1500 words
Damond
progavesampleHighGrade-TheNewPriorRestraint.pdf
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Helen Zheng
Professor Rachael Collins
Writing 39C
4 May, 2019
The New Prior Restraint
Abstract: The United States has a proud tradition of whistleblowing that is unlike any other country in the world. Americans praise the bravery of whistleblowers who put the public interest and the Constitution before their superiors. We take pride in our robust journalistic institutions and their ability to keep the government in check. However, in recent years, an alarming trend has been developing. The government has systematically increased its prosecutions against leakers, whistleblowers, and even journalists. In this paper, I will lay out the actions taken against leakers and whistleblowers under the Trump Administration and provide a comparison between the policies of the Trump and Obama Administration. I will give a historical account of how whistleblowers and the press have been protected under the Constitution and discuss what the government can or cannot do in its pursuit of these parties. Throughout this essay, I will explore the questions: “How have the recent administrations used prosecutions against sources to silence the press? How did technological advancements complicate this issue? And what are the consequences and implications of the government’s efforts to prosecute whistleblowers?
President Donald Trump has made his disdain of the press well known to the public ever
since the beginning of his campaign. He has repeatedly attacked the media, calling them “the
enemy of the American people” and labeling their reporting as “fake news.” Trump has even
suggested the imprisonment of journalists who have published classified information . Seeing the 1
possibility that his efforts to dismantle Constitutional protection of the press would be futile,
Trump turns his attention to leakers and whistleblowers to starve out reporters.
1 Ellington, Thomas C. “Transparency Under Trump: Policy and Prospects.” Taylor & Francis, 18 June 2018, www.tandfonline.com/doi/full/10.1080/10999922.2018.1463837?scroll=top&needAccess=true.
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Two years into the Trump presidency (as of April of 2019), six individuals have been
charged in cases related to unauthorized disclosures of sensitive or classified information. To put
this number in context, the Obama Administration had ten total prosecutions in eight years . If 2
the Trump Administration continues at this rate, it would surely exceed the Obama
Administration, which itself lead an aggressive campaign against leakers. But what is more
troubling than the speed of prosecution is the content of these leaks. Out of the six people
charged, four have been connected to unauthorized disclosures related to Trump, his staffers, or
the Trump-Russia investigation . Take the case of Reality Winner. The former NSA contractor 3
became the first individual to be charged under the Espionage Act under the Trump 4
Administration. Winning leaked a classified document detailing Russia’s interference with the
2016 Presidential election and received a 5-years sentence. In another case, Natalie Edwards , a 5
senior Treasury Department employee, was charged for the illegal disclosure of Paul Manafort’s
Suspicious Activities Report to Buzzfeed News . Edwards’ case is still pending. 6 7
2 Asher-Schapiro, Avi. “Leak Prosecutions under Trump Chill National Security Beat.” Committee to Protect Journalists, The Committee to Protect Journalists , 6 Mar. 2019, cpj.org/blog/2019/03/leak-prosecutions-trump-national-security-beat.php. 3 Risen, James. “The Leaks That Trump's Justice Department Prosecutes Are Mostly About Trump, His Cronies, and Russia.” The Intercept, The Intercept , 27 Feb. 2019, theintercept.com/2019/02/27/trump-russia-leaks-mueller-investigation/. 4 Espionage Act of 1917: passed during World War I, this Act made it a crime to utter false statements that would interfere with the American military, to send through the mails material "advocating or urging treason, insurrection, or forcible resistance to any law of the US," or to utter or write any disloyal, profane, scurrilous, or abusive language intended to incite resistance to the US or to curtail war production. 5 Edwards worked as a senior employee at the Treasury Department’s Financial Crimes Enforcement Network (FinCEN), a federal law-enforcement division. 6 Also known as SARs, this is a document that financial institutions file to the Financial Crimes Enforcement Network (FinCEN) following a suspected incident of money laundering or fraud. 7 “Treasury Employee Charged with Leaking Details of Manafort's Suspicious Bank Transactions to BuzzFeed News.” U.S. Press Freedom Tracker, 18 Oct. 2018, pressfreedomtracker.us/all-incidents/treasury-employee-charged-leaking-details-manaforts-suspicious-bank-transactions-buzzfee d-news/.
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This alarming trend of silencing the press through the prosecution of their sources did not
begin under Trump. President Obama stated in 2012, “Since I’ve been in office, my attitude has
been zero tolerance for these kinds of leaks and speculation.” Under the Obama Administration,
eight people were charged under the Espionage Act, more than all previous administrations
combined. But Obama’s war against leaks did not end with the prosecution whistleblowers it had
expanded to journalists as well. According to the Committee to Protect Journalists, in a 2010
investigation by the Department of Justice, James Rosen, a Fox News correspondent, was labeled
as “an aider, abettor and/or co-conspirator” to State Department employee Jin-Woo Kim who
leaked information about North Korea’s nuclear weapons program. The DOJ seized Rosen’s
phone records, his personal emails, and tracked his movements. In another investigation in 2012,
the DOJ seized the phone records of the Associated Press in a leak investigation. From this trend
of the Obama Administration, it is evident that Trump is carrying on Obama’s footsteps.
This aggressive campaign against leaks has its share of deterrence, but it was not the only
method used to stop the flow of unfavorable information. Jameel Jaffer, the Executive Director
of the Knight First Amendment Institute at Columbia University, notes a fundamental difference
between the content of leaks under the Obama and Trump Administration. Jaffer calls the leaks
under Obama: “calculated revelations by administration loyalists, probably senior officials,
meant to bolster the administration’s public messaging, or to correct what the administration
believed to be public misconceptions about its policies. ” These leaks are different from Trump 8
era leaks because they are “planted leaks” or “pleaks, ” information that is intentionally designed 9
8 Jaffer, Jameel. “Jameel Jaffer: Government Secrecy in the Age of Information Overload.” Shorenstein Center on Media,Politics, and Public Policy , Harvard Kennedy School, 14 Feb. 2018, shorensteincenter.org/jameel-jaffer-salant-lecture-2017/. 9 This term is coined by Columbia Law School Professor David Pozen
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to leak to the public. These “pleaks” contained information that paints the government in a
favorable light to influence public opinion. The Obama Administration essentially hijacked a
once troublesome problem and changed it into their tool to shape press coverage to their
advantage.
The clash between national security and public interest was amplified in 1971 when Dan
Ellsberg leaked the Pentagon Papers to the New York Times, and later the Washington Post. This
classified Defense Department study regarding the history of the United States’ activities in
Vietnam detailed lies perpetrated by the government to Congress and the American people. The
Nixon Administration attempted to prevent the Times and Post from publishing by citing
national security concerns. In New York Times Co. v. United States, the Supreme Court ruled 6-3
in favor of the Times. Justice William Brennan notability said in his concurring opinion that
since the publication would not cause “an inevitable, direct, and immediate event imperiling the
safety of American forces, prior restraint was unjustified.”
It would certainly seem that the case is settled with whether or not the press has the
power to publish sensitive material. However, many scholars argue the significance of this
landmark case is exaggerated. Patricia Bella wrote in the Yale Law Journal “the disclosure of
national security information depends upon the judgment of the publisher—constrained by the
possibility of criminal liability, by the market, or by journalistic ethics”(1472). Bella takes a step
away from the Constitutional debate of whether the press has the power to publish classified
material and instead focuses on the results of leaks. The leaker’s motive is often undermined
because the materials they provide to journalists are subjected to self-censorship in which the
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press choose to redact information without an order from the government in fear of criminal
prosecution. Building off Bella’s article, Bruce Altschuler argues that the decision of New York
Times Co. v. United States is only a symbolic win for the press. Altschuler views the Court’s
decision as a rebuke of unchecked Presidential power and not a backing for press freedom.
Justice White and Stewart reasoned in their joint opinion that President Nixon could not impose
prior restraint on the press because no law authorizes this. In their joint opinion, the Justices
stated that “...[Only] Congress has the power to enact specific and appropriate criminal laws to
protect government property and preserve government secrets” (Bella 1470). This opinion hints
at the possibility of criminal prosecutions against the press if Congress decides to do so.
Furthermore, Altschuler argues that the New York Times decision was based on the question:
“Did the publication of the Pentagon Papers pose a clear and present danger?” and not “Is the
press protected to publish classified materials?” Since the publication did not prove to be
dangerous, in part due to the press’ self-censorship, Altschuler argues that the government
essentially got what they wanted without the use of prior restraint. For this reason, Altschuler
equates the media’s self-censorship to prior restraint imposed by the government (412).
The conflict between security and public interests is exacerbated with the advancement of
technology. In Bartnicki v. Vopper (2001), an unidentified person intercepted and recorded a
phone call between a teachers’ union negotiator and the union president during
collective-bargaining negotiations between a teachers’ union and the school board. A radio
commentator received the tape from an anonymous source and played it on his show. He was
sued under wiretapping laws. In a 6-3 decision, the Court stated: “a stranger’s illegal conduct
does not suffice to remove the First Amendment shield from speech about a matter of public
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concern” (Altschuler 421). The Court used New York Times Co. v. United States (1971) as a
precedent and asserted that “[a]s a general matter, state action to punish the publication of
truthful information seldom can satisfy constitutional standards. ” The Bartnicki decision 10
seemed to solidify the Court’s tolerance of the reception of classified information but, Bella
argues that the Bartnicki decision “does not squarely resolve when Congress can constitutionally
punish the publication of harmful national defense information. Rather, the Court concluded that
privacy concerns could not trump the First Amendment's protection of speech about a matter of
public concern” (1494). Bella points out the Court leaves open the possibility that the
government may still cite national security as the reason for prior restraint. The implication of
the Court’s ambiguity could have some serious effect on our journalistic institutions.
The evolution of technology has contributed to new methods of leaking and publishing.
In 2010, former military intelligence analyst Chelsea Manning (born Bradley Manning) leaked
the infamous “Collateral Murder” video and 750,000 classified documents about the United
States’ involvement in Iraq and Afghanistan to WikiLeaks. Manning was the charged with 11
“aiding the enemy,” the violation of the Espionage Act, and other theft charges . She was 12
acquitted of her worse offense of “aiding the enemy” due to the prosecutors failing to prove her
intent. She served seven years of her 35-year sentence after President Obama commuted her at
the end of his presidency. Following her indictment, many raised concerns over the role of
10 Merola, Linda M. “Bartnicki v. Vopper.” Bartnicki v. Vopper, The First Amendment Encloclopedia , www.mtsu.edu/first-amendment/article/575/bartnicki-v-vopper. 11 Cadwalladr, Carole. “'I Spent Seven Years Fighting to Survive': Chelsea Manning on Whistleblowing and WikiLeaks.” The Guardian, Guardian News and Media, 7 Oct. 2018, www.theguardian.com/us-news/2018/oct/07/chelsea-manning-wikileaks-whistleblowing-Interview-carole-cadwalladr. 12 Zavis, Alexandra, et al. “Chelsea Manning Leaves Prison after Serving 7 Years for Handing U.S. Secrets to WikiLeaks.” Los Angeles Times, Los Angeles Times, 17 May 2017, www.latimes.com/nation/la-na-army-chelsea-manning-20170517-story.html.
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whistleblowers and the free press. Adam Liptak of the New York Times cited the prosecution
Chelsea Manning as a chief example of how the government equates public-interests-oriented
whistleblowers with spies. He explains how the Espionage Act used to indict Manning which
was traditionally reserved for spies. Ratified at the beginning of World War I under President 13
Wilson, this Act was intended to prohibit interference with military draft efforts. It is only under
the Obama and Trump Administration that the Espionage Act was used against whistleblowers.
After Manning’s indictment, WikiLeaks founder Julian Assange was charged by the
Department of Justice in 2010 for the conspiracy to commit computer intrusion to aid Chelsea
Manning. According to CNN, from its founding in 2006, WikiLeaks published a record number
of classified materials on its website, including hundreds of thousands of classified documents
about Afghanistan and Iraq war and tens of thousands of stolen emails from global politicians.
WikiLeaks gained notoriety during the 2016 presidential election when it leaked thousands of
emails from the Democratic National Committee . In a 60 Minutes interview, Julian Assange 14
claims to be an activist someone who subverts illegitimate authority. He identifies his
organization as a free press who provide information for the public and encourage the people to
make their own well-informed decisions. Assange clarifies that WikiLeaks never gather
classified materials. Instead, they only publish material provided by others. If Assange’s claims
are valid, it would seem that the United States is indeed unjustifiably persecuting a journalistic
organization that is just doing its job. The deputy director of the Committee to Protect
13 It was famously used to prosecute Ethel and Julius Rosenberg, husband-and wife duo who provided American nuclear secret to the USSR. 14 “WikiLeaks Fast Facts.” CNN, Cable News Network, 11 Apr. 2019, www.cnn.com/2013/06/03/world/wikileaks-fast-facts/index.html.
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Journalists (CPJ) Robert Mahoney said in a statement: “The potential implications for press 15
freedom of this allegation of [a] conspiracy between publisher and source are deeply troubling.16
”
On the other hand, some questions and facts must be acknowledged that would
complicate this narrative. First, the question: “Is WikiLeaks a journalistic institution?” It is
evident that WikiLeaks is not like other institutions like the Times or the Post; it does not publish
physically, its sources are often committing criminal activities, and the information it releases
cost much embarrassment at the government's expense. WikiLeaks has been accused of being an
information dump, only publishing raw documents without editorials or commentary. Although
WikiLeaks has attempted to utilize journalistic norms such as commentary and redactions of
information that may be potentially harmful to legitimize its position this effort was eventually
abandoned (Bella, 1479). Second, Julian Assange is an Australian citizen, and WikiLeaks has no
physical headquarters. This brings in the question of enforceability of U.S. laws and the extent of
protection of the First Amendment (Bella, 1480-1483). The problems around WikiLeaks are
complex and there will be no clear answer until the courts draw clear legal boundaries.
Unlike the legality to prosecute WikiLeaks, the implications of its prosecution are clearer.
If Julian Assange is successfully prosecuted and found guilty, he would be the first “journalist”
to suffer such fate. Robert Mahoney, the deputy director of the CPJ comments “With this
prosecution of Julian Assange, the U.S. government could set out broad legal arguments about
journalists soliciting information or interacting with sources that could have chilling
15 Founded in 1981, the CPJ is an non-profit organization that promotes journalists’ rights. 16 “CPJ Troubled by Prosecution of Julian Assange.” Committee to Protect Journalists, 11 Apr. 2019, cpj.org/2019/04/cpj-troubled-by-prosecution-of-julian-assange.php.
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consequences for investigative reporting and the publication of information of public interest."
However, Bruce Altschuler would argue the consequences are already here without a guilty
verdict. He explains that the fear of what they publish may be considered to endanger the public,
the press may choose to publish with heavy redactions or worse, decide not to publish.
Advocates, activists, and journalists, are rightfully concerned with the patterns of
prosecution against whistleblowers and press freedom set by the Obama and Trump
Administration. The government had and continues to actively prevent the disclosure of
classified materials that may serve public interests. Worse, past court cases have left leeway for
the possibility of criminal prosecutions. If the media is restricted in its ability to publish or is
handicapped by the government to access truthful information, it cannot act as the bridge
between government and electorate. A handicapped press presents a direct threat to the
foundation of our democracy. Just like what Justice Potter Stewart wrote in his concurring
opinion in New York Times Co. v. US “an informed and critical public opinion which alone can
here protect the values of democratic government.”
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Work Cited
Altschuler, Bruce E. “Is the Pentagon Papers Case Relevant in the Age of WikiLeaks?” Political
Science Quarterly (Wiley-Blackwell), vol. 130, no. 3, Sept. 2015, pp. 401–423.
EBSCOhost, doi:10.1002/polq.12359
Altschuler gives a detailed account of history of New York Times Co. v. United States. He
explores the argument that this case is not a absolute win for the media and instead it created
room for prior restraint. He puts this case in contemporary lense by presenting accounts of
prosecutions against whistleblowers under the Obama Administration-including Manning,
Snowden, and WikiLeaks. He argues that the strategy used by Obama endangers press freedom.
His believes that both the Pentagon Papers case and Bartnicki left ambiguous interpretations of
what the press can or cannot do. He gives detailed explanations of the Justices’ opinions and
interprets them to leave room for threat against the press.
Asher-Schapiro, Avi. “Leak Prosecutions under Trump Chill National Security Beat.” Committee
to Protect Journalists, The Committee to Protect Journalists , 6 Mar. 2019,
cpj.org/blog/2019/03/leak-prosecutions-trump-national-security-beat.php.
Bella, L. Patricia “WikiLeaks and the Institutional Framework for National Security
Disclosures,” Yale Law Journal 121 (April 2012): 1448–1526, at 1472.
In this article, Bella examines the Pentagon Papers case and debates surrounding
WikiLeaks in the framework of the Court decision in this case. She points out that the decision of
New York Times Co. v. United States essentially put the power to decide what to public into the
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hand of the press since the government cannot impose prior restraint. However, she does
acknowledge that this does not mean the press is absolutely free to publish since they are
restricted by public interests and fear of criminal actions against them. Bella also explores the
Bartnicki decision and what implication it may have on the free press. Bella goes into detail
about the legal complication of the prosecution of Julian Assange and WikiLeaks.
Cadwalladr, Carole. “'I Spent Seven Years Fighting to Survive': Chelsea Manning on
Whistleblowing and WikiLeaks.” The Guardian, Guardian News and Media, 7 Oct. 2018,
www.theguardian.com/us-news/2018/oct/07/chelsea-manning-wikileaks-whistleblowing-
Interview-carole-cadwalladr.
“CPJ Alarmed by U.S. Justice Scrutiny of Fox News Reporter.” Committee to Protect
Journalists, 21 May 2013,
cpj.org/2013/05/cpj-alarmed-by-us-justice-scrutiny-of-fox-news-rep.php.
“CPJ Troubled by Prosecution of Julian Assange.” Committee to Protect Journalists, 11 Apr.
2019, cpj.org/2019/04/cpj-troubled-by-prosecution-of-julian-assange.php.
Ellington, Thomas C. “Transparency Under Trump: Policy and Prospects.” Taylor & Francis, 18
June 2018,
www.tandfonline.com/doi/full/10.1080/10999922.2018.1463837?scroll=top&needAccess
=true.
Ellington identified how President Trump, unlike Obama is not even rhetorically
for transparency. Alarmingly, Trump has suggested that journalists should be imprisoned
for publishing classified information. The new Espionage Act prosecutions and use of
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state secrets privilege were both examples of the Trump Administration following Obama
Era precedent of the prosecution against the press. Advocates are alarmed by Trump’s
aggressive attitude toward press freedom leaks, with his suggestions that all unauthorized
releases of information are criminal in nature, along with threats to prosecute journalists
for publishing classified information, something that has never been done before in the
United States. Ellington argues under the Espionage Act, whistleblowers are treated as
spies. “The trend of prosecuting leakers,which Trump inherits, can only aid in the
concealment of wrongdoing via the capricious prosecution of lower-level bureaucrats.”
Jaffer, Jameel. “Jameel Jaffer: Government Secrecy in the Age of Information Overload.”
Shorenstein Center on Media, Politics, and Public Policy, Harvard Kennedy School, 14
Feb. 2018, shorensteincenter.org/jameel-jaffer-salant-lecture-2017/.
Jameel Jaffer, former member of the ACLU and Director of the Knight First
Amendment Institute at Columbia. Jeffer argues that despite increasing number of leaks
from the executive branch and President Trump’s social media, the executive is not being
more transparent. He offers several reasons. He observes the changing trend of leakers in
the Trump White House: from whistleblowers who discloses government abuses to
people with private interests. Jeffer believes Trump’s strategize manipulation of the
media and White House leaks create a cacophony of noises and makes it difficult for the
people to have difficult conversations. In the modern era, noise is the new censorship. He
also discusses the difference between the Obama Era and Trump Era leaks. The Obama
Administration used “planted leaks” that are from government officials instead of
whistleblowers. They are specifically designed to benefit the government and skew
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public opinion in their favor.
“Treasury Employee Charged with Leaking Details of Manafort's Suspicious Bank Transactions
to BuzzFeed News.” U.S. Press Freedom Tracker, 18 Oct. 2018,
pressfreedomtracker.us/all-incidents/treasury-employee-charged-leaking-details-manafort
s-suspicious-bank-transactions-buzzfeed-news/.
Risen, James. “The Leaks That Trump's Justice Department Prosecutes Are Mostly About
Trump, His Cronies, and Russia.” The Intercept, The Intercept , 27 Feb. 2019,
theintercept.com/2019/02/27/trump-russia-leaks-mueller-investigation/.
Merola, Linda M. “Bartnicki v. Vopper.” Bartnicki v. Vopper, The First Amendment
Encloclopedia , www.mtsu.edu/first-amendment/article/575/bartnicki-v-vopper.
Minutes, 60. “Julian Assange: The 2011 60 Minutes Interview.” YouTube, YouTube, 11 Apr.
2019, www.youtube.com/watch?v=Ubknv_CxSUY.
Assange identifies himself a libertarian, an activist, and someone who subverts
illegitimate authority. He points out that it is a misconception that WikiLeaks gathers
material, in fact they only publish material provided by others. Assange believes his
philosophy is in line with those of founders of the United States and he “plays inside the
rules.” He dismisses the accusation that his organization are a group of sabotagers,
instead he sees himself as free press who provide information for the public and
encourage the people to make their own well-informed decisions. He defends Manning’s
Actions to leak sensitive information and says he is a political prisoner of the US.
Myre, Greg. “Once Reserved For Spies, Espionage Act Now Used Against Suspected Leakers.”
NPR, NPR, 28 June 2017,
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www.npr.org/sections/parallels/2017/06/28/534682231/once-reserved-for-spies-espionag
e-act-now-used-against-suspected-leakers.
Nott, Lata. “Leaks and the Media.” Freedom Forum Institute,
www.freedomforuminstitute.org/first-amendment-center/primers/leaks-and-the-media/.
Samuels, Brett. “Trump Ramps up Rhetoric on Media, Calls Press 'the Enemy of the People'.”
TheHill, The Hill, 5 Apr. 2019,
thehill.com/homenews/administration/437610-trump-calls-press-the-enemy-of-the-people
Sterne, Peter. “America's 'Official Secrets Act' - the Long, Sad History of the 100 Year-Old
Espionage Act.” America's 'Official Secrets Act' - the Long, Sad History of the 100
Year-Old Espionage Act, 15 June 2017,
freedom.press/news/americas-official-secrets-act-long-sad-history-100-year-old-espionag
e-act/.
Sterne, Peter. “Obama Used the Espionage Act to Put a Record Number of Reporters' Sources in
Jail, and Trump Could Be Even Worse.” Obama Used the Espionage Act to Put a Record
Number of Reporters' Sources in Jail, and Trump Could Be Even Worse, Freedom of the
Press Foundation , 21 June 2017,
freedom.press/news/obama-used-espionage-act-put-record-number-reporters-sources-jail-
and-trump-could-be-even-worse/.
Sullivan, Margaret. “Shocked by Trump Aggression against Reporters and Sources? The
Blueprint Was Drawn by Obama.” The Washington Post, WP Company, 8 June 2018,
www.washingtonpost.com/lifestyle/style/shocked-by-the-trump-aggression-against-report
ers-and-sources-the-blueprint-was-made-by-obama/2018/06/08/c0b84d88-6b06-11e8-9e3
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8-24e693b38637_story.html?noredirect=on&utm_term=.fb222fa1d629.
“WikiLeaks Fast Facts.” CNN, Cable News Network, 11 Apr. 2019,
www.cnn.com/2013/06/03/world/wikileaks-fast-facts/index.html.
Zavis, Alexandra, et al. “Chelsea Manning Leaves Prison after Serving 7 Years for Handing U.S.
Secrets to WikiLeaks.” Los Angeles Times, Los Angeles Times, 17 May 2017,
www.latimes.com/nation/la-na-army-chelsea-manning-20170517-story.html.
