Expert: Michael Troy - 4/18/2005

Question
Hello mr. Troy,

I was recently assigned an interesting project dealing with national security v. freedom of the press. My question, or should I say questions, deal with the public's right to know. When and what does the public have a right to know? I understand that journalists can not publish the number and location of troops in time of war but is that the only restriction? Also, I would like to know if there is a difference between receiving stolen information and stolen goods. For instance, if I am a journalist and recieved stolen information about the governments plan to overthrow A dictatorship, can I publish it.  

Answer
Hi Steven,

The First Amendment typically prevents censorship of almost any information.  It does not matter if the information is stolen or not.  The "Pentagon Papers" case (New York Times v. US (1971))established that even if the information was stolen or a security risk, newspapers could publish it.  The majority in this case held that there could be some circumstances where prior restraint was allowed, but these were very rare cases of an immediate and direct threat to national security (e.g. your example of publishing troop movements in time of war).

That case, however, did not establish that there could be later legal repercussions over the publication.  Even though a newspaper published stolen information, if it participated in the theft, it could be held responsible.  A bigger question is whether they can be compelled to serve as witnesses in an investigation of a crime.  For example, Robert Novak published the name of a covert CIA agent a few years ago.  Whoever told him that information committed a crime.  Many have argued that he should be compelled to divulge who told him, as any other witness to a crime would be compelled to divulge information regarding a crime.  However, most states have laws that protect reporters from having to reveal their sources.

So the short answer to your question is yes, a newspaper would be on pretty solid ground to publish info about a plan to overthrow another country.  However, make sure you have a good shield law in place in your state or federal agents will be asking you where you got that info.

- Mike