10/22/2013 08:34 am ET Updated Dec 22, 2013

Journalists Using Snowden's Documents Are Protected by the First Amendment. But What About Snowden?

I am often asked whether Edward Snowden's leaking of classified documents about NSA surveillance programs is protected by the first amendment. My answer is no, his handing over of classified information to reporters at The Guardian, the Washington Post and the New York Times enjoys no constitutional protection or privilege.

Snowden is a source who leaks information, not a journalist who receives leaks. The difference is crucial: in the transaction between source and journalist, constitutional protections extend only to the latter.

Specifically, journalists cannot be barred by a court injunction from publishing a story based on leaked information. And post-publication, too, journalists have special protections: first amendment principles, doubts about the application of federal statutes, and a tradition of prosecutorial forbearance -- all these combine to create huge obstacles to the bringing of criminal charges against journalists for reporting on leaked, classified information.

This double-standard -- exposing government leakers to punishment while insulating the journalists who publicize their leaks -- may seem unfair, arbitrary, even offensive. The double-standard is nonetheless necessary.

It is necessary because all legal authorities protecting journalists' confidential sources -- from state shield laws, to the Justice Department's internal guidelines, to the few remaining court decisions recognizing first amendment protection for sources -- have, at their core, the requirement that government investigators must "exhaust all alternative means" for identifying a leaker before they can force a journalist to name a source.

One cannot fault prosecutors for failing to "exhaust all alternative means" for identifying a journalist's confidential source, yet also forbid them from interrogating potential sources, and even taking intrusive investigatory steps (for example, polygraph tests for suspected government employees) to identify a leaker. If prosecutors are forbidden, under the first amendment, from questioning journalists except as a last resort, they must be given the latitude to pursue legal measures to investigate suspected leakers.

Moreover, the unfairness of the source-journalist double-standard is mitigated, in most cases, by journalists' obligation to protect the confidentiality of a confidential source. This is a matter of honor, ethics and, in my view, a legal responsibility deriving from first amendment principles. When the government demands disclosure of a journalist's confidential source, the journalist is obligated to refuse to cooperate, even to the point of paying fines and going to jail rather than naming the source.

Snowden's case doesn't exactly fit this paradigm because he has chosen NOT to be a confidential or anonymous source. From the beginning of the NSA revelations, Snowden has been public and up-front about his role in obtaining the documents, illegally copying them, and making them available to favored reporters.

Does this difference alter the analysis? I don't think so. Snowden's motives for going public remain unclear. His taking credit for the NSA leaks might reflect a belief that he is obligated, morally if not legally, to stand up and take responsibility for his actions rather than hide behind the "anonymous" descriptor. Less charitably, his decision to be front-and-center in the NSA controversy may have more to do with ego than principle.

In any case, Snowden will have more credibility, and therefore more influence over US policy, if he gives up his political asylum (in Russia of all places!) and returns to the US to take up the time-honored role of conscientious objector. Although he will have to face charges of violating the Espionage Act, Snowden will have at his side the best defense lawyers in the country. That, and his apparently genuine belief that his leaks have caused no harm to US security interests, may substantially limit his exposure in a trial.

I worry about Snowden. I worry that, like Julian Assange, his politics may have clouded his judgment and he is now more concerned about neutralizing US military and intelligence capabilities than he is about exposing excesses and wrongdoing. But Snowden has also caused the Obama administration to reexamine NSA programs and to take steps to open some national security decision-making to public scrutiny. These are positive and important developments.

If it also turns out that Snowden is correct that his disclosures have not harmed American security interests -- and time will tell whether he is correct about that -- then, frankly, he will be seen as an American hero, and deservedly so.
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here are his alone; they do not necessarily reflect the opinions of the FAC Board of Directors.