What began as a footnote in Judge Timothy J. Kelly’s opinion blocking President Donald Trump’s effort to ban MS NOW, CNN and Politico from the White House has become the primary issue — potentially with ramifications for the entire free press.
Although Trump initially said he was banning the outlets because he objected to what they had reported (and has continued to mention this, including in an interview with Time published last week), Justice Department lawyers — no doubt recognizing that Trump’s claim was unlikely to fly under the First Amendment — made a different argument in court: that MS NOW, CNN and Politico were banned because they had published “sensitive or classified information.”
Kelly rejected the national security argument in his Sept. 24 opinion reinstating the outlets’ access, writing in a footnote that he was “skeptical” that national security was the “actual motivation for, or is even advanced by” the ban.
Kelly also wrote that he was required to follow 50-year-old case law that says the White House can’t revoke press credentials without due process.
As the parties return to court Thursday, the scope of the administration’s argument has far-reaching implications.
The DOJ has argued that because federal law prohibits publishing classified information, the outlets had advance notice sanctions that could be leveled. It has cited the Espionage Act, a law that has a long history of being used to suppress speech.
For the first time, the government appears to be arguing that journalists from mainstream news outlets can be criminally prosecuted for publishing sensitive or classified information, an argument it previously reserved for WikiLeaks publisher Julian Assange.
There is good reason to be alarmed. It’s common for journalists, especially those who cover national security issues, to obtain sensitive or classified information from sources. Some of the most important news stories of recent decades, such as the vast warrantless wiretapping of Americans and the mistakes that prolonged the war in Afghanistan, were based on classified information.
In recent years, administrations of both parties have tried to crack down on media publication of classified information.
Journalists publish such information not to harm our nation’s security but to protect it. As the Supreme Court recognized in its 1971 decision protecting the press’s right to publish the Pentagon Papers — a classified study of the Vietnam War leaked by whistleblower Daniel Ellsberg — “[O]nly a free and unrestrained press can effectively expose deception in government.” The public needs this kind of reporting to hold elected leaders accountable.
Yet in recent years, administrations of both parties have tried to crack down on media publication of classified information. The Obama administration, for instance, brought charges under the Espionage Act against eight people accused of leaking to the media — a record number.
In the first Trump administration and continuing under former President Joe Biden, the federal government pushed a dangerous legal theory: criminal liability for simply obtaining and publishing classified information.
In Trump’s first term, the DOJ charged Assange under the Espionage Act for obtaining and publishing classified documents from whistleblower Chelsea Manning. In 2013, Manning was sentenced to 35 years in prison for leaking information to WikiLeaks, including video of an U.S. military attack that killed unarmed civilians and journalists. (Then-President Barack Obama commuted the remainder of her sentence in 2017.)
Prosecuting sources like Manning is not unheard of in the United States. But jailing journalists for publishing leaked information is. When Assange was charged, press freedom advocates and news outlets warned that prosecuting him would set a precedent that could allow a future administration to prosecute a journalist.
Rather than heed that warning, the Biden administration continued the Assange prosecution. Ultimately, Assange pleaded guilty to one count of conspiracy to violate the Espionage Act. His plea deal did not resolve the legal question of whether the act can be used against journalists, consistent with the First Amendment, but it sent a clear warning: Journalists who publish classified information could be next.
Less than two years later, Trump’s DOJ cited the Assange case to justify raiding the home of Washington Post reporter Hannah Natanson. Then, investigators said their focus was not Natanson but her source for her reporting about U.S. operations in Venezuela.
Now, the government’s argument in defense of Trump’s effort to ban MS NOW, CNN and Politico goes beyond all of that by claiming that publication of national security information alone breaks the law and that journalists should know that. When Kelly rejected this argument, he noted both “the lack of precedent” for applying the law to reporters and the absence of any evidence that the news outlets had violated federal law.
But the DOJ continues to push this argument, and Trump has said he would appeal decisions that go against him. If a higher court accepts this argument, the Trump administration could be empowered to actually prosecute journalists, not just ban them from the White House. And because overclassification of government documents is rampant, journalists could be at risk of prosecution even if material they publish is not legitimately secret.
Even if the Trump administration doesn’t prosecute a single reporter using such an expanded power — and that’s a big if — speech is still likely to be chilled as news outlets and journalists think twice before publishing classified material. That means the media wouldn’t just be unable to report on activities at the White House. It would lose the power, endorsed in the Pentagon Papers case, to inform the people of dangerous government secrets.
The post How the government argument for Trump’s media ban threatens the entire free press appeared first on MS NOW.
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