Via the Cynic Librarian, Attorney General Alberto Gonzales has said he believes journalists can be prosecuted for publishing classified information, citing an obligation to national security:
"There are some statutes on the books which, if you read the language carefully, would seem to indicate that that is a possibility," Gonzales said, referring to prosecutions. "We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected.
What is particularly chilling about this "jurisprudence of intimidation" is that it is being presented at the same moment the press has started doing its job - revealing government policies and procedures that are aimed at destroying opposition and dissent.
Geof Stone, a legal scholar over at the University of Chicago Law School has a post about the history of classified information and the Press. He indicates that a journalist has never been prosecuted for divulging "governement secrets" in the history of the United States.
But there was a moment in 1917, just as the U.S was about to enter World War I, that Congress debated enacting legislation that would have prohibited the publication of classified information:
Only three weeks after it voted a formal declaration of war under Article I, section 8 of the Constitution, Congress began debate on what would become the Espionage Act of 1917. Although the Act was directed primarily at espionage, the original bill included what we can call the “press” provision. This provision would have made it unlawful in time of war for the press to publish any information that the president declared to be “of such character that it is or might be useful to the enemy.” The proposed provision added that “nothing in this section shall be construed to limit or restrict any discussion, comment, or criticism of the acts or policies of the Government...”
Opposition to the provision was fierce. Representative Simeon Fess of Ohio warned that “in time of war we are apt to do things” we should not do. Republican Senator Henry Cabot Lodge of Massachusetts expressed concern that the government officials who would administer this provision would use their authority to stifle legitimate criticism of the government. Representative Medill McCormick of Illinois added that he was appalled to think that if an epidemic were to break out in the Army the proposed provision might empower the president to prohibit the press from “drawing public attention to the condition of the troops.”
In response, proponents of the provision invoked the clause guaranteeing that “nothing in this section shall be construed to limit or restrict any discussion, comment, or criticism of the acts or policies of the Government.” Opponents replied that it was impossible effectively to criticize the policies of the government without discussing the information on which the criticism was based.
As Stone points out, the House of Representatives defeated the provision by a vote of 184 to 144, with 36 Democrats joining the Republican opposition. And thank god they did. If only the current Republicans knew a little history.