ACSBlog: The Blog of the American Constitution Society

by Geoffrey R. Stone, the Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago and the author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (W. W. Norton 2004). Professor Stone's reflections are cross-posted at Huffington Post.

Never once in the history of the United States has the national government criminally prosecuted the press for publishing information the government would rather keep secret. In recent weeks, however, the Bush administration and its advocates, including Attorney General Alberto Gonzalez, have repeatedly threatened to prosecute the New York Times and the Washington Post for publishing their Pulitzer Prize-winning expos?©s of the administration's secret prisons in Eastern Europe and secret NSA surveillance of American citizens.

Specifically, the President and some of his supporters have threatened to prosecute reporters and publishers for violating a provision of the 1917 Espionage Act, which provides in part that "whoever having unauthorized possession . . . of information relating to the national defense, which information the possessor has reason to believe could be used to the injury of the United States . . . willfully communicates . . . the same to any person not entitled to receive it . . . is guilty of an offense punishable by 10 years in prison."

For at least three reasons, such threats are largely empty ones.

First, this provision was never intended to reach the press. When the Espionage Act of 1917 was initially proposed by President Woodrow Wilson, it included a section that would expressly have made it a crime for the press to publish information that the President had declared to be "of such character that it is or might be useful to the enemy." Congress overwhelmingly rejected this proposal, with members of both parties characterizing it as "un-American" and as "an instrument of tyranny." The provision of the 1917 Act invoked by the Attorney General Gonzalez was directed at enemy spies, not at reporters and newspapers attempting to inform the American people about the activities of their government. Unfortunately, the Bush administration appears not to know the difference.

Second, if the section of the 1917 Act applied to journalists, it would unquestionably violate the First Amendment. Laws regulating speech must be precisely tailored to prohibit only speech that may constitutionally be proscribed. This requirement addresses the concern that overbroad laws - laws that are not narrowly crafted - will chill the willingness of individuals to speak freely because of a fear that their expression might be unlawful. Not surprisingly, because the 1917 Act was drafted before the Supreme Court had ever interpreted the First Amendment, it does not incorporate any of the safeguards the Court has since held the First Amendment requires. For example, the Espionage Act provision is not limited only to publications that pose a "clear and present danger." For this reason, any prosecution of the press under this section would be dismissed out-of-hand because the statute itself is unconstitutional.

Third, if Congress today enacted legislation incorporating the requirements of the First Amendment, it could not reach the expos?©s published by the New York Times and the Washington Post, for they were clearly protected by the First Amendment. Under existing law, such a statute would have to be limited to publications that (a) do not disclose information of legitimate and important public interest and (b) pose a clear and present danger of serious harm to the national security. The expos?©s of the Bush administration's secret prisons and secret electronic surveillance of American citizens clearly concerned matters of legitimate and important public interest, and the administration has made no showing that these disclosures created a clear and present danger of serious harm to the national security. Thus, under a properly drawn statute these disclosures could not constitutionally be punished.

I do not mean to suggest, of course, that the government has no interest in keeping military secrets or that it may never punish the press for disclosing classified information. To the contrary, the government may take many steps to keep such information secret, including (in appropriate circumstances) firing and even criminally prosecuting public employees who unlawfully leak such information. Moreover, in narrowly-defined circumstances, the government may prosecute the press for disclosing classified national security information. Such a prosecution might be consistent with the First Amendment, for example, if, for example, a newspaper reveals that the government has secretly broken an important al Qaeda code, where this disclosure causes al Qaeda to change its code. But the government can never punish the press for publishing information of legitimate and important public concern, and especially not when the information reveals possible government wrongdoing, as was true in both the secret prison and NSA situations. Such revelations are essential to effective self-governance and they are at the very core of the First Amendment.

Although the continuing threats of the Bush administration are largely bluster, they must nonetheless be taken seriously. They represent further steps in this administration's relentless campaign to intimidate and control the press, and to keep the American people in the dark. This, in itself, poses a clear and present danger to our democracy.