Rethinking Freedom of the Press After 9/11

This essay explores a familiar paradox: need strong judicial protection of our expressive freedoms during periods when courts are least likely to protect them. The essay claims that the United States entered such a period after 9/11, and that we remain there still. More specifically, the essay argues that events since 9/11 reveal the importance of rethinking free press jurisprudence. In the 1970s and early 1980s, the Supreme Court reached a settlement of free press doctrine that provided extremely strong protection against prior restraints on publication, somewhat reduced, yet still strong, protection against the imposition of civil or criminal liability for publication, and little, if any, protection for such ancillary press rights as news-gathering. Events following 9/11 have revealed that this hierarchy may permit the federal government to disable the press from performing one of its core functions during a time of national crisis: informing We the People of the actions our officials are taking in our name to safeguard national security. A matrix of federal statutes makes criminal the receipt, possession, and disclosure of classified national security information to those who are not authorized to receive such information. While the Pentagon Papers decision made clear the difficulty the government would face in obtaining an injunction against press publication of classified information, current free press doctrine invites criminal prosecution against the press for receiving, possessing or disclosing classified information. Current doctrine also provides an alternative route for the government to suppress press publication of classified information. By convening a grand jury to prosecute the government employees who leak classified information to the press for publication, prosecutors can subpoena journalists to identify government leakers. The essay argues that free press doctrine should be strengthened to provide the press the same degree of protection against criminal prosecution for publishing classified national security information of high first amendment value that it currently receives against prior restraints on publication. The essay also argues that the justices should rethink its decision in Branzburg v. Hayes categorically denying journalists a confidential source privilege, and that they should create a strong default rule providing for such a privilege in the typical case where prosecutors enlist the aid of journalists to expose government employees who have leaked classified information for press publication.