The Supreme Court Case that Defends Politico’s Decision to Disclose the Draft Opinion

Did you know that the Supreme Court is poised to overturn Roe v. Wade?  Apparently many are upset because, in the words of Chief Justice Roberts, this leak is an “egregious breach of trust” and a “betrayal of the confidences of the court” which seems to be eclipsing the bigger issue here, no?  Call me “Most Likely to Leak Government Secrets,” but I wouldn’t be comfortable sitting on this information until pomp and circumstance says it’s time to make the big announcement.  But since you’ve most certainly heard enough on the topic of abortion this week, let’s shift to something slightly less controversial—dissemination of newsworthy information.

When Politico received the draft of the opinion, their first task was to verify its authenticity.  With that confirmed, the next question becomes whether they are allowed to (legally) disclose their findings and whether they (ethically) should.  Appropriately another Supreme Court case, Bartnicki v. Vopper, stands for the unequivocal right to disseminate newsworthy information.[1]  In Bartnicki, someone recorded a phone call in violation of Pennsylvania’s two-party consent laws but the news came into possession of the recording and broadcast it anyway.  The Supreme Court held that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” [2]  With the draft opinion in Politico’s hands through no illegal means and a screaming First Amendment need to know that our right to bodily autonomy is about to be eviscerated—along with a plethora of other vital guarantees—the choice is obvious.  The fact that no one seems to be talking about Politico’s role in this situation speaks to the fact that society finds the decision to be ethically acceptable as well.  In all, a fairly easy case in support of public disclosure.

To be clear, Bartnicki does not condone unlawful conduct or vindicate a violation of the law solely because there is a First Amendment consideration.  It merely stands for a free press, full stop.  Fortunately, my clients tend to meet this exceedingly high bar and do not violate the law as part of their jobs, so then we get to hash out the ethical repercussions of such a disclosure and assess any safety or security implications.  That part is pretty fun.  So if I were the one to make this call at Politico?  You bet I would sign off on the decision to publish.  I will continue to embrace the First Amendment and judiciously apply it to all forms of reality, unscripted, factual, and documentary programming so at least we can live-stream our transformation into The Handmaid’s Tale.

[1] 532 U.S. 514 (2001).

[2] Id. at 535.

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