by Stephen I. Vladeck

The debate over the proper balance between national security and freedom of the press has traditionally focused on the media’s potential criminal liability for publishing sensitive information, as was threatened after the New York Times and the Washington Post disclosed the U.S. government’s secret and warrantless wiretapping of domestic phone calls. With the issue of press liability for the publication of national security information, however, comes a bevy of difficult questions concerning the scope of the protections afforded to the press under the First Amendment.

Those questions are made all the more difficult by the absence of an overarching framework statute, akin to England’s Official Secrets Act,3 that in clear and sweeping terms specifies the means and manner in which the press may be held criminally liable for publishing sensitive information. Instead, historically the U.S. Congress has focused its attention on more discrete targets, punishing the dissemination of very specific types of sensitive governmental information, and, in many cases, by very specific classes of individuals. As such, the statutory framework governing the complicated balance between governmental secrecy and the freedom of the press in the United States is little more than a disorganized amalgamation of unconnected statutes. Some of the provisions overlap each other and border on redundancy. Others are difficult to parse, and cannot possibly prohibit what their plain language appears to suggest. Still others, when read together, seem to promote mutually inconsistent policy goals.

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