News-Gathering Is A Crime?

The ABA Journal reported today that federal authorities, in securing a sealed warrant to review the emails of James Rosen of Fox News, characterized Rosen as an “aider, abettor and/or co-conspirator” of Stephen Jin-Woo Kim, who was indicted in 2010 for leaking classified State Department information to Mr. Rosen.

While Rosen was ultimately never charged with any crime, it is notable that his act of news-gathering was characterized as essentially criminal in the affidavit submitted in support of the search warrant, in that Rosen “employ[ed] flattery and play[ed] to Mr. Kim’s vanity and ego.”

This characterization of investigative reporting as criminal in nature – coupled with the specter that a reporter’s private communications can be secretly reviewed by Government officials – could have a chilling effect on reporting activity that has historically been considered sacrosanct under the First Amendment.   While the need to investigate and prosecute crime is certainly important, the freedom of the fourth estate to do its job is as important as any right secured by the Bill of Rights.  It will be interesting to see how this scenario plays out in the courts and legislature.