The document discusses President Trump's calls for investigations into journalists who publish classified information and the historical challenges of protecting anonymous sources. It highlights key legal cases, such as Branzburg v. Hayes, which concluded that the First Amendment does not guarantee protection for journalists wishing to keep their sources confidential. The text also explores the balance between freedom of the press and national security, referencing prior restraint and notable examples from recent presidencies.

1. Lock them up!
The president urges federal officials to investigate
journalists who rely on leaks and report “fake news”

2. Comey meets with Trump
“Mr. Trump … [said]
that Mr. Comey should
consider putting
reporters in prison for
publishing classified
information, according
to one of Mr. Comey’s
associates.”
— New York Times, 5/16/17

3. Trump urges investigation

4. What does the Constitution say?
• Do you think journalists have a right to protect their
anonymous sources?

5. What does the Constitution say?
• Do you think journalists have a right to protect their
anonymous sources?
• Do you think journalists have a right to publish
news that endangers national security?

6. What does the Constitution say?
• Do you think journalists have a right to protect their
anonymous sources?
• Do you think journalists have a right to publish
news that endangers national security?
• They do not. They are protected only by social
norms.

7. An age-old dilemma
• In 1848, John Nugent of the New York Herald was
held for refusing to identify a source to the Senate

8. An age-old dilemma
• In 1848, John Nugent of the New York Herald was
held for refusing to identify a source to the Senate
• He was confined to a committee room and
continued to file stories datelined “Custody of the
Sergeant-at-Arms”

9. An age-old dilemma
• In 1848, John Nugent of the New York Herald was
held for refusing to identify a source to the Senate
• He was confined to a committee room and
continued to file stories datelined “Custody of the
Sergeant-at-Arms”
• The sergeant-at-arms would take Nugent home
each night; after a month, the Senate gave up

10. Branzburg v. Hayes (1972)
• On a 5-4 vote, the Supreme Court ruled that the
First Amendment does not protect reporters who
wish to keep their confidential sources anonymous

11. Branzburg v. Hayes (1972)
• On a 5-4 vote, the Supreme Court ruled that the
First Amendment does not protect reporters who
wish to keep their confidential sources anonymous
• Justice Lewis Powell’s “enigmatic concurring
opinion” suggested that judges should engage in a
case-by-case analysis

12. Branzburg v. Hayes (1972)
• On a 5-4 vote, the Supreme Court ruled that the
First Amendment does not protect reporters who
wish to keep their confidential sources anonymous
• Justice Lewis Powell’s “enigmatic concurring
opinion” suggested that judges should engage in a
case-by-case analysis
• Judges are reluctant to force journalists to reveal
their sources, but there is no reporter’s privilege at
the federal level

13. 49 states offer some protection

14. Notable cases
• Judith Miller was jailed
in the Valerie Plame
investigation

15. Notable cases
• Judith Miller was jailed
in the Valerie Plame
investigation
• President Obama was
obsessed with rooting
out leakers

16. Notable cases
• Judith Miller was jailed
in the Valerie Plame
investigation
• President Obama was
obsessed with rooting
out leakers
• James Risen argued
that Obama paved
the way for Trump

17. The national-security dilemma
• Prior restraint — censorship — is considered to be
the worst possible violation of freedom of the press

18. The national-security dilemma
• Prior restraint — censorship — is considered to be
the worst possible violation of freedom of the press
• With a truly serious breach of national security, the
damage is done unless censorship is imposed

19. The national-security dilemma
• Prior restraint — censorship — is considered to be
the worst possible violation of freedom of the press
• With a truly serious breach of national security, the
damage is done unless censorship is imposed
• How do we balance freedom of the press with the
need to protect national security?

20. Near v. Minnesota (1931)
• Prior restraint was
prohibited in nearly
all instances

21. Near v. Minnesota (1931)
• Prior restraint was
prohibited in nearly
all instances
• Three exceptions
• Incitement to violence
• Obscenity
• Serious breaches of
national security

22. Near v. Minnesota (1931)
• Prior restraint was
prohibited in nearly
all instances
• Three exceptions
• Incitement to violence
• Obscenity
• Serious breaches of
national security
• Punishment could take
place after the fact

23. Col. Robert McCormick
The publisher of the
Chicago Tribune, he faced
serious charges, and
could have been
executed, for revealing
that the U.S. had cracked
Japanese codes

24. The Pentagon Papers (1971)
• Not quite a landmark
case as the justices
affirmed Near decision

25. The Pentagon Papers (1971)
• Not quite a landmark
case as the justices
affirmed Near decision
• A majority wrote that
the Times and the Post
could faces charges

26. The Pentagon Papers (1971)
• Not quite a landmark
case as the justices
affirmed Near decision
• A majority wrote that
the Times and the Post
could faces charges
• Nixon tried to bring a
case but soon got
caught up in Watergate

27. The George W. Bush years
President Bush called the
New York Times’ NSA
story “a shameful act,”
and there were calls in
some circles to bring a
case against the Times
under the WWI-era
espionage law

28. For journalists, two routes to jail
• Protecting anonymous
sources

29. For journalists, two routes to jail
• Protecting anonymous
sources
• Breaching national
security

30. For journalists, two routes to jail
• Protecting anonymous
sources
• Breaching national
security
• President Trump may
believe the Washington
Post did both in
reporting on the Oval
Office meeting with the
Russians.