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

14 Pages Posted: 31 May 2006  

John C. Eastman

Chapman University, The Dale E. Fowler School of Law; Claremont Institute Center for Constitutional Jurisprudence

Date Written: May 26, 2006

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.

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

JEL Classification: K42, N4

Suggested Citation

Eastman, John C., Does the First Amendment's Freedom of the Press Clause Place the Institutional Media Above the Law of Classified Secrets? (May 26, 2006). Available at SSRN: https://ssrn.com/abstract=905167 or http://dx.doi.org/10.2139/ssrn.905167

John C. Eastman (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States
714-628-2587 (Phone)

HOME PAGE: http://www.chapman.edu/law/faculty/eastman.asp

Claremont Institute Center for Constitutional Jurisprudence

1317 W. Foothill Blvd., Suite 120
Upland, CA 91786
United States
877-855-3330 (Phone)

HOME PAGE: http://https://www.claremont.org/center-for-constitutional-jurisprudence/

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