The movie Edward Snowden is a great example of U.S. media laws and the protections given to us by the Constitution. The First Amendment gives US Citizens and the Press protections. The First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances (UMUC, n.d.).
In the movie Snowden, the press gives the public groundbreaking news on its own government at great cost to themselves. However, this isn’t the only time the media has made us aware of government issues at the potential cost to themselves.
History of the Law
Dating back to the thirteenth century, the king of England made it a crime to “to communicate libelous or seditious ideas” against the government or the crown (UMUC, n.d.). To break this law, would be punishable by death (UMUC, n.d.). We have since come a long way with our freedom of speech and expression but many who uncover government secrets are still exposed to legal backlash.
“In 1917, on the heels of World War I, Congress, in cooperation with President Wilson, enacted the Espionage Act, which made it a federal crime to publish anything that attempted to cause insubordination, disloyalty, mutiny, or refusal of duty in the armed forces” (UMUC, n.d.).
This Act would make any publication service think twice about publishing negative information about the government.
Even with FOIA, the Freedom of Information Act enacted in 1967, which “has provided the public the right to request access to records from any federal agency,” (FOIA.gov, n.d.) many received stall tactics or simply didn’t know what was going on behind the scenes of the government to even ask for a FOIA. However, at great risk to themselves, The New York Times and The Washington Post tried to publish classified documents in 1971. They were stopped by the government who claimed prior restraint to protect national security. This went to court in New York Times Co. v. United States, 403 U.S. 713 (1971).
When the Supreme Court ruled in favor of the publication, since the government could not prove a threat to national security, there could be no legal action taken against The New York Times or The Washington Post for the publication of the classified documents.
Why Snowden Was Important
The movie Snowden is a very current example on the NYTimes v. United States.
Here we have a someone who works for the government that wants to publish classified information/documents. Though, there are some differences.
Edward Snowden wanted to be named, which made him a public figure, to protect himself from the misdeeds of the government. There also wasn’t any prior restraint from the government about the publication of the information. However, the cases are similar when it comes to media coverage.
In Snowden, the media is pressed with the task of informing the public but also making sure that they follow the law. The media does have proof of a FISA court order which is a secret warrant.
“A warrant to wiretap someone suspected of spying with or for a foreign government is issued by the Foreign Intelligence Surveillance Court — or FISA Court. The court is actually a tribunal whose actions are carried out in secret” (Lord, 2018).
The Guardian, the newspaper trying to publish the classified information that Snowden is giving them, has told the US government that they have specific information and will publish it. The Guardian wants to know if the government says that any of the information they have is a matter of national security. If so, they cannot publish the documents as per the verdict in NYTimes v. United States.
The government, when asked repeatedly, could not say for certain if any of the information The Guardian wanted to publish was a matter of national security. This gave The Guardian the proverbial ‘green light’ to publish. However, even with this, the newspaper is still reluctant and even afraid to publish the story without talking, in detail, to their editor in chief. This is because when taking action against the government, especially with classified documents, one needs to be sure they are not breaking any laws.
The language of NYTimes v. United States leaves wiggle room for interpretation so even though one may think they are within the confines of the law, in some situations that may not always be true.
Each case brought before the courts can be determined differently by interpreting the law based on mitigating circumstances. Since The Guardian revealed they possessed the classified information, they were forced to publish quickly or face the prospect of the government using stall tactics or illegal measures to prevent the newspaper from releasing the story.
Ultimately, the journalists decided to publish the information.
“The prime minister David Cameron accused the Guardian of damaging national security by publishing the revelations, warning that if it did not demonstrate some social responsibility it would be very difficult for government to stand back and not to act” (Macaskill & Dance, 2013).
Since the ruling of the case, the press was protected after the publication. However, across the pond, UK publications were required to hand over their evidence. Journalists and employees physically destroyed the information to rebuff them as the US still retained all the information at the US publication office.
Though The Guardian did not find themselves in any legal trouble, Snowden was charged with two counts under the Espionage Act of 1917 as well as theft of government property.
Since the publication of these documents that Snowden provided, laws have changed. We now have the USA Freedom Act which “reauthorizes parts of the USA Patriot Act but dissolves its notorious bulk data collection of Americans’ phone records and Internet metadata” (The Washington Post, 2015).
USA Freedom Act
With the USA Freedom Act, the government now has different reporting requirements when communicating with FISA. Private companies, like Verizon, can now have “more opportunities to publicly report information about the number of FISA orders they receive” (The Washington Post, 2015).
“It declassifies FISA Court opinions that contain significant legal interpretations, or, if declassification is not possible, requires that a summary is provided” (The Washington Post, 2015).
The USA Freedom Act has many other changes that give US citizens back more protections promised to them under the constitution.
After Snowden delivered the classified documents to the media, his passport was revoked and he went into hiding in Russia where there are no extradition treaties.
Snowden claims he will face trial if it will be public but that has yet to happen. The US Supreme Court does not allow the media into the courtroom at this time. Many bipartisan bills have come forward to allow the media to make SCOTUS proceedings public, but it has yet to pass.
Is Snowden a Hero. . . Or Traitor?
Making the public aware of the illegal acts of the government has been a challenge for those involved but especially the media.
History reveals a gruesome tale of death for those who utter libel or solicitous words against the crown. Now there are more protections shielding the media but not enough for the media to publish the illegal activities without fear of legal backlash for their actions.
Overall, since Snowden released his classified documents to the press, there has been little backlash towards the media over the publication and distribution of these facts. Also, laws have changed in favor of the public since the misdeeds of the government have come to light.
This is why, depending on who you ask, Snowden is either a hero or a traitor.
Which do you believe?
FOIA.gov. (n.d.). What is FOIA? Retrieved December 09, 2018, from FOIA.gov: https://www.foia.gov/about.html
Lord, D. (2018, Feb 01). What is a FISA warrant? Retrieved December 09, 2018, from AJC: https://www.ajc.com/news/national/what-fisa-warrant/WqP428Eg04nHe933u1GazO/
Macaskill, E., & Dance, G. (2013, November 01). NSA Files: Decoded. Retrieved December 09, 2018, from The Guardian: https://www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-decoded#section/1
The Washington Post. (2015, June 02). USA Freedom Act: What’s in, what’s out. Retrieved December 09, 2018, from The Washington Post: https://www.washingtonpost.com/graphics/politics/usa-freedom-act/
UMUC. (n.d.). Freedom and Restrictions on Expression. Retrieved December 09, 2018, from learn.umuc: https://learn.umuc.edu/content/enforced/329772-001837-01-2188-OL4-7980/COMM%20400%20Modules/Week%201/Freedom%20and%20Restrictions%20on%20Expression%20(Part%201).htm
UMUC. (n.d.). Freedom of Expression and Freedom of the Press. Retrieved December 09, 2018, from learn.umuc: https://learn.umuc.edu/content/enforced/329772-001837-01-2188-OL4-7980/COMM%20400%20Modules/Week%202/Freedom%20and%20Restrictions%20on%20Expression%20(Part%202).htm