Prosecute the New York Times
By TheSophist Posted in User Blogs — Comments (81) / Email this page » / Leave a comment »
The good lawyers (that an oxymoron?) at Powerline have posted an invaluable piece on the New York Times' possible criminal liability for publishing the NSA intelligence piece.
The key graf:
Which raises the question: Does the First Amendment afford the Times immunity from criminal liability for its conduct? In New York Times Co. v. United States, 403 U.S. 713 (1971)("the Pentagon Papers case"), the Supreme Court held that it was presumptively unconstitutional for the government to restrain the publication of classified information. In separate opinions concurring with the order allowing the Times to continue publication of its Pentagon Papers stories, however, a majority of the justices clearly contemplated that the Times could be held responsible for any violation of the law involved in publishing the stories. For a scrupulous consideration of the Pentagon Papers case in this context, see Harvey Silverglate's Boston Phoenix article: "The Gray Lady in shadow."[links in original removed]
I urge you to read their entire article.
Calling for criminal prosecution of anyone is a fairly serious matter. But a couple of things occurred to me while reading the Powerline piece, as well as thinking about what has happened in the past several weeks.
(more)First, suppose it had been Al Riyadh, a Saudi newspaper, rather than the New York Times that had published stories about a classified U.S. intelligence operation. Is there any doubt that any reporters, editors, or other staff of Al Riyadh based in the United States would now be under arrest for espionage? Is there any doubt that those responsible for leaking the classified information would be being ferreted out by the counterintelligence agencies of the United States in an enormous mole hunt?
I do not think so.
Second, if it had been an American blogger who published classified intelligence on his blog, is there any doubt that he would now be under arrest for espionage and his sources and contacts hunted down as spies?
Not for me.
So why society, Congress, and this Administration gives a pass to the New York Times for engaging in what is clearly an illegal act, and allows the reporters, editors, and the publisher who have all engaged in spycraft to continue to operate is beyond me. It has to stop.
The First Amendment protects the media's right to publish, its right not to be censored. It does not eliminate the normal consequences that all Americans would face for doing so. There is no special privilege for the "press" to violate laws, trample upon national security, and compromise our secrets. There is no special immunity for the New York Times over an individual blogger, or a foreign newspaper. All must obey the law, or else face the consequences.
It is time to prosecute the Times.