Concurrent with the release of Oliver Stone’s film starring Joseph Gordon-Levy have come a number of calls for President Obama to pardon Edward Snowden for his violations of the Espionage Act. There has been a good deal of editorializing on the issue by various media outlets. The New York Times, for example published an op ed calling for a pardon. The Washington Post editorial board, on the other hand, while acknowledging that Snowden’s actions have produced some public benefits, has taken the position that Snowden should stand trial on espionage charges or, as a “second-best solution,” accept “a measure of criminal responsibility for his excesses and the U.S. government offers a measure of leniency.” The Post’s position was not lost on Glenn Greenwald (played in the movie by Zachary Quinto), who wrote in The Intercept that the Post “has achieved an ignominious feat in U.S. media history: the first-ever paper to explicitly editorialize for the criminal prosecution of its own source.” So, why is Snowden, who gave this information to several media entities likely facing the choice of a long term residency in Moscow or trial for violation of the Espionage Act, and the Post, which published much of this information to a worldwide audience, the recipient of a Pulitzer Prize?

The issue of prosecution of a media entity on espionage charges for publishing classified information has never been squarely addressed. The Espionage Act was directly invoked against the press by the Nixon Administration in an effort to obtain an injunction to prevent publication of what are now known as the Pentagon Papers — classified documents relating to Vietnam policy leaked by defense analyst Daniel Ellsberg that showed material inconsistencies between the government’s public assertions and private misgivings regarding a successful conclusion of the war. The government’s lawsuit invoked as statutory authority for injunctive relief section 793(e) of the Espionage Act, which makes it unlawful for anyone who has “unauthorized possession of” information “relating to the national defense” with “reason to believe [it] could be used to the injury of the United States or to the advantage of any foreign nation” to “willfully communicate” the information to persons not entitled to receive it. Accordingly, when the case reached the Supreme Court, the issue was not whether the press could be criminally prosecuted under the Espionage Act but, rather, whether the government was entitled to a prior restraint on publication. The Court, in a very brief, per curium order, ruled that the government had not met its burden of showing that it was entitled to an injunction against publication of newsworthy information.

The concurring and dissenting opinions showed a wide divergence on the underlying issues, however, and Justices Stewart, White and Marshall suggested (in dicta) that the press could be prosecuted after-the-fact. As Justice White put it, “failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way. . . . I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.”

The legal terrain of this issue has been further formed by the cases of Steven J. Rosen and Keith Weissman, officials with the lobbying group American Israel Public Affairs Committee (“AIPAC”) who were charged under Espionage Act sections 793(d) (unauthorized possession of national defense information transmitted to unauthorized recipients) and 793(g) (conspiracy). The leaker was Lawrence Franklin, an official working in the office of Secretary of Defense, who orally transmitted the information to Rosen and Weissman. Franklin pleaded guilty under these same sections. U.S. District Court Judge T.S. Ellis denied Rosen’s and Weissman’s motion to dismiss the indictment, holding the Espionage Act was constitutional on its face and as applied to Rosen and Weissman. However, Judge Ellis rejected the government’s argument that no First Amendment issue was presented by such an indictment holding that “the mere invocation” of national security or government secrecy’ does not foreclose a First Amendment inquiry, and that the analysis was dependent upon the circumstances in which the act was done. He held that (1) the term “information related to the national defense” was limited to information “closely held” by the government, (2) that the Espionage Act applies only to disclosures, and (3) the government must prove that the defendant acted with the specific intent to violate the statute. Further, where a prosecution rests on the catch-all phrase “other information related to the national defense” and involves intangible information (here, orally transmitted information as opposed to specific documents), the government must prove that the defendant subjectively intended “to either harm the United States or to aid a foreign government.” The government, on the basis of these heightened intent requirements, eventually had the cases against Rosen and Weissman dismissed.

Rosen and Weissman, as mentioned, were lobbyists. Closer to the issue of potential media liability under the Espionage Act are the releases of classified documents by Wikileaks. While Julian Assange, the founder and “editor in chief” of Wikileaks, like Snowden, has passionate supporters and detractors, unlike Snowden, Assange himself was not the leaker – that was largely done by Chelsea (fka Bradley) Manning who is currently serving time in Fort Leavenworth for (among other things) violation of the Espionage Act. To date, Assange has not been indicted with violations of the Espionage Act, despite calls to label Wikipedia a “terrorist organization” and rumors of a secret grand jury.

While one might justly refuse to put Wikileaks and the Washington Post in the same category, in the current media environment it is increasingly difficult to draw a line between “the press” and any number of online blogs and other disseminators of information and opinion — a difficulty which has impacted many legal issues notably including “shield laws” that give qualified protection to “the media” from having to testify and/or disclose sources to prosecutors and law enforcement.

In terms of applicability of the Espionage Act, both Wikileaks and the Washington Post have put copies of the leaked documents online where they can be viewed by anybody, including hostile powers. Thus both appear to have intended to and did disseminate to people not entitled to receive or possess them, tangible documents related to the national defense, and that at least some of these documents were both secret and objectively of a kind the disclosure of which had the potential to harm the security of the United States, and that both entities were aware of the secret nature of the documents. If this could be proven, then under Judge Ellis’ formulation, the only remaining element under the government’s burden would be whether they, respectively, knew that disclosure of the documents “was illegal, but proceeded nonetheless”—that they acted with a purpose either to disobey or to disregard the law.

The Washington Post and the Guardian, the New York Times, and The Intercept, the four news organs that received and published large numbers of secret documents provided by Snowden, would no doubt urge that their intent was to bring necessary sunshine to what has been widely held to be illegal activity on the part of the government and to promote government by the people. It goes without saying that Snowden and Assange have articulated the same goals. Snowden, as the leaker, is in a different category, and as an employee of a government contractor, has lower First Amendment protections, if any at all. The odds of the Washington Post being prosecuted for violating the Espionage Act appear, at present, vanishingly small. But these odds would appear to be greater than zero. The Supreme Court decision in Bartnicki v. Vopper, which arose under the Federal Wiretap Act, holds that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield about a matter of public concern.” However, this holding may not address the issue raised by Justice White in his concurring opinion in the Pentagon Papers case that a publisher’s actions in and of themselves may be illegal under the Espionage Act. I am left humming to myself the lyrics to a song by Elton John and Bernie Taupin – “keep your auditions for somebody who hasn’t got so much to lose, ’cause you can tell by the lines I’m reciting, that I’ve seen that movie, too.”