A well-established pattern in U.S. law applies to government secrets and the journalists who uncover them: The First Amendment protects the publication of a leak, but not the leaker. In 1971, as Supreme Court justices prepared to rule that the government could not prevent the New York Times from publishing the Pentagon Papers — one of the biggest leak cases in history — the source of that leak, Daniel Ellsberg, was indicted by a federal grand jury for theft. The court is grappling with one of the most significant disclosures of a government secret since then: the release of a draft opinion that sets the framework for overturning Roe v. Wade. This time the leak came from inside the building. 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 Republican lawmakers have demanded.
Unlike the Pentagon Papers, the 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 career death but little else. A criminal investigation is not unthinkable, legal experts said. 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 is convened to consider charges against the leaker. “I think it’s pretty clear there is at least enough for a grand jury to investigate,” said Eugene Volokh, a First Amendment expert at the University of California, Los Angeles, law school. “The interesting question is to what extent there’s going to be a subpoena to a reporter.” Often the government will decline to pursue journalists. Attorney General Merrick Garland has issued a policy that, with some exceptions, bars federal prosecutors from subpoenaing news media records or testimony. As a legal matter, Volokh said, “I think subpoenaing the reporter would be constitutional.”