Geoffrey Stone on Freedom of the Press and Criminal Solicitation
Several years ago, the FBI obtained a search warrant authorizing it to review two days' worth of Fox News reporter James Rosen's emails after demonstrating to a judge it had probable cause to believe that Rosen had committed a crime by soliciting the disclosure of classified information from a government official. The government official was later indicted for leaking classified information.
Since this development came to light, members of the media have insisted that the assertion that Rosen violated the law by soliciting the disclosure of classified information is wholly incompatible with the First Amendment. As Michael Clemente, Fox News executive vice president, exclaimed, "We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter. . . . We will unequivocally defend his right to operate as a member of what up until now has always been a free press."
It is more complicated than that. At the outset, it is worth noting that two facets of this situation are clear. First, as a general rule, the First Amendment does not give government employees a constitutional right to disclose to reporters properly classified information. We can therefore reasonably assume, absent evidence to the contrary, that in this situation the source committed a federal crime by disclosing the classified information to Rosen.
Second, except in truly extraordinary circumstances, the First Amendment does give the press a constitutional right to publish even properly classified information when that information comes into its hands through no wrongdoing of its own. It might seem anamolous that the government employee has no right to leak the information but, if he does, the press has a right to publish it, but it is through these two seemingly-conflicting doctrines that the Supreme Court has long tried to balance the rights of the press with the legitimate and competing interests of the government.
In any event, we can assume that if in this situation the source had simply and on his own initiative turned over the classified information to Rosen, the source could have been criminally punished for the leak and Fox News would have had a constitutional right to broadcast the information.
That brings us to the question posed in the current situation, for here the source did not turn over the information to Rosen on his own initiative. Rather, Rosen allegedly persuaded him to do so. Has Rosen committed a crime, as the government alleged?