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June 06, 2006

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saul levmore

Two quick comments. First, assuming, as your post implies, I think, that the press is occasionally responsible when it holds back some newsworthy infomation, the question is why it does so. Perhaps because it is populated with good and cautious citizens. But perhaps because it fears prosecution (despite the history of none) - in which case the optimal level of prosecution is very low but not zero. Put differently, there are very few areas, and none comes to mind, in which we are satisifed that we will get appropriate behavior without any fear of prosecution or liability, so why should we do so here?

Second, I would not think you would hesitate to encourage prosecution for the publication of other sorts of government secrets, though the question might be whether it ought to be the press that is prosecuted. If someone with an access to government labor statistics or agricultural reports leaks information in order to profit from the stock market (or other markets), we do not hesitate to prosecute the trader or perhaps the leaker. Would it be so wrong to prosecute a stock market columnist who used this sort of government information? Perhaps the argument needs to be restricted to certain kinds of government secrets.

Eh Nonymous

I know you don't do the Post Chaining thing, but could you at least link to the prior, nearly identical post of your Committee memo, which covered the same ground and drew the same kind of comments this one will?

I linked it under my URL, and its title is "Classified Information and the Press"

gstone

Saul,
With respect to your first point, we rely not just on the "goodness" of publishers, but on their recognition that if they publish information that gravely harms the national security without justification they're likely to be out of business rather quickly. That's a pretty potent incentive, especially because their conduct is, by definition, completely public. Moreover, the First Amendment is filled with areas where we don't punish what might otherwise be punishable speech because when all factors are considered we get a "better" overall outcome. For example, this is precisely what the overbreadth doctrine is about. In other situations, we punish people only if they had specific intent -- negligence or even recklessness is insufficient. Much of this is about "chilling effect" -- the concern that because speakers don't capture the full benefit of their speech they will too readily be deterred from speaking.
As for the second point, as you suggest, not all speech is equally valuable under the First Amendment. But even in your example, I would limit criminal punishment to the leaker rather than the columnist.

Bob

"By raising the specter of such prosecutions..."

You mean persecutions.

"The 1st Amendment is not an absolute. The press may be held accountable for publishing libel, obscenity, false advertising and the like."

Yes, but not by the government. The damaged party (an individual or a corporation...you can't libel a government) should sue for redress.

"Government secrets are something else entirely."

Are they? How? I suspect "government secrets" are merely a convenience for those in power to cover up wrongdoings. If an act is right, they wouldn't need to keep it a secret...and they wouldn't.

All this categorizing of secrets is poppycock. It just creates a legal quagmire. Especially, because we all know, it will be the government who decides what is legitimate and what isn't. And if that were to be the case, then the press would have to ask permission from the government to publish anything. Why? Because how does the press know what is or isn't a secret? Catch-22.

If the government can't keep its secrets, that's their problem. The press should publish everything it can get its hands on. Why should the press be punished for the governments failure to keep their own secrets? The government should only be allowed to punish the leaker, if they can. The press must remain off-limits to the govt.

Kimball Corson

For a responsible press, this threat of prosecution is basically one of petty retaliation for disclosure of what I will broadly call cover-ups. That is certainly ignoble, but it is also a compromise on the public’s right to know. It is undemocratic as well because it protects against transparency in government where transparency is needed most. For an irresponsible press, an argument of sorts can be made that prosecution of some type might make sense for legitimate and non-newsworthy secrets, but not for the rest. The problem then would become the chilling effect of possible miscategorization by a paper. For that reason and as Geof suggests, this is an area that is probably best left be.

Kimball Corson

How about this instead: deem it legally treasonous to take any action in any capacity that even arguably infringes upon or circumscribes any of our Bill of Rights.

As it now stands, our Bill of Rights is largely defenseless against governmental efforts to compromise it so government can do what the Bill precludes. Charges of treason could afford the Bill with a suit of armor and right this imbalance. Gonzales came up with the right idea -- treason-- only his proposal applies the doctrine in the wrong direction.

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