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?
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).


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