Prosecuting the Press:

Some conservatives seem eager for the Justice Department to prosecute the press for reporting on leaked classified information. Former Reagan Administration official Bill Bennett said on his radio show such reports were not worthy of prizes but "worthy of jail." This past weekend, Attorney General Alberto Gonzales fueled the fire when he suggests on ABC News' "This Week" that the prosecution of journalists was a possibility. "There are some statutes on the book which, if you read the language carefully, would seem to indicate" that prosecuting journalists for reporting on leaked classified information "is a possibility," he said. The Attorney General went on to say that DOJ has "an obligation to enforce the law and to prosecute those who engage in criminal activity."

Today, media attorney Michael Berry and I have an article on National Review Online urging conservatives to get off the press prosecution bandwagon. In our view, such prosecutions — even if constitutional — would be unprecedented and unwise. (And I'm less convinced of some of the legal arguments under the Espionage Act than I was a few weeks back.)

Here is our bottom line:
Publishing classified information is not the same thing as stealing state secrets or spying for the enemy. There is a distinction between clamping down on government employees who leak sensitive national security information and targeting the reporters who publish those leaks. It is one thing to question the wisdom or propriety of publishing sensitive national-security information, or to allege media bias. But it is quite another to call for the criminal prosecution of journalists for reporting on matters of public concern, even when those matters implicate national security. Not every embarrassing or unfortunate disclosure is a criminal act.

Sensitive information should be treated sensitively, even by journalists. Conservatives, however, should be wary of novel applications of vaguely worded criminal statutes, particularly in the face of clear constitutional text. If the Justice department were to go ahead and prosecute journalists for reporting on such information, it would unduly hamper press freedom and set a dangerous precedent that conservatives would come to regret.

The full article is here.

UPDATE: I'll be responding to critiques on and off in the comments throughout the day.