244244 Chapter 7 | The Mediathey will remain anonymous in any coverage based on the information they provide.
These assurances are an important factor in the decision to leak information, especially
classified information. However, these assurances are not absolute. Reporters and
their editors can, under certain circumstances, be compelled by a court to reveal the
sources for their stories. Although some states have shield laws that allow reporters to
refuse to name their sources, there is no such law at the federal level. As a result, federal
prosecutors can ask a judge to force journalists to name their sources, on the grounds
that the source’s identity is fundamental to the prosecutor’s case. If the judge agrees,
reporters can be jailed for contempt indefinitely unless they name their sources.
To be clear, leaking or the publication of leaked information is not illegal as long
as the information is not classified. For example, many press stories have reported on
things that President Trump has said or threatened to do in private conversations with
his senior advisers. Notably, reports surfaced that Trump had threatened to fire Robert
Mueller, special prosecutor in charge of the investigation into links between the Trump
campaign and Russian intelligence services. While these revelations were certainly
embarrassing to Trump, whoever leaked the information did not break the law
(although that person may have put his or her job at risk). In another example, Senator
Dianne Feinstein released a transcript of a Senate committee’s interview with a firm
that had investigated a Trump–Russia connection. Trump condemned her in a tweet
as “Sneaky Dianne Feinstein,” who “releas[ed] testimony in such an underhanded and
possible illegal way,” but, as a ranking member of the committee, Feinstein was not
acting illegally when she gave the transcript of the meeting to the media.
Notwithstanding the freedom of the press guaranteed in the Bill of Rights, reporters are
subject to legal limitations that present hurdles as they research stories. If the government
can convince a judge that publication of a particular story would lead to immediate harm
to a person or persons, a judge can halt publication. But this test sets the bar extremely high
for stopping publication of a story. As we discussed in Chapter 4, most attempts to prevent
publication have been unsuccessful. In addition, it is not clear as a practical matter how the
legal system could control the release of information via social media.
To appreciate the issues surrounding classified information and prior restraint,
consider the case of Edward Snowden. While working as a contractor for the U.S.
National Security Agency (NSA), Snowden downloaded a number of files that
documented the NSA’s surveillance activities, including the collection of data on
Americans’ phone calls overseas and the monitoring of foreign politicians’ cell phones.
In 2012, Snowden approached several major publications across the world, including
the Washington Post, to offer access to these documents. After several months of
negotiation, the Post would not agree to all of Snowden’s conditions—among other
things, he wanted certain documents to be published in their entirety, while the
Post wanted to hold back some classified information.^21 Snowden then came to an
agreement with a British newspaper, the Guardian, which has gradually made the
documents public, although he also allowed the Post to publish some of the documents.
The Post’s refusal to accept Snowden’s demands was the product of several months
of discussions with the U.S. government over what information could be released
without harming national security or placing confidential sources in jeopardy.
Although some government officials mentioned the possibility of invoking the prior
restraint prohibition, no attempts were made to do so. In any case, even if the Post could
have been deterred from publication, the information would have soon appeared in
stories published by other outlets.
The Snowden episode illustrates how government officials work to deter leaks or
influence the media’s coverage of a story without resorting to prior restraint. Laws
prohibit government officials’ disclosure of classified information in the first place,
and recent administrations have been very aggressive about prosecuting leakers.Leaks coming out of the Trump
administration have raised questions
about what the role of the press should
be in holding government accountable.
Reality Winner, an NSA contractor
accused of leaking a report on Russian
interference in the 2016 election to news
organization The Intercept, pled guilty
to releasing classified information.Full_08_APT_64431_ch07_232-261.indd 244 16/11/18 1:39 PM