Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the Press

Abstract:     
The debate over the proper balance between national security and freedom of the press has increasingly focused on the media's potential criminal liability for publishing sensitive information, as was threatened after the New York Times and the Washington Post disclosed the U.S. government's secret and warrantless wiretapping of domestic phone calls. With the issue of press liability for the publication of national security information, however, comes a bevy of difficult questions concerning the scope of the protections afforded to the press under the First Amendment.

This Essay attempts to survey these questions in light of the absence of an overarching framework statute, akin to England's Official Secrets Act, that in clear and sweeping terms specifies the means and manner in which the press may be held criminally liable for publishing sensitive information. As this Essay explains, the statutory framework governing the complicated balance between governmental secrecy and the freedom of the press in the United States is little more than a disorganized amalgamation of unconnected provisions. Some of the provisions overlap and border on redundancy. Others are difficult to parse, and cannot possibly prohibit what their plain language appears to suggest. Still others, when read together, seem to promote mutually inconsistent policy goals.

Yet, because the Espionage Act prohibits even the possession of sensitive national security information, one of the most important questions, going forward, is the potential liability reporters face for newsgathering, as opposed to reporting, in the national security field. And because the Press Clause has not traditionally been understood to protect actions short of publication, the real threat to the freedom of the press, this Essay suggests, is the openendedness of the relevant statutes when read together with theories of inchoate liability.

Keywords: Espionage Act, inchoate liability, press, First Amendment, media, AIPAC, newsgathering

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