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

[Commentary] I am often asked whether Edward Snowden's leaking of classified documents about National Security Agency 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, but the double-standard is nonetheless necessary.

[Peter Scheer is Executive Director of the First Amendment Coalition]