Prosecution of Under the Espionage Act? Not So Fast. Kurt Wimmer and Stephen Kiehl

No has ever been prose- under the Espionage Act would be im- to any person not entitled to receive cuted under the Espionage Act. There proper and even unconstitutional. it, or willfully retains the same and long has been debate over whether First, a proper construction of Sec- fails to deliver it to the officer or em- the statute could apply to journalists, tion 793(e) would avoid the overwhelm- ployee of the entitled however, and there is newfound concern ing constitutional issues and find that to receive it.8 that the Trump Administration—led the statute does not, and was not meant At the outset, it is worth empha- by a president who has openly declared to, apply to journalists engaged in the sizing that Section 793(e) is limited to 1 “war with the media” —will pioneer act of publishing and reporting. Sec- documents and information “relating such a prosecution. The recent prosecu- ond, if Section 793(e) is held to apply to to the national defense.” This is a term tion of NSA contractor Reality Winner journalists on its face, then the statute, of art that would not encompass every for leaking sensitive information to as applied to journalists publishing leak coming out of the government, indicates that the Trump information in the course of their pro- or all . Rather, Administration will not hesitate to use fession, violates the First Amendment to qualify as information “relating to 2 the Espionage Act to pursue leakers, and any prosecution under it would be the national defense,” the information a practice that was employed by the invalid. The statute constitutes a con- must be (1) “potentially damaging to 3 Obama Administration. tent-based restriction, subject to strict the United States or might be useful to Although administrations have scrutiny, and the government cannot an enemy of the United States,” and (2) generally interpreted the Espionage Act overcome its burden of proving that the “closely held” by the government.9 4 so as not to apply to journalists, either prosecution of journalists is narrowly With that caveat in mind, the 5 through the “mercy of noblesse oblige” tailored to protect national security. statute’s text would seem to apply to or prosecutorial self-restraint, Attorney Third, there are several additional ways a journalist who has obtained leaked in- General refused to commit in which the prosecution of a reporter formation that is related to the national to upholding this tradition when asked would be unconstitutional: the statute defense. She possesses information that 6 about it at his confirmation hearings. is unconstitutionally vague; this rare she is presumably unauthorized to pos- And, as a senator and the Republican application of the statute constitutes sess, and the information pertains to the leader on the Senate Judiciary Commit- selective prosecution; and the statute “national defense.”10 If the information tee, Attorney General Sessions consis- amounts to a prior restraint. was considered to be a “document,” tently opposed proposals to create a The Text of the Espionage Act “writing,” or “note,” she would violate federal privilege to permit journalists to The Espionage Act was first passed the statute by willfully continuing to protect the identity of sources, decrying by Congress in 1917, after America possess the document without turning the laws as means of “protect[ing] those entered World War I, and amended it in (not to mention willfully “commu- who use the media to illegally expose through the Internal Security Act of nicat[ing]” or “transmit[ing]” it).11 7 America’s national security secrets.” 1950. Now codified at 18 U.S.C. §§ 793- If the journalist possessed only Some writers recently have focused 798, the part that poses the greatest and “information”—i.e. not a physical on the language of the Espionage Act broadest risk to journalists is Sec- piece of U.S. property—she would and, based on nothing more, assert- tion 793(e). need to have “reason to believe” the ed that journalists certainly could be Section 793(e) provides for the fine or information could be used to “injur[e]” prosecuted under that Act. But reading imprisonment of: the United States or help “any foreign the text of a statute, of course, is only Whoever having unauthorized posses- nation.”12 Though “reason to believe” the first step in determining whether a sion of, access to, or control over any is a higher mens rea requirement than criminal law could be used to silence or document, writing[,] or note relating “willfulness,” it does not provide much punish the press. Quite to the contrary, to the national defense, or informa- comfort as many notable leaks—such as we see a number of defenses and bases tion relating to the national defense the news that President Trump shared on which prosecution of journalists which information the possessor has national security intelligence with the reason to believe could be used to the Russian foreign minister—would give Kurt Wimmer and Stephen Kiehl Coving- injury of the United States or to the the author “reason to believe” that the ton & Burling LLP, Washington, D.C. The advantage of any foreign nation, will- information could adversely affect the authors are grateful for the inspired research fully communicates, delivers, trans- United States and aid foreign nations. and analysis of Samson Schatz, Stanford Law Class of 2018, without whom this article mits or causes to be communicated, In other words, as Harold Edgar and would not be possible. delivered, or transmitted … the same Benno C. Schmidt said in their pivotal

24  Communications Lawyer  Spring 2017 1973 piece on the Espionage Act, “If includes particular language in one sec- rize, require, or establish military or these statutes mean what they seem tion of a statute but omits it another … civilian censorship or in any way to to say and are constitutional, public it is generally presumed that Congress limit or infringe upon freedom of the speech in this country since World War acts intentionally and purposely in the press or of speech as guaranteed by II has been rife with criminality.”13 disparate inclusion of exclusion.”20 the Constitution of the United States The Proper Interpretation of the Act, Second, a reading of “will- and no regulation shall be promulgated Consistent with the Constitution ful”—“willfully communicates, delivers, hereunder having that effect.”27 These 1. Section 793(e) Does Not Apply [or] transmits” and “willfully re- are powerful words that should give any 21 to Journalists Engaged in theAct of tains” —precludes journalists acting in court confidence to narrowly construe Reporting and Publishing. the course of their business. Edgar and Section 793(e) so as not to apply to Schmidt read Section 793(e) such that journalists. A foundational defense is that “conduct is not willful for purposes of 2. The Espionage Act Is an Section 793(e), when considered in its the Section, when undertaken for any statutory context and with its legislative Unconstitutional Content-Based of the variety of reasons . . . that reflect Restriction of Freedom of the Press. history, does not apply to journalists interests protected by the First Amend- exercising their First Amendment ment.”22 In other words, when acting To the extent Section 793(e) is rights. The statute can—and should— in the course of their business—report- applied to journalists, it clearly re- be construed to avoid a conflict with the ing, writing, and publishing news, all stricts First Amendment activity in First Amendment. The Supreme Court actions that are critical to the founda- proscribing what journalists may or has allowed that courts may “strain tional freedom of the press—journalists may not publish ostensibly in the to construe legislation so as to save it cannot satisfy the mens rea elements name of national security. The First against constitutional attack” though contained in the statute. Amendment provides that “Congress they “must not and will not carry this The legislative histories of the 1917 shall make no law . . . abridging the 28 to the point of perverting the purpose and 1950 acts—as interpreted by Edgar freedom of speech, or of the press.” 14 of a statute.” Because the Espionage and Schmidt in their exhaustive study “The predominant purpose of the [First Act is highly politicized, confusing, and of these statutes—convey a “clear Amendment] . . . was to preserve an old, courts have significant incentive message” that “publication of defense untrammeled press as a vital source of to avoid constitutionalizing the issues information for the purpose of sell- public information. . . .[S]ince informed and to simply read Section 793(e) so ing newspapers or engaging in public public opinion is the most potent of as not to apply to journalists acting in debate is not a criminal act.”23 Edgar all restraints upon misgovernment, the course of their profession. This is and Schmidt walk carefully through the the suppression or abridgment of not nearly as implausible as some have record of Congressional speeches and the publicity afforded by a free press assumed. letters to show that these acts were not cannot be regarded otherwise than with 29 First, Section 793(e) forbids “com- understood by their authors to crim- grave concern.” In fact, “[t]he press municat[ion], deliver[y], or trans- inalize the work of reporters.24 Judge was protected so that it could bare the miss[ion]” but does not specifically Gurfein—the judge presiding over the secrets of government and inform the 15 include “publication.” Though it may Pentagon Papers case at the district people. Only a free and unrestrained seem trivial to argue that the act of court—also found the legislative history press can effectively expose deception in 30 publishing does not lie within the plain persuasive.25 Judge Gurfein quotes government.” meaning of communication, delivery, or Senator Ashhurst’s statements during With this grave concern for preserv- 16 transmission, Congress arguably un- congressional debate over the 1917 Act: ing the vital role of the press in our derstood the act of publishing as sepa- “‘[F]reedom of the press’ means noth- democratic system, courts approach rate and unique from the other actions. ing except that the citizen is guaranteed restraints of the press with a high de- In Sections 794, 797, and 798, Congress that he may publish whatever he sees gree of skepticism. Therefore, if Section specifically forbids the act of “pub- fit and not be subjected to pains and 793(e) is deemed to apply to journalists lishing” certain information, at certain penalties because he did not consult the on its face, then as applied, the statute 17 times. If the words in § 793(e)—“com- censor before doing so.”26 These words constitutes a content-based restriction. municates, delivers, [or] transmits”— informed Judge Gurfein’s confidence And “[c]ontent-based laws—those that included “publishing,” the subsequent that Congress did not intend for the Act target speech based on its communi- statutes would be redundant. Justices to apply to journalists in the course of cative content—are presumptively un- Douglas and Black, concurring in the their work. constitutional and may be justified only judgment in New York Times Co. v. And perhaps the best illustration if the government proves that they are 18 United States, understood the omis- of congressional intent is the opening narrowly tailored to serve compelling 31 sion of publishing from Section 793(e) proviso to the Internal Security Act state interests.” to mean that the statute “does not ap- of 1950 (the act that amended Section A regulation is content-based if 19 ply to the press.” The Supreme Court 793(e) to its current form): “Nothing in the “law applies to particular speech has emphasized that “where Congress this Act shall be construed to autho- because of the topic discussed or the

Communications Lawyer  Spring 2017  25 idea or message expressed.”32 In Reed v. government right back into the highly to journalists. Either these journalists Town of Gilbert, the Supreme Court scrutinized area of prior restraint. By must jeopardize their own liberty to re- affirmed that if a law is content-based arguing that deterrence is what makes port newsworthy facts, or very possibly, on its face, a court need not inquire as the law effective, the government tacitly the facts never make their way into the to the legislature’s purposes for enact- admits the statute functions as a prior public sphere. The First Amendment ing the statute in order to apply strict restraint. Thus, Section 793(e) is either saves journalists from deciding between scrutiny.33 Section 793(e), on its face, ineffective and thus unconstitutionally those two choices. constitutes a content-based restriction applied to journalists for lack of narrow Lastly, Section 793(e) is not narrow on speech. The statute only restrains tailoring, or it is effective and thus an tailored because there are numerous speech pertaining to the national de- unconstitutional prior restraint. alternatives through which the govern- fense.34 Second, the law is overinclusive. On ment can safeguard national security Under strict scrutiny, the court asks its face, the law brings under threat of without so severely burdening First whether the statute is narrowly drawn criminal liability a tremendous amount Amendment rights.39 One alternative to serve the government’s compelling of newsworthy reporting that does not is for the government to continue its interests. Here, there is no dispute that threaten national security (or at least informal negotiations with media preserving the national defense is a where the risks to national security are organizations when a specific issue of compelling interest.35 Therefore, the far outweighed by the public interest). concern arises. A common practice analysis turns to whether prosecuting Several examples highlight the danger- among the press, already, is to approach journalists under Section 793(e) is nec- ous reach of the law: the government with a piece of leaked essary to protect that interest. • On January 12, 2017, the information before publishing stories 40 Prosecuting journalists under Sec- Washington Post reported that about it. Second, journalists can still tion 793(e) is not narrowly tailored to Retired Lt. Gen. Michael T. Flynn, be prosecuted or sued under generally 41 safeguard America’s national securi- the incoming national security advi- applicable criminal and civil laws. The ty for three reasons: (1) prosecuting sor, had spoken on the phone with government can use applicable criminal journalists is an ineffective way to Russian Ambassador, Sergey Kislyak laws to guarantee that journalists do achieve the government’s compelling several times, after telling Vice Pres- not steal sensitive information or other- interests; (2) the law is overinclusive; ident-elect Pence and others that he wise coerce sources to break the law. A and (3) there are less restrictive alterna- had not.37 Presumably, Post columnist third alternative is to prosecute govern- tives to safeguarding national security David Ignatius had “unauthorized ment employees who leak information, without causing such damage to First possession” of this information which rather than journalists who publish Amendment freedoms. might be broadly interpreted as per- the information, as the Obama and First, the law does not actually pro- taining to the national defense, and now Trump administrations have done. tect national security—at least not in had reason to believe that revealing Courts have generally held that there a constitutional way. The government the information could be used to are no First Amendment rights impli- has the burden of proving the “harms embarrass or otherwise harm the cated in the prosecution of government it recites are real and that its restriction United States. Ignatius would there- employees who have breached the terms will in fact alleviate them to a mate- fore be liable for criminal prosecution of their employment by leaking classi- 36 42 rial degree.” Therefore, the law fails under Section 793(e), even though the fied materials. narrow tailoring if it does not effec- public interest in reporting this news 3. Section 793(e) Is tively promote the government’s stated far outweighs any concerns about Unconstitutionally Vague. interests. Here, prosecuting journalists protecting the national defense. under Section 793(e) does not make The century of speculation and anyone safer. • In May 2017, the Washington confusion over whether the text of the In fact, the government may be Post reported that President Trump Espionage Act can be applied to jour- caught in a logical bind: The govern- revealed highly classified informa- nalists is a testament to its vagueness. ment will argue that this law does not tion—shared with the United States “A conviction fails to comport with due constitute a prior restraint on speech in by a close ally—to the Russian process if the statute under which it is that it only punishes publication after foreign minister and ambassador.38 obtained fails to provide a person of the fact. But if we accept the govern- Again, if Section 793(e) applied to ordinary intelligence fair notice of what ment’s argument there as true, how journalists, its elements may be met is prohibited, or is so standardless that does the law actually protect national here and the journalists could be it authorizes or encourages seriously 43 security? The logical answer is that it criminally liable, even though the discriminatory enforcement.” And in provides deterrence—by criminally information is a matter of critical the context of the First Amendment, prosecuting journalists for publishing public interest. courts are particularly vigilant about sensitive information, future journalists statutory vagueness given the immense These example highlight the nature 44 will think twice about doing the same. concern over chilling speech. of the public interest that is at stake if Simply put, no one understands This explanation, however, brings the the Espionage Act is deemed applicable

26  Communications Lawyer  Summer 2017 what the Espionage Act really means The only non-registrants prosecuted, toring program. “Government officials, or how it should be applied, particu- however, were those who affirmatively understandably, want it both ways.”60 larly with respect to journalists, and its protested the draft and notified the Yet, such hypocrisy, while understand- vagueness affords the government “too government of their intention not to able, can be potent evidence of dis- much enforcement discretion.”45 For register. Those who remained silent criminatory purpose if the government example, how should “unauthorized were not prosecuted.54 Petitioners decides to start prosecuting certain possession” be defined?46 Does this im- argued they were prosecuted in retal- journalists. ply tethering to the government’s classi- iation for the exercise of their First 5. The Espionage Act Amounts to 55 fication system, wherein only classified Amendment rights. The government a Prior Restraint. materials can be possessed without responded that it was simply prose- authority and only by persons who do cuting individuals who had identified This is not a typical prior restraint. not have clearances?47 Must something themselves as violating the law—it was Traditionally the Supreme Court has be affirmatively determined “unautho- purely a passive enforcement system.56 drawn a distinction between “criminal rized” or, conversely, is anything that The Court sided with the government, or civil sanctions after publication” and 61 is not specifically unauthorized, autho- holding that petitioners failed to show prior restraints. Both can be violative rized? Perhaps in the context of the that the government was discriminating of the First Amendment—the former 1950 Internal Security Act proviso, the against non-registrants on the basis of “chills” speech, the latter “freezes” 62 First Amendment freedom of the press their speech.57 it —but prior restraints are especially 63 suffices to convey “authority”? A journalist’s claim of selective disfavored. Furthermore, as discussed above, is prosecution in retaliation for exercising In one case, however, the Supreme publishing considered “communicat- her First Amendment rights is more Court entertained, without deciding, a ing, delivering, or transmitting”? And, likely to succeed than the non-regis- party’s argument that a criminal statute what constitutes “willful[] ret[ention]” trants’ claims in Wayte. That said, the acts in “operation and effect” like a of “information” when it is not one of success of her claim may rise or fall on licensing scheme and thus constituted a 64 the enumerated physical items pertain- the existence of several additional facts. prior restraint. As applied to jour- ing to the national defense?48 What For example, she would have a stronger nalists, Section 793(e) may also be an must a journalist do to avoid criminal discriminatory effects claim if she can atypical criminal statute that amounts liability if she is told a sensitive piece show that most journalists are not pros- to a prior restraint given its singu- of information over the phone? These ecuted for publishing leaked informa- lar purpose of deterring journalists glaring ambiguities fall far short of tion, but only she and others who are from publishing sensitive information giving a person of average intelligence particularly critical of the administra- pertaining to the national defense. As fair notice of what is and is not crimi- tion suffer prosecution. In addition, she briefly noted above, it is hard to read nal under the statute.49 After all, if they may succeed in claiming discriminatory the statute as achieving its purpose are “beyond [the] ken” of former FBI intent if she can show, for example, that of protecting national security in any director and career prosecutor James the administration or other policy mak- other way but to effectively restrain Comey,50 who can possibly be expected ers sometimes strategically leak their journalists from publishing stories. In to be on notice? own information to the press, and when that case, Section 793(e) acts in “oper- ation and effect” like a prior restraint, 4. Unconstitutional Selective they do so, the journalists publishing that information remain safe from and should bear a “heavy presumption Prosecution. 65 prosecution,58 whereas when journalists against its constitutional validity.” Due to the non-existence of journal- who do not receive such information Conclusion ist prosecutions under Section 793(e), from the administration publish stories If this Administration, or any future a journalist charged under the section containing leaks, they are prosecuted. one, chooses to test the boundaries today would have a persuasive selec- These facts are not preposterous. of the Espionage Act by prosecuting tive prosecution claim. Generally the Former L.A. Times Editor Dean a journalist for the publication of government retains “broad discretion” Baquet and former New York Times sensitive information, defenders of in its decisions of who to prosecute Editor describe a situation the press will have multiple paths to 51 and when. The Supreme Court has in which former Treasury Secretary showing that such a prosecution is recognized that this discretion, however, John Snow invited a group of reporters improper. A court may employ basic is subject to ordinary equal protection to tour the department’s capabilities tenets of statutory interpretation to find standards, which require “petition- for tracking terrorist financing for that Section 793(e) on its face does not er to show both that the [decision to several days. Throughout the trip, the apply to “publishing” information, thus prosecute] had a discriminatory effect secretary’s team shared many sensitive avoiding a constitutional confrontation. and that it was motivated by a discrim- details of their efforts and capabilities, If a court reads the Espionage Act to 52 inatory purpose.” In Wayte v. United hoping they would appear in print.59 apply to journalists, it will be forced to States, petitioners were prosecuted Three years later, Secretary Snow vehe- grapple with compelling constitutional 53 for failure to register for the draft. mently protested the papers’ decision arguments that the act is not narrowly to report on a mishandled bank-moni- Communications Lawyer  Summer 2017  27 tailored to achieve its purpose and is org/sessions-report (last visited June 22, gent objective of the highest order.”) unconstitutionally vague, and that its 2017). 36. Edenfield v. Fane, 507 U.S. 761, use amounts to a selective prosecution 8. 18 U.S.C. § 793(e) (2015) 770–71 (1993) or prior restraint. For good reason, 9. United States v. Morison, 844 U.S. the Supreme Court has repeatedly 37. David Ignatius, Why did Obama 1057, 1071-72 (4th Cir. 1988) (citation reaffirmed that “‘state action to punish Dawdle on Russia’s Hacking? omitted). the publication of truthful informa- Wash. Post (Jan. 12, 2017), https:// tion seldom can satisfy constitutional 10. Id. www.washingtonpost.com/opinions/ standards.’”66 11. Id. why-did-obama-dawdle-on-russias- hacking/2017/01/12/75f878a0-d90c- Endnotes 12. Id. 11e6-9a36-1d296534b31e_story. Harold Edgar & Benno C. Schmidt, 1. Julian Zelizer, President Trump’s Dan- 13. html?utm_term=.dc7f8d4b5214. gerous War on the Media, CNN (Jan. 25, Jr., The Espionage Statutes and Publica- 38. Greg Miller & Greg Jaffe, Trump 2017), http://www.cnn.com/2017/01/25/ tion of Defense Information, 73 Colum. L. Revealed Highly Classified Information opinions/trumps-war-on-media-zelizer- Rev. 929, 1000 (1973). to Russian Foreign Minister and Am- opinion (“I have a running war with the Holder v. Humanitarian Law Project, 14. bassador, Wash. Post (May 15, 2017), media. They are among the most dishon- 561 U.S. 1, 17 (2010) (quoting Scales v. https://www.washingtonpost.com/world/ est human beings on earth, right?”). United States, 367 U.S. 203, 211 (1961)). national-security/trump-revealed-high- et al., Reality Winner, 2. 15. 18 U.S.C. § 793(e) (2015). ly-classified-information-to-rus- N.S.A. Contractor Accused of Leak, Was See Edgar & Schmidt, supra note 13, sian-foreign-minister-and-ambassa- Undone by Trail of Clues, N.Y. Times 16. at 1036. dor/2017/05/15/530c172a-3960-11e7-9e une https www nytimes (J 6, 2017), :// . . 48-c4f199710b69_story.html?utm_ter- com us politics reali 17. 18 U.S.C. §§ 794, 797, 798 (2015). /2017/06/06/ / / - m=.75804b29efc5. ty-leigh-winner-leak-nsa.html. 18. 403 U.S. 713 (1971). 39. See, e.g., McCullen v. Coakley, 134 3. See James Risen, If 19. Id. at 721 (Douglas, J., concurring). S. Ct. 2518, 2540 (2014) (“To meet the Targets Journalists, Thank Obama, N.Y. 20. Keene Corp. v. United States, 508 requirement of narrow tailoring, the gov- Times (Dec. 30, 2016), https://www. U.S. 200, 208 (1993) (citation omitted). ernment must demonstrate that alternative nytimes.com/2016/12/30/opinion/sunday/ 21. 18 U.S.C. § 793(e) (2015). measures that burden substantially less if-donald-trump-targets-journalists- speech would fail to achieve the govern- 22. Edgar & Schmidt, supra note 13, at thank-obama.html?_r=0. ment’s interests.”). 1046. 4. See, e.g., Zachary Roth, Holder: I See Dean Baquet & Bill Keller, 23. Id. at 1001-02. 40. Won’t Send Journalists to Jail for Doing When Do We Publish a Secret?, N.Y. See id. at 1002-31 Their Job, MSNBC (Oct. 14, 2014), 24. Times (July 1, 2006), http://www.nytimes. http://www.msnbc.com/msnbc/holder-i- 25. See United States v. New York Times com/2006/07/01/opinion/01keller.html?- wont-send-journalists-jail-doing-their-job Co., 328 F. Supp. 324, 329 (S.D.N.Y. auth=login-email. (“no reporter is going to go to jail as long 1971). Cohen v. Cowles Media Co., 501 as I am attorney general”). 41. 26. Id. U.S. 663, 669 (1991) (“[G]enerally 5. United States v. Stevens, 559 U.S. 27. Internal Security Act of 1950, H.R. applicable laws do not offend the First 460, 480 (2010) (“We would not uphold 9490, 81st Cong. § 1(b), 64 Stat. 987 Amendment simply because their en- an unconstitutional statute merely because (1950). forcement against the press has incidental the Government promised to use it re- 28. U.S. Const. amend. I. effects on its ability to gather and report sponsibly.”). the news.”). Note, however, that in 29. Grosjean v. Am. Press Co., 297 U.S. 6. Peter Sterne, Sessions ‘Not Sure’ Bartnicki v. Vopper, 532 U.S. 514 (2001), 233, 250 (1936). Whether He Would Prosecute Journalists, the Supreme Court struck down a statute POLITICO (Jan. 10, 2017), http://www. 30. New York Times Co. v. United that prohibited the intentional disclosure politico.com/blogs/on-media/2017/01/ses- States, 403 U.S. 713, 717 (1971) (Black, of the contents of an illegally intercepted sions-not-sure-whether-he-would-prose- J., concurring) (emphasis added). communication. When a radio host, who cute-journalists-233431 (quoting Sessions 31. Reed v. Town of Gilbert, 135 S. Ct. had not participated in the interception of as saying that “you could have a situation 2218, 2226 (2015). a phone call but obtained the tape from in which media’s not the unbiased media 32. Id. at 2227. a source, broadcast the intercepted tape, we seen [sic] today, and they could be 33. Id. one of the speakers on the tape brought a a mechanism through which unlawful suit against the host. The Court held that 34. See 18 U.S.C. § 793(e) (2015) intelligence is obtained”). the government may not punish the pub- See, e.g., Humanitarian Law Project, 7. A Report on Attorney General Nom- 35. lication of lawfully obtained information 561 U.S. at 34-36; see also id. at 28 inee Jeff Sessions on Issues that Affect relating to matters of public interest, even (“Everyone agrees that the Government’s the News Media, Reporters Comm. for if the source who provided the informa- interest in combating terrorism is an ur- Freedom of the Press, https://www.rcfp. tion obtained it unlawfully. Id. at 535. In 28  Communications Lawyer  Summer 2017 striking down 18 U.S.C. § 2511(1)(c), the 2013) (“simple willfulness has never been conviction for criminal publication.”). Court found it was a “content-neutral law held to be unconstitutionally vague”). 64. See Smith v. Daily Mail Pub. Co., of general applicability.” Id. at 526. Sec- 50. See David Folkenflik, Q: Could 443 U.S. 97, 100–01 (1979). tion 793(e), as a content-based restriction, U.S. Prosecute Reporters for Classified 65. Org. for a Better Austin v. Keefe, would face even greater scrutiny than was Scoops? A: Maybe, NPR (Mar. 22, 2017) 402 U.S. 415, 419 (1971). applied in Bartnicki. (reporting that testified 66. Bartnicki v. Vopper, 532 U.S. 514, 42. See, e.g., United States v. Morison, that “whether a reporter incurs crimi- 527 (2001) (quoting Smith v. Daily Mail 844 F.2d 1057, 1068 (4th Cir. 1988); see nal liability by publishing classified in- Publishing Co., 443 U.S. 97, 102 (1979)). also Branzburg v. Hayes, 408 U.S. 665, formation” is a matter “probably beyond 691-92 (1972) (“It would be frivolous to my ken”), http://www.npr.org/sections/ assert—and no one does in these cases— thetwo-way/2017/03/22/521009791/q- that the First Amendment, in the interest could-u-s-prosecute-reporters-for- of securing news or otherwise, confers a classified-scoops-a-maybe. license on either the reporter or his news 51. Wayte v. United States, 470 U.S. sources to violate valid criminal laws.”). 598, 607 (1985) (citing United States 43 Humanitarian Law Project, 561 U.S. v. Goodwin, 457 U.S. 368, 380, n. 11 at 18 (quoting United States v. Williams, (1982)). 553 U.S. 285, 304 (2008)). See also 52. Id. at 608. Note that though the General Elec. Co. v. E.P.A., 53 F.3d 1324, Fifth Amendment does not have an equal 1328–29 (D.C. Cir. 1995) (holding that protection clause, the Supreme Court has the government may not impose civil or held the Fourteenth Amendment protec- criminal liability where a law or regula- tions of equal protection to be encom- tion “is not sufficiently clear to warn a passed by the Fifth Amendment Due party about what is expected of it”) Process Clause. See Bolling v. Sharpe, 44. See Humanitarian Law Project, 561 347 U.S. 497, 499 (1954). U.S. at at 19 (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 53. Wayte, 470 U.S. at 603 489, 499 (1982)) 54. Id. 45. Id. at 20 55. Id. at 604 46. 18 U.S.C. § 793(e) (2015) 56. Id. at 603. 47. The Fourth Circuit assumed this to 57. Id. at 609 be true: “unauthorized possession” is tied 58. It is possible that journalists receiv- to the government classification system. ing information from the administra- See United States v. Morison, 844 F.2d tion—i.e. with the consent of the Pres- 1057, 1074-76 (4th Cir. 1988). ident—are considered “authorized” for 48. 18 U.S.C. § 793(e) (2015). purposes of Section 793(e) even though 49. Prior to the 1950 amendments, the the information may remain classified Supreme Court did hold that Sections 1 59. Baquet & Keller, supra note 40. and 2 of the Espionage Act—the precur- 60. Id. sors to today’s Sections 793-798—were 61 Nebraska Press Ass’n v. Stuart, 427 not vague. Gorin v. United States, 312 U.S. 539, 559 (1976). The classic exam- U.S. 19, 27 (1941). Because Section ples of prior restraints are “court orders 793(e) did not exist in its current form at that actually forbid speech activities” the time Gorin was decided, and because like restraining orders or injunctions. the statute was not vague as to its appli- Alexander v. United States, 509 U.S. 544, cation to the defendants in that case (a 549–50 (1993) Russian-born government contractor and 62. Nebraska Press Ass’n, 427 U.S. at a foreign agent), that case is not binding 559. here. But see United States v. Morison, 844 F.2d 1057, 1071-74 (4th Cir. 1988) 63. See N.Y. Times Co. v. United States, (holding Section 793(d) is not vague, but 403 U.S. 713, 733 (1971) (White, J., as in Gorin, defendant should not have concurring) (“Prior restraints require an standing to argue vagueness as the statute unusually heavy justification under the is not vague as applied to him, a govern- First Amendment; but failure by the Gov- ment employee); United States v. Hitsel- ernment to justify prior restraints does not berger, 991 F. Supp. 2d 101, 107 (D.D.C. measure its constitutional entitlement to a Communications Lawyer  Summer 2017  29