The Espionage Act and journalists: prosecutions, leak cases and the press
How the United States Espionage Act of 1917 has been used against the press and journalists' sources, from The Masses to Julian Assange, with outcomes.
The Espionage Act is a United States law, first passed in 1917, that makes it a crime to obtain, keep or pass on information relating to national defence without authorization, and it has been used mostly against government employees and contractors who gave classified information to journalists (glossary: Espionage Act). The one publisher indicted under it in the record is Julian Assange of WikiLeaks, charged in 2019 over the publication of classified military and diplomatic documents, who pleaded guilty to a single count in June 2024 (record).
What is the Espionage Act?
Congress, the national legislature of the United States, passed the Espionage Act in June 1917, during World War I, making it a crime to interfere with military recruitment or operations (record; glossary: Congress). Its main provisions are now in chapter 37 of title 18 of the United States Code, the collection of federal criminal laws (glossary). Prosecutions under this and similar laws in other countries are grouped under the tactic secrets and espionage laws, defined as laws that make it a crime to obtain, keep or disclose information a government has classified.
What does the law say?
Section 793 of title 18 covers anyone who, having "unauthorized possession of, access to, or control over" any document "relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits" it "to any person not entitled to receive it" (18 U.S.C. § 793(e), Cornell Law School). A parallel clause, section 793(d), applies to people who hold the material lawfully, such as officials with security clearances. A person convicted "shall be fined under this title or imprisoned not more than ten years, or both" (18 U.S.C. § 793).
The statute does not mention journalists or news organizations. It applies to "whoever" communicates national defense information to a person not entitled to receive it, and to anyone who conspires to do so (18 U.S.C. § 793(g)). Whether that language reaches a reporter who receives classified information from a source and publishes it is the question behind most debate about Espionage Act journalists.
Who uses the Espionage Act, and against whom?
The Department of Justice, the United States federal department that prosecutes federal crimes, brings Espionage Act prosecutions (glossary). The act "has increasingly been used against government employees and contractors who leak classified information to journalists, rather than against spies working for other governments," according to the glossary entry. A leak investigation is the government inquiry into who disclosed the information, and it can include collecting journalists' phone and email records.
How was the Espionage Act used against the press in World War I?
The first uses of the Espionage Act against publications came through the post office, not the courts. In 1917, New York's postmaster, Thomas Patten, declared the August 1917 issue of The Masses, an anti-war socialist magazine, unmailable under the act because of cartoons and articles opposing the war and the draft (record). Patten found the material likely, in the language of the Espionage Act, to cause insubordination in the armed forces and to obstruct recruiting.
Judge Learned Hand of the federal district court in New York, a trial court, ruled for the magazine. He wrote: "If one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation" (MTSU). The Court of Appeals for the Second Circuit reversed Hand later in 1917, the mail ban stood, and The Masses stopped publishing within months (record).
The Post Office, led by Postmaster General Albert Burleson, also revoked the second-class mailing rate of the Milwaukee Leader, a socialist daily, over articles opposing the war (record). On March 7, 1921, the Supreme Court of the United States, the country's highest court, upheld the revocation 7 to 2. The majority wrote that "the Constitution was adopted to preserve our Government, not to serve as a protecting screen for those who while claiming its privileges seek to destroy it" (MTSU). Justice Oliver Wendell Holmes dissented: "The use of the mails is almost as much a part of free speech as the right to use our tongues."
"By 1918, in actions that seriously threatened First Amendment freedoms and that likely would not be upheld today, 74 newspapers had been denied mailing privileges," according to the First Amendment Encyclopedia of Middle Tennessee State University (MTSU).
The Second World War
In the Second World War the United States relied on a voluntary code rather than prosecutions. On December 19, 1941, twelve days after Japan's bombing of the United States naval base at Pearl Harbor, President Franklin Roosevelt created the Office of Censorship under Byron Price, a former executive news editor of the Associated Press, which wrote a Code of Wartime Practices for newspapers and radio stations. The code asked editors not to publish "troop, ship, and plane movements, fortifications, weather conditions, casualty lists, damage to various military targets," among other military secrets, and publishers followed it without a formal enforcement mechanism, according to EBSCO Research Starters. Roosevelt said: "All Americans abhor censorship, just as they abhor war." The office was abolished after Japan's surrender in 1945.
Has any reporter been charged under the Espionage Act?
As of September 22, 2026, the record holds one indictment under the act of a person who published classified information, and one case in which a reporter was named as a possible co-conspirator but not charged.
Julian Assange (2019 to 2024)
On May 23, 2019, the Justice Department added 17 counts under the Espionage Act to an existing charge against Julian Assange, founder of WikiLeaks, a website that publishes leaked documents (record). The counts concerned WikiLeaks' 2010 publication of classified military reports and diplomatic cables supplied by Chelsea Manning, a United States Army intelligence analyst.
Assistant Attorney General John Demers said, "Julian Assange is no journalist, this is made plain by the totality of his conduct as alleged in the indictment," and the department said Assange's actions "risked serious harm to United States national security to the benefit of our adversaries" (ABC News). His lawyer, Barry Pollack, said: "These unprecedented charges demonstrate the gravity of the threat the criminal prosecution of Julian Assange poses to all journalists" (ABC News).
Assange was then in British custody. After five years in a British prison contesting extradition, he pleaded guilty in June 2024 to "a single criminal count of conspiring to obtain and disclose classified US national defense documents," was sentenced to time served and was released (Gulf News; record). The plea ended the prosecution without a court ruling on whether publishing classified documents is protected by the First Amendment, the part of the United States Constitution that protects freedom of the press (glossary).
James Rosen (2013)
In 2009, Fox News reporter James Rosen published a story, based on a State Department analyst's account, that North Korea would likely respond to United Nations sanctions with more nuclear tests (record). An FBI agent's 2010 warrant affidavit, reported in May 2013, said Rosen, "in his newsgathering, was violating federal statutes that prohibit 'unauthorized disclosure of national defense information' as an 'aider, abettor, and/or co-conspirator'" (Reporters Committee for Freedom of the Press). The warrant was used to obtain two days of Rosen's personal emails, his phone records and records of his security-badge movements inside the State Department. The analyst, Stephen Kim, pleaded guilty. Rosen was never charged (record).
The Committee to Protect Journalists (CPJ), a non-profit organization in New York, said that "U.S. government efforts to prosecute leakers by obtaining information from journalists has a chilling effect domestically and sends a terrible message to journalists around the world" (CPJ, 2013-05-20).
How has the act been used against journalists' sources?
Most Espionage Act prosecutions connected to the press have charged the person who gave information to a reporter. In October 2013, CPJ reported that "six government employees, plus two contractors including Edward Snowden, have been subjects of felony criminal prosecutions since 2009 under the 1917 Espionage Act, accused of leaking classified information to the press" (CPJ, 2013-10-10). Across all earlier United States administrations there had been three such prosecutions, according to CPJ (record).
Leak cases under the Obama administration (2009 to 2013)
The Project On Government Oversight, a United States watchdog group, wrote that the Justice Department under President Barack Obama and Attorney General Eric Holder "has used it more than all prior administrations combined" (POGO). Matthew Miller, then spokesman for Attorney General Eric Holder, told CPJ: "It was never a conscious decision to bring more of these cases than we ever had. It was a combination of things" (CPJ). One source told the report's author, "I worry now about calling somebody because the contact can be found out through a check of phone records or e-mails" (CPJ). The Freedom of the Press Foundation, a United States non-profit that builds secure communication tools for newsrooms, later said the pattern set a precedent that later administrations, including Donald Trump's first, could extend (record; glossary).
The Pentagon Papers (1971)
The Pentagon Papers case shows the government using a different tool against the press itself: prior restraint, an order to stop publication before it happens (glossary: prior restraint). Daniel Ellsberg, a military analyst, copied a classified Department of Defense history of United States involvement in Vietnam and gave it to The New York Times, which began publishing excerpts on June 13, 1971 (record). On June 15, 1971, the Department of Justice obtained a temporary restraining order from a federal court against the New York Times, and later sought one against The Washington Post.
On June 30, 1971, in New York Times Co. v. United States, the Supreme Court ruled 6 to 3 that the government had not met its burden. The Court wrote that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity," and Justice Hugo Black wrote that "the press was protected so that it could bare the secrets of government and inform the people" (Justia). Both the New York Times and the Washington Post resumed publishing. Government lawyers had argued that publication would cause grave and irreparable harm to national security (record).
Chelsea Manning (2010 to 2017)
In 2010, Chelsea Manning gave WikiLeaks a large archive of military reports and diplomatic cables, which WikiLeaks and news partners including The Guardian and The New York Times published in part (record). The Army charged her under the Espionage Act and with "aiding the enemy." In 2013 a military court convicted her on Espionage Act counts, acquitted her of aiding the enemy and sentenced her to 35 years, which the American Civil Liberties Union (ACLU) called "the heaviest sentence handed down to a whistleblower or leaker in U.S. history" (ACLU). President Obama commuted the sentence in January 2017 (record). Military prosecutors said her disclosures endangered lives and national security. The ACLU said: "When a soldier who shared information with the press and public is punished far more harshly than others who tortured prisoners and killed civilians, something is seriously wrong with our justice system" (ACLU).
John Kiriakou (2012 to 2013)
John Kiriakou, a former officer of the Central Intelligence Agency (CIA), the United States foreign intelligence agency, pleaded guilty in October 2012 to one count under the Espionage Act for identifying a covert CIA officer to a freelance journalist, who did not publish the name (record). United States Attorney Neil MacBride said, "John Kiriakou put the life of a covert officer at risk; he put the officer's family in danger; and he exposed our nation's vital secrets" (ABC News). On January 25, 2013, Judge Leonie Brinkema sentenced him to 30 months.
James Risen and the Sterling case (2008 to 2015)
James Risen, a New York Times reporter, wrote in a 2006 book about a CIA operation aimed at Iran's nuclear program (record). Prosecutors identified Jeffrey Sterling, a former CIA officer, as a suspect and, from 2008, sought to make Risen testify before a grand jury and at trial. In 2013 the Court of Appeals for the Fourth Circuit ruled that reporters had no First Amendment privilege to withhold a source's identity in a criminal case, and the Supreme Court declined to hear Risen's appeal in 2014. Attorney General Eric Holder then approved "a limited subpoena to compel Risen to testify, but it does not permit prosecutors to ask Risen the identity of his source" (CBS News). In October 2014 the department said it would not force Risen to testify, and the former CIA officer was convicted in January 2015 without Risen's testimony (record).
Can the government jail reporters who refuse to name a source?
It has done so in a leak case outside the Espionage Act. In Branzburg v. Hayes, on June 29, 1972, the Supreme Court ruled 5 to 4 that reporters have the same obligation as other citizens to answer relevant questions before a grand jury, a panel that decides whether to bring criminal charges (record). A subpoena is the legal order that compels such testimony.
On July 6, 2005, a federal judge, Thomas F. Hogan, jailed Judith Miller of The New York Times for contempt after she refused to name a source to a grand jury investigating the disclosure of the identity of Valerie Plame, a CIA officer (record). Miller said: "If journalists cannot be trusted to keep confidences, then journalists cannot function and there cannot be a free press" (RCFP). She was released on September 29, 2005, after 85 days, when her source released her from confidentiality. Cases like Miller's and Risen's are why journalists say they must protect sources even at the cost of a contempt finding, since a reporter who cannot keep a promise of confidentiality may not get the information at all.
The United States has no federal shield law, a statute letting journalists refuse to disclose sources; federal cases are governed by Justice Department guidelines instead (glossary). That gap is separate from the Whistleblower Protection Act, a federal law that shields many government workers who report government wrongdoing through official channels but does not extend the same protection to intelligence-agency employees who instead give classified information to a reporter. Reporters Without Borders (RSF), a press freedom organization based in Paris, wrote that "the PRESS Act, a federal shield law, failed to pass for a second successive time in 2024" (RSF).
Leak investigations and reporters' records, 2013 to 2025
In May 2013, the Associated Press (AP) disclosed that the Justice Department had obtained telephone records for more than 20 of its phone lines while investigating who had disclosed a classified CIA operation in Yemen (record). AP President Gary Pruitt said, "There can be no possible justification for such an over-broad collection of the telephone communications of The Associated Press and its reporters" (Al Jazeera). The department said it followed "all applicable laws, federal regulations, and Department of Justice policies." More than 100 journalists worked in the offices whose numbers were collected (Lawfare). The department issued revised media-subpoena guidelines on July 12, 2013 (record).
In 2021, the Justice Department notified The New York Times, The Washington Post and CNN that it had secretly obtained reporters' phone records, and in the Times' case sought email records, in leak investigations that began under the first Trump administration; in one case a nondisclosure order barred Times executives from disclosing the request (record). President Joe Biden said: "Absolutely, positively it's wrong. It's simply, simply wrong" (Axios).
On July 19, 2021, Attorney General Merrick Garland barred the department from using subpoenas, warrants or court orders to obtain journalists' records in leak investigations, with narrow exceptions (record). The memo said that "a free and independent press is vital to the functioning of our democracy" (CBS News).
On April 25, 2025, Attorney General Pam Bondi rescinded those rules (record). Her memo said: "Federal government employees intentionally leaking sensitive information to the media undermines the ability of the Department of Justice to uphold the rule of law, protect civil rights, and keep America safe" (RCFP). The Reporters Committee for Freedom of the Press, a United States non-profit that gives legal help to journalists, said that "by their nature, leak investigations chill newsgathering and reporting in the public interest." As of September 22, 2026, the sources cited do not report whether the department has subpoenaed a journalist under the restored rules.
Is the United States arresting journalists?
The record holds arrests and detentions of journalists in the United States, none of them under the Espionage Act. On May 29, 2020, Minnesota State Patrol troopers arrested a CNN crew, correspondent Omar Jimenez, photojournalist Leonel Mendez and producer Bill Kirkos, during a live broadcast in Minneapolis; they were released about ninety minutes later and Governor Tim Walz apologized the same day (record). RSF reported that Mario Guevara, a Spanish-language reporter originally from El Salvador, was arrested while livestreaming a protest in the state of Georgia on June 14, 2025, and deported on October 3, 2025 (RSF). RSF's barometer listed one journalist detained in the United States as of September 22, 2026 (RSF).
In the second Trump administration, under President Trump, the Department of Defense cited leaks when it issued press credential rules on September 19, 2025, calling them "an important step in preventing leaks that damage operational security and national security" (record). Some press freedom lawyers describe rules of that kind as a speech restriction on newsgathering rather than a narrow security measure. The rules required reporters to pledge not to solicit or publish unauthorized information; a federal judge ruled against parts of them in March and April 2026, and the department appealed.
How do other countries use secrets and espionage laws against journalists?
The record's ladder for secrets and espionage laws sets the United States cases beside those of other countries. Each country's law is its own.
In Myanmar, on September 3, 2018, a court sentenced Reuters reporters Wa Lone and Kyaw Soe Oo to seven years under the Official Secrets Act, a law from the period of British rule, after police handed them documents at a dinner shortly before arresting them; they had been investigating the killing of ten Rohingya men and boys (record). President Win Myint pardoned them on May 7, 2019, after 511 days in prison.
In Russia, on September 5, 2022, a Moscow court sentenced Ivan Safronov, a former military correspondent for Kommersant and Vedomosti, to 22 years for treason, accusing him of spying for a foreign country (record). On July 19, 2024, a Russian judge sentenced Wall Street Journal correspondent Evan Gershkovich to 16 years on an espionage charge; he was released on August 1, 2024, in a prisoner exchange (record).
In China, a court sentenced Dong Yuyu, an editor at the state newspaper Guangming Daily, to seven years for espionage in November 2024, after his arrest at lunch with a Japanese diplomat in February 2022 (record).
In the United Kingdom, on August 18, 2013, officers detained David Miranda, partner of Guardian journalist Glenn Greenwald, for nine hours at Heathrow Airport under Schedule 7 of the Terrorism Act 2000; the government said he was suspected of carrying "highly sensitive stolen information that would help terrorism" (record). In Australia, on June 5, 2019, federal police searched the headquarters of the Australian Broadcasting Corporation over its "Afghan Files" reports on alleged killings by special forces, under a warrant citing the Crimes Act 1914's ban on "publishing classified material"; prosecutors decided in October 2020 not to charge the journalist (record).
In Zimbabwe, President Emmerson Mnangagwa signed the Patriotic Act on July 14, 2023, which makes it a crime to meet foreign governments with intent to damage the country's sovereignty (record). Information Minister Monica Mutsvangwa said it did not criminalize journalists' ordinary work.
Espionage Act and the press: a timeline, 1917 to 2025
| Date | Case | Outcome | |---|---|---| | 1917-06 | Congress passes the Espionage Act | In force, amended (Cornell) | | 1917 | The Masses barred from the mail | Ban upheld on appeal, 1917 (record) | | 1921-03-07 | Milwaukee Leader mailing rate case | Supreme Court upheld 7 to 2 (record) | | 1971-06-30 | Pentagon Papers injunction | Lifted, 6 to 3 (record) | | 2010 | Chelsea Manning charged | Convicted 2013; commuted 2017 (record) | | 2013-01-25 | John Kiriakou sentenced | 30 months (record) | | 2013-05-20 | James Rosen named in warrant | Not charged (record) | | 2013-10-10 | CPJ counts eight leak prosecutions since 2009 | Report (record) | | 2015-01 | Sterling convicted without Risen's testimony | Convicted (record) | | 2019-05-23 | Julian Assange indicted on 17 counts | Guilty plea to one count, 2024 (record) | | 2025-04-25 | Justice Department restores subpoena balancing test | In effect (record) |
Is publishing classified information different from leaking it?
The Espionage Act does not distinguish between a source and a publisher, but prosecutors have. In the cases in the record from 2009 to 2015, the people charged were government officials or contractors, several of them in the intelligence community, who had lawful access to classified information and passed it on, under section 793(d) or similar provisions; the reporters who received it, including Risen and Rosen, were subpoenaed or searched but not charged (record; record). Press freedom groups have said that using the act to prosecute journalists themselves, rather than only the government officials and federal workers who give them information, would be a significant expansion of how it has been applied since 1917. The Assange indictment in 2019 charged the receipt and publication of classified documents, which Assange's lawyer said is conduct news organizations routinely engage in (record).
The Justice Department's position in 2019 was that Assange was not a journalist. Demers said the totality of his alleged conduct made that "plain" (ABC News). Press freedom organizations, including CPJ, have described leak prosecutions and the collection of reporters' records as a deterrent to sources who would otherwise speak about national security (CPJ).
What protects journalists who publish classified information?
In the United States, the protections come from court rulings and department policy rather than from the Espionage Act itself. The Pentagon Papers ruling of 1971 sets a "heavy presumption" against orders stopping publication (Justia). No court has ruled on whether First Amendment protections bar an Espionage Act prosecution of a journalist who publishes classified information, because the Assange prosecution ended in a plea (as of 2026-09-22); the record includes no successful prosecution of a traditional news reporter, as distinct from a source, for publishing rather than leaking classified material.
Protection from subpoenas and searches depends on Justice Department rules. After the Rosen warrant and the seizure of AP phone records became public, guidelines issued by Attorney General Eric Holder in July 2013 restricted subpoenas naming reporters as suspects (record). The 2021 Garland rules went further and barred compulsory process against journalists in leak investigations; the 2025 Bondi memo returned the department to a balancing test that weighs law enforcement interests against press freedom (record). Each change applied to all federal leak cases, whatever the administration.
For sources, the protection is narrower. The officials and contractors charged from 2009 to 2013 were accused of leaking classified information to the press, and the statute's penalty of up to ten years applies to them whether or not a story was published (CPJ; 18 U.S.C. § 793). In the Kiriakou case, the journalist did not publish the covert officer's name, and Kiriakou was still sentenced to 30 months (record).
Sources
- 18 U.S.C. 793 - Gathering, transmitting or losing defense information
- Espionage Act of 1917
- Masses Publishing Co. v. Patten (S.D.N.Y.) (1917)
- United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson
- New York Times Co. v. United States, 403 U.S. 713 (1971)
- The Obama Administration and the Press
- CPJ alarmed by U.S. Justice scrutiny of Fox News reporter
- Justice search warrant relied on probable cause of criminal conduct by Fox News journalist
- Julian Assange charged with violating Espionage Act in 18-count indictment
- WikiLeaks' Julian Assange to be freed after pleading guilty to US espionage charge
- The Chelsea Manning Case: A Timeline
- Former CIA Officer Gets 30 Months in Prison for Leak
- Official: Prosecutors will subpoena reporter James Risen
- The James Risen case and Eric Holder's tarnished press freedom legacy
- US government 'seized AP phone records'
- AP: DOJ Secretly Obtained AP Reporters' Phone Call Records
- Reporter Judith Miller Jailed for Refusing to Reveal Plame Case Source
- Attorney General Merrick Garland restricts efforts to seize reporters' records
- DOJ rescinds news media guidelines: analysis archived copy
- Six Americans Obama and Holder charged under the Espionage Act
- Reporters Without Borders, United States country page
- Reporters Without Borders, "USA: 8 ways Trump is shrinking the space for press freedom"
- U.S. Office of Censorship
- Justice Department to stop seizing reporter records