ANDERSON COOPER: As far as reporters who helped reveal these programs, do you believe something should happen to them? Do you believe they should be punished as well?
KING: Actually, if they willingly knew that this was classified information, I think actions should be taken, especially on something of this magnitude. I know the whole issue of leaks has been gone into over the last month. But I think on something of this magnitude, there is an obligation both moral but also legal I believe against a reporter disclosing something which would so severely compromise national security. As a practical matter, I guess there have been a number of reporters who have been prosecuted under it. So the answer is yes to your question.
King is wrong that journalists have been prosecuted for publishing classified information. While the sources who leak classified information have been prosecuted, and journalists have been punished for failing to reveal those sources, there is no known example of a U.S. official prosecuting a journalist for their own reporting or publication of material. Doing so would be an unprecedented expansion of government invasion into the free press, and would prompt an immediate deluge of constitutional challenges as a violation of the First Amendment.
That’s why it was jarring to see a recent Department of Justice legal filing suggest that reporter James Rosen might be considered a “co-conspirator” under the Espionage Act for a story he wrote containing classified information. U.S. Attorney General Eric Holder has since clarified that the Department of Justice will never prosecute a journalist for doing his or her job so long as he is in charge, and that the recent probe targeted government officials.
Because no official has ever pursued prosecution on this basis, the U.S. Supreme Court has not weighed in on its constitutionality. But in rejecting a move by officials to block the New York Times’ publication of the Pentagon Papers, the high court made explicit that government attempts to restrain or impermissibly chill the crucial press role of holding government accountable will not be tolerated under the First Amendment, even when the information published is classified. Justice Hugo Black wrote in one of several concurrences bolstering that opinion, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”