united-states criminal-law privacy first-amendment journalism
Is publication of classified information enough for a journalist to be compelled to reveal sources?
<p>Based on my research so far, the United States has a rather interesting relationship with the press. <a href="https://en.wikipedia.org/wiki/Reporter%27s_privilege" rel="nofollow noreferrer">Reporter's privilege</a> is well-established in the case law, and every state except Wyoming has <a href="https://en.wikipedia.org/wiki/Shield_laws_in_the_United_States" rel="nofollow noreferrer">shield laws</a> on the books.</p>
<p><a href="https://en.wikipedia.org/wiki/Branzburg_v._Hayes" rel="nofollow noreferrer">Branzburg v. Hayes</a> however established that journalists <em>can</em> be compelled to reveal confidential information or sources, provided certain conditions (the <a href="https://www.mtsu.edu/first-amendment/article/740/branzburg-v-hayes" rel="nofollow noreferrer">Branzburg test</a>) are met, and I'm trying to figure out whether the conditions of the test are <em>de facto</em> met whenever classified information is published.</p>
<p>According to <a href="https://www.mtsu.edu/first-amendment/article/740/branzburg-v-hayes" rel="nofollow noreferrer"><em>The First Amendment Encyclopedia</em> (Middle Tennessee State University)</a>, the conditions of the Branzburg test are as follows:</p>
<blockquote>
<p>“(1) show . . . probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law;</p>
</blockquote>
<blockquote>
<p>(2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights;
and</p>
</blockquote>
<blockquote>
<p>(3) demonstrate a compelling and overriding interest in the information.”</p>
</blockquote>
<p>The clear argument for the above in <em>any</em> case of journalists revealing classified information, picking off the requirements of the test one by one, is:</p>
<ol>
<li>Disclosure of classified information is in itself a specific probable violation of law</li>
<li>This one is case specific, but the presence of alternative means of acquiring this information would obviate the court case in the first place, implying this condition to be true and likely defendable</li>
<li>Information is classified <a href="https://fas.org/sgp/library/quist2/preface.html#:%7E:text=Information%20is%20classified%2C%20that%20is,as%20it%20comes%20into%20existence." rel="nofollow noreferrer">only for reasons of national security</a>, making the source revealing such information a threat to national security, which demonstrates a compelling and overriding interest in the information</li>
</ol>
<p>Does this mean that in <em>any case</em> in which classified information is revealed by a journalist, that fact alone is enough to compel the journalist to reveal the source of the classified information?</p>

<h2>No</h2>
<ol>
<li><p>There are many ways for classified information to be disclosed that do not involve a violation of the law. For example, classified information could be left in a filing cabinet which is sold at auction to a national broadcaster - as happened in <a href="https://www.google.com.au/amp/s/amp.abc.net.au/article/9393008" rel="nofollow noreferrer">Australia</a>. While careless and embarrassing, it’s not illegal for the government to sell its secrets on the open market.</p>
</li>
<li><p>Government has (or should have) many ways of keeping track of where their information is and who has access to it. The government has to demonstrate not that other ways are hard, time-consuming or expensive but that they literally <strong>do not exist</strong>.</p>
</li>
<li><p>Bullshit. Many, many things are over-classified because the person doing the classification has every incentive to be overcautious with every piece of information. “Should the officer’s club menu be classified? Well, they are having curry on Friday and that could easily hide poison so ... better to be safe than sorry.” Example deliberately taken to extremes for comedic effect - but you get the idea. I’ve held Secret clearance in the past and the amount of stuff I’ve seen marked “Secret” or, even more so, “Classified” that leaves you asking “why” is mind-blowing - manufacturer’s spec sheets for water coolers, say.</p>
</li>
</ol>
