The Washington Post stands firm in a vital First Amendment battle over its Pentagon tip line

If you’ve canceled your subscription to The Washington Post over the rightward lurch of its opinion section, the decimation of the newsroom or both, I have news that might surprise you: The paper is involved in a vitally important First Amendment battle over its right to report on the Pentagon.

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Erik Wemple, himself a Post alumnus, reports in The New York Times that the Trump regime’s objection to a tip box the Post has been publishing has emerged as an issue in a lawsuit brought by the Times over the Pentagon’s restrictions on journalists.

The tip box, which appears on some stories about the Defense Department, reads:

According to Wemple, Pentagon lawyers are taking the position that the tip box amounts to an illegal solicitation for information that Defense Department employees and service members are not authorized to provide:

Appeals for tips are commonplace in journalism. News organizations, including The Times, regularly ask for them on their websites, and reporters on their social media profiles. But according to the Pentagon, The Post’s tip box crossed the line into the sort of “solicitation” that is not protected by the First Amendment and that could prompt punishment under the new restrictions.

The Post isn’t backing down, putting out a statement that said: “The Pentagon cited the tip box as an example of supposedly improper solicitation, but we have no records of them asking us to change the language. We have not and will not.”

It’s not entirely clear from Wemple’s story what the status is of the Pentagon’s beef with the Post given that it’s part of a larger lawsuit being pursued by the Times. But it’s important that the Post stand firm, because the tip box is well within the best tradition of the First Amendment’s protections for the press to hold the government to account.

The custom that is being challenged here is that though government employees and contractors may be prosecuted for leaking information (especially if it’s classified), the media are free to receive that information and use it as they see fit.

Thus the government prosecuted Daniel Ellsberg for leaking the Pentagon Papers but decided against prosecuting the Times and the Post, even though then-President Richard Nixon made a few feints in that direction. Chelsea Manning was prosecuted — and imprisoned — for leaking information about the war in Iraq to WikiLeaks founder Julian Assange, and Assange himself was pursued for years. But the news outlets that published stories based on those documents were left alone. Likewise with documents leaked by Edward Snowden. He fled to Russia to avoid U.S. authorities, but reporting on those documents was not challenged.

The problem is that these protections for the press are based on custom as much as they are on settled law. And, as has been the case with so many issues during the Trump years, customs can be violated with impunity. When the Times reported on the National Security Agency’s domestic surveillance program in 2005, some of President George W. Bush’s allies urged him to pursue criminal charges against the paper under the Espionage Act of 1917 — which may itself be unconstitutional, though it has not been challenged. Bush, to his credit, declined. (I wrote about some of these issues for The Guardian in 2010.) Would Trump?

One of the charges against Assange was that he not only accepted classified information from Manning but also badgered him for more and gave him instructions on how to do it. Now it appears that Pete Hegseth’s Pentagon lawyers are pursuing a similar theory against the Post.

Ultimately it will be up to the Post’s billionaire owner, Jeff Bezos, as to whether his paper will continue to stand up to the Pentagon over its censorious demand that the tip box be reworded or taken down. Let’s hope he’s got enough courage left in him to support his newsroom.