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55 U. Kan. L. Rev. 1027 (2006-2007)
United States v. Rosen: Pushing the Free Press onto a Slippery Slop

handle is hein.journals/ukalr55 and id is 1037 raw text is: United States v. Rosen: Pushing the Free Press onto a Slippery Slope? I. INTRODUCTION It has been the subject of U.S. Supreme Court dicta' and congressional speculation,2 and lately, ripe fodder for punditry on both sides of the ideological aisle, but for all its answer could possibly portend, the question remains unsettled: Can the government constitutionally prosecute the media for revealing national security secrets in news stories, and if so, under what circumstances? The Espionage Act of 19173 would likely be the source of such prosecution. Passed at the onset of American involvement in World War One, the Act prohibits, among other things, the willful communication of information relating to the national defense that the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation to any person not entitled to receive it.'4 Nowhere does the Act exempt the media from liability, and yet naturally, given the sacrosanct status of the country's free press, the government has been reluctant to prosecute the media under the Act's broad umbrella. With no cases before them, courts have not had an opportunity to determine whether such a charge would pass constitutional muster. In dicta, the Supreme Court has suggested that such a prosecution would be constitutional,5 and building on that premise, in August 2006, the Eastern District of Virginia found in United States v. Rosen6 that prosecuting two lobbyists under the Act did not violate the lobbyists' Joe Bant. J.D. candidate 2008, University of Kansas School of Law; B.S. 2005, University of Kansas. I would like to thank Professor Mike Kautsch for his insight and suggestions in helping me develop this idea. I would also like to thank Matt Osman and Samia Khan for their editorial review and my family and friends for their support. 1. See infra Part IL.B (discussing Pentagon Papers case). 2. See infra Part III.A (discussing congressional uncertainty about the implications of the Espionage Act). 3. 18 U.S.C. §§ 792-799 (2000). 4. Id. § 793(e). 5. See infra Part ll.B. (discussing the Pentagon Papers case). 6. 445 F. Supp. 2d 602, 641 (E.D. Va. 2006). 1027

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