Criminal Liability for Newspaper Publication of Naval Secrets ( 1942 )

Criminal Liability for Newspaper
Publication of Naval Secrets
A reporter who kept or copied a Navy dispatch containing a list of Japanese ships expected to take part
in an upcoming naval battle, and later submitted for publication a newspaper article with infor-
mation from the dispatch, appears to have violated sections 1(b) and 1(d) of the Espionage Act, but
it is doubtful he violated sections 1(a) and 2.
Whether the managing editor and publisher of the newspaper that published the article might also be
criminally liable under the Espionage Act depends on their intent and knowledge of the facts.
June 16, 1942
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
You have inquired concerning the legal implications of a state of facts which
may be summarized as follows:
A, a reporter permitted to travel with the Pacific fleet, picked up a dispatch on
the desk of an officer on a battleship, and discovered that it contained a list of
Japanese ships taking part in a certain naval engagement. He either kept the
dispatch or copied it. Later, he returned to San Francisco by airplane. On landing,
he wrote a story about the engagement, in which he used the information con-
tained in the dispatch. This dispatch was wired to the B newspaper, in Chicago,
and certain other newspapers in other cities, including the C paper in Washington,
D.C.
The publication of the story in these papers, although not effected until several
days after the naval battle, resulted in important advantages to the Japanese, who
thus became aware of the efficiency of our naval intelligence. Certain additional
facts appear in the course of the discussion.
Among the substantive questions presented are:
(1) Has A violated the Espionage Act of 19171?
(2) Has the managing editor of B newspaper violated the Act?
(3) Has the corporation owning the B newspaper violated the Act?
(4) Has the person described as the “publisher” of the B newspaper
violated the Act, assuming that he owns a large fraction of the corpo-
ration’s stock and controls its general policies?
Questions of venue also arise. These will be treated in a separate memorandum. *
1
Act of June 15, 1917, ch. 30, 40 Stat. 217, codified at 50 U.S.C. §§ 31 et seq. (1940).
*
Editor’s Note: That memorandum opinion follows this one in this volume (Trials of Newspaper
Personnel Accused of Disclosing Naval Secrets, 1 Op. O.L.C. Supp. 102 (June 16, 1942)).
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The answers to these questions appear, in brief, to be as follows:
(1) A, the reporter, appears to have violated the Espionage Act of
1917.
(2) Whether the managing editor of B newspaper has violated the
Act depends on his intent and knowledge of the facts.
(3) If the managing editor has violated the Act, it would seem that
the publishing corporation has also violated it.
(4) Whether the person described as the “publisher” of the B news-
paper has violated the Act would seem to depend on his intent and
knowledge of the facts.
I. The Reporter Appears to Have Violated the Espionage
Act, in Wrongfully Taking or Copying the Dispatch
The Espionage Act of 1917, section 1, provides in part as follows:
(a) Whoever, for the purpose of obtaining information respecting the
national defense with intent or reason to believe that the information
to be obtained is to be used to the injury of the United States, or to
the advantage of any foreign nation, goes upon, enters, flies over, or
otherwise obtains information concerning any vessel, aircraft, work
of defense, navy yard, naval station, submarine base, coaling station,
fort, battery, torpedo station, dockyard, canal, railroad, arsenal,
camp, factory, mine, telegraph, telephone, wireless, or signal station,
building, office, or other place connected with the national defense,
owned or constructed, or in progress of construction by the United
States or under the control of the United States, or of any of its offic-
ers or agents, or within the exclusive jurisdiction of the United
States, or any place in which any vessel, aircraft, arms, munitions, or
other materials or instruments for use in time of war are being made,
prepared, repaired, or stored, under any contract or agreement with
the United States, or with any person on behalf of the United States,
or otherwise on behalf of the United States, or any prohibited place
within the meaning of section 36 of this title; or
(b) whoever, for the purpose aforesaid, and with like intent or reason
to believe, copies, takes, makes, or obtains, or attempts, or induces or
aids another to copy, take, make, or obtain, any sketch, photograph,
photographic negative, blueprint, plan, map, model, instrument, ap-
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Criminal Liability for Newspaper Publication of Naval Secrets
pliance, document, writing, or note of anything connected with the
national defense . . .
shall be punished by imprisonment for not more than ten years and
may, in the discretion of the court, be fined not more than $10,000.
50 U.S.C. § 31.
In the instant case, there is doubt whether section 1(a) applies: the reporter has
not attempted to obtain information about vessels of the United States, but only
concerning vessels of the Japanese Navy.
Section 1(b) seems more directly applicable: there certainly has been a “taking
or a copying” of a “writing” connected with the “national defense.” Under this
subsection, a writing which lists ships of an enemy nation does not by reason of
that fact become unconnected with the national defense. The dispatch is intimately
connected with defense, as is shown by the fact that if it had been lost or stolen
before the beginning of the battle the consequences to the national defense might
have been disastrous.
Was the reporter’s act motivated by the requisite intent? Under section 1(b), as
under section 1(a), an act is criminal only if the accused acted “for the purpose of
obtaining information respecting the national defense with intent or reason to
believe that the information to be obtained is to be used to the injury of the United
States, or to the advantage of any foreign nation.”
Thus, there must be a purpose to obtain information respecting the national
defense. This purpose seems clearly present. While the information relates to the
state of our Navy’s knowledge of Japanese plans, rather than to our own vessels
and strategy, it nevertheless is information “respecting the national defense.”
There must also be “intent or reason to believe that the information to be obtained
is to be used to the injury of the United States, or to the advantage of any foreign
nation.” That there was a specific intent of this nature is doubtful. That there was
“reason to believe” seems fairly apparent, though the facts are not completely
known to me. The reporter was skilled in naval matters, as shown by his ability to
understand the dispatch, which was couched in technical terms. The information
was obviously secret. He did not submit his story to the naval censors, but waited
until he was on American soil before sending it in. He might have thought that the
story of a battle which had been fought several days earlier would not be prejudi-
cial to our defense; he may simply have kept silence in order to be sure of a
“scoop.” But a person in his position should have realized that the information
contained in the dispatch had been obtained by the naval intelligence in some
remarkably efficient manner: it should have been clear to him that revealing the
text or substance of the dispatch would jeopardize the method by which this
information had been gathered. It is true that some of this information might have
been gathered by scouting planes, but it is understood that data of the degree of
completeness here present could not have been so gathered. It is also true that a
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complete story might have been sent out after the battle: but it is understood that
this dispatch was sent prior to the battle, and revealed in advance the entire
disposition of the Japanese forces.
The reporter’s conduct in taking and copying a dispatch of immense im-
portance—as this one seems obviously to have been—is characterized by real
turpitude and disregard of his obligations as a citizen. It is hard to believe that any
jury or judge would take a sympathetic view of his case, or seek to free him on any
narrow view of the facts of the law. He thoroughly deserves punishment.
II. The Reporter Appears to Have Violated Section 1(d) of the
Espionage Act in Transmitting the Information For Publication
Section 1(d) of the Espionage Act provides:
[W]hoever, lawfully or unlawfully having possession of, access to,
control over, or being intrusted with any document, writing, code
book, signal book, sketch, photograph, photographic negative, blue-
print, plan, map, model, instrument, appliance, or note relating to the
national defense, willfully communicates or transmits or attempts to
communicate or transmit the same to any person not entitled to
receive it, or willfully retains the same and fails to deliver it on
demand to the officer or employee of the United States entitled to
receive it . . . shall be punished by imprisonment for not more than
ten years and may, in the discretion of the court, be fined not more
than $10,000.
50 U.S.C. § 31(d).
To bring the reporter within the compass of this statute, four things must be
shown:
(1) That the reporter had “possession of, access to, control over” or
was entrusted with a document or similar item;
(2) That he communicated the document (or perhaps information
therein contained);
(3) That the communication was to persons not entitled to receive it;
and
(4) That his communication was “willful.”
The answers to these points appear to be as follows:
1. The reporter clearly had “access” to a document of the stated character.
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Criminal Liability for Newspaper Publication of Naval Secrets
2. The statute speaks in terms of communicating or transmitting a document.
Does this extend to communicating the substance of a document, or information
contained in it? The legislative history of section 1(d) is not particularly enlighten-
ing on this point. The section as originally drawn contained the words “or
information” at the end of the list of items covered (document, writing, etc.).
These words were stricken out, though the debate indicates no intention to weaken
the section by so doing. See 55 Cong. Rec. 778 (1917). The section should be held
to cover the communication of information in a case where such information
closely parallels the contents of a document, and gives its gist or substance.
3. Section 1(d) does not define “persons not entitled to receive.” In the original
bill, this expression was implemented by a separate section, which gave the
President power to define the classes of persons entitled to receive defense
documents. This section was stricken by Congress, as being a grant of dictatorial
power, and the meaning of “persons not entitled” was left in some doubt. Certain
persons—such as representatives of enemy powers—are clearly “not entitled to
receive.” On the other hand, American citizens may be presumed to be entitled to
information about their government and its acts; it is fairly arguable that limita-
tions should be found in express legislation rather than in the court’s ideas of
desirable policy in the individual case. But in this case it seems clear that the
general public was “not entitled to receive” the facts disclosed, and that the
enormous circulation of the newspapers in question made it practically certain that
the story would reach the enemy.
4. Was the reporter’s communication “willful,” within the meaning of section
1(d)? It certainly was, if the statute merely means “intentional.” Yet it may mean
more than that. Section 1(d) requires no specific intent. Further, it sets a rather
vague standard: the document must relate “to the national defense”—a term which
is not defined. A similar standard is set in section 1(b), which refers to copying
plans “connected with the national defense.” The Supreme Court, in interpreting
section 1(b), has indicated that this standard is so vague as to be unenforceable,
except in cases where the defendant’s purpose is so clearly evil that he needs no
warning. Gorin v. United States, 312 U.S. 19 (1941). In that case, the defendant
knew that he was supplying valuable defense information to a foreign power, and
the court held that this purpose was so evil as to preclude reliance on the vague-
ness of the statute. Similarly, in this case, the vast circulation of the newspapers
involved puts the reporter in a position where he must pause and consider the
consequences of his act. At best, his conduct was reckless and negligent, rather
than specifically intended to do harm. Yet the negligence and recklessness were of
such magnitude as to be fairly characterized as criminal and evil within the
meaning of the Gorin rule.
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III. Whether the Reporter Has Violated Section 2 of the
Espionage Act Appears Doubtful
Section 2 of the Act provides:
Whoever, with intent or reason to believe that it is to be used to the
injury of the United States or to the advantage of a foreign nation,
communicates, delivers, or transmits, or attempts to, or aids or in-
duces another to, communicate, deliver, or transmit, to any foreign
government, or to any faction or party or military or naval force
within a foreign country, whether recognized or unrecognized by the
United States, or to any representative, officer, agent, employee, sub-
ject, or citizen thereof, either directly or indirectly, any document,
writing, code book, signal book, sketch, photograph, photographic
negative, blue print, plan, map, model, note, instrument, appliance,
or information relating to the national defense, shall be punished by
imprisonment for not more than twenty years: Provided, That who-
ever shall violate the provisions of subsection (a) of this section in
time of war shall be punished by death or by imprisonment for not
more than thirty years; and (b) whoever, in time of war, with intent
that the same shall be communicated to the enemy, shall collect, rec-
ord, publish, or communicate, or attempt to elicit any information
with respect to the movement, numbers, description, condition, or
disposition of any of the armed forces, ships, aircraft, or war materi-
als of the United States, or with respect to the plans or conduct, or
supposed plans or conduct of any naval or military operations, or
with respect to any works or measures undertaken for or connected
with, or intended for the fortification or defense of any place, or any
other information relating to the public defense, which might be use-
ful to the enemy, shall be punished by death or by imprisonment for
not more than thirty years.
50 U.S.C. § 32.
The reporter has violated section 2(a) if he intended his story to reach the ene-
my, and had reason to believe that the enemy would be aided or the United States
injured. The heavy penalty imposed may indicate that the statute was not intended
to apply unless the defendant’s mens rea is clear.
Section 2(b) is unique, in that it is the only statute relating to espionage which
uses the word “publish.” The intent required is that the information “shall be
communicated to the enemy.” This subsection is also likely to receive a narrow
construction, in view of the severe penalties provided.
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Criminal Liability for Newspaper Publication of Naval Secrets
IV. The Liability of the Managing Editor of B Newspaper
The editor of B newspaper may perhaps have directed the reporter to obtain
information in every possible way—including the taking or copying of secret
documents—without permission. If so, he might perhaps be indicted for conspira-
cy to violate section 1(a) or 1(b). It is not known whether such facts could be
proved in the present case.
On the question of the editor’s liability for his part in communicating the in-
formation to the public, we must look once more at section 1(d). Here, again, we
have four inquiries:
(1) Did the editor have “possession of” or “access to” a document?
(2) Did he “communicate” or “transmit” the document?
(3) Did he communicate it to “persons not entitled to receive it”?
(4) Was his communication “willful”?
These questions can probably be answered in the affirmative if the editor can
be shown to have realized that the story he received was the gist or substance of a
document of the type described in the statute. If he realized this, then his passing
the story to the public would seem to be the intentional transmittal of a document.
Whether the transmittal can be classed as “willful” depends on the meaning to be
attached to that word, as it is used in the statute. It may mean merely “not
accidental,” or may mean “with a sense of realization of wrongdoing.” Under the
Gorin case, discussed above, the courts will probably read the latter meaning into
the statute. It would thus appear to be necessary to prove, in effect, a conspiracy
between the reporter and the editor to violate section 1(d), by the intentional
transmission of the contents of a secret document to persons not entitled to receive
it, with full realization of the evil character of the act—or at least with such
recklessness and wantonness as to indicate an equally criminal mentality.
Whether the editor can be convicted under section 2 of the Act would appear to
rest on considerations similar to those discussed in Part III of this memorandum.
V. The Liability of the Corporation Publishing B Newspaper
The corporation’s liability would seem to depend on the liability of the manag-
ing editor: if he can be convicted, so also can the company. His criminality, if
proved, can be fastened on the corporation which hired him, which put his act into
effect, and which made a profit from it.
It is true that section 1(d) speaks of “whoever . . . willfully communicates,”
thus using a personal term and imposing a requirement of intent. Yet this does not
render a corporation incapable of committing the crime. Construing section 3 of
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the same statute, which condemns “[w]hoever . . . shall willfully obstruct . . .
recruiting,” 50 U.S.C. § 33, Judge Mayer held that a corporation which published
a seditious pamphlet could be convicted and fined. United States v. Am. Socialist
Soc., 260 F. 885 (S.D.N.Y. 1919), aff’d, Am. Socialist Soc. v. United States, 266 F.
212 (2d Cir. 1920), cert. denied, 254 U.S. 637 (1920).
VI. The Liability of the Person Described as “Publisher”
of B Newspaper
It is assumed that the person described as “publisher” owns a substantial frac-
tion of the stock of the corporation which publishes B newspaper, and that he
controls its general policies.
The most obvious grounds for holding the publisher are similar to those dis-
cussed in connection with the petition of the managing editor, i.e.,
(1) Possible liability for directing the illegal obtaining or copying of
the document, under sections 1(a) and 1(b).
(2) Possible liability for willfully transmitting the contents of the
document to “persons not entitled to receive,” under section 1(d).
(3) Possible liability for communicating information to the enemy,
under section 2.
As to these grounds, the position of the publisher is similar to that of the editor,
and like problems of proving knowledge, intent and mens rea arise.
If it is not possible to prove that the publisher knew about the story in advance
of its publication, and that he willfully communicated it in violation of one of the
statutory sections above mentioned, can he be held on some other ground? Can he
be held criminally liable on the ground, for example, that he was negligent in
failing to supervise the paper, or in choosing reckless reporters and editors? Or on
the ground that if the corporation is held criminally liable the person controlling it
should also be held?
While limitations of time have not permitted a complete investigation of these
problems, it would appear that liability of this vicarious nature has seldom been
imposed on stockholders and directors of corporations. Where the stockholder or
director has directly participated in the crime—knowingly using the company as
his tool—there is no difficulty in holding him. Occasionally, too, a statute will
penalize someone who “permits” a nuisance or other criminal condition to exist: in
such case, an officer or stockholder may be directly held for his criminal act of
permission. This is a matter of statutory interpretation. See generally Frederic P.
Lee, Corporate Criminal Liability, 28 Colum. L. Rev. 1 (1928).
Fletcher states:
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Criminal Liability for Newspaper Publication of Naval Secrets
At common law, the managing editor of a newspaper is criminally
responsible for an unlawful publication made in the paper unless it
was made under such circumstances as to negative any presumption
of privity or connivance or want of ordinary precaution on his part to
prevent it, and statutes sometimes provide that every editor or pro-
prietor of a book, newspaper or serial, and every manager of a corpo-
ration by which any newspaper is issued is chargeable with the pub-
lication of any matter contained therein. But the business or
circulation manager of a newspaper who has no editorial duties and
no part in editing or producing it, but only circulates or distributes it,
is not criminally liable at common law for the insertion of matter in
the paper.
3 William Meade Fletcher, Cyclopedia of the Law of Private Corporations § 1350
(rev. & perm. ed. 1931).
This doctrine probably does not extend to a newspaper publisher whose propri-
etary interest is represented by stock ownership, and who leaves the active running
of the paper to his managing editor. The Espionage Act is not written in terms to
apply to publication or to newspapers, and no special terminology can be found in
it to relieve the prosecution from the necessity of showing the required personal
intent in the case of a newspaper publisher as with every other class of person.
However, a further study will be made of this problem.
OSCAR S. COX
Assistant Solicitor General
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