On March 27, the final Spring 2010 Top Secret Talks discussion brought audiences a nuanced reflection on many of the legal and journalistic forces at play behind the Pentagon Papers story.

Joining for this panel discussion were: the Honorable Mark L. Wolf, Chief Judge, U.S. District Court, District of Massachusetts and former First Deputy U.S. Attorney and Special Assistant to the United States Atorney General; Burt Neuborne, Inez Milholland Professor of Civil Liberties at New York University and Legal Director of the Brennan Center for Justice who also represented Pentagon Papers leaker Daniel Ellsberg in his trial on federal espionage charges; and Joshua Marshall, leading online journalist and founder of Talking Points Memo and TPMCafe.com.

In a discussion that brought together many of the themes explored in prior Top Secret Talks, the panelists reflected on how the legal questions raised by the Pentagon Papers provide guidance for both the conduct of journalists and resolution of legal policy questions today.

Audio: Top Secret 3.27.10 Wolf, Neuborne, Marshall

To Marshall, the recent federal prosecution of I. Lewis “Scooter” Libby, Jr. and the related contempt proceeding against New York Times reporter Judith Miller provided new context for understanding the high stakes faced by the individuals who leaked and reported on the Pentagon Papers.  Witnessing both the government’s decision to prosecute Libby for allegedly leaking confidential information to the press and the jailing of Miller for refusing to disclose her source, brought home to Marshall the full panoply of consequences that could attach to gathering and reporting on confidential government information.

Marshall’s comments revealed that concern about imprisonment could certainly lead some journalists today to think twice about publishing leaked confidential documents.  Perhaps drawing on his experiences as both a judge and a prosecutor, Chief Judge Wolf noted that while some might call this a “chilling effect,” others might call it a “deterrent effect” — with deterrence being an oft-cited and generally proper goal of criminal law and prosecutions.  Especially in matters of national security, might it be appropriate for journalists and government employees to think carefully about all possible consequences when handling government that has been identified as confidential?

To tie these policy questions to now-pending legislation, Chief Judge Wolf asked the other panelists for their thoughts on a proposed federal shield law, a law summarized on this blog here.

Although a journalist and a civil liberties lawyer might be expected to come out in favor of a law designed to shield journalists from disclosing confidential sources, both Marshall and Neuborne — perhaps to everyone’s surprise — came out against a federal shield law.

Marshall opposed the idea because it seemed to artificially distinguish between “journalists” and other members of the public at a time when the internet makes that distinction less clear.   Neuborne, on the other hand, opposed the proposed shield because he felt it could operate to protect the government by allowing government officials to selectively disclose information to journalists knowing that those journalists would not have to disclose their sources.  In fact, the source Judith Miller was refusing to identify was a government source: Mr. Libby.

Listen to the audio above for further comments and questions from these panelists and audience members on the duties of journalists to evaluate received leaks and information, and on policy questions about government regulation of the internet and on the differences between legal protection of government secrets and trade secrets.