Leakers, Leakees, and the First Amendment

John D. Moore, Brooklyn Law School, has published In the Same Boat: Leaks, the Press, and the First Amendment at 18 Holy Cross journal of Law and Public Policy 137 (2014). Here is the abstract.

In the Same Boat offers a distinctive perspective on the timely topic of national security leaks. Historically, the government has prosecuted the individuals who leak national security information while allowing the press who publish that leaked information to act without consequence. This article shows that the laws that criminalize leaking apply with equal force to those in the press who receive leaked information. In short, when it comes to leaked information, journalists and their sources are in the same boat and only government forbearance prevents journalists from facing prosecution. This is an upsetting prospect for those who value public access to information the government would prefer to keep secret. Thus, this article proposes a novel First Amendment defense for both leakers and the press who publish those leaks. The defense balances the government’s often-legitimate interest in maintaining the secrecy of national defense information against the public’s equally legitimate need to know information of public concern.

Download the article from SSRN at the link.