Supreme Court leak probe reveals gray area of press protection
“The court’s confidentiality standards are neither gentle nor subtle,” said Allison Orr Larsen, a professor at William and Mary Law School who worked for Justice David H. Souter. “They become strong and stressed over and over again.”
As blunt and terrifying as these warnings are, they are informal. This also applies to the judges themselves, who have resisted being bound by written procedures in most matters of their work.
“They don’t even have written codes of ethics for the judges,” said Paul M. Smith, a Georgetown University law professor who worked for Justice Lewis F. Powell Jr. The leak, he said, and the focus on the lack of those standards could put more pressure on the court to accept new restrictions on how it works following recent revelations about the political activities of Virginia Thomas, wife of Justice Clarence Thomas.
Other legal scholars, including some from the conservative Heritage Foundation, have pointed to a number of laws that could be used to prosecute the leak and stimulate the kind of wide-ranging investigations that could involve the press, court staff and even individual judges. A law used against leaks, according to John Malcolm, a legal expert at the Heritage Foundation, deals broadly with theft, embezzlement and conversion of “goodies” owned by the government.
None are slam dunks. But First Amendment experts said they wouldn’t be surprised if any of those laws were tested in this case.
RonNell Andersen Jones, a professor at the University of Utah’s SJ Quinney College of Law who worked for Justice Sandra Day O’Connor, said when she and a group of former employees who texted each other heard about the Politico article, they reacted she immediately that it had to be a joke. A leak of this magnitude, they all knew, was strictly forbidden.
“What it means to be strictly prohibited is about to be tested,” added Ms. Andersen Jones.