On March 12, Representative Rashida Tlaib introduced the Daniel Ellsberg Press Freedom and Whistleblower Protection Act, a bill that would reform the Espionage Act of 1917 to prevent its use against journalists and whistleblowers who disclose information in the public interest [1]. The bill is named after the RAND Corporation analyst who leaked the Pentagon Papers to the New York Times in 1971, revealing that the Johnson and Nixon administrations had systematically lied to Congress and the public about the Vietnam War. Ellsberg was charged under the Espionage Act. The charges were dismissed. The law was never reformed.

The timing is not coincidental. This paper has tracked the convergence of three press freedom stories that together describe a pattern: the Don Lemon prosecution, which weakened further at this week's hearings as key evidence unraveled; the Pentagon's media corridor, closed for 30 days in what press advocates call malicious compliance with a court order; and the NewsGuard lawsuit, which survived FTC dismissal and may expose government targeting of media organizations. Each story involves a different mechanism -- prosecution, physical exclusion, regulatory harassment -- but the same principle: the government using its power to make journalism more costly, more dangerous, or both.

The Espionage Act is the oldest and bluntest of these mechanisms. Enacted in 1917, two months after the United States entered World War I, it was designed to prevent spying for foreign governments [2]. Its language is broad. Section 793 criminalizes the willful retention or transmission of "information relating to the national defense" by anyone who has "reason to believe" it could harm the United States. The statute does not distinguish between a spy selling secrets to an adversary and a journalist publishing evidence of government misconduct. That ambiguity has been exploited by every administration that has wanted to punish disclosure.

The Ellsberg Act would create that distinction. The bill's key provisions, as described in Tlaib's press release, include a public interest defense for defendants who can demonstrate that the disclosed information revealed waste, fraud, abuse, or illegal activity; an explicit prohibition on charging journalists under the Espionage Act for receiving or publishing classified information; and enhanced protections for federal employees who disclose information to inspectors general, Congress, or the press [1]. The bill would also require the government to prove that a disclosure caused "specific and identifiable harm to national security" rather than the current standard, which requires only that the information was classified.

The legislative history is almost comically barren. Since 1917, no Congress has substantively reformed the Espionage Act's application to journalists and whistleblowers [3]. The closest attempt came in 2013, when Senator Ron Wyden proposed amendments after the Edward Snowden disclosures. The amendments were not brought to a vote. The Ellsberg Act is the most comprehensive reform proposal in the statute's 109-year history.

Its prospects in the current Congress are minimal. The bill has no Republican co-sponsors. The House Judiciary Committee, which has jurisdiction, is chaired by a Republican. The political climate -- a wartime administration that has already demonstrated its willingness to prosecute journalists, close press facilities, and use regulatory agencies against media organizations -- is hostile to legislation that would constrain executive power over information.

But the bill's significance is not primarily legislative. It is declarative. It names the problem. The Espionage Act has been used against Daniel Ellsberg, Chelsea Manning, Edward Snowden, Reality Winner, Julian Assange, and now, in a novel application, Don Lemon [4]. Each prosecution expanded the statute's reach. Each expansion was treated as precedent for the next. The pattern is clear enough that Chip Gibbons, policy director at Defending Rights and Dissent, called the Ellsberg Act "a monumental moment for Espionage Act reform" [5].

Robert Ellsberg, Daniel Ellsberg's son, attended the bill's introduction on Capitol Hill. The elder Ellsberg died in June 2023. His memorial account on X reposted Tlaib's announcement [6]. The Pentagon Papers case established that the government could not prevent publication through prior restraint. It did not establish that the government could not punish publication after the fact. That gap -- between what the First Amendment protects in theory and what the Espionage Act punishes in practice -- has been open for 55 years.

The Ellsberg Act would close it. Whether this Congress will pass it is one question. Whether any Congress will pass it before the next journalist is charged is another.

-- Anna Weber, Berlin