Is it legally or ethically wrong for the media to publish materials that make government figures (or those who aspire to such roles) look bad, if those materials are stolen? According to Andrew Napolitano, “In a word: No.”
In a new column for Reason, Napolitano explains how the actions of one Pentagon contractor—Daniel Ellsburg, who leaked the so-called “Pentagon Papers”—led to the Supreme Court ruling “that when the media obtains truthful documents that are of material interest to the public, the media is free to publish those documents, as well as commentary about them, without fear of criminal or civil liability.”
Napolitano writes that this ruling is especially relevant given the recent revelations about the two major party presidential candidates:
It seems that at every turn during this crazy presidential election campaign — with its deeply flawed principal candidates (whom do you hate less?) — someone’s personal or professional computer records are being hacked. First it was Hillary Clinton’s emails that she had failed to surrender to the State Department. Then it was a portion of Donald Trump’s 1995 tax returns, showing a $916 million loss he claimed during boom times. Then it was those Clinton emails again, this time showing her unacted-upon doubts about two of our Middle Eastern allies’ involvement in 9/11 and her revelation of some secrets about the killing of Osama bin Laden.
The reason we know about these leaks is the common thread among them — the willingness of the media to publish what was apparently stolen. Hence the question: Can the government hold the press liable — criminally or civilly — for the publication of known stolen materials that the public wants to know about? In a word: No.