It seems that at every turn during this crazy presidential election campaign — with its deeply flawed principal candidates (whom do you hate less?) — someone’s personal or professional computer records are being hacked. First, it was Hillary Clinton’s emails that she had failed to surrender to the State Department. Then it was a portion of Donald Trump’s 1995 tax returns, showing a $916 million loss he claimed during boom times. Then it was those Clinton emails again, this time showing her unacted-upon doubts about two of our Middle Eastern allies’ involvement in 9/11 and her revelation of some secrets about the killing of Osama bin Laden.
The reason we know about these leaks is the common thread among them — the willingness of the media to publish what was apparently stolen. Hence the question: Can the government hold the press liable — criminally or civilly — for the publication of known stolen materials that the public wants to know about? In a word: No.
Here is the back story.
When Daniel Ellsberg, an outside contractor working in the Pentagon, stole a secret study of U.S. military involvement in Vietnam in 1971, which revealed that President Lyndon Johnson had lied repeatedly to the public about what his military advisers had told him, the Department of Justice secured an injunction from U.S. District Judge Murray Gurfein, sitting in Manhattan, barring The New York Times from publishing what Ellsberg had turned over to Times reporters. Such an injunction, known as a “prior restraint,” is exceedingly rare in American legal history.
This is so largely because of the sweeping language of the First Amendment — “Congress shall make no law … abridging the freedom of speech, or of the press” — as well as the values that underlie this language. Those values are the government’s legal obligation to be accountable to the public and the benefits to freedom of open, wide, robust debate about the government — debate that is informed by truthful knowledge of what the government has been doing.