“Congress shall make no law…abridging the freedom of speech, or of the press…” – Amendment I to the U.S. Constitution

What do you suppose would be the result if you, common average American citizen, became aware of highly sensitive classified information regarding the United States, and leaked it to the press? Do you believe for one minute that you would be able to “get away with it?” Not very likely, nor should you. So why is it that our elected officials and their political appointees seem to be able to get away with it?

If I or anyone else sold secrets to the enemies of this nation; heck, even allies of this nation, I would be put away in the deepest darkest dungeon the federal government could find. And I would deserve it. So why is it ok to give away for free the very same secrets to the press? Who then proceeds to publish the information (incidentally, making money in the process) which then becomes freely available to those very same enemies?

The U.S. Constitution guarantees freedom of the press. This has been construed to mean that the media can pretty much do as it pleases when it comes to what they can publish; even forcing them to reveal their sources can be an iffy proposition.

The U.S. Constitution also guarantees freedom of speech; however this, even if it does appear in the same amendment to the Constitution as the freedom of the press, right before it in fact, does not seem to carry the same weight as freedom of the Press does. There are many restrictions on one’s freedom of Speech, depending on who you are and what you are doing.

Those in the military realize very quickly that their freedom of speech is far from absolute. You can be prosecuted under the Uniform Code of Military Justice (UCMJ) for speaking ill or contemptuously of your Commander-in-Chief (the President of the United States), or of the officers appointed over you.

Likewise if you have access to classified material, you can’t, under freedom of speech, just go and blab it to anyone you like.

Freedom of speech has never meant that one can say whatever they like with impunity or freedom from consequence. All it means is that the government cannot pass a law that “abridges” what you can say. It doesn’t apply to civil law or private contracts. People who sign non-disclosure agreements can’t subsequently disclose the information and claim “freedom of speech” as a defense. Slander is not an acceptable category of “freedom of speech.” You can say what you like, but you do run the risk of being held accountable in a court of law.

Historically, the government can and has abridged freedom of speech, successfully, despite the constitutional guarantee to the contrary. Laws that prohibit you from yelling “fire” in a crowded theater for example have been passed and upheld by the Supreme Court. There are certain types of speech that have been banned as “hate speech” and which can be prosecuted in a court of law. And of course, there are those seven words that the FCC has deemed unacceptable for usage on the public airwaves; although this one gets violated at an ever increasing rate these days, and the Supreme Court recently ruled that “an occasional expletive” does not necessarily justify any sanction by the FCC.

Likewise, disclosing the nation’s secrets can get you some serious jail time as well. As it should.

So what makes “freedom of the press” so much more sacrosanct than “freedom of speech?” Why can I get jail time for selling or giving the nation’s secrets to the Press, but the Press can publish them without likewise going to jail? How is it that the Press can claim “the public has a right to know,” but I can’t? Well, I can claim that, but I will still go to jail.

What is “the Press” these days anyway? Does it mean only print media, or does it include digital (Internet, mobile devices, etc) and video (TV, satellite, cable) media as well? And if it includes all of the above, what is the difference between me publishing it on my website and The New York Times publishing it on theirs? What makes “the Press” the Press?

Back in the day, when the Constitution was written, it was pretty simple. Speech was what one did when one was talking to someone, and “the Press” was newspapers. It was called “the Press” because it was printed on a printing press. So if one were to take that literally, would the only protected media be that which was printed on a printing press and therefore printing on a laser printer, for example, would be unprotected? How about the nightly news on NBC? Is that covered under “freedom of the press” or “freedom of speech?” They are talking, right?

I suppose you could make the argument that they are speaking from a printed page (or teleprompter), so it is “the Press,” but then what if they speak off the cuff? Are off-hand remarks covered? These sorts of issues are important. Take for example what many call “the mainstream media;” outlets such as ABC, NBC, CBS, The New York Times, Time Magazine, etc. Most of us would recognize these as “the media” and they are all covered under the umbrella of “the Press.”

So how about “the Drudge Report?” Townhall.com? Blog sites? Do these belong to “the Press?” Most folks in the MSM would disagree, claiming that such are not “journalists.” Which I suppose, begs the question of “what is a journalist,” and is that the only criteria required to make one a member of “the Press?” If so, does a nightly news anchor, sitting in front of a teleprompter reading the daily screed really qualify as a “journalist?”

There is more to being a member of “the Press” than the “prestige;” there are also the constitutional protections that accrue. Protections that allow you, for example, to publish classified material with impunity while the poor sap who gave you the information would go to jail if uncovered. So who anoints one as a member of “the Press?” What makes you a member or denies you membership? Is there somewhere a government office that bestows “pressdom” upon one?

I remember years ago when my wife and myself worked for an agency that required us to sign paperwork against divulging secrets; doing so would land us a nice hefty jail sentence. It really used to irritate me when, reading the daily newspaper, I would on a regular basis see purported classified information, including code words, published in one particular Washington columnists articles. “Why isn’t he in jail!” I would exclaim. If I had done such a thing I certainly would be!

Well, he was one of those magical “credentialed” members of the Press, and I was (and am) not. (Note: writing “columns” and “publishing” them on my website does not make me a member of “the Press.” Now, had his source been revealed, that source might have gone to prison. I say “might,” because the wisdom of years has led me to realize that his source was probably a highly placed government official who was “unofficially” told to leak that particular information to that particular member of the Press.

It is an interesting peculiarity of classified information that publishing it in an unclassified source does not make the information unclassified. The whole world may know it now, but it is still classified; which means that if you happen to know that it is classified, you are put into an uncomfortable position. You can neither confirm nor deny that it is classified, and you must still treat it as classified material. If you are one who works with classified material on a daily basis, this makes it really difficult to hold an ordinary discussion at times, particularly if you can’t really remember whether you saw a particular piece of information “at work,” or in an open source document.

Which brings us to the current series of “leaks” occurring from within the Obama Administration; intentional on the part of the administration, or some “disaffected” person working in the bowels of the national security apparatus?

The level and significance of the leaks would seem to point to some highly-placed government official. We are certainly talking about highly-classified information here – information that could (and has) led to serious harm to the United States, and potential loss of life on the part of those providing information. On the other hand, behind each government official is a legion of worker bees, toiling in obscurity to provide the actionable intelligence. It is possible that some lowly analyst is responsible.

And if it turns out to be an analyst, will that person end up in jail? Perhaps. “Spies” have been prosecuted in the past. It is difficult, as our system of justice requires public scrutiny which becomes a problem when national secrets are the topic of consideration. Stuff can become public that we really don’t want to become public; the trial can be worse than the original disclosure. Still, methods are available, and doubtless if it turns out to be a lowly analyst, justice of some sort will be attempted.

But what if it turns out to be a highly-placed official? What if it is a highly-placed political official? What if it turns out the leaks were sanctioned at the highest levels – even the President? Members of the intelligence committees of both houses of congress have decried the leaks; members of both parties. Apparently, when it comes to the nation’s secrets at least, there are still members of both parties who can act in a bipartisan manner.

The President can declassify anything by merely saying so, no matter what it is or what the classification level. However, the White House has stated publically that he has not declassified any of the information that has come to light. Therefore, the leaker would seem to have no Presidential imprimatur.

Last week, the name of Leon Panetta, the Secretary of Defense was being bandied about as possibly being the source of the leak. This week? Nary a word; the entire thing has dropped off the front page in favor of the on-going “Fast and Furious” scandal that the MSM has just recently discovered to be news.

How has this moved from “fringe” to front page? It moved to public notice when the White House, in an attempt to shield the Attorney General from censure by the House, claimed Executive Privilege in regard to correspondence that the House had been demanding for the past year. Suddenly everything the MSM had been ignoring, or ascribing to “right wing fringe organizations attempting to discredit the President” started screaming “cover-up” instead. So off the bloodhounds go baying, chasing the squirrel up a tree, while the fox slinks off the other way, breathing a sigh of relief.

Which would you rather deal with? An Attorney General who has become a political liability over numerous issues, but rather notably in this instance, one which led to the death of a federal agent and, just incidentally, an attempt to circumvent the second amendment to the Constitution? Or potentially, a Secretary of Defense, and former head of the CIA, leaking secrets highly detrimental to the security of the United States, perhaps at the behest of the President himself?

I think we will throw Holder to the wolves and tuck Panetta (or whoever) somewhere nice and quiet and out of the public limelight for now, hope the larger scandal blows over, and that all the Public and the Press remember about that particular episode is how manly and decisive the President was when it came to bin Laden and other issues of national import.

Because while leaking secrets is Treason, making the President look good is just good politics; and this is, after all, an election year.