united-states us-federal-government non-disclosure journalism freedom-of-press
Can members of the media be held legally responsible for leaking documents they never agreed to keep secret?
<p>Larry the Leaker is high up in the US government, and has access to highly classified information/documents. He goes to John the Journalist, and tells him to publish all of it. Obviously, Larry has agreed to a bunch of stuff telling him not to leak or talk about any of that stuff, so Larry has no hope. But John never signed anything. So does John face any solid legal repercussions for wholesale publishing everything he got from Larry?</p>
<p>In the case of Edward Snowden, I'm pretty sure The Guardian (and its journalists) didn't face any repercussions. But Snowden was ultimately a whistleblower reporting on unethical conduct in that case. <strong>I want you to make no such assumptions about what Larry and John are doing.</strong> For example, perhaps Larry literally told John the identities of undercover agents in Russia, and John posted it just for the clout. Will John face any legal repercussions, even though he literally never signed anything?</p>
<p>Edit: To be clear, I'm not asking about Larry the Leaker (the government employee) whatsoever. I'm asking solely about John the Journalist, who publishes the information, and what legal ramifications he might face. Also if I'm allowed a follow-up: if Nathan the Netizen retweets/reposts John's article and evidence, is Nathan also subject to legal ramifications?</p>

<p>It depends on the nature of the documents. <a href="https://www.law.cornell.edu/uscode/text/18/798" rel="noreferrer">This law</a> specifies that it is illegal to disclose or publish etc. classified information</p>
<blockquote>
<p>concerning the nature, preparation, or use of any code, cipher, or
cryptographic system of the United States or any foreign government</p>
</blockquote>
<p>and there are 4 such subcategories. Violation results in imprisonment up to 10 years. This is an ordinary prohibition. Government employees may also be given access to classified information whose disclosure is not criminal in the general case, but would be illegal for the government employee to disclose owing to his position, under <a href="https://www.law.cornell.edu/uscode/text/18/1924" rel="noreferrer">this law</a>.</p>

<p>While there are narrow exceptions, the general rule is that a member of the media who receives leaked material that the media member did not solicit is free of legal liability.</p>
<blockquote>
<p>On June 30, 1971, the Supreme Court decided, 6–3, that the government
failed to meet the heavy burden of proof required for prior restraint
injunction. The nine justices wrote nine opinions disagreeing on
significant, substantive matters.</p>
<p><em>Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free
press is the duty to prevent any part of the government from deceiving
the people and sending them off to distant lands to die of foreign
fevers and foreign shot and shell.</em></p>
<p>— Justice Black's opinion in <em><a href="https://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States" rel="noreferrer">New York Times Co. v. United
States</a></em>, 403 U.S. 713 (1971) (a.k.a. the <a href="https://en.wikipedia.org/wiki/Pentagon_Papers" rel="noreferrer">Pentagon Papers</a>
case).</p>
</blockquote>
<p>(via the Pentagon Papers link).</p>
<p>There is also a non-binding Justice Department policy of not prosecuting reporters in connection with leaks of government information and of <a href="https://www.justice.gov/opa/pr/attorney-general-garland-announces-revised-justice-department-news-media-policy" rel="noreferrer">not trying to obtain information in their cases from reporters except in a few narrow kinds of cases</a>.</p>
<p>As user6726 notes <a href="https://law.stackexchange.com/a/91622/9517">in another answer</a>, this immunity from liability isn't absolute.</p>
<p>But protections from liability for reporters who do published leaked confidential government information is also much broader even than in most countries that have strong protections for freedom of the press.</p>
<p>Very few members of the media have been prosecuted successfully for leaking confidential information since this landmark 1971 ruling, although many government officials and members of the U.S. military have been successfully prosecuted and convicted for leaking confidential information to members of the media in the same time period.</p>
<p><strong>The Related Issue Of A Reporter's Privilege</strong></p>
<p>Closely related to this question is the issue of whether there should be a <a href="https://www.rcfp.org/reporters-privilege/" rel="noreferrer">reporter's privilege</a> (a.k.a. &quot;shield laws&quot;) allowing them to not disclose their confidential sources which is recognized in some, but not all, U.S. jurisdictions.</p>
<p>Many reporters have been incarcerated for contempt of court for refusing to disclose their confidential sources, despite being compelled to disclosure this pursuant to a valid subpoena, in various U.S. jurisdictions when courts determine that the reporter lack a reporter's privilege.</p>
<p><a href="https://i.stack.imgur.com/LVv9d.png" rel="noreferrer"><img src="https://i.stack.imgur.com/LVv9d.png" alt="enter image description here" /></a></p>
<p><em>The image is from the &quot;reporter's privilege&quot; link.</em></p>
<p>The <a href="https://www.rcfp.org/introduction-to-the-reporters-privilege-compendium/" rel="noreferrer">federal courts haven't reached a perfect consensus on the issue</a> in the wake of an ambiguous ruling on the question by the U.S. Supreme Court known as the <em>Branzburg</em> case was decided in 1972 with a fractured ruling on an only partially related issue.</p>
<blockquote>
<p>in the decades since <em>Branzburg</em> was decided, most federal appellate
courts have recognized some form of a qualified privilege for
journalistic materials. The U.S. Courts of Appeal for the Seventh and
Eighth Circuits are the only circuits that have not yet definitively
done so. But the First, Second, Third, Fourth, Fifth, Sixth, Ninth,
Tenth, Eleventh, and D.C. Circuits have recognized a privilege in at
least some cases, derived from the First Amendment. And at least the
Third Circuit has also described the privilege as arising from federal
common law.</p>
</blockquote>
