This article originally appeared at the American Scholar

Why treating leakers as spies puts journalists at risk. 

In June, soon after Edward Snowden’s leaks of classified information about the National Security Agency’s secret surveillance programs came to light, David Gregory, the moderator of NBC’s Meet the Press, asked a conspicuously hostile question. Interviewing Glenn Greenwald, the Guardian columnist who published the first story based on the leaks, Gregory said, “To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?”

Greenwald reacted with icy indignation. He said, “I think it’s pretty extraordinary that anybody who would call themselves a journalist would publicly muse about whether or not other journalists should be charged with felonies.” But Gregory’s question reflected an ominous legal reality: a federal statute called the Espionage Act of 1917, in a remarkable distortion of its original intent, now threatens with criminal prosecution journalists and news outlets that publish classified information, alongside those who disclose official secrets they swore to safeguard.

When developing the Espionage Act, both houses of Congress voted against language that would have made it a crime for a news outlet to publish secret information. They likewise rejected criminalizing the provision of such information to the press. Yes, the World War I era was a dark time for freedom of speech, and the statute had undeniably jingoistic purposes: it made crimes of “insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces.” The Supreme Court found then that the government could punish speech simply because it had a “bad tendency.” Still, the parts of the statute concerning espionage were not meant to prosecute the press, but to punish the covert disclosure of secrets about national security to foreign enemies.

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