Jack Goldsmith at Executive Functions on the Trump DOJ’s efforts to subpoena journalists in leak investigations and the risk that it might prosecute journalists under the Espionage Act for publishing confidential national-security information.
Despite the rhetoric from media members, the First Amendment does not clearly prohibit either government effort. At best, the First Amendment imposes limits on compelled disclosure–whether the Fourth Circuit’s bad faith approach (which Goldsmith believes SCOTUS would accept) or the Second Circuit’s balancing of prosecutorial need and materiality–that are relatively easy to overcome in most cases. And no one knows how the First Amendment interacts with the complexities of the Espionage Act.
Instead, the general reluctance (if not refusal) to pursue journalists reflects the same norms that Trump II has been ignoring and likely will continue to ignore going forward.