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President Trump Can’t Jail Journalists for Reporting Leaks – Or Can He?

The First Amendment should protect reporters from jail, but that protection is not ironclad

No president has ever sent a reporter to jail for publishing embarrassing government leaks.

But President Donald Trump may want to change that. During a Feb. 14 meeting, the president urged then-FBI director James Comey to investigate and jail journalists for reporting leaks, according to the New York Times and Washington Post.

“Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information,” the Times reported, citing unnamed officials who had seen a memo Comey wrote shortly after the meeting.

Could reporters really go to jail for publishing leaks?

The answer is probably not. But we don’t really know with 100 percent certainty because the federal government has never tried to jail reporters under such circumstances before. The wild card is a federal law called the Espionage Act of 1917.

The Reporter’s Committee for Freedom of the Press noted that all three branches of government have resisted calls to jail reporters. “No president gets to jail journalists,” the group said in a written statement on Tuesday.

“Reporters are protected by judges and juries, by a congress that relies on them to stay informed, and by a Justice Department that for decades has honored the role of a free press by spurning prosecutions of journalists for publishing leaks of classified information,” it continued.

Most of press freedoms have come from Supreme Court decisions involving civil lawsuits, not criminal cases.

The press relies heavily on the landmark Pentagon Papers case from 1971 in which the Supreme Court ruled that the government cannot block publication of classified federal documents without concrete evidence of immediate, irreparable harm, akin to publishing the location of U.S. troops during war.

The court rejected the Nixon administration’s request to stop the New York Times and Washington Post from reporting about secret documents revealing that the government knew the Vietnam War was fruitless.

But three justices suggested that the Nixon administration could prosecute the Times and the Post for violating the Espionage Act by publishing classified documents. The Nixon administration, however, did not try to prosecute the newspapers.

The two men who leaked the Pentagon Papers — including military analyst Daniel Ellsberg — were charged with a felony under the Espionage Act, but the case was thrown out by a Los Angeles judge due to misconduct by the Nixon administration.

In a different case, Bartnicki v. Vopper, the Supreme Court ruled that a news organization cannot be sued for reporting about materials even though the materials were illegally obtained by a third party. But the news organization is free from liability only if it did not directly encourage someone to act illegally to get the documents and the materials are a matter of public concern.

But now we come to the Espionage Act of 1917. The federal law was created to prosecute spies, but it is so broadly worded that some fear it could be used against journalists.

The law makes it a felony for an unauthorized person to receive or “communicate” “national defense” information to others with reason to believe that it could harm the United States or assist a foreign enemy. The punishment ranges from a $10,000 fine to imprisonment.

The law has never been used against a journalist. Some legal experts argue that the law, if applied to journalists, is unconstitutional because it is vague, overbroad, and allows censorship of the press for lawfully obtained, critically important information.

Already, the Trump administration’s Department of Justice is weighing filing Espionage Act charges laws against members of the WikiLeaks organization for its 2010 leak of diplomatic cables and military documents as well as the website’s disclosure of the CIA’s cyber-tools, the Post reported in April.

During President Barack Obama’s administration, an FBI agent alleged in a 2013 affidavit that a Fox News reporter who received leaked government information was a “co-conspirator” under the Espionage Act, but the reporter was never charged.

In 2005, an independent prosecutor persuaded a judge to jail New York Times reporter Judith Miller for contempt of court for three months for refusing to name her source in President George W. Bush’s administration. She was released after her source gave her permission to testify before a grand jury.

President John F. Kennedy lamented that if only his Bay of Pigs invasion of Cuba had been leaked to the press before it took place, he might have called it off and saved himself and the country from the disastrous mission, according to a law review article about the Espionage Act and the First Amendment.