More on “Journalists Might Be Felons for Publishing Leaked Governmental ‘Predecisional Information'”
I wrote about this case last year, shortly after the Second Circuit panel decision (which was titled U.S. v. Blaszczak) concluding by a 2-1 vote that a federal agency “has a ‘property right in keeping confidential and making exclusive use’ of its nonpublic predecisional information.” Because of this, the panel held that a federal employee’s leak of the information—and the receipt of that information by someone cooperating with the employee—could be felony wire fraud and conversion of government property.
In Blaszczak, the people dealing with the employee were using this information to trade stocks, and some of the securities charges on which they were convicted were focused on that. But the wire fraud and conversion charges did not require a showing of such illegal trading—the parties were convicted for the “theft” of government information quite apart from how the information is used.
Say then that investigative journalists have a relationship with a federal government employee, and cooperate with the employee to get a leak of confidential government “predecisional information” about the government’s planned policy changes. Under the panel’s theory, they too would be guilty of felony conversion of federal property and wire fraud.
Indeed, even if they just get the leak out of the blue, they would likely still be guilty of felony conversion, so long as they knew the leak was of confidential information. In such a situation, they would have “knowingly convert[ed] to [their] use … any … thing of value of the United States,” or “receive[d] … or retain[ed] [such a thing of value] with intent to convert it to [their] use or gain, knowing it to have been embezzled, stolen, purloined or converted.” Participation in the leak itself isn’t required; knowing use of the leaked information suffices. (If the “property” could somehow be valued at under $1000, such behavior would be just a misdemeanor, but I assume that under the federal-predecisional-information-as-property theory that the panel majority adopted, most leaked information would be valued at more than that.)
Nor would journalists have an obvious First Amendment defense that others don’t possess. As I’ve canvassed in my Freedom of the Press as an Industry, or for the Press as a Technology? From the Framing to Today article, the First Amendment generally doesn’t give institutional media more protection than other speakers.
Even if a court could distinguish use of government property for public speech purposes (whether by the media or other speakers) from such use fo
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