If the Bush administration decides to test the limits of the First Amendment, journalists will quickly learn that they have far fewer legal protections than they have long assumed, says Jeffrey Rosen in The New Republic. If the administration tried to prosecute journalists under the Espionage Act, the Supreme Court might rule for the press, on the grounds that the disclosures served the public interest and posed no risk of imminent harm to the nation. Rosen says the administration could silence critics just as effectively by launching an investigation to identify who leaked secret information and issuing subpoenas demanding that reporters identify their sources.
Recent court cases could put reporters who use classified leaks to disclose arguably illegal government conduct in a tight spot. Even though the NSA surveillance program and the CIA’s coercive interrogation of enemy combatants were arguably illegal, the Bush administration defends them. Because both programs were classified, judges in leak investigations would be hard-pressed to treat the sources for the stories as sympathetic whistleblowers; instead, they could be viewed as potential criminals. The reporters who published the classified information would be required to identify their sources. As long as the White House and Justice Department classify as much information as possible and investigate every leak vigorously, the sight of journalists marched into jail may become alarmingly common, Rosen predicts.