Whatever gave Edward Snowden the idea that he could decide for himself what National Security Agency documents and data could be made public? In fact, it’s more brazen than that: Snowden claims the right to overrule the agency and decide for himself even after the agency has decided that certain information should remain secret.
As Jack Shafer points out over at Reuters, the Washington journalistic establishment, which has jumped all over Snowden for endangering national security, has always been the first to cry “First Amendment” if anyone questions their right to receive and publish leaks from anonymous sources inside government and corporate bureaucracies.
As the courts have found again and again, the First Amendment protects speech. It does not protect the right not to speak—i.e., to refuse to reveal a source. Maybe it should. Or maybe there should be a right to protect sources enacted by federal legislation, just as most states have such a law of one sort or another. But if there were such a law, it would—or should—protect Edward Snowden as much as it protects reporters as they go about their daily business.
Snowden seems to be quite an obnoxious character: full of himself and positively aching for martyrdom. But he has the same First Amendment right to be obnoxious, or lack of one, that all the journalists who are tut-tutting him have.
Actually, Shafer understates the hubris here. “What worries me is that Snowden is challenging the rule of law,” writes David Ignatius in this morning’s Washington Post. In the Miller case and others, journalists have not only demanded the protection of a “shield law.” They not only have asserted that the protections of a shield law can be inferred to exist under common law or the Constitution, without the need for any new legislation. Many believe they have the right to behave as if such a law already exists—even after the question has been litigated all the way up to the Supreme Court, and they have lost. That is what’s known in other contexts as “taking the law into your own hands,” and it’s not approved of.