Issue 103, Winter 2006/2007

Recent cases weighed the First Amendment principle of the free transmission of information against competing considerations of national security and personal privacy.

A Virginia district court ruled in USA v. Rosen and Weissman that civilians can be prosecuted under the 1917 Espionage Act for receiving or passing on classified information. Disturbed by the potential for government abuse of this precedent to intimidate the media, the Reporters Committee for Freedom of the Press filed an amicus brief – but it was denied. The case concerns government contractors who allegedly provided national security secrets to Israel, but the judge said the law would apply broadly to “academics, lawyers, journalists … whatever.”

Meanwhile, The D.C. Circuit Court reversed an earlier ruling in the case of Boehner v. McDermott. Back in 1996, a Florida couple intercepted and recorded Congressman John Boehner’s conference call with Republican party leaders. Suspecting that it revealed some ethical improprieties, the couple gave their recording to Jim McDermott (D-WA), a member of the House Ethics Committee, who then sent it to The New York Times for publication.

The court had ruled previously that McDermott’s disclosure violated Boehner’s privacy rights; more broadly, it stated that one can be punished for passing along information they know was acquired illegally (just like someone who “is guilty of receiving stolen property”). But the latest ruling excuses McDermott, because the information he passed on to the press represented a matter of public concern – plus, if the earlier ruling were upheld, virtually no one would be legally allowed to discuss the matter, since it is common knowledge that the recording was made without Boehner’s permission.

Other developments raise the concern that the government is using subpoenas to subvert First Amendment protections in two cases pending before the courts. The Justice Deptartment issued a grand jury subpoena to the ACLU demanding all copies of a leaked memo that concerns U.S. policy in the war on terror. The New York Times decried the attempt as “trampling on the First Amendment.” After much protest, the subpoena was withdrawn.

In an equally intimidating move, the Army subpoenaed reporter Sarah Olson in connection with its case against First Lieutenant Ehren Watada, who refused to deploy to Iraq and allegedly engaged in “conduct unbecoming an officer” by criticizing the President in public appearances.

Coming in CN #104: what’s in store for the 110th Congress?