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Tuesday, December 15, 2015
FOI Toolbox

With leaks, be prudent and thank the First Amendment

By Roy S. Gutterman

For better or worse, Edward Snowden, WikiLeaks and the Sony hacking scandal have made headlines around the world by taking information in violation of the law and sharing it with the press.

Importantly, journalists who reported on the information disclosed in those leaks have been shielded from extraordinary legal risk — and that is probably no accident.

The reason: Publishing information provided by someone who broke the law is generally not a crime in the United States because of the First Amendment. That is true as long as a news organization and its journalists played no active role in obtaining the ill-gotten material.

Nevertheless, mere accusations or charges levied against a reporter could create more than a nagging headache. And efforts to tie reporters to crimes — such as solicitation, receiving stolen property or even violation of the Espionage Act of 1917 — also present palpable concerns for the media, even if these efforts tend to be difficult to prosecute.

Legal Analysis

Information given to a reporter that was the result of some illegal conduct, such as classified documents, hacked information or illegally recorded telephone conversations, could provide an integral element to a wide range of stories.

Courts often refer to journalists’ use of this type of material as “lawfully obtained truthful information.” The Supreme Court has weighed in on this topic, ruling for the media in cases ranging from publication of names of rape victims to illegally recorded cellphone conversations to the publication of top-secret government documents known as the Pentagon Papers.

When courts characterize journalists’ use of leaked information as lawfully obtained truthful information, the underlying action of how the reporter obtained the information comes under scrutiny. This legal analysis pretty much requires that the reporter played no role in the commission of a crime.

What does that mean? A reporter hacking into a computer or breaking into an office to steal documents would violate both the law and the profession’s ethical standards. Sometimes, though, a reporter must work with a source to divulge confidential, privileged or otherwise classified information. It may require a delicate balance of asking for information, but not necessarily encouraging that source to break the law.

Thus, journalists must cultivate sources, including some who may cross the line into whistleblowers and leakers.

Working with such sources requires building trust. It is a two-way street: The journalist has to be concerned with the validity and integrity of the information being leaked, while the source must trust that the reporter will not reveal that source’s identity, if indeed confidentiality is an element of the transaction.

Some sources may have limited protection under whistleblower laws. The reporter may have limited protections under various state shield laws or reporters’ privilege protections. However, reporters’ privilege protections do not extend to federal courts or, more specifically, federal grand jury investigations, which are often the venue for leak investigations (something SPJ and many other groups would like changed in advocating for a federal shield law).

Important Implications

Stories based on leaked documents, confidential sources or other classified information are often compelling and important, especially in areas covering national security, military operations, or corruption or other malfeasance.

But these stories can be overshadowed by a subsequent investigation to unmask the leaker, some who not only take significant risks but also end up breaking laws.

Though grand jury operations are conducted in secret and governed by their own confidentiality rules, reports have estimated that the Obama administration has had up to eight leak investigations in the works, some related to such figures as Snowden, the former NSA contractor living in exile in Russia, and WikiLeaks’ Julian Assange, living in exile in the Ecuadoran embassy in London.

As long as the leaks continue to drip, there will be tension between the press and government or other entities that want certain information out of the press. The First Amendment will still be there to protect the press — as long as the reporters obtained the information lawfully.

Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the Newhouse School at Syracuse University. Email: rsgutter@syr.edu.

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