters of wrongfully obtaining a confidential internal report about the company's manufacturing procedures.15 As this Article shows, a theoretical basis for punishing a journalist's efforts to obtain classified or sealed documents is found in United States v. Williams,16 a 2008 Supreme Court opinion dealing with speech proposing an illegal transaction. In Williams, Justice Scalia noted in passing that Congress could punish those who solicit the unauthorized disclosure of national security documents.17 Before abandoning the prosecution of Rosen and Weissman, the Government relied on Williams for the claim that the conspiracy was outside the First Amendment's protection.18 Contemporary First Amendment doctrine provides the press with almost absolute protection to publish truthful information that is lawfully acquired.19 However, the contours of the phrase lawfully acquired are uncertain.20 The Court's cases reveal that "routine" newsgathering methods, such as acquiring information from court documents open to public inspection, are lawful.21 While a reporter's theft of documents would be illegal regardless of the news value of those documents,22 the Court has ruled that reporters may passively receive newsworthy information illegally obtained by a source.23 The conceptualization of reporters either actively stealing documents or passively receiving documents does not account for the complex interactions between reporters and sources on matters such as the disclosure of restricted information and the terms of identification.24 In between the polar extremes of theft or passive receipt lie fascinating and novel cases possibly involving inchoate crimes such as solicitation25 and conspiracy.26 Is it illegal for a reporter to solicit or induce the disclosure of classified information?27 Is it illegal for a reporter to encourage the leaking of classified information by promising a government official anonymity? Is such an agreement a conspiracy? Ethics codes for news organizations state that reporters must not commit crimes such as trespassing or stealing information but are silent on inchoate crimes such as solicitation.28 And while news organizations have elaborate rules about relations with confidential sources,29 they do not address the propriety of promising confidentiality as an inducement to the disclosure of classified information. Common journalistic practices reveal that journalists work under the premise that they Eire free to ask for classified information and those with access are free to say no.30 In effect, journalists believe that the legal problems posed by the disclosure of classified information are borne by the source and not the reporter.31 For example, in defending the pursuit of judicially-sealed information about prominent baseball players testing positive for performance-enhancing drugs,32 New York Times reporter Michael Schmidt asserted: "I believe it is legal and ethical for me to ask questions of people who may be covered by court orders . . . It is the choice of the source to talk."33 The structure of information gathering in our legal and political environment says much about how far society wants journalists to probe secrets. There is a paucity of constitutional doctrine protecting newsgathering from criminal law. The delicate balance between the government's ability to protect secrets and the press's ability to discover those secrets largely reflects policy preferences of the political branches. Stated differently, courts are highly unlikely to craft First Amendment exemptions for the press from generally applicable criminal laws. However, due to the role the press plays in our political system, the political branches may fashion such exemptions, either legislatively or by the exercise of prosecutorial discretion. This Article first explores whether journalists may refuse to answer questions about how they acquire information from sources. If a source violates the law by disclosing restricted information to a reporter, this Article shows that shield laws and First Amendment-based privileges generally do not allow reporters to refuse to answer questions about these transactions. Once the method by which a reporter obtains information is identified, the Article considers circumstances in which a reporter passively receives information illegally obtained or disclosed by a source. Passive receipt cases are contrasted with those in which a reporter actively solicits information from a source or conspires with a source. Although there are practical and political difficulties in prosecuting reporters for solicitation or conspiracy, there is little First Amendment precedent in support of the argument that reporters should be exempt from generally applicable criminal laws. I. Shield Laws and First and Fifth Amendment PrivilegesThe First Amendment does not confer on reporters or anyone else the right to violate the law in order to get information they consider to be newsworthy, the right to encourage others to do so, or the right to conceal the identity of a source who committed a criminal act in providing the information by refusing to comply with a lawful court order directing the reporter to identify the source. To suggest that these things are protected by the First Amendment, demeans the First Amendment. There are usually no witnesses to a leak other than the reporter and the source. Because "the confidential exchange of information leaves neither paper trail nor smoking gun, the great majority of leaks will likely be unprovable without evidence from either leaker or leakee."35 Within Washington, leak investigations rarely identify leakers due to longstanding Department of Justice policy focusing these investigations solely on potential leakers rather than the press.36 Patrick Fitzgerald, who as special counsel for the Valerie Plame leak investigation was not subject to Department of Justice oversight, upset this tidy arrangement when he sought to question journalists about their confidential conversations with White House sources. Fitzgerald decimated the journalists' arguments for a First Amendment-based privilege as he obtained judicial authorization for grand jury testimony of reporters.37 Similarly, private plaintiffs, also unconstrained by Department of Justice policy, have obtained judicial authorization to question reporters about sources whose leaks may violate the Privacy Act. 38 Under state shield laws, journalists generally have to answer questions about crimes committed by sources; only a small number of states allow journalists to refuse to answer questions about sources who commit crimes.39 In light of the general dearth of protection under the First Amendment or shield laws, journalists have recently turned to the Fifth Amendment as a way to avoid disclosing their transactions with sources. A. State Shield Laws A small number of states have some form of absolute journalist's privilege,40 but this privilege can be pierced in certain proceedings 41 or where the reporter witnesses a source commit a crime.42 In contrast, the shield laws of two states, New York43 and Pennsylvania44 have been judicially construed as providing absolute protection for information received from confidential sources, even when those disclosures are illegal. The Court of Appeals of New York has found that as "the statute is framed, the protection is afforded notwithstanding that the information concerns criminal activity and, indeed, even when revealing the information to the reporter might itself be a criminal act."45 Most recently the Pennsylvania Supreme Court in Castellani v. Scranton Times, L.P. found there was no crime/fraud exception to the state's shield law.46 In Castellani, two county officials claimed that a newspaper defamed them by falsely describing their testimony before a grand jury.47 They sought disclosure of the newspaper's unnamed source, arguing that the Pennsylvania shield law, like attorney-client privilege, should have a crime/fraud exception where the press "was involved in the solicitation of criminal contempt and/or obstruction of justice."48 The plaintiffs motion for compelled disclosure of source was granted, with the court concluding that "the news media should not act as a protective vessel into which criminal communications are channeled. . . . [t]he public interest is not served, however, when a reporter, through an unnamed source, invades the grand jury process and pierces its recognized veil of confidentiality."49 This was not a case where a source was providing information about a crime to a reporter; rather, the communication "is the crime."50 The Pennsylvania Supreme Court refused to recognize a "crimefraud" exception to the shield law, concluding the law offered journalists absolute protection and whether there should be such an exception was a policy question for the legislature.51 Moreover, the shield law was not analogous to attorney-client privilege which benefits the client. The protections in the shield law were intended to allow the press to serve the public. "[Describing the Shield Law's protections in common evidentiary privilege terms, while the news media may be the 'holder' of the protection, the general public is deemed to be the overall beneficiary of the Shield Law's protections."52 Yet the majority of states with shield laws authorize judiciallycompelled production of a reporter's source where the communication was criminal. The text of some shield laws expressly states that they do not apply where reporters personally observe the commission of a crime.53 Other shield laws specify the privilege does not protect the source of information concerning grand jury or other secret proceedings.54 In addition, some state shield laws have been judicially construed as requiring journalists to testify about a source's criminal activity, which presumably would include the illegal disclosure of restricted information.55 B. The First Amendment In federal proceedings, the prevailing precedent is Branzburg v. Hayes where the Court rejected a First Amendment-based privilege for reporters to refuse to testify before grand juries.56 Writing for the Court, Justice White noted, [W]e cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it. Insofar as any reporter in these cases undertook not to reveal or testify about the crime he witnessed, his claim of privilege under the First Amendment presents no substantial question. The crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not. Even as many lower federal courts in the post-Branzburg era developed a qualified First Amendment privilege in settings such as civil proceedings,58 federal courts have uniformly required reporters to testify before a grand jury about crimes they witness.59 In the context of federal criminal trials, though, it is "wildly disputed" whether there is a First Amendment reporter's privilege.60 Some federal jurisdictions apply a balancing test,61 while other jurisdictions refuse to treat reporters differently than other citizens.62 The most recent and important criminal trial precedent is United States v. Libby,63 which arose in the context of the trial of Scooter Libby for perjury and obstruction of justice stemming from the grand jury investigation of the public disclosure of Valerie Plame's CIA affiliation. Libby sought documents from three reporters who had been forced to testify before a grand jury about their conversations with him: Judith Miller of the New York Times, Tim Russert of NBC News, and Matthew Cooper of Time.64 As Judge Walton wrote, "[fjhese three news reporters did not simply report on alleged criminal activity, but rather they were personally involved in the conversations with the defendant that form the predicate for several charges in the indictment."65 In refusing to quash Libby's subpoena, Judge Walton concluded that the Supreme Court's reasoning in Branzburg "applies with equal force to the trial proceedings in this case as it does in grand jury proceedings."66 Judge Walton wrote, "The First Amendment does not protect news reporters or news organizations from producing documents when the news reporters are themselves critical to both the indictment and prosecution of criminal activity."67 Judge Walton refused to apply a balancing test developed in civil cases68 but added that even under a balancing test, a qualified reporter's privilege would be overcome in this case.69 This resembled two recent civil cases, Lee v. Department of Justice10 and Hatfill v. Mukasey11 in which reporters were ordered to identify government sources who leaked information in possible violation of the Privacy Act. Although the Lee and Hatfill courts applied a balancing test, each questioned the importance of journalists protecting the illegal actions of sources. For example, in Lee, Judge Thomas Penfield Jackson wrote that he doubted "that a truly worthy First Amendment interest resides in protecting the identity of government personnel who disclose to the press information that the Privacy Act says they may not reveal."72 Similarly, the appellate court in Lee drew upon Branzburg's position that journalists must testify about the criminal conduct of a source. The appellate court wrote, "The same principle applies here; the protections of the Privacy Act do not disappear when the illegally disclosed information is leaked to a journalist, no matter how newsworthy the government official may feel the information is."73 C. The Fifth Amendment Privilege Journalists in Lee and Hatfill avoided testifying or facing contempt charges when the cases settled.74 Another case, Convertino v. Department of Justice,15 presents similar Privacy Act issues, but adds the Fifth Amendment privilege against compelled self-incrimination as a new factor. That privilege, as the Court stated in Branzburg, is the "only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution[.]"76 The Detroit Free Press published an article on January 17, 2004 claiming that the Justice Department's Office of Professional Responsibility was investigating possible misconduct by Richard Convertino when he was the lead prosecutor during the 2003 Detroit "sleeper cell" terrorism trial.77 The article, written by reporter David Ashenfelter, attributed the information about the investigation to Justice Department officials "who spoke on condition of anonymity, fearing repercussions."78 Convertino said the leak was "about as low as it gets"79 and brought a Privacy Act suit against the Department of Justice. After efforts to obtain the identity of Ashenfelter' s sources from the Justice Department proved unsuccessful,80 Convertino sought from Ashenfelter the identity of the sources cited in his article. Judge Robert Cleland ruled that under the Sixth Circuit's precedent, Ashenfelter had no First Amendment-based evidentiary privilege.81 In assessing whether Convertino' s request complied with Rule 26 of the Federal Rules of Civil Procedure,82 Judge Cleland concluded that compelled disclosure of Ashenfelter' s confidential sources would not deter legitimate investigative reporting. Striking a tone similar to the Lee and Hatfill courts, Judge Cleland wrote, If the informants indeed violated the Privacy Act as Convertino alleges, potential sources of further similar violations should be deterred from interactions of this kind with representatives of die press. This is not an instance where the reporter's informant reveals hitherto unknown dangerous or illegal activities that, being unlikely otherwise to come to light, result in reporting that is obviously more weighty in a court's calculation of First Amendment safeguards. Rather, this situation is more akin to a reporter's observation of criminal conduct, from which the Supreme Court has explicitly stripped constitutional protection[.] Ashenfelter refused to identify his sources, citing his Fifth Amendment privilege against self-incrimination. Ashenfelter' s attorneys claimed that the reporter had a legitimate basis to fear the risk of prosecution: Not only the Privacy Act, but several other federal statutes criminalize the improper receipt and distribution of confidential government documents and information. If Convertino's allegations are true, then Ashenfelter could face prosecution as one who participated directly in criminal acts, or who aided, abetted, concealed, or conspired with those who did.84 The prospect of Ashenfelter facing criminal charges if he revealed his sources was emphasized by Justice Department attorney Elizabeth Shapiro at a February 11, 2009 hearing, stating "There could be ... an ongoing conspiracy."85 The shadow of the then-pending AIPAC lobbyist conspiracy case loomed over these proceedings; Ashenfelter's attorneys noted, "It is certainly conceivable that the DOJ could view the transaction between Ashenfelter and his source(s) as materially identical to that in the AIPAC case, and prosecute them accordingly."86 Judge Cleland ordered Ashenfelter to reappear for a deposition but allowed the reporter to submit an ex parte affidavit for in camera review to help the court examine the legitimacy of his fear of prosecution.87 On March 6th, Ashenfelter submitted the affidavit.88 At his April 21st closeddoor deposition, Ashenfelter asserted his Fifth Amendment privilege against self-incrimination when asked to name his sources.89 Judge Cleland was present at the deposition and upheld Ashenfelter' s Fifth Amendment claims without explaining his rulings. It was not known what role Ashenfelter's affidavit played in the judge's rulings.90 Convertino's attorney described Ashenfelter's Fifth Amendment claim as a "clever ruse."91 Although Convertino's attorney claimed that Ashenfelter's fear of prosecution was unrealistic, during 2008, two other reporters, Bill Gertz of the Washington Times and Jim DeRogatis of the Chicago Sun-Times, successfully invoked the Fifth Amendment. Gertz invoked the Fifth Amendment to refuse to answer questions about his sources for an article about grand jury proceedings. DeRogatis refused to answer questions about his handling of a videotape showing what appeared to be R&B singer R. Kelly having sex with an underage girl.92 The Gertz case is the most relevant to this discussion. Gertz wrote an article in May 2006 about impending grand jury charges expected to be filed against defense contractor Chi Mak and three relatives. Mak, his wife, and his brother had been arrested earlier in October 2005 on charges that they failed to register as Chinese government agents.93 Gertz reported the new grand jury charges, including conspiracy to provide China with defense technology.94 Gertz attributed the information to senior Justice Department officials "who spoke on the condition of anonymity."95 Judge Cormac Carney found there was a prima facie violation of Federal Rule of Criminal Procedure 6(e), which states that an attorney for the government shall not disclose matters occurring before a grand jury,96 and ordered the government to conduct an investigation to uncover the source of the grand jury leak. After a year-long investigation, the government was unable to determine who leaked the grand jury information to Gertz.97 A subpoena was then issued to Gertz seeking the identity of his sources. To assist Judge Carney's evaluation of the need for confidentiality, Gertz submitted a declaration stating that his confidential U.S. government sources: [W]ill not provide sensitive, closely held information to investigative reporters and other journalists without the assurance of absolute confidentiality. The U.S. government employees whom I developed as confidential sources fear that, if their identities as sources are divulged, they would be ostracized by their co-workers, penalized by their superiors, and possibly even suffer the loss of their jobs.98 Just before the beginning of a hearing to determine if Gertz should be compelled to divulge his sources, the National Security Division of the Department of Justice informed Judge Carney that the Attorney General had approved a subpoena seeking Gertz' s testimony before a federal grand jury investigating the leaking of classified information.99 Gertz's lawyer regarded this as "the proverbial shot across our bow" and in light of this development, "another privilege" would be presented.100 When Gertz took the witness stand, Judge Carney asked if he would voluntarily reveal the confidential sources used in the May 16 article. When Gertz said no, the judge asked for an explanation, prompting the following reply: [T]he United States Supreme Court recognized in Ohio v. Reiner that the Fifth Amendment to the constitution protects the innocent who might be ensnared by ambiguous circumstances. Therefore, I accept the advice of my counsel and respectfully decline to answer on the basis of my Fifth Amendment rights.101 Other questions, such as whether the case was newsworthy, also elicited the assertion of the Fifth Amendment privilege. At the conclusion of Gertz' s testimony, Judge Carney ruled Gertz had not waived his Fifth Amendment privilege by filing a sworn affidavit with the court and would not be ordered to reveal his confidential sources. 102 Although prosecutors may overcome Fifth Amendment assertions by granting immunity, it is unlikely to happen when sources are inside the Department of Justice. As Ashenfelter's attorney remarked, the reporter's silence benefits the Department of Justice in Convertino' s Privacy Act lawsuit.103 Thus in the absence of either a shield law or First Amendment privilege in cases where information sharing is a crime, the Fifth Amendment is a viable option if the reporter can establish a sufficient foundation for valid assertion of the privilege.104
|
||||
II. Passive Receipt of Illegally Obtained InformationIn Bartnicki v. Vopper, the Supreme Court ruled the First Amendment protects the disclosure or publication of information illegally obtained by someone else. 105 Although the Bartnicki Court asserted that the holding did not apply to "punishing parties for obtaining the relevant information unlawfully,"106 the Court did not explore the boundaries of "lawfully acquired" information. Two appellate courts have interpreted Bartnicki to mean that a reporter's knowledge of a source's illegal action does not render the receipt of information also illegal, but these cases may be confined to their unique facts. (As discussed later, awareness of a source's illegal action would be a critical aspect of the conspiracy charges against Rosen and Weissman.)107 To understand Bartnicki and its progeny, it is necessary to consider the peculiar facts of Bartnicki. Jack Yocum, president of a taxpayers' association formed solely to oppose a teachers' union request for a pay raise, found a tape recording of a telephone conversation in his mailbox. The tape had no markings indicating who made it or gave it to Yocum. 108 He played it and recognized the voices of the union president and the union's chief negotiator. The illegal recording of the telephone conversation revealed the president threatening to go to the homes of school board members opposed to a raise for teachers and "blow off their front porchesf.]"109 After Yocum played the tape for some members of the school board, he gave a copy to Frederick Vopper, a local radio commentator, who played the tape on his news/talk program.110 Yocum, Vopper, and the two radio stations airing Vopper' s program were sued for violating the Pennsylvania and federal wiretapping statutes.111 The Third Circuit found the wiretapping statutes could not be constitutionally applied to the defendants. Since reporters "often will not know the precise origins of information they receive from . . . sources, nor whether the information stems from a lawful source[,]" the appellate court feared a chilling effect would be created if the press were liable for merely disclosing information improperly intercepted by another party.112 By finding the tape in his mailbox, Yocum had not "entered into" any transaction with the interceptor.113 In carving out a First Amendment-based exemption from the wiretapping laws, the Supreme Court emphasized that Yocum and Vopper played no part in the illegal interception and did not know who made the interception.114 The Court accepted the petitioners' submission that Yocum and Vopper knew, or had reason to know, that the interception was unlawful.115 Yet this state of mind did not reduce the First Amendment protection for their disclosures. The Court viewed this as a case involving punishment for disclosure, not for making the tape recording or inducing its production.116 After Bartnicki, the Court vacated and remanded for reconsideration Boehner v. McDermott, a case involving disclosure of an illegally recorded phone call.117 In Boehner, Representative James McDermott, the ranking Democrat on the House Ethics Committee, leaked to the press an illegally recorded telephone conversation between leading House Republicans and then-Speaker of the House Newt Gingrich.118 The illegal recording was made by John and Alice Martin in late December 1996. The Martins believed the conversation could be damaging to House Republicans and were told by their representative, Democrat Karen Thurman, to give the tape to McDermott.119 In early January 1997, at a brief meeting outside the Ethics Committee hearing room, the Martins told McDermott they used a scanner to intercept the conversation.120 McDermott made no promises to the Martins to induce them to give the tape to him. 121 After listening to the tape, McDermott decided to leak it to reporters for the New York Times and the Atlanta Journal-Constitution.122 McDermott's role as the leaker was revealed shortly after the newspapers published detailed accounts of the illegally recorded conversation. Whether McDermott lawfully received the recording was a hotly contested issue in the subsequent suit brought by Representative John Boehner, one of the participants in the telephone conversation.123 In Boehner I, the Court of Appeals for the District of Columbia Circuit ruled that by knowing the illegal origin of the tape, McDermott had illegally obtained the recording.124 On remand, the appellate court in Boehner II again found that McDermott had acted illegally because unlike Bartnicki, where the interceptor was anonymous, McDermott met with the Martins and knew of their illegal act when he accepted the tape. The appellate court wrote, It is the difference between someone who discovers a bag containing a diamond ring on the sidewalk and someone who accepts the same bag from a thief, knowing the ring inside to have been stolen. The former has committed no offense; the latter is guilty of receiving stolen property, even if the ring was intended only as a gift.125 In contrast, the dissenting opinion by Judge Sentelle argued that Bartnicki "underlined" the lack of significance of a communicator's knowledge of another party's illegal action.126 Sentelle' s views became those of the majority of the court of appeals when the court heard the case en banc in 2007. In Boehner III, five members of the court of appeals announced that there were no distinctions of significance "between our facts and those before the Court in Bartnicki."121 The "otherwise-lawful receipt of unlawfully obtained information remains in itself lawful, even where the receiver knows or has reason to know that the source has obtained the information unlawfully."128 Four members of the court of appeals believed McDermott unlawfully obtained the tape. 129 A dispute over the meaning of Bartnicki was also present in Jean v. Massachusetts State Police.m Paul Pechonis, who had a long-running dispute with a Massachusetts police officer John Gough, posted online photographs of himself carrying weapons with the words "Death to Pig Gough."131 Pechonis was arrested at his home on a misdemeanor charge of threatening to commit a crime. After Pechonis was handcuffed at the front door, eight armed police officers assigned to Worcester County District Attorney John Conte conducted a warrantless search of Pechonis's entire house. Unbeknownst to the police, the arrest and subsequent search were videotaped by a "nanny-cam," a motion activated camera frequently used by parents to monitor activities within the home. 132 Shortly after the arrest, Pechonis contacted Mary Jean, a political activist,133 whom he did not know, requesting her help in publicizing his version of the arrest. Jean ran a website opposed to the reelection of District Attorney Conte, and Jean posted the video on the website in late January 2006, along with an editorial critical of Conte's performance in office.134 The video, she believed, displayed an abuse of police power.135 When the state police learned the embarrassing video had been posted on Jean's website, a deputy general counsel of the state police sent Jean a letter informing her that the secret, unauthorized recording was a violation of the state wiretapping law.136 Unless Jean removed the tape from her website within forty-eight hours, the matter would be referred to the District Attorney's office for "possible prosecution."137 Jean then filed a complaint seeking a temporary restraining order and preliminary and permanent injunctive relief precluding the police and the commonwealth from threatening her with prosecution or enforcing the wiretapping law against her.138 The district court granted the preliminary injunction,139 because Jean played no part in the recording of the video.140 Under Bartnicki she had obtained the tape lawfully. 141 In affirming the district court, the First Circuit found Jean's circumstances indistinguishable from those of the defendants in Bartniki, and therefore her publication of the recording was protected by the First Amendment.142 The state police had claimed that Bartnicki did not apply because Jean knew Pechonis's identity when she received the tape. Hence, the police argued that Jean "actively" collaborated with Pechonis while Yocum in Bartnicki "passively" received the tape from an anonymous source. The First Circuit rejected this as a "distinction without a difference."143 Both Jean and Yocum "made the decision to proceed with their disclosures knowing that the tape was illegally intercepted, yet the Supreme Court held in Bartnicki that such a knowing disclosure is protected by the First Amendment."144 Significantly, in these three cases, the recipients of the tapes did not know the sources of the recordings at the time the recordings were made. As Justice Breyer wrote in his Bartnicki concurring opinion, "[n]o one claims that they ordered, counseled, encouraged, or otherwise aided or abetted the interception[.]"145 Acceptance of an illegally recorded tape under these circumstances, even with knowledge of illegality, is not sufficient to make the recipient an accessory or conspirator to the original crime. More difficult circumstances arise when reporters encourage sources to break the law. III. SolicitationIt's not unusual for reporters to seek documents, even confidential information, from sources. It's done all the time. It's part of the process. In 1999, Ford Motor Company sought an injunction against Robert Lane, operator of a website devoted to Ford news. Lane's website published internal Ford documents that had been anonymously provided to Lane, likely by former and current Ford employees in violation of the company's confidentiality agreement.147 A temporary restraining order was issued enjoining Lane from disclosing Ford's internal documents and from "interfering with Ford's contractual relationship with its employees by soliciting Ford employees to provide Ford trade secrets or other confidential information."148 Lane challenged the provision preventing him from disclosing Ford documents but agreed to the non-solicitation provision. 149 Though the non-disclosure provision was found to be an unconstitutional prior restraint,150 a preliminary injunction was issued preventing Lane from soliciting Ford employees to provide trade secrets or other confidential information.151 If Lane had challenged the non-solicitation provision on First Amendment grounds, how would his claim have been treated? Three different ways of analyzing this question are explored. First, proposals for illegal transactions simply do not trigger substantive First Amendment analysis. Laws punishing the solicitation of illegal acts are generally applicable, and newsgathering activities are not entitled to an exemption from such laws. Second, generally applicable laws incidentally restricting First Amendment rights are subject to the O'Brien balancing test.152 The Supreme Court's application of this test, however, is so toothless that the outcome under the O 'Brien analysis will likely be the same as with the first approach. Employing other ad hoc balancing tests would lead to uncertainty for reporters. Third, the uncertainty of an ad hoc approach could be avoided by a rule holding that "simply" asking for information is a "routine" newsgathering technique that does not violate criminal solicitation laws or other laws punishing the seeking of information. Asking for information is not coercive. Even when accompanied by a reporter's promise of anonymity, sources are free to say no to such requests. A. General Applicability While the Court has on rare occasion exempted certain communicators from generally applicable laws,153 generally applicable laws usually trigger no First Amendment scrutiny.154 That is, a law not aimed at constitutionally protected expression, nor seriously burdening such expression, is presumed to be constitutional under the First Amendment. As illustrated by the recent decision in United States v. Williams, speech proposing a criminal transaction is not "speech" in a constitutional sense and may be proscribed.155 In Williams, the Court upheld the conviction of a Florida man who violated a federal statute making it illegal to pander or solicit child pornography.156 The statute did not require the existence or possession of child pornography.157 Rather, the statute at issue in Williams targeted the collateral speech that introduces such material into the child-pornography distribution network.158 Justice Scalia wrote that offers to engage in illegal transactions are categorically excluded from the First Amendment.159 After referring to solicitation and conspiracy - laws punishing speech intended to induce or commence illegal activities - Justice Scalia stated, "Offers to provide or requests to obtain unlawful material ... are similarly undeserving of First Amendment protection."160 Read narrowly, Williams may be limited to the child pornography setting. Child pornography is so socially harmful that it is excluded from the right to possess obscene materials announced in Stanley v. Georgia.161 Distribution of child pornography may be punished even when those materials are not obscene under the Miller test.162 In effect, since it is illegal to possess child pornography, it is illegal to engage in speech proposing the transfer of such contraband images.163 A broader reading of Williams, though, shows that the case provides a theoretical justification for other laws punishing speech that proposes an unlawful transaction, even when that transaction does not involve contraband. Two non-contraband cases were cited in Williams as support for the proposition that offers to engage in illegal transactions are excluded from the First Amendment. The first, Pittsburgh Press, involved speech proposing an illegal employment practice.164 The second, Giboney, involved speech proposing a violation of the antitrust laws.165 Tellingly, Justice Scalia's Williams opinion offered the following example: Congress, if it chose to do so, could punish those who attempt to acquire national security documents.166 The collateral speech theory underlying Williams provides Congress and state legislatures with ample authority to enact laws punishing efforts seeking the illegal disclosure of classified or restricted information. Furthermore, when Williams is read along with Pittsburgh Press and Giboney, these cases show that the Court regards proposals to engage in illegal acts as having absolutely no value under the First Amendment; consequently, these cases do not warrant substantive First Amendment analysis. Justice Black's Giboney opinion is illustrative. In Giboney, Justice Black stressed that union picketing calculated to force a company to refuse to sell to non-union members, in violation of a state antitrust law, was not "speech" in a constitutional sense.167 As Justice Black said, "[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed."168 Justice Black's Giboney opinion illustrates the difference between coverage and protection, a major First Amendment distinction. Justice Black argued that the First Amendment can be absolute in its protection without being absolute in terms of its coverage.169 There are some activities - such as price fixing, extortion, and blackmail - that are totally outside the First Amendment's coverage. In each of these activities, the conduct at issue "is not taken to be speech in the First Amendment sense, and thus First Amendment modes of analysis are inappropriate."170 "Speech" activities that are covered, however, trigger analysis of the circumstances in which they may be protected. As examples, consider the following: political content is covered, but it is not protected if it is likely to produce imminent lawless action;171 defamatory speech is covered, but it is not protected if it is published with actual malice in the case of public figures and public officials.172 Courts have applied the Giboney approach in a variety of criminal cases, finding, for example, that criminal acts involving the use of language, such as mail fraud, conspiracy to defraud the IRS, and aiding and assisting the filing of false tax documents, presented no substantive First Amendment issues.173 The First Amendment, as the Second Circuit said, is "an unnecessary complication" in these types of criminal cases.174 Another federal court added that the First Amendment does not countenance an "end run around criminal law."175 In the newsgathering context, courts have displayed "general antipathy" to claims that journalists are exempt from the application of generally applicable criminal laws.176 For example, in United States v. Matthews, a freelance journalist who claimed to be researching a news story about child pornography was precluded from presenting to the jury a newsgathering justification for his trading in child pornography.177 The Fourth Circuit sustained the lower court, stating that the law does not "permit a defendant to present a defense unless the law recognizes that defense."178 In response to a claim by a reporters group that reporters are entitled to special exemptions from criminal law, the Fourth Circuit wrote that this argument was "ill-advised."179 As the Supreme Court wrote in Branzburg, the First Amendment does not confer "a license on either the reporter or his news sources to violate valid criminal laws."180 Indeed, the court's two reporter-source cases, Branzburg v. Hayes and Cohen v. Cowles Media Co.,i%x show the Court believes reportersource relations are governed by generally applicable laws. In both cases, the Court treated the reporter-source relationship as not much more constitutionally significant than the business practices at issue in Giboney.182 B. Applying a First Amendment Balancing Test The Court has acknowledged that laws not aimed at protected expression can nonetheless incidentally burden free speech and has developed a test, derived from United States v. O'Brien (hereinafter O'Brien), to assess such laws.183 The results of O'Brien's application, however, are not encouraging.184 As Professor Schauer observed, application of the O'Brien test "although open linguistically to the possibility of some bite, has resembled rational basis review. In this respect, therefore, application of the standard parallels the results in those cases . . . in which the relevance of the [F]irst [AJmendment is expressly dismissed."185 It is extremely unlikely that the Court would apply O'Brien with enough bite to invalidate application of a criminal solicitation law to the press.186 In the instances when the Court has exempted communicators from generally applicable laws, the Court found the groups, such as the Socialist Workers Party, were subject to harassment by government officials.187 In contrast, the Court believes the press is a politically powerful player that is "far from helpless to protect itself from harassment or substantial harm."188 Nor is O'Brien likely to reveal that the government is actually seeking to punish publication of the information rather than the means by which the information was acquired.189 Most importantly, O'Brien is unlikely to lead a court to conclude that a generally applicable criminal law has a disparate impact on the press. 190 Some judges191 and commentators192 have suggested other ad hoc balancing tests for the application of criminal law to newsgathering activities. The central problem with ad hoc balancing tests is that they provide little advance guidance to reporters. In effect, a reporter would have to be clairvoyant to anticipate how a court would later assess the propriety of her newsgathering activities. The uncertainty caused by ad hoc balancing would arguably cause reporters to "steer far wider of the unlawful zone."193 A brighter line between legal and illegal acts can be provided by adoption of a rule that a reporter's request for information from a source does not fall within the scope of solicitation laws. In short, "simply" asking for information does not rise to the level of a command. C. Protection for Asking for Confidential Information Although some states limit their solicitation statutes to certain crimes,194 such as solicitation to commit murder, today nearly all states have a general prohibition on criminal solicitations.195 State criminal solicitation laws use a variety of terms to describe the proscribed actions, from the mild, "requests," to the slightly stronger, "encourages," to the strongest terms, "importunes" or "commands."196 To avoid the problems posed by open-ended terms such as "requests" or "encourages," some states have drafted their solicitation statutes to focus on actions such as "commands."197 Longstanding practice by both journalists and prosecutors regards a journalist's request for confidential information as not falling within the scope of criminal solicitation statutes. In American history, as Professor Stone notes, "no journalist has ever been prosecuted" under the theory that it is illegal to solicit or receive classified information from a government employee.198 Although courts have not confronted application of criminal solicitation statutes to newsgathering, they have found in the tort context that "simply" asking for confidential information is a "routine"199 newsgathering technique. Embedded in this approach is the idea that sources solely bear responsibility for illegally disclosing restricted information;200 reporters commit no wrongdoing by asking for information. Stated differently, it is for the government or employers to deploy internal measures to protect their secrets,201 and as long as reporters do not attempt to gain information through illegal means (e.g., bribery, theft), requests for confidential information are legal. Applying criminal solicitation law to requests for information would disrupt a long-standing journalistic practice. In Nicholson v. McClatchy Newspapers a California appellate court rejected the argument that the press improperly acquired and published a confidential evaluation of a judicial candidate.202 California law requires evaluations of potential judicial appointees to be kept confidential.203 In 1983, however, two newspapers published the commission's "unqualified" rating of George Nicholson, a recently unsuccessful candidate for Attorney General. Nicholson filed suit claiming the publication was illegal because the newspapers "conducted an unreasonably intrusive investigation into Plaintiffs confidential and private affairs by means of soliciting, inquiring, requesting and persuading agents, employees and members of the State Bar to engage in the unauthorized and unlawful disclosure of information [knowing such information to be confidential]."204 The appellate court acknowledged that the press is not immune from liability for crimes and torts committed during newsgathering, but concluded that newsgathering was privileged "at least to the extent it involves 'routine . . . reporting techniques.'"205 The court defined these techniques as "asking persons questions, including those with confidential or restricted information."206 While the state could impose a duty on judicial commission participants to maintain confidentiality, it could not impose criminal or civil liability upon the press for obtaining and publishing information acquired by merely asking for it.207 Even where a reporter added a promise of confidentiality as an incentive to a source, the Florida Court of Appeals regarded asking for confidential information as a legitimate newsgathering technique.208 Consider the following letter written by St. Petersburg Times reporter Brad Goldstein to Patricia Diamond, executive assistant to the chairman of the Seminole Tribe of Florida: Dear Pat: The Florida Court of Appeals found Goldstein and another reporter's actions not to be tortious interference with the relationship between the tribe and its employees. The reporters "did not resort to methods tortious in themselves, such as defamation, bribery, 'physical violence, fraudulent misrepresentation and threats' and intimidation."210 The court of appeals described the techniques used in this case as "routine," adding that while the phrase is poorly defined, "certainly it includes" the practice of asking for information.211 Both the Nicholson and Seminole courts are correct in treating the behavior at issue as non-tortious212 and seeing these cases as publicationdamage actions in disguise.213 Therefore, these cases provide only a very preliminary and limited exploration of newsgathering liability issues. Furthermore these cases do not provide a complete view of the reporting process; it is naïve to suppose that reporters "simply" ask for information and cease asking when their requests are refused. Good reporters are persistent.214 As, explained by a police officer who improperly leaked a confidential document to Bob Woodward of the Washington Post, Woodward's repeated phone calls and conversations made the officer feel "pressured" to release the report.215 Surely repetitive phone calls and conversations, without more, are skillful routine reporting techniques rather than "commands" in violation of solicitation law. Certainly the outer contours of "routine" reporting techniques need to be fleshed out, but as a general guidepost, the core idea that reporters engage in no wrongdoing by "simply" asking for information reflects a widespread social consensus about the role of the press in probing for secrets. |
||||
| Although the Court has ruled that the press may publish confidential
information,216 it has never addressed the question of whether asking someone
for information, with knowledge that the information is not to be disclosed,
is a privileged activity under the First Amendment. It can be argued that
the Supreme Court's concept of "routine" newsgathering was never meant to
give journalists license to ask sources to divulge confidential information.
In that sense, the Nicholson and Seminole Tribe courts may have extended
greater constitutional reach to the phrase "routine" newsgathering than the
Supreme Court intended.
The phrase "routine" newsgathering originated in Smith v. Daily Mail Publishing Co., where reporters merely asked witnesses, police, and other officials for information about a crime involving a juvenile suspect.217 Neither disclosure of this information to the press nor possession of the information by the press was held to be illegal.218 Publication of this information by a newspaper, however, violated a West Virginia law. In what has become known as the Daily Mail principle, the Court ruled that the press has a nearly absolute privilege to publish lawfully acquired truthful information about a matter of public significance.219 Hence, the phrase "routine" newsgathering activity did not originate in a setting in which a reporter asked a source for confidential information. Nonetheless, the longstanding practice of journalists and the reluctance of prosecutors to prosecute the press for solicitation reveals that there is an unspoken cultural and political agreement that the press is free to probe for secrets in this fashion. The reluctance of prosecutors to take on the press in this arena is understandable. As indicated by the government's decision not to indict journalists along with Rosen and Weissman, the government understands prosecuting the press is politically messy.220 Similarly, the decision of Eli Lilly to go after two of the Zyprexa sealing-order conspirators but not Berenson or the New York Times is also illustrative of an important principle: it is not wise to aggressively attack a "powerful newspaper that buys ink by the barrel."221 Since leaks generally leave no smoking gun, prosecutors would face a politically messy task in acquiring information about how the press and sources interact. Wiretaps on journalists' telephones are not politically attractive, nor are subpoenas seeking documents or information from journalists. Plus, such inquiries are likely to lead to the embarrassing exposure of highly-placed political figures as leakers. In short, there is no political upside in applying solicitation law to the press. Legislatures are free to exempt the press from criminal laws, as some states have done, for example, with stalking,222 but at this point this step is unnecessary in the solicitation context given the consensus that sources alone bear responsibility for leaks. IV. ConspiracyLearned Hand described conspiracy as the "darling of the modern prosecutor's nursery" because of its frequent use and expansive nature.223 Similarly, Justice Jackson described conspiracy an "elastic, sprawling and pervasive offense."224 The pervasive aspect of conspiracy is underlined by the fact that nearly one quarter of all federal criminal prosecutions and a large number of state cases involve conspiracy counts.225 Indeed, the crime is so pervasive that Judge Frank Easterbrook of the Seventh Circuit wrote, "[P]rosecutors seem to have conspiracy on their word processors as Count I. "226 The elastic aspects of conspiracy law that make it especially troubling are the following:227 First, prosecutors in conspiracy cases do not need to prove the conspirators accomplished their illegal ends. Thus, a defendant's guilt or innocence is unaffected by the fact that the underlying crime was never committed.228 Second, conspiracy is a separate offense from the underlying crime the conspirators aimed to accomplish. Conspiracy does not merge with the underlying crime, and a defendant may be convicted for conspiracy to commit a crime as well as the actual accomplishment ofthat crime.229 Third, conspiracy law has an exception to the hearsay rule so that statements generally inadmissible become admissible in conspiracy cases.230 Fourth, any party to a conspiracy is liable for the actions of co-conspirators. This is known as Pinkerton liability; a defendant may be convicted for acts committed by others hi furtherance of a conspiracy even if the defendant did not participate in those acts.231 Fifth, the term conspiracy has vague and unpleasant connotations. As Justice Jackson wrote in his famous concurring opinion in Krulewitch v. United States,1*2 conspiracy "sounds historical undertones of treachery, secret plotting and violence on a scale that menaces social stability and the security of the state itself"233 As will be shown, in cases such as Dennis v. United States,234 conspiracy charges lead to an increased sense of danger and diminished protection for speech. News organizations or journalists have rarely been charged with conspiracy;235 some notable exceptions are Associated Press v. United States,136 the famous antitrust case, and Carpenter v. United States,137 in which a Wall Street Journal reporter provided two stockbrokers with information about to be published in the Journal so that the brokers could make trades in anticipation of the probable impact of the information on the market.238 The most prominent application of conspiracy doctrine in the free expression context has been against dissidents.239 Examples include World War I era anarchists,240 Communists during the Red Scare of the 1950s,241 and opponents of the Vietnam War.242 Commentators have criticized the approach taken by courts in these cases, noting that courts "have upheld use of conspiracy to prosecute for past illegal utterances while citing reasons for its use as an inchoate offense. At the same time, they have failed to perceive the difficulties of applying first amendment standards where projected or future advocacy has not yet occurred."243 Conspiracy cases brought against public communicators can be divided into two distinct groups. On the one hand are cases where the object of the conspiracy is speech, such as advocacy of Communist doctrine. Courts in these cases assess whether the speech may be protected. On the other hand are cases where speech is used to accomplish objectives such as gaining economic advantage through illegal means. In the latter type of case, the Court regards the speech at issue as not covered by the First Amendment; consequently, no substantive First Amendment analysis takes place. The Court has yet to address a conspiracy that aimed to produce speech but also included the illegal acquisition of information. A. Speech as the Objective of the Conspiracy Dennis v. United States, involving the provisions of the Smith Act punishing conspiracy to advocate violent overthrow of the government, shows how the charge of conspiracy can deflate protection for speech.244 To the Dennis plurality, discussion of political doctrine such as Marxism was within the coverage of the First Amendment,245 but the formation of "a highly organized conspiracy" posed special dangers to society.246 In effect, the conspiracy charge elevated the plurality's evaluation of the gravity of the danger and deflated the protection for speech.247 Chief Justice Vinson, writing for the plurality, referred to the Communist Party's "rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions" as creating a grave danger,248 albeit one which dissenting Justices Black and Douglas argued was not imminent.249 The fact that the petitioners were charged with "a conspiracy to advocate, as distinguished from the advocacy itself,"250 was immaterial to Chief Justice Vinson. He wrote, "It is the existence of the conspiracy which creates the danger. If the ingrethents of the reaction are present, we cannot bind the Government to wait until the catalyst is added."251 Justices Black and Douglas objected to the conspiracy charge, with Justice Black offering the following comment: These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date[.]252 Dennis was issued at the height of the Red Scare. Six years later, after McCarthyism had subsided, the Warren Court adopted a markedly different approach to the same issues. In Yates v. United States,253 the Court by a 6-1 vote downplayed the conspiracy issue and focused on a distinction between advocacy of abstract doctrine and advocacy directed at producing unlawful action.254 The Court held that advocacy of forcible overthrow as an abstract principle "divorced from any effort to instigate action to that end" was outside the scope of the Smith Act.255 Although couched in terms of statutory interpretation, this distinction was motivated by First Amendment principles and was later expressed as First Amendment doctrine in Brandenburg v. Ohio.256 B. Conspiracies Designed to Achieve Economic Goals In conspiracy cases involving proposals for unlawful transactions in violation of generally applicable laws, the Court has refused to engage in any substantive First Amendment analysis. Justice Black, who dissented in Dennis, wrote two opinions for the Court treating such conspiracies as outside the First Amendment's coverage. In Associated Press v. United States,251 Black rejected newspaper publisher claims that the First Amendment provided the press with an exemption from the antitrust laws, specifically the conspiracy provisions in Section 1 of the Sherman Act.258 At issue were Associated Press bylaws prohibiting member newspapers from selling news stories to non-members. Justice Black wrote, "The fact that the publisher handles news . . . does not . . . afford the publisher a peculiar constitutional sanctuary in which he can with impunity violate laws regulating his business practices."259 The First Amendment protected publishing from prior restraint or punishment;260 it did not provide an exemption from generally applicable laws such as the antitrust statutes. Justice Black concluded, "Freedom to publish is [guaranteed] by the Constitution, but freedom to combine to keep others from publishing is not."261 Similarly, in Giboney v. Empire Storage & Ice Co., as shown earlier, Justice Black stressed that union picketing calculated to force a company to refuse to sell to non-union members in violation of a state antitrust law was not "speech" in a constitutional sense.262 In both Associated Press and Giboney, the Court did not engage in any meaningful First Amendment analysis because it believed no constitutionally significant speech was at stake. Given these two different approaches, how should the conspiracy charge in the Rosen and Weissman case have been assessed? That the conspiracy's objective was to produce speech would seem to warrant First Amendment analysis of whether that speech was constitutionally protected. A complicating factor, however, is that the conspiracy involved Franklin's illegal disclosure of classified information. The government complained that since the conspiracy was premised on an illegal transaction, no First Amendment analysis was called for.263 C. Rosen, Weissman and Franklin: A Conspiracy to Violate the Espionage Act? Lawrence Franklin, an expert on Iran in the Office of the Secretary of Defense, was "frustrated" with American foreign policy in the Middle East.264 Franklin believed that by leaking information about Iran to the press, an Israeli diplomat, and Steven Rosen and Keith Weissman of AIPAC, Iran's threat to American security would be taken more seriously by the National Security Council (NSC).265 Franklin also had a more self-interested goal - he hoped to obtain a position at the NSC. The FBI had been monitoring the activities of Rosen and Weissman since 1999 as part of a wide-ranging investigation of possible Israeli espionage within the United States. When Franklin began meeting with them in 2003, the FBI was listening. Through this surveillance, for example, the FBI learned that at a lunch on June 26, 2003, Franklin orally disclosed classified information about potential attacks on American forces in Iraq, adding that the information was "highly classified."266 During a June 30, 2004 interview with the FBI, Franklin admitted to leaking classified information to Rosen and Weissman, an Israeli diplomat, and the press.267 Franklin agreed to cooperate with the FBI; following the FBI's instructions and wearing a hidden microphone, Franklin met with Weissman on July 24, 2004 and warned Weissman that the information he was about to disclose about Iran's actions in Iraq was highly classified "Agency stuff" and that Weissman could "get in trouble" for having the information.268 Later that day, Weissman shared the information with Rosen, other AIPAC colleagues, an Israeli diplomat, and Glenn Kessler of the Washington Post. The wiretap of Weissman and Rosen's telephone call with Kessler revealed Rosen offering Kessler a remark he frequently made when talking with journalists: "at least we have no Official Secrets Act."269 Unfortunately for Rosen and Weissman, Paul McNulty, the United States Attorney for the Eastern District of Virginia, upset a longstanding political consensus by viewing the Espionage Act as an effective way of combating leaks. Rosen and Weissman were charged with conspiring with Franklin to communicate national defense information (NDI) to those unauthorized to receive it.270 In announcing the indictments, McNulty stated, "Those not authorized to receive classified information must resist the temptation to acquire it, no matter what their motivation may be."271 Franklin, as a government employee who held a Top Secret security clearance and had repeatedly signed agreements acknowledging his obligation to safeguard classified information, had no First Amendment defense. As Judge Donald S. Russell said in the only other Espionage Act prosecution of a government official for leaking information to the press, a "recreant intelligence department employee" who leaks is "not entitled to invoke the First Amendment as a shield to immunize his act of thievery."272 Accordingly, Franklin pled guilty and agreed to assist the prosecution.273 Rosen and Weissman, as outsiders, however, had no employment or contractual obligation with the government and their unprecedented prosecution raised novel First Amendment questions.274 Judge T.S. Ellis III issued several pretrial rulings that created significant difficulties for the government. First, he imposed heightened scienter requirements as a way of protecting First Amendment rights.275 Second, he authorized the testimony of defense expert J. William Leonard as to whether the information at issue was properly categorized as NDI.276 Third, he authorized the testimony of former high-level officials such as Condoleezza Rice to show the government frequently used AIPAC as a diplomatic back channel.277 Although Ellis wrote comparatively little about the conspiracy issue, the scienter requirements he found necessary under the First Amendment would be an important aspect of his definition of conspiracy. A brief comment by the Fourth Circuit, however, undercuts Ellis's interpretation of the Espionage Act.278 Judge Ellis discussed the First Amendment issues in a memorandum opinion, known as the Section 793 opinion, that held that the conduct at issue, "collecting information about United States[] foreign policy and discussing that information with government officials (both United States and foreign), journalists, and other participants in the foreign policy establishment," was deserving of First Amendment scrutiny.279 This was central to Judge Ellis's reading of the statute. If he had agreed with the government and regarded the conduct as similar to the behavior at issue in Williams, no First Amendment glosses, such as proof of intent to cause harm, would have been necessary.280 Judge Ellis, though, did not go as far as the defendants wanted and rejected their claim that only insiders such as Franklin could be punished for the unauthorized disclosure of NDI.281 He found that common sense and New York Times Co. v. United States,282 in which several Justices suggested that a post-publication prosecution of the newspapers publishing the Pentagon Papers would be constitutionally acceptable,283 led to the conclusion that those outside the government can be punished for the "unauthorized receipt and deliberate retransmission" of NDI.284 To ensure the Espionage Act would be applied only where national security was genuinely at risk,285 Ellis imposed a number of limiting constructions on the Act. These were summarized as follows: [T]o establish a prosecution for conspiracy to violate §§ 793(d) and (e) by orally disclosing NDI, the government must prove beyond a reasonable doubt that at the time they entered the unlawful agreement, the defendants (i) knew that the information the conspiracy sought to obtain and disclose was NDI, i.e., knew that the information was closely held by the government and that the disclosure of the information would be damaging to the national security, (ii) knew the persons to whom the disclosures would be made were not authorized to receive the information, (iii) knew the disclosures the conspiracy contemplated making were unlawful, (iv) had reason to believe the information disclosed could be used to the injury of the United States or to the aid of a foreign nation, and (v) intended that such injury to the United States or aid to a foreign nation result from the disclosures.286 The government argued in an unsuccessful appeal to the Fourth Circuit that the statute only had two intent requirements: a) proof that the defendants had reason to believe that the NDI at issue could be used to the injury of the United States or to the advantage of any foreign nation; and b) proof that the defendants "willfully" communicated the information.287 According to the government, Judge Ellis labored "under a basic misunderstanding about the elements of the 'crime charged.' Specifically . . . one necessarily searches Section 793 in vain for the numerous judicial 'glosses' that the district court imposed ... on the statute's otherwise straightforward willfulness requirement."288 While the Fourth Circuit regarded an appeal of Judge Ellis's pretrial Section 793 order as inappropriate,289 it did offer the following comment: Although we do not possess jurisdiction to review the §§ 793 Order at this juncture, it is apparent that the district court worked tirelessly to balance the competing forces inherent in a prosecution involving classified information, and that its efforts to protect the fair trial rights of the defendants were not inappropriate. We are nevertheless concerned by the potential that the §§ 793 Order imposes an additional burden on the prosecution not mandated by the governing statute. Section 793 must be applied according to its provisions, as any other course could result in erroneous evidentiary rulings or jury instructions. The government abandoned the case in part due to the increased burdens posed by Judge Ellis's interpretation of the Espionage Act.291 But as the comment by the Fourth Circuit indicates, it is an open question as to whether that interpretation is correct. Stated differently, if the government's reading of the statute is correct, Section 793 of the Espionage Act could become a potent weapon against outsiders who conspire with insiders to disseminate NDI to unauthorized recipients. Strict enforcement of the Espionage Act in the context of leaking would require, however, a significant change in our political culture. Because this was a conspiracy case, it was technically unnecessary for the government to prove that Rosen and Weissman obtained and disclosed NDI. It was sufficient to show that the conspiracy's goal was the disclosure of NDI to unauthorized recipients.292 As a practical matter, though, the government acknowledged that to persuade a jury to convict, it must prove the conspirators succeeded in obtaining NDI.293 Hence, "a major battleground at trial" would have been a dispute over whether the information obtained and disclosed qualifies as NDI (information closely held by the United States and potentially damaging to the United States or helpful to a foreign nation if disclosed).294 In a significant pretrial ruling, Ellis said that the fact that information is classified was not determinative as to whether it was closely held; the defendants could show that the information was leaked or otherwise in the public domain.295 Further, the government's classification decision was inadmissible hearsay on the second prong of the NDI definition, whether unauthorized disclosure might damage the United States or aid a foreign nation.296 Ellis's ruling meant that unlike FOIA cases where courts defer to executive branch officials on matters of classification,297 the jury would decide whether the information was NDI largely on the basis of expert testimony. To that end, Ellis authorized the testimony of J. William Leonard, a retired government official with "unsurpassed" experience in information classification,298 who was prepared to testify that the information at issue was not NDI.299 After the government dropped the charges, Leonard wrote in his blog that he became convinced that the Government would not be able to demonstrate that the specific information the defendants were accused of disclosing was indeed classified in accordance with the process set forth by the President or that, in other instances, it would be easy for the defense to demonstrate that the information was already widely known and thus part of the vast morass of official information subject to the frequent abuse of overclassification.380 To disprove that they knew their activities were unlawful, Rosen and Weissman also sought to show that American diplomats frequently used AIPAC as a back channel for U.S. diplomacy. Judge Ellis authorized subpoenas for sixteen high-level officials, such as Condoleezza Rice, to demonstrate that Rosen and Weissman frequently had meetings with officials in which classified information was disclosed.301 Rosen and Weissman claimed that in their minds "there was simply no difference between the meetings for which they [were] not charged and those for which they [were] charged, and that they believed the meetings charged in the Indictment were simply further examples of the government's use of AIPAC as a diplomatic back channel."302 In fact, lawyers for Rosen and Weissman wrote to Attorney General Eric Holder that two of the government officials other than Franklin who prosecutors said passed classified information to the defendants "have told both us and/or government investigators, that they were authorized to speak with our clients and knew full well (and even intended) that our clients pass the information on to others."303 It is critical to emphasize that Rosen and Weissman were not charged with the substantive offense of unauthorized dissemination of NDI. Rather, they were charged with conspiring to commit this offense. The central elements of a conspiracy are "an agreement among the defendants to do something which the law prohibits; knowing and willing participation by the defendants in the agreement; and an overt act by the defendants in furtherance of the purpose of the agreement."304 Although the indictment alleged fifty-seven overt acts in furtherance of the conspiracy, it was not necessary to prove all of these acts, only that one conspirator committed one of the alleged overt acts.305 Nor was it necessary to prove that the overt act was independently criminal, as long as the act was "an effort to accomplish some object of the conspiracy."306 This meant that Rosen and Weissman' s cultivation of a relationship with Franklin - consisting of mealtime meetings and in one instance taking Franklin to a Baltimore Orioles baseball game - was criminal if done with the mental states necessary to violate the Espionage Act. As I wrote elsewhere, if Rosen and Weissman's cultivation of a relationship with Franklin was illegal, "then reporters are in widespread violation of the Espionage Act. Reporters carefully cultivate relationships with government officials, frequently meet for meals with those officials, ask about classified topics - knowing the restraints upon those officials - and promise anonymity in exchange for information."307 Conceivably reporters would be even more at risk because they solicit classified information from government sources. The indictment did not claim that Rosen and Weissman solicited classified information from Franklin; their crime was agreeing to listen to Franklin with knowledge that his disclosures and their subsequent disclosures were illegal. Recall that under Bartnicki, knowledge of the tainted origin of information does not render its publication illegal.308 Rosen and Weissman argued that even if they were aware of the illegality of Franklin's disclosures to them, their disclosures to others were protected.309 By contrast, the government claimed Rosen and Weissman were not "mere" recipients; they were conspirators.310 Judge Ellis did not address the relevance of Bartnicki in his Section 793 order, but his ruling on burden of proof issues required that the government prove Rosen and Weissman knew of the illegality of Franklin's acts.311 A close reading of Bartnicki reveals what may be a significant distinction between the wiretapping laws at issue in that case and Section 793 of the Espionage Act. The wiretapping laws do not prohibit the receipt or possession of illegal recordings.312 In contrast, Section 793(e) prohibits unlawful unlawful possession of NDI.313 Moreover, Bartnicki and its progeny involve the passive receipt of information. It may be that Rosen and Weissman's cultivation of a relationship with Franklin goes far beyond the boundaries set by Bartnicki.314 Indeed, any activities that can be cast as an inducement for Franklin to violate his security agreements might be regarded as outside of Bartnicki's privilege. Apart from whether Judge Ellis's reading of Section 793 is correct, the other significant unanswered question in this case is the relevance of knowledge of the illegality of a source's disclosure. Journalists do passively receive information from sources, but more often they seek information from sources. The newsgathering process would be fundamentally altered if journalists were liable for crimes such as conspiracy whenever it could be shown that they went beyond waiting for unmarked packages in the mail. ConclusionCongress has the authority to enact measures protecting the government's secrets.315 Restrictions aimed at government insiders, if properly crafted to avoid issues such as vagueness, do not raise constitutional questions as government employees do not have a First Amendment right to leak information obtained in the course of their employment.316 More novel problems are presented by criminalization of the activities of outsiders, such as journalists, who solicit classified information or cultivate relationships with insiders to receive leaks. As this Article shows, the right of the press to publish confidential information is well established. There is, however, a paucity of constitutional doctrine protecting newsgathering activities that seek the leaking of confidential information. If Williams means what a fair reading suggests, Congress may punish outsiders who solicit classified information or conspire to receive leaks. The question is why Congress has yet to do so. The answer is found in the consensus in Washington that leaks to the press play an especially vital role in the democratic process.317 Unless there is a massive realignment in our political culture, Congress will not enact something akin to the Official Secrets Act. Similarly, the anomalous prosecution of Rosen and Weissman upset a longstanding consensus that the Espionage Act is an unwieldy instrument for prosecuting leaks. Significant questions remain about Judge Ellis's interpretation of the Espionage Act, and these questions increase the need for legislative clarification318 but are unlikely to motivate prosecutors to attempt to apply the Espionage Act to the press. The political consensus about the importance of leaks to the press also explains why Rosen and Weissman were charged, while Bob Woodward of the Washington Post remained free to obtain and publish the government's secrets.319 The activities of Rosen and Weissman are constitutionally indistinguishable from those of Woodward, yet prosecutors in the case viewed the defendants as playing a less important role in society than the press.320 Indeed, prosecutors emphasized that Rosen and Weissman were not members of the press but were "lobbyists representing for all practical purposes the interests of a foreign country."321 Moreover, an investigation of the activities of lobbyists is not accompanied by the same political considerations as an investigation of journalists. There is little appetite among Washington policy makers to probe the newsgathering methods of the press. If special prosecutor Patrick Fitzgerald's actions had been subject to Department of Justice approval, his leak investigation would have concluded without the forced testimony of Judith Miller and other reporters.322 The Department of Justice guidelines concerning the subpoenaing of reporters are not constitutionally mandated, but they reflect deeply held political values and preferences.323 In an important 1974 address about press-government relations, Justice Potter Stewart said the press "may publish what it knows, and may seek to learn what it can. But this autonomy cuts both ways."324 As an example, Stewart noted that the Constitution "is neither a Freedom of Information Act nor an Official Secrets Act."325 By this, Stewart meant that policy on many issues concerning the flow of information is defined not by constitutional law but by the tug and pull of political forces. These views are also mirrored by the recent comments of Max Frankel, former executive editor of the New York Times. Frankel urged prosecutors with the authority to subpoena to the press to take a hands-off approach, that is, to carefully exercise their discretion. "Prosecutors of the realm," he wrote, "let this back-alley market [in leaks] flourish. Attorneys general and others armed with subpoena power, please leave well enough alone. Back off. Butt out."326 In an era when news organizations are forced to downsize, resulting in fewer "shoe-leather journalists to ferret the story out[,]"327 it would be especially ill-advised for the government to criminalize longstanding newsgathering activities.
|
||||
