THE BLOG
05/21/2013 04:45 pm ET Updated Jul 21, 2013

Freedom of the Press and Criminal Solicitation

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Several years ago, the FBI obtained a search warrant authorizing it to review two days' worth of Fox News reporter James Rosen's emails after demonstrating to a judge it had probable cause to believe that Rosen had committed a crime by soliciting the disclosure of classified information from a government official. The government official was later indicted for leaking classified information.

Since this development came to light, members of the media have insisted that the assertion that Rosen violated the law by soliciting the disclosure of classified information is wholly incompatible with the First Amendment. As Michael Clemente, Fox News executive vice president, exclaimed, "We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter... We will unequivocally defend his right to operate as a member of what up until now has always been a free press."

It is more complicated than that. At the outset, it is worth noting that two facets of this situation are clear. First, as a general rule, the First Amendment does not give government employees a constitutional right to disclose to reporters properly classified information. We can therefore reasonably assume, absent evidence to the contrary, that in this situation the source committed a federal crime by disclosing the classified information to Rosen.

Second, except in truly extraordinary circumstances, the First Amendment does give the press a constitutional right to publish even properly classified information when that information comes into its hands through no wrongdoing of its own. It might seem anomalous that the government employee has no right to leak the information but, if he does, the press has a right to publish it, but it is through these two seemingly-conflicting doctrines that the Supreme Court has long tried to balance the rights of the press with the legitimate and competing interests of the government.

In any event, we can assume that if in this situation the source had simply and on his own initiative turned over the classified information to Rosen, the source could have been criminally punished for the leak and Fox News would have had a constitutional right to broadcast the information.

That brings us to the question posed in the current situation, for here the source did not turn over the information to Rosen on his own initiative. Rather, Rosen allegedly persuaded him to do so. Has Rosen committed a crime, as the government alleged?

In general, it is unlawful for one person to solicit another to commit a criminal act. If X persuades Y to kill Z, for example, X can be punished for criminal solicitation of murder. This is a broad principle that, we can assume, ordinarily would apply to Rosen's apparently successful effort to persuade the source unlawfully to leak the classified information.

But is Rosen, as a reporter, exempt from the ordinary law of criminal solicitation? Does the First Amendment give a reporter a constitutional right to do what other citizens have no right to do? The claim, of course, is that unlike the situation in which X solicits Y to kill Z, Rosen's solicitation was undertaken for the public good, because Fox News, after all, has a constitutional right to publish the information. There is, in other words, no good reason to give X a right to solicit Y to kill Z, but there is a good reason to give Rosen a right to persuade the source to disclose the information to him (even though it is a crime for the source to do so). Confused yet?

The problem with this argument is that, in interpreting the First Amendment, the Supreme Court almost never accepts such claims. For example, suppose someone walks down the street naked to protest laws against obscenity, or speeds to get to a political rally in time to give a speech, or refuses to pay his taxes so he can give larger contributions to his favorite political candidates. In all of these situations there is a speech-related reason why the actor wants an exemption from a law of otherwise general application, but the Court has consistently, and quite reasonably, rejected such claims.

Similarly, in the Free Press context, suppose a journalist commits an illegal burglary in order to obtain information about a possible scandal, or conducts an illegal wiretap in order to prove that a congressman took a bribe, or steals a sophisticated camera in order to take better photos for her website. In none of these situations will the journalist be able, under current law, to assert a First Amendent right to commit the criminal offense because she did so in order to be a more effective journalist.

If we take that doctrine as the baseline, then the question is whether a journalist has a First Amendment right to engage in an otherwise unlawful criminal solicitation in order to obtain and then publish classified information. Fox News' argument seems to be that because reporters have always done this, it's too late to change the rules now. This is not as silly an argument as it sounds. The Supreme Court has often taken traditional practice into account in giving meaning to constitutional provisions, and it is not impossible that it would -- and should -- do so here. But that is far from a self-evident proposition.

The truth is that striking the right balance between the government's legitimate need for confidentiality, the press's legitimate need to obtain information about government action, and the public's "right to know" what its representatives are up to, is a difficult and delicate task. All three branches of the federal government have a role to play in striking this balance. The president can exercise restraint (indeed, no reporter has ever been criminally prosecuted for soliciting classified information, even though it is apparently a common practice), the Congress can (and should) enact laws defining criminal conduct in this context more clearly, and the judiciary can better define the protections of the First Amendment. All three branches need to think harder about this issue.

In the meantime, though, it is important to keep in mind that the government in this situation has not filed any criminal charges against James Rosen, or suggested in any way that it plans to do so. It merely stated, quite accurately I suspect, that under current law he committed a crime.

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