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Larry the Leaker is high up in the US government, and has access to highly classified information/documents. He goes to John the Journalist, and tells him to publish all of it. Obviously, Larry has agreed to a bunch of stuff telling him not to leak or talk about any of that stuff, so Larry has no hope. But John never signed anything. So does John face any solid legal repercussions for wholesale publishing everything he got from Larry?

In the case of Edward Snowden, I'm pretty sure The Guardian (and its journalists) didn't face any repercussions. But Snowden was ultimately a whistleblower reporting on unethical conduct in that case. I want you to make no such assumptions about what Larry and John are doing. For example, perhaps Larry literally told John the identities of undercover agents in Russia, and John posted it just for the clout. Will John face any legal repercussions, even though he literally never signed anything?

Edit: To be clear, I'm not asking about Larry the Leaker (the government employee) whatsoever. I'm asking solely about John the Journalist, who publishes the information, and what legal ramifications he might face. Also if I'm allowed a follow-up: if Nathan the Netizen retweets/reposts John's article and evidence, is Nathan also subject to legal ramifications?

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    Real life is not an abstraction. Context has to be taken into account. So, a complete answer cannot avoid to consider assumptions as important as "John's actions directly caused the death of several people" in your example. Of course if John is trialed, then the consequences of John's actions are going to be relevant, especially if John was aware of those consequences when he did his deed.
    – Stef
    Apr 17, 2023 at 15:02
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    @Stef I think a complete answer probably actually could avoid those assumptions altogether. The publication is protected by the First Amendment, and no ill effects of the speech can change that.
    – bdb484
    Apr 17, 2023 at 21:30
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    I don't understand. Isn't this precisely the case of Julian Assange? He didn't leak anything, he only made leaks available, like Jerry the Journalist, isn't this exactly the case you are asking about?
    – terdon
    Apr 17, 2023 at 23:06
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    @terdon My understandings of fact is that he pushed illegal activity. Illegal use of computer system. He was not just given a random file by insider.
    – paulj
    Apr 18, 2023 at 14:07
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    @xmp125a Saying that "the right to x is not absolute" is rarely a valuable contribution to this kind of debate. The question already presumes an absence of absolute protection, so it's only worth pointing out if one of the exceptions is applicable. The fact that you categorize a case as "extreme" does not strip it of First Amendment protection.
    – bdb484
    Apr 18, 2023 at 15:31

3 Answers 3

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It depends on the nature of the documents. This law specifies that it is illegal to disclose or publish etc. classified information

concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government

and there are 4 such subcategories. Violation results in imprisonment up to 10 years. This is an ordinary prohibition. Government employees may also be given access to classified information whose disclosure is not criminal in the general case, but would be illegal for the government employee to disclose owing to his position, under this law.

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    To be clear, I'm not asking about Larry the Leaker (the government employee) whatsoever. I'm asking solely about John the Journalist, who publishes the information. And to be clear, you're saying that, according to 18 U.S. Code § 798, John can face legal ramifications, yes? And if I'm allowed a follow-up: if Nathan the Netizen retweets/reposts John's article and evidence, is Nathan also subject to legal ramifications according to the same law?
    – chausies
    Apr 17, 2023 at 2:04
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    @chausies 18 USC 798 applies to everyone. It says "whoever," not "whoever, being a government employee."
    – phoog
    Apr 17, 2023 at 10:26
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    Is either of these the Espionage Act, which has been referenced in conjunction with the recent leaks?
    – Barmar
    Apr 17, 2023 at 15:18
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    Now, let's say Larry deliberately removes any classified markings from the documents before sending them to John. John receives a bunch of classified information, but since it is not marked as such, he has no way of knowing that it is classified. Is he still liable for publishing it? (Larry is obviously in way more trouble for this added level of subterfuge, but we're talking about John here.) Apr 17, 2023 at 20:58
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    The constitutionality of applying 18 USC 798 to the press is very much an open question. The majority view seems to be that it might be permissible to criminally punish the media for such a disclosure if there wasn't a significant public interest at stake but that it's probably impermissible if there is. Though this is based largely on dicta in just one or two cases and none of the justices who decided those cases are still serving. Apr 18, 2023 at 9:42
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While there are narrow exceptions, the general rule is that a member of the media who receives leaked material that the media member did not solicit is free of legal liability.

On June 30, 1971, the Supreme Court decided, 6–3, that the government failed to meet the heavy burden of proof required for prior restraint injunction. The nine justices wrote nine opinions disagreeing on significant, substantive matters.

Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.

— Justice Black's opinion in New York Times Co. v. United States, 403 U.S. 713 (1971) (a.k.a. the Pentagon Papers case).

(via the Pentagon Papers link).

There is also a non-binding Justice Department policy of not prosecuting reporters in connection with leaks of government information and of not trying to obtain information in their cases from reporters except in a few narrow kinds of cases.

As user6726 notes in another answer, this immunity from liability isn't absolute.

But protections from liability for reporters who do published leaked confidential government information is also much broader even than in most countries that have strong protections for freedom of the press.

Very few members of the media have been prosecuted successfully for leaking confidential information since this landmark 1971 ruling, although many government officials and members of the U.S. military have been successfully prosecuted and convicted for leaking confidential information to members of the media in the same time period.

The Related Issue Of A Reporter's Privilege

Closely related to this question is the issue of whether there should be a reporter's privilege (a.k.a. "shield laws") allowing them to not disclose their confidential sources which is recognized in some, but not all, U.S. jurisdictions.

Many reporters have been incarcerated for contempt of court for refusing to disclose their confidential sources, despite being compelled to disclosure this pursuant to a valid subpoena, in various U.S. jurisdictions when courts determine that the reporter lack a reporter's privilege.

enter image description here

The image is from the "reporter's privilege" link.

The federal courts haven't reached a perfect consensus on the issue in the wake of an ambiguous ruling on the question by the U.S. Supreme Court known as the Branzburg case was decided in 1972 with a fractured ruling on an only partially related issue.

in the decades since Branzburg was decided, most federal appellate courts have recognized some form of a qualified privilege for journalistic materials. The U.S. Courts of Appeal for the Seventh and Eighth Circuits are the only circuits that have not yet definitively done so. But the First, Second, Third, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh, and D.C. Circuits have recognized a privilege in at least some cases, derived from the First Amendment. And at least the Third Circuit has also described the privilege as arising from federal common law.

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I never agreed not to steal your car. Yet if I steal it and get caught, I’ll go to jail.

It is true that often you are not allowed to publish a document because you signed an NDA. But many documents are just illegal to publish.

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  • Why the downvote? Yes this is perhaps overly simplistic, but it does address the fact that, well ... it's just illegal to publish some documents. Apr 17, 2023 at 15:51
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    This answer doesn't add anything to the other, earlier answer, which also says it is illegal to publish some things.
    – Stuart F
    Apr 17, 2023 at 16:22
  • The member of the media publishing the leaked material did not commit any illegal act. It's not him who leaked the information. Journalist IS NOT THE SOURCE, thus logically and legally (at least in US this is law) one is immune from any kind of prosecution, which is as it should be. Also, by definition, a journalist has a host of responsibilities , and while he should be immune from prosecution for publishing, he also has to exercise judgement what should and what should not be disclosed, because publishing may endanger others (physically, legally, ethically etc). This answer is BAD.
    – AcePL
    Apr 18, 2023 at 7:55
  • I think this answer is overly simplistic as it completely sidesteps the freedom of the press rights enshrined in the first amendment. There's no freedom to be a car thief, but there are freedoms of the press, to a certain extent, and a full answer should attempt to define that limit. Apr 18, 2023 at 13:53

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