I recently had occasion to debate the question whether media firms can or should be prosecuted for publishing classified information. (I was the "pro-speech" side, though this question is too tough for such simple descriptions.) The issue, which got its most recent start with this piece, is of interest on this blog because of some wonderful issues and examples associated with New York Times v. United States, the "Pentagon Papers" case. That case decided that the Times and the Washington Post could not be restrained from publication, but it explicitly left open the question whether they could be indicted and prosecuted after the fact.
For several years at Minnesota I began my PR course with one of these examples, not suspecting that it could become a topical as well as an interesting problem. I'll get to it in a minute, but first a threshold question. Suppose a client obtains classified information and wants to publish it. Regardless whether they have a right to have it, they will not have a right to communicate it to those not authorized to see it (see the statutes below). Suppose the client wants advice on whether the Constitution would trump, in that particular case, provisions of the Espionage Act such as 18 USC 793(d) or (e), or Section 798. May or should the lawyer examine the documents to render advice?
The text of these statutes implies that doing so would involve the client in the commission of a felony by communicating classified information to persons not entitled to see it. (Probably there is another statute forbidding people without appropriate clearance from reading classified material; I have not tracked that down.)
The issue is not just hypothetical. As recounted in David Rudenstine's wonderful history of the case, some lawyers for both the Times and the Post (including for the Times former Attorney General and then senior Lord, Day & Lord partner Herbert Brownell), worried about whether they should even see the documents their clients were planning to plaster on the front page, because they might be committing unlawful acts themselves.
Possibly one could argue for a penumbral speech right to seek counsel, but it is not at all clear that such an argument would stand up. And, of course, the deeper a lawyer gets into advising on the issue, the greater the risk of being seen as an aider and abettor of a crime, at the high end of exposure, or simply assisting in unlawful activity in violation of 1.2(d), at the low end.
The Post's lawyers also worried that the injunction that had issued against the New York Times, which, like all injunctions, ran against those acting in concert with the Times, might actually cover the Post if the Post had got the papers from the same source (Daniel Ellsberg) as the Times. The lawyers pressed on the issue, and the Post reporters, tired of dealing with obstructionist lawyers, clammed up. (They eventually told the lawyers to assume that they got the papers from the same source as the Times, which they had.)
The best part of the story, though, and the one with which I used to begin class, concerns how the Post's editor, Ben Bradlee, dealt with what he saw as his obstructionist lawyer problem. He sent a messenger to a courthouse in Chicago to pull Edward Bennett Williams out of a trial to call him. Williams called, and Bradlee laid out the facts. Here is Rudenstine's rendering of Williams's advice: "You just have to publish. Never mind the law, you just have to publish. They'll never get you. They'll go after you, but they'll never get you." (131) (For a significantly blunter version of the exchange, see Evan Thomas's biography of Williams, "The Man to See" at 265-66)
You know the rest of the story. (Though it is perhaps not widely known that Williams turned down Bradlee's offer to argue the case for the Post in the Supreme Court because he could not abandon his other client in mid-trial, an admirable show of loyalty.) And a lot of you also know that the Post now uses Williams & Connolly; it switched firms not long after the Supreme Court decision.
I used to ask students whether Williams' advice was legal advice in any sense, or perhaps even wrongful advice. Opinions varied.
I wonder if we will have a story like that for our generation? Attorney General Gonzalez has dropped hints to that effect with regard to the New York Times story on warantless interception of telephone calls from suspected terrorists, but my guess is that those are shots across the bow of what the administration sees as a hostile media. However one characterizes it, Williams' advice is probably still good.
DM