Write a 8-10 page paper on leaks and the press vs. national security; cite all references.
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On the face of it, Rodney Smolla’s “Liability for Massive Online Leaks of National Defense Information” (2013) does not appear to make any strong, positive claim regarding the liability for leaks of highly sensitive government information. Much of the paper appears to be devoted to laying the groundwork for, and presenting a means by which, liability for leaks may be understood. However, as will be critiqued in the next section, it is this very framework for understanding liability for leaks which constitutes Smolla’s case. More specifically, the assumptions Smolla makes in constructing this framework, as well as its very form, represent a very particular—and, I think, highly contentious—position on the issue of major information leaks. This is especially so because of one eventual conclusion Smolla sees this framework as entailing: the plausibility, in a limited set of circumstances, of prosecuting the press for publishing leaked information.
The idea that motivates Smolla’s framework is succinctly captured by one of the paper’s section titles: “The system is not binary” (p. 884). By “the system”, Smolla is referring to the US’ legal apparatus tasked with prosecuting leaks, as guided by the country’s societal “moral sensibilities” (p. 885). The putatively binary nature of that system is the differential legal treatment of leakers and of the press which publishes leakers’ information. Smolla cites the country’s long, consistent history of prosecuting leakers, even if the outcomes of those prosecutions have been checkered; in comparison there is the glaring fact that there has never in the country’s history been a single prosecution of the press for publishing leaked information, primarily due to the First Amendment and the country’s cultural, moral, and political sensibilities attached to that most fundamental of constitutional protections. This would make it seem as if there is a binary, “simple legal on/off switch whereby the criminal law...
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