There has always been an active debate about whether the First Amendment affords government outsiders (like the media) any protection when they disseminate classified national security information without authorization. As I mentioned in my blog post last week, however, critics of the most recent round of high-profile leaks have targeted their attacks almost exclusively on the leakers themselves and not on the news outlets that published the leaks. So the question is, do leakers have any First Amendment right to disclose national security information to government outsiders without authorization?
At the outset, let me just say leakers have a variety of statutory arguments they might make if prosecuted under the Espionage Act and related statutes. Charlie Savage recently outlined a few of these arguments here. In addition, one of the obstacles the government might face is that in order to prove that the disclosure was harmful to national security, they might have to reveal even more national security secrets (often called “graymail”). This is one reason why the Drake prosecution fell apart.