Freedom of the Press #9
Outpost of Freedom
February 22, 2017 – George Washington’s Birthday
In the previous article, though suggested in the government’s Supplemental Memorandum in Support of Government’s Motion For an Order to Show Cause, of February 7, 2017, it really didn’t get to the heart of “Prior Restraint”. So, let’s get to the heart of that matter.
Let’s start with the law that explains the potential severity of publication of certain information, in a case similar to what the government and Judge Anna J. Brown are attempting to construct against me. Section 793 (e) of the Espionage Act was cited as the authority by which the government attempted to impose “Prior Restraint” on the New York Times for publishing what was known as the “Pentagon Papers”. The Papers had been leaked to the press by a government employee who had signed a non-disclosure agreement (not just based upon a Protective Order), which precluded that employee from divulging any information protected by Section, 793 (e):
Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.
… Shall be fined under this title or imprisoned not more than ten years, or both.
There, in a rather large nutshell, is the extent of the government’s authority to impose upon a party limitations in communicating certain information, and/or retaining and/or not delivering it to the government. However, as we shall see, even that did not have the effect implied in the wording of the Act.
To understand the legal limitations of government’s authority, we need to look at New York Times Co. v. United States 403 U.S. 713 (1971). The case taken up by the Supreme Court included a similar action brought against the Washington Post. The cases were joined and the Supreme Court granted certiorari, in which the United States sought to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled “History of U.S. Decision-Making Process on Viet Nam Policy.” Prior to the Supreme Court decision, the District Court for the Southern District of New York, in the New York Times case, and the District Court for the District of Columbia, and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden of proof.
The Second Circuit Court of Appeals overruled the District Court in the New York Times case, putting a stay on publication on June 25, 1971. The Supreme Court then ordered that the stay be vacated.
Now, before we go on, this is not about the source that provided the information to the newspapers. It is solely about the right of the press to publish what it had obtained, regardless of the source. With that in mind, we must take the reader back to a statement in the Supplement Memorandum (linked above), which states:
The government is not seeking the testimony of third-party Gary Hunt to identify the source or sources of the protected discovery information. The government intends to investigate that on its own. The government is merely seeking the removal of protected discovery material that this Court has ordered protected. Nothing about Gary Hunt’s blogging[sic] activities is implicated by the Motion to Show Cause. Third-party Gary Hunt is continuing to disseminate protected discovery material in the face of three Court Orders. No privilege is implicated.
This demonstrates the similarity of the parties in New York Times Co. and the current situation. In neither case is the source of the information sought, though there can be little doubt that in both cases, the government was investigating the source.