Secrecy News has the scoop at Recipients of “Leaks” May Be Prosecuted, Court Rules.
Basically — for the first time and I’d argue contrary to the First Amendment and legislative intent — the a US court has held in US v. Rosen (the AIPAC case), that private citizens who have no contractual obligations to keep government secrets, and no security clearances, can nonetheless be prosecuted under the Espionage Act for sharing classified information they receive.
Judge T.S. Ellis, III (ED Va – where else?) argues in his opinion that this ruling is but a narrow one since it requires that the private citizen know the information is classified and that release would be potentially detrimental to national security, intend to share it, and do so knowing that this is illegal.
Seems to me that Nixon would have used this argument to prosecute newspapers for publishing the Pentagon papers; perhaps, given what we know now, they might have won on the merits, but surely the fear of jail (for Espionage) would have acted as a substantial deterrent to that and other important publications.
Indeed, it’s not hard to see this ruling as pushing us well down the slippery slope to a world in which in practice only Official Leaks, those giving the pro-administration side of a story will be published.
Don’t look for the 4th Circuit, the most statist in the nation, to overturn this. But I’ll bet even Scalia will vote to overturn it, as will the Supreme Court with at least six judges in the majority.