The naming of a journalist as a possible co-conspirator in a criminal
case of leaked classified information is "chilling," Judge Andrew
Napolitano says.
"The Supreme Court has ruled that when the government makes it difficult
for you to do your job as a journalist by scaring off your sources or
watching your every move, that’s called 'chilling.'" Napolitano said
Monday on Fox News Channel. "Chilling is a constitutional phrase meaning
the government hasn't directly silenced me, but it's made it more
difficult for me to speak."
Fox News correspondent James Rosen was named a possible co-conspirator
in a Justice Department affidavit, it was learned Monday. His personal
emails were searched as part of the investigation.
Napolitano, a former New Jersey Superior Court judge and analyst for Fox
News Channel, said it was not a crime for a journalist to ask for,
receive, or publish classified information. Nothing in the affadavit
claims Rosen did anything more than what journalists are legally allowed
to do as part of their jobs, he said.
"James, like all of us who are professionals in this business, have an
absolute, constitutionally protected right to seek news of material
interest to the public wherever that news may be," Napolitano said.
Though it is a crime for someone to give classified material to a person
who does not have clearance to see it, it is not a crime for the person
to receive it if that person is a journalist, he said. "It’s just
terribly wrong to tell a federal judge that that journalist engaged in
criminal activity, when we know from Supreme Court opinions from the
Pentagon Papers to the present, James's activity is absolutely protected
by the First Amendment."
Napolitano said that when a search warrant is issued, the person who is
the target must be told. Rosen and Fox News did not learn of the
subpoena of his emails until they read about it Monday in The Washington
Post. The request for a search warrant was issued on May 28, 2010.
"The government has an obligation to report this to the target, James,
and to anybody else involved – Fox, the computer server, whoever else
might be involved – within a reasonable period of time," Napolitano
said.
Depending upon which statute the government used, when the information
is in the hands of a third party, such as a computer server,
investigators have an obligation to tell the subject of the probe
beforehand so it can be challenged, he said. "They didn’t tell anybody."
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