The national media arrogantly believe that the First Amendment should give them special protection. In fact, the First Amendment applies to everyone, not just the press. But reporters not only want a federal shield law, to protect them from revealing their sources in national security cases, they want an exemption from the law prohibiting the release or publication of national security information. This latter unreasonable demand was tackled in brilliant testimony recently delivered to the House Intelligence Committee by Dr. John Eastman, a Professor of Law at Chapman University School of Law and director of the Claremont Institute’s Center for Constitutional Jurisprudence.
His testimony was titled, “Does the First Amendment’s Freedom of the Press Clause Place the Institutional Media Above the Law of Classified Secrets?”
Like Gabriel Schoenfeld, who also testified before the committee, Eastman noted that Section 798 of the Espionage Act absolutely prohibits the publication of classified information in the area of communications intelligence. That would include the NSA program, exposed by the New York Times, into how the U.S. monitors al-Qaeda communications.
Eastman describes the provision this way: “?it is illegal to publish classified information about our intelligence-gathering efforts and capabilities.”
It is an open-and-shut case. What is unclear is whether the U.S. Justice Department will prosecute the Times. Eastman writes that “with the seriousness of the threat to our lives and liberty posed by terrorist organizations such as al Qaeda, it is certainly the right, and may well be the duty, of the executive to prosecute those responsible for them.”
Regarding two other cases cited by Eastman, the “secret prisons” story of the Washington Post and USA Today’s story about the NSA collecting phone records, the prospect for legal action is not so clear. As we have noted repeatedly, the “secret prisons” story may not be true. And the USA Today story has been denied by several phone companies said to have been cooperating with the NSA.
But Eastman’s general point remains-that the media are NOT above the law in publishing classified information.
Yet Eastman notes that reporters generally, and perhaps the editors of the Times in particular, seem to hold the view that they are “free to ignore the laws regarding publication of classified information.” The Times, he says, wants us to believe that it is “above the law and can publish whatever classified information it sees fit, with impunity.”
If there is no prosecution of the Times over the NSA story, that will be the case.