Chilling the press with the Espionage Act

Geoffrey Stone has an interesting op-ed in today's NY Times on the Bush Administration threat to prosecute the Times and the Washington Post under the Espionage Act for publishing leaks. He says it won't fly.

First, he argues, "When the Espionage Act was proposed by President Woodrow Wilson, it included a section that would expressly have made it a crime for the press to publish information that the president had declared to be 'of such character that it is or might be useful to the enemy.' Congress overwhelmingly rejected that proposal, with members of both parties characterizing it as 'un-American' and 'an instrument of tyranny.'"

Second, he argues, "if the 1917 act were meant to apply to journalists, it would unquestionably violate the First Amendment. Laws regulating speech must be precisely tailored to prohibit only speech that may constitutionally be proscribed. This requirement addresses the concern that overbroad laws will chill the willingness of individuals to speak freely."

And, third, he says, "if Congress today enacted legislation that incorporated the requirements of the First Amendment, it could not apply to articles like those published by The Times and The Post. Such a statute would have to be limited to articles that, first, do not disclose information of legitimate and important public interest and, second, pose a clear and present danger. Nobody could deny that articles like those on secret prisons and electronic surveillance of Americans clearly concerned matters of legitimate and important public interest; nor could the administration show that such disclosures created a clear and present danger of serious harm to the national security."