Deciding when to publish

AP Photo by Dennis Cook

George Freeman, a former New York Times attorney, confers with journalist Judith Miller in 2005 prior to her testifying in favor of reporters’ privilege legislation on Capitol Hill.

The Obama Administration’s prosecution of loose-lipped government employees has created a chilling effect on communication between officials and journalists. However, sources are still coming forward with classified information to give to the press, and journalists need to know how to handle those situations, said George Freeman, an attorney at Jenner and Block.

Journalists should consult their editors, other government officials and media lawyers if presented with classified information, said Freeman, who previously worked as in-house counsel at The New York Times for more than 30 years. Consider the pros and cons of publishing the information and whether the public’s right to know outweighs any possible harm to people or programs the information could cause.

“That’s what the major mainstream media has done now for decades, and in general it’s come out to a very good balance,” Freeman said. “It’s worked out in ways that have informed the public without causing jeopardy with national security.”

The government has a few options on how to deal with published leaks, Freeman said. Before publication they can seek prior restraint, which requires a very high standard and is rarely pursued. After publication, they can prosecute the journalist under the Espionage Act, but Freeman said the government almost never does this because prosecuting the press doesn’t look good.

The most common response would be for the government to subpoena the reporter to find out who their source was, and this is often difficult for the media to avoid, Freeman said.

“Ultimately, the information is a leak and if, after it’s published, the government decides they aren’t happy with the leak, it won’t matter much,” Freeman said.

Journalists need to remember that they’re not the only ones who need to cover their tracks while working with classified information. According to The Wall Street Journal, the FBI runs software that identifies phrases in e-mail and phone records that can link government officials to journalists. The FBI can search government-owned electronics, and if they find evidence of contact between journalists and officials, they can obtain a warrant to search the officials’ private e-mail messages and phone records.