Freedom of the Press and Criminal Solicitation

[Commentary] Several years ago, the Federal Bureau of Investigation 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. 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. 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 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.