; Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes
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Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes

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Rosen and Weissman's lawyers intended as part of their defense to focus on Bush administration practices concerning classified national security information.5 Rosen and Weissman received permission to subpoena highlevel former officials, such as former Secretary of State Condoleezza Rice, to show that U.S. government officials frequently disclosed classified information to various non-governmental entities to advance U.S. foreign policy interests.6 On May 1, 2009, the government moved to dismiss charges against Rosen and Weissman, stating that a trial risked the disclosure of classified information and that Judge Ellis changed the landscape of the case by imposing heightened scienter requirements that the statute does not require.7 Unstated in the government's motion to dismiss, but disclosed to the New York Times, was the fact that government policy makers were "clearly uncomfortable" with the prospective testimony of senior officials.8 It is one thing for officials to decry leaks in settings such as press conferences but quite another for them to testify under oath about their frequent use of this communication technique. In Williams, Justice Scalia noted in passing that Congress could punish those who solicit the unauthorized disclosure of national security documents.17 Before abandoning the prosecution of Rosen and Weissman, the Government relied on Williams for the claim that the conspiracy was outside the First Amendment's protection.18 Contemporary First Amendment doctrine provides the press with almost absolute protection to publish truthful information that is lawfully acquired.19 However, the contours of the phrase lawfully acquired are uncertain.20 The Court's cases reveal that "routine" newsgathering methods, such as acquiring information from court documents open to public inspection, are lawful.21 While a reporter's theft of documents would be illegal regardless of the news value of those documents,22 the Court has ruled that reporters may passively r

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