Does the First Amendment's Freedom of the Press Clause Place the Institutional Media Above the Law of Classified Secrets?

Abstract:     
Testimony before the U.S. House of Representatives Permanent Select Committee on Intelligence, contending that Section 798 of the Espionage Act, prohibiting the publication of classified information regarding U.S. communications capabilities, can constitutionally be applied to the media, for several reasons: 1) A majority of the Justices in the Pentagon Papers case recognized that prior restraints on publication of highly sensitive, classified information regarding ongoing military and communications operations would be permissible; 2) The prospect of post-publication liability for violating the Espionage Act was also recognized by a majority of the Justices; and 3) The Freedom of Press Clause of the First Amendment is equally applicable to citizens and the institutional media.

Number of Pages in PDF File: 14

Keywords: Classified information, Espionage Act, First Amendment, Freedom of the Press, Pentagon Papers, NSA Surveillance

JEL Classification: K42, N4

working papers series