Eugene Volokh has a post over at The Volokh Conspiracy that looks at the possibility that the journalists who leaked the Bolton book story might have committed a felony by publishing the government’s “predecisional information.” About a month ago, the Court of Appeals for the Second Circuit decided a case (U.S. v. Blaszczak) finding that a federal agency “has a ‘property right in keeping confidential and making exclusive use’ of its nonpublic predecisional information.” By a 2-to-1 vote the court held that a federal employee’s leak of such information—and its receipt by someone cooperating with the employee—could be felony wire fraud and conversion of government property.
Nor would journalists have an obvious First Amendment defense that others don’t possess. … [T]he First Amendment generally doesn’t give institutional media more protection than other speakers.
Even if a court could distinguish use of government property for public speech purposes (whether by the media or other speakers) from such use for private purposes, the statutes on which the panel relies draw no such distinction. And the panel’s reasoning as to property draws no such distinction, either: If the predecisional information is federal government property, and using that information for one purpose (selling stocks) is conversion of that property, then using that information for another purpose (selling newspapers) would be as well. Certainly journalists (or independent bloggers or other commentators) have no assurance that they would escape criminal liability under the panel’s theory.
Conversion is a form of theft. While the First Amendment protects our right to speak freely about public issues, it doesn’t protect theft. For example, I generally can’t publish someone else’s copyrighted material as my own.
IANAL, but it seems to me that while the government can’t generally engage in prior restraint of speech, it might reasonably be able to punish someone who steals government property.