Politico’s publication of the Supreme Court draft falls into a hazy area of press protections.

The Supreme Court is grappling with one of the most significant disclosures of a government secret in half a century: the release of a draft opinion that sets the framework for overturning Roe v. Wade, writes The New York Times’s Jeremy Peters.

But unlike the Pentagon Papers in 1971 — whose source, the defense contractor Daniel Ellsberg, was indicted by a federal grand jury for theft — this time the leak came from inside the building.

Whether the journalists who published the article will face repercussions is still an open question. For a number of a reasons, Mr. Peters writes, the case falls into a murky zone of the First Amendment, which generally protects the publication of a leak but not the leaker:

  • There is no law or written code of conduct that suggests how an investigation into such a breach should proceed, or whether the journalists at Politico who brought the draft to light will be swept up in the kind of criminal investigation that top Republican lawmakers have demanded.

  • Unlike the Pentagon Papers, the government study of the country’s involvement in Vietnam, the Supreme Court draft opinion was not classified information. Leaking classified information is a crime. Instead, the recent leak broke the Supreme Court’s conventions for secrecy, an offense that has been punishable with almost certain career death but little else.

  • Given the magnitude of the leak and the aggressiveness with which federal prosecutors have pursued high-profile leakers and journalists in recent years, a criminal investigation is not unthinkable, legal experts have said. And while no one is suggesting that Politico broke any laws in the course of publishing its article about the draft opinion, that does not mean the journalists involved would be spared from government pressure to reveal their sources if a grand jury was convened to consider charges against the leaker.


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