Bill Keller, You’re Under Arrest

If publishing the WikiLeaks cables were against the law, could the New York Times go to jail?

NYT Executive Editor Bill Keller

Connecticut Sen. Joe Lieberman says the Justice Department should investigate the New York Times to see if the newspaper can be criminally charged for publishing leaked State Department cables. If federal prosecutors can make charges against the Times stick, whom would they put in jail?

Arthur Sulzberger, among others. It’s not altogether clear what laws Lieberman thinks the newspaper has violated, so assigning liability is a bit of a guessing game. If any laws were broken—like, say, the Espionage Act—the reporters and editors directly involved in the decision to publish would certainly be at risk, right up to Executive Editor Bill Keller. But prosecutors might not stop there. Under the controversial “responsible corporate officer” doctrine—a theory of derivative criminal liability first adopted by the Supreme Court in 1943—company officials can go to jail for the illegal acts of their subordinates even if they didn’t know about them, so long as the public welfare is endangered. So Times Co. Chairman Sulzberger, Vice Chairman Michael Golden, and others could be prosecuted. The corporation itself could also be punished with fines.

But the Times bigwigs can rest easy for now: The government doesn’t have any case against them unless something much more damaging comes out of the WikiLeaks trove. In order to prosecute a member of the press, the government has to satisfy two requirements. First, as with any criminal case, the feds would have to show that the media outlet broke a law. That would be easy enough in this case: The federal Comint Statute prohibits publishing classified information in a manner prejudicial to the interest of the United States, punishable by up to 10 years in prison.

The second requirement, though, would trip up prosecutors. In a series of landmark cases, the Supreme Court has ruled that the government can’t punish a reporter or newspaper for publishing true, newsworthy, lawfully obtained information unless printing it directly endangered the nation’s vital interests. There’s no dispute that the State Department cables are true and newsworthy. And, even though they were taken illegally from government computers, the Times itself didn’t do anything unlawful to acquire them. Finally, the government can’t rely on the vital-interests exception. The court has limited that exception such that it covers just overtly dangerous acts like printing troop locations, outing a secret agent, or publishing the nuclear launch codes. There must be a direct, causative link to foreseeable danger.

It might be a mistake for the government even to attempt to prosecute the Times, since the inevitable acquittal would encourage future leakers. California learned this lesson when it tried to prosecute a pornography producer under anti-prostitution laws. After the state lost the case, local police could no longer rely on the plausible threat of a prosecution to cow local pornographers. (Most ordinary people are terrified by the threat of prosecution, even if it’s empty.) While California smut-mongers now roll tape confidently, the other 49 states can still make this threat. That’s why, every time a newspaper publishes classified information, the government rattles its saber but rarely takes any action.

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Explainer thanks First Amendment attorney Marc John Randazza and Neil Richards of Washington University Law.

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