Expert: Michael Troy - 11/1/2005

Question
In a current case in the news, a columnist  played a major role in revealing the name of a CIA employee in his column. Yet, he seems to be free of any culpability for doing so. Is his apparent immunity due to the Constitution's guarantee of freedom of the press? If so, may a newspaper publish any information they are able to learn, even if that information is classified, as it was in the current situation?  

Answer
Hi Frank,

There is no real Constitutional issue involved here.  The reporters have not been prosecuted because they did not violate the law.  

The law in question makes it a criminal offense for a person who has been granted access to information regarding the identities of CIA agents to reveal that information to people without such clearance.  Since the reporters did not have government clearance to secret government information, they were not under any legal obligation to keep the secret.

As for the more general question about a constitutional right to print classified information, the Courts have generally held that the First Amendment protects such publication, with the possible exception of certain national security issues that pose an immediate threat: for example, publishing troop movements during wartime.

The most publicized case is New York Times v. US, more commonly known as the "Pentegon Papers Case."  There, the Times published classified information about the Vietnam War (while the war was still going on).  The Supreme Court said the First Amendment permitted publication, but the final decision resulted in nine separate opinions, meaning that it is difficult to apply the reasoning to future cases.  If you are interested, you can read the opinions here:

http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0403_0713_ZS.html

I hope this helps!
- Mike