Free Press: Five Questions with Lee Levine, Outside Counsel to the New York Times, Many Others

This is the third in a series of interviews I’m conducting with lawyers and scholars around the country who’ve made a mark on the First Amendment. Follow me @jonathanwpeters on Twitter. 

Lee Levine for more than 30 years has represented news outlets, including the New York Times, in First Amendment cases. He has argued twice at the U.S. Supreme Court, where he won the landmark case Bartnicki v. Vopper. He also has litigated in state and federal courts around the country. Levine is an adjunct professor of law at the Georgetown University Law Center, and he is lead author of the treatise “Newsgathering and the Law,” now in its fourth edition, and co-author of the casebook “Media and the Law.” 

Some say the Roberts Court is a friend of free speech, others say it’s a foe, and many say it’s somewhere between those extremes. What’s your take?

So far the Roberts Court has been as good on First Amendment issues as any Supreme Court in history, including the Warren Court. There are still chapters of this book to be written, but you can’t read cases like Snyder v. Phelps and U.S. v. Stevens and not feel confident that there’s a working majority committed to fundamental First Amendment freedoms. That applies to cases like Citizens United, too. You can’t be an advocate of First Amendment rights without thinking Citizens United was rightly decided.

What separates the Roberts Court from its predecessors is its interest in certain cases. It’s gotten out of the business of deciding cases that affect the press on a day-to-day basis. It doesn’t hear reporter’s privilege cases, defamation cases, access cases, prior-restraint cases. And I’m not complaining about that. It’s just an open question whether the Court’s warmth toward the First Amendment in general would extend to press defendants.

Talk with me about representing the press. In your legal practice, what are the newsgathering problems you see most often?

Basically, they’re of three types. The first type is whether the press and public have affirmative, constitutional rights of access to information, to records, to meetings, and so on. The courts have been active in this area—they’ve recognized rights of access in a variety of contexts, but typically a lower level of scrutiny applies to them, at least compared with rights in other First Amendment areas. That means, for example, you’re asking the question, “What kind of showing does the government have to make to overcome this right of access? Is it a high bar or a low bar?”

The second type involves press liability for newsgathering conduct. The courts have been very slow to recognize any First Amendment-based protection here—protection for reporters from suits that make claims about the way reporters gather the news. And the third type involves promises of confidentiality to sources. In the last few years, we’ve seen unprecedented efforts by the government to compel the disclosure of sources. The courts have been modest in the extent to which they’ve recognized the reporter’s privilege, especially in the federal courts. That’s led to agitation in the news media and to their lobbying to pass a federal shield law.

Going beyond newsgathering, what are the publication problems you see most often?

Day in and day out, defamation claims are the most significant. The law in this area is settled, so what we’re doing is applying that body of law in a changing world, to different facts. Even though the number of defamation suits is down, at least at the high end of the news universe, at major newspapers and magazines and networks, the fact remains that people upset by what’s said about them can resort to the courts.

Another problem, a more dramatic and possibly chilling one, is the WikiLeaks phenomenon—the repercussions of it. We have a stable and respected body of law for prior restraints, which are used to stop speech before it happens. These are presumptively unconstitutional. But now we live in an Internet age, and the viability of a prior restraint, as a technological matter, is in question. So do we begin prosecuting people, after publication, for disseminating information that’s classified or potentially harmful to national security? There’s a real threat that someone who’s a journalist—or close to a journalist—might be prosecuted for disseminating truthful, newsworthy information, because the government claims its disclosure is in some way harmful to national interests.

On the subject of WikiLeaks, you argued the case Bartnicki v. Vopper at the U.S. Supreme Court. That case stands today for the principle that the press can’t be held liable for publishing truthful information about matters of public concern (1) absent a government interest of the highest order, and (2) where the press didn’t help the source get the information. How could that principle apply in a U.S. prosecution of WikiLeaks for publishing classified information?

You’d have to look at the conditions. Is the government interest—for example, national security—sufficient to overcome Bartnicki’s protection? And how do you make determinations about government interests and their implications? Do you make them on a wholesale or retail basis? Take national security. If we use a wholesale basis and say, “National security is a government interest of the highest order,” then that would hold true in every case. But if you make those determinations on a retail basis, then it’s up to the judge to make calls in particular cases about the national security interests at issue and the implications of disclosing specific information.

The other thing to consider is: What if Bartnicki doesn’t apply? What does that mean? Then can the government punish the outlet or organization for disseminating the potentially harmful information? Or would we resort first to modern First Amendment jurisprudence and examine whether the statute, whatever is used to prosecute the speaker, is content-based, whether it’s narrowly tailored, and so on. Lately we’ve seen—in the AIPAC case, for example—a major focus on narrowly tailoring statutes to protect the speaker and to create a high burden for the government to get a conviction.

Do you think there’s a way to distinguish what WikiLeaks does from what traditional news outlets do?

I’ve heard that argued both ways. I’m not an expert on WikiLeaks, although I’m familiar with what the site does, of course. To the extent WikiLeaks is receiving information without participating in illegal conduct, and the information disseminated is truthful and about a matter of public concern, then WikiLeaks is entitled to as much protection as any press organization doing essentially the same thing.

Now, if WikiLeaks is engaging in illegal conduct, Bartnicki suggests that there’s a better chance the government could regulate or punish that conduct. That would be true of any press entity. Organizations like the New York Times draw lines that dictate what they’ll do to get information, lines that stop short of engaging in illegal conduct. And if WikiLeaks doesn’t draw those lines, that’s a major difference between WikiLeaks and most traditional news outlets.

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