Lately I have been following the discussion about the most recent series of national security leaks, including those that detailed the White House's terrorist "kill lists," the foiling of a terrorist plot by a double agent in Yemen, and cyberattacks against Iran. Outrage about leaks is hardly new. Neither are leaks. (See my prior article detailing the long history of leaks in this country.) What is new is that the outrage this time around seems to be directed at the leakers and not at the media outlets that published the leaked information.
Back in December 2005, when The New York Times published its story about the NSA's warrantless wiretapping program, the paper and its reporters were condemned just as vigorously as the leakers themselves. It is interesting to think about why the politicians and commentators have held their fire against the media after this latest round of leaks (at least so far). Perhaps critics' suspicions that these leaks were politically motivated during an election year to make President Obama look like a strong leader has made them forget to take their usual shots at the "liberal media" that disseminated them to the public. But given that leaks often appear politically motivated, this answer is not all that satisfying.
The lack of attacks on the news media in this go-around is certainly not because they have a clear right to publish whatever information they can get their hands on. It isn't clear at all what rights government outsiders have to publish sensitive national security information. After all, Julian Assange, the founder of WikiLeaks, is facing potential charges for disseminating national security information obtained from alleged leaker Bradley Manning. As I have written before, efforts to distinguish WikiLeaks from The New York Times for constitutional purposes are not very convincing. Although in the Pentagon Papers case the Supreme Court set a very high bar to any government effort to obtain a prior restraint enjoining the publication of national security information, a careful counting of the votes in that case makes clear that a majority of the Justices left open the possibility that a criminal prosecution would not have to meet so high a burden.
It could be that the government thinks that it can draw a meaningful line between the mainstream media and entities like WikiLeaks, or at least the government regards WikiLeaks as particularly dangerous. I don't think I am going out on a limb to suggest that critics would be condemning WikiLeaks just as strongly as the leakers had WikiLeaks been involved in the most leaks. The recent lack of criticism indicates that the mainstream media may have succeeded in their efforts to distance themselves as much as possible from WikiLeaks in the public eye.
I am not suggesting that the government should prosecute the media for publishing the most recent round of leaks (in fact, I think that would be a very bad idea). It is just interesting to note how much the focus has turned away from the media to focus solely on the leakers. And now that the focus is so squarely on the leakers, one of my projects this summer is to consider whether the First Amendment provides them with any protection.
Until recently, most scholars concerned about the important role leaks have played throughout the history of our country were pretty comfortable with arguing for robust free speech protection for government outsiders while conceding that the First Amendment did not offer any protection for government insiders who did the actual leaking. There are many possible explanations for this. Although the Court has not explicitly addressed what First Amendment rights leakers might have, its opinions that relate to this issue do not auger well for government insiders. Furthermore, it is much easier to argue that government outsiders are entitled to First Amendment protection if you can argue that the government can always stop the leaks in the first instance by going after the leakers. Throwing the leakers under the bus is especially easy when so few of them are actually prosecuted (although they face other sanctions, like losing their jobs and security clearances). Now that the Obama Administration is prosecuting more leakers than all other administrations combined, though, it is not surprising that scholarly attention is beginning to focus on the constitutional rights, if any, of these leakers. I look forward to sharing my thoughts about some of the possible approaches to this issue in the coming weeks.
Mary-Rose Papandrea is an associate professor at the Boston College Law School. Her teaching interests include civil procedure, constitutional law, media law, and national security and civil liberties. Her research focuses on the impact of new technology on our understanding of the First Amendment and media law. This article was cross-posted on Concurring Opinions.