United States v. Samuel Loring Morison, the Washington Post Cbs, Inc., Amici Curiae

The defendant is appealing his conviction under four counts of an indictment for violation of 18 U.S.C. Sec. 641, and of two provisions of the Espionage Act, 18 U.S.C. Sec. 793(d) and (e). The violations of the Espionage Act involved the unauthorized transmittal of certain satellite secured photographs of Soviet naval preparations to "one not entitled to receive them" (count 1) and the obtaining of unauthorized possession of secret intelligence reports and the retaining of them without delivering them to "one entitled to receive" them (count 3). Counts 2 and 4 of the indictment charged violation of the theft provisions of 18 U.S.C. Sec. 641. His defense was essentially that the statutes did not encompass the conduct charged against him and, if they did, the statutes were unconstitutional. At trial, he also found error in certain evidentiary rulings by the district judge. We find the claims of error unfounded and affirm the conviction.

The defendant was employed at the Naval Intelligence Support Center (NISC) at Suitland, Maryland from 1974 until October, 1984. At the time of the incidents involved in this prosecution, he was assigned as an amphibious and hospital ship and mine warfare analyst in the NISC and as such had been given a security clearance of "Top Secret-Sensitive Compartmented Information." His work place was in what was described as a "vaulted area," closed to all persons without a Top Secret Clearance.1 In connection with his security clearance, he had signed a Non-Disclosure Agreement. In his Non-Disclosure Agreement, the defendant acknowledged that he had received "a security indoctrination concerning the nature and protection of Sensitive Compartmented Information, including the procedure to be followed in ascertaining whether other persons to whom I contemplate disclosing this information have been approved for access to it and I understand these procedures.... [that he had been] advised that direct or indirect unauthorized disclosure, unauthorized retention, or negligent handling of Sensitive Compartmented Information by me could cause irreparable injury to the United States or be used to advantage by a foreign nation.... [that he understood he was] obligated by law and regulation not to disclose any classified information in an unauthorized fashion.... [that he had been] advised that any unauthorized disclosure of Sensitive Compartmented Information by me may constitute violations of United States criminal laws, including the provisions of Section 793, 794, 798 and 952, Title 18, United States Code...."

For some time prior to the incidents with which this prosecution is concerned, the defendant had been doing certain off-duty work for Jane's Fighting Ships, an annual English publication which provided current information on naval operations internationally. Sometime before July, 1984, Jane's, which for many years had been publishing Jane's, had begun the publication of another periodical on a weekly basis. This new publication was called Jane's Defence Weekly and its editor-in-chief was Derek Wood, with an office in London. The defendant had been paid varying amounts for such services as rendered Jane's dependent on the value of the information he furnished. This arrangement with Jane's had been submitted to and approved by the Navy but subject to the defendant's agreement that he would not obtain and supply any classified information on the U.S. Navy or extract unclassified data on any subject and forward it to Jane's. The defendant's off-duty services with Jane's had become a subject of some controversy between him and the Navy. As a result, the defendant had become dissatisfied with his employment by the Navy and wished to secure full-time employment with Jane's. The defendant began a correspondence with Wood on the prospects for full-time employment with the periodical. He requested an opportunity to interview Wood when the latter was in Washington next.

Wood visited Washington in June, 1984, and, by arrangement, saw the defendant in connection with the latter's request for employment. At that time, Wood discussed with the defendant a report which had appeared in the American press with regard to an explosion that had recently occurred at the Severomorsk Soviet Naval base. Wood expressed the interest of his publication in securing additional details since such an explosion was "a very serious matter." The defendant told Wood that the explosion "was a much larger subject than even they had thought and there was a lot more behind it." The defendant also said he could "provide more material on it" if Jane's were interested. Wood responded that he was interested in receiving additional material on the explosion and, if the defendant were able to provide such, he could use for transmission of such material to Jane's "the facsimile machine for direct transmission in our [Jane's ] Washington editorial office." The defendant told Wood also that he could provide Wood with other material. While there was no direct statement about what compensation the defendant would receive if he sent material to Wood that was used the practice had been that when the defendant had in the past furnished material of interest Jane's had paid the defendant. When Wood returned to London a few days later, he received from the defendant "about three typed pages of material background on Severomorsk." A few days later, the defendant transmitted to Wood "two other items on further explosions that had occurred at the site on different dates and also a mention of one particular explosion in East Germany."

The activity of the defendant which led to this prosecution began on July 24, 1984, a few days after the interview of the defendant by Wood and after the defendant had sent Wood the material described in the preceding paragraph. At that time the defendant saw, on the desk of another employee in the vaulted area where he worked, certain glossy photographs depicting a Soviet aircraft carrier under construction in a Black Sea naval shipyard. The photographs, produced by a KH-11 reconnaissance satellite photographing machine, had been given this analyst so that he could analyze and determine the capabilities and capacities of the carrier under construction. The photographs were stamped "Secret" and also had a "Warning Notice: Intelligence Sources or Methods Involved" imprinted on the borders of the photographs. The defendant later in his confession said he had earlier sent an artist's sketch of a Soviet carrier under construction to Jane's and had been paid $200 for his services. When he saw the photographs, the defendant recognized them as satellite photographs of the Soviet ship, taken by a secret method utilized by the Navy in its intelligence operations. Unobserved, he picked the photographs up, secreted them, and, after cutting off the borders of the photographs which recorded the words "Top Secret" and the Warning Notice as well as any indication of their source, mailed them to Derek Wood personally. Jane's Defence Weekly published the photographs in its weekly edition a few days later and made the pictures available to other news agencies.2 One of these photographs was published on August 8, 1984 in the Washington Post. When the Navy officers saw the photographs, they began a search and discovered that the photographs had been stolen. An investigation was immediately begun to ascertain the identity of the thief.

In the investigation of the theft, the defendant was interrogated. He denied ever seeing the photographs and professed to know nothing about the purloining of the photographs.3 He persevered in this denial for some time, even going so far as to identify two fellow employees who he said should be questioned about the disappearance of the photographs. On August 22, 1984, the authorities seized the defendant's typewriter ribbon at work. An analysis of the ribbon revealed numerous letters to Jane's, including a summary of a secret report on the Severomorsk explosion. At about the same time, the Navy also was able to secure a return of the photographs from Jane's. A fingerprint was discovered on one of the photographs and the fingerprint was identified as that of the defendant. With this information, the FBI interviewed the defendant anew and the arrest of the defendant followed on October 1, 1984.4

When arrested, the defendant repeated his many denials of any connection with the theft of the photographs, though the arresting officer told him they had discovered his fingerprints on the photographs, demonstrating that he was not truthful when he said he had never seen the photographs. At this point, the defendant asked for a break in the interrogation. When the interview was resumed, the defendant renewed his denial of any connection with the theft. However, the arresting officers told him they did not accept his denial and one of the officers proceeded to summarize the material they had demonstrating the defendant's guilt. At the end of the summarization, one of the officers suggested that perhaps the defendant had felt that publicizing the progress the Soviets were making in developing a naval force would enable the Navy to obtain greater appropriations. The defendant seemed to jump at this suggestion. The Government did not accept such proposed excuse because of all the evidence it had indicating that the defendant was making available secret material to Wood and Jane's as a means of furthering his application for employment by Jane's and for payment. He, however, did not admit that he had sent other information to Wood, particularly that relating to the explosion at Severomorsk. The officers, however, that day obtained a second warrant to search the defendant's home. That search revealed the presence of two "secret" NISC intelligence reports on the explosion at Severomorsk in an envelope marked "For Derek Wood only" in defendant's apartment.

At trial the Government offered evidence of defendant's admission of the theft of the photographs, of his cutting off the "Secret" and "Intelligence Service" statements on outer sides of the photographs and of his mailing of the photographs to Derek Wood. There was also proof of the defendant's attempt to secure employment with Jane's and of Jane's payment to the defendant. The Government presented proof of much of this in letters of the defendant to Jane's or Wood. The Government also offered in evidence the "Secret" military information found in the defendant's apartment. The defendant by way of defense presented witnesses who testified that the photographs and the secret documents found in the secretary of defendant's apartment involved nothing in the way of information that could be harmful to the United States or advantageous to the Soviet Union. The Government offered rebuttal testimony to demonstrate that the photographs, as well as the other governmental military defense secret documents found in defendant's apartment, provided information of advantage to the Soviet Union and against the interests of the United States. At the conclusion of the testimony, the defendant moved for a directed verdict. The motion was denied. The cause was then submitted to the jury which returned a verdict of guilty on all counts. Sentencing followed. The defendant has appealed his conviction on various claims of error. We find all the claims without merit and affirm the judgment of conviction.

The defendant's claim of error in denying his motion for a directed verdict naturally divides into two separate arguments: the first addresses the charges set forth in counts 1 and 3 of the indictment charging violations of sections 793(d) and (e); the second relates to counts 2 and 4 and charges violations of section 641. His contentions with respect to the first claim under sections 793(d) and (e) are that his activity as set forth in the two counts of the indictment was not within the literal or intended prohibitions of the relevant statutes and that, if within the prohibition of the statutes, whether read literally or in accord with legislative intent, such statutes are constitutionally invalid for vagueness and overbreadth. His position with reference to the prosecution under section 641 is that his conduct was simply not covered by the statutory prohibition. We shall discuss the two claims of error separately, beginning with those relating to the convictions under sections 793(d) and (e).

The Convictions under Sections 793(d) and (e)

The initial defense of the defendant to his prosecution as stated in Counts 1 and 3 of the indictment (sections 793(d) and (e)), rests on what he conceives to be the meaning and scope of the two espionage statutes he is charged with violating. It is his position that, properly construed and applied, these two subsections of 793 do not prohibit the conduct of which he is charged in those counts. Stated more specifically, it is his view that the prohibitions of these two subsections are to be narrowly and strictly confined to conduct represented "in classic spying and espionage activity"5 by persons who, in the course of that activity had transmitted "national security secrets to agents of foreign governments with intent to injure the United States." He argued that the conduct of which he is charged simply does not fit within the mold of "classical spying" as that term was defined, since he transmitted the national security secret materials involved in the indictment to a recognized international naval news organization located in London, England, and not to an agent of a foreign power. In short, he leaked to the press; he did not transmit to a foreign government. It therefore follows, under his construction of the statutes, that he was not guilty of their violation by his transmittal of this national security material, even though, under the government's proof, he had without authorization and clandestinely abstracted that material from the highly secret national intelligence office in which he worked and had, with reason to know that the publication of such materials reasonably would imperil the secrecy and confidentiality of the nation's intelligence-gathering capabilities, communicated such materials to one "not entitled to receive" them, reasonably knowing that the receiver of the material would publish it to all the world. Such is the initial ground on which the defendant declares that his motion for acquittal on the charges in counts one and three of the indictment (section 793(d) and (e)) was erroneously overruled.

The defendant does not predicate his argument relating to the scope of the statutory meaning on the actual facial language of the statutes themselves. It is fair to say he concedes that the statutes themselves, in their literal phrasing, are not ambiguous on their face and provide no warrant for his contention.6 Both statutes plainly apply to "whoever" having access to national defense information has under section 793(d) "wilfully communicate[d], deliver[ed] or transmit[ted] ... to a person not entitled to receive it," or has retained it in violation of section 793(e). The language of the two statutes includes no limitation to spies or to "an agent of a foreign government," either as to the transmitter or the transmittee of the information, and they declare no exemption in favor of one who leaks to the press. It covers "anyone." It is difficult to conceive of any language more definite and clear.

Admitting, however, that the statutes construed literally as they are facially stated did apply to his conduct, the defendant posits that the legislative history demonstrates conclusively that these statutes, whatever their facial language, were to be applied only to "classic spying" and that they should be limited in their application to this clear legislative intent. The threshold difficulty in pressing this contention in this case is the rule that when the terms of a statute are clear, its language is conclusive and courts are "not free to replace ... [that clear language] with an unenacted legislative intent." INS v. Cardoza-Fonseca, 480 U.S. ----, ----, 107 S.Ct. 1207, 1224, 94 L.Ed.2d 434, 461 (Scalia, J. concurring) (1987). We have recently reaffirmed this rule in United States v. James, 834 F.2d 92, (4th Cir.1987): "If the terms of this statute are unambiguous on their face, or in light of ordinary principles of statutory interpretation, then 'judicial inquiry is complete,' Rubin v. United States, 449 U.S. 424, 430 [101 S.Ct. 698, 701] 66 L.Ed.2d 633 (1981); there is no need to consult legislative history nor to look to the 'rule of lenity' that is applied in construing ambiguous criminal statutes."7 This rule is departed from only in those rare and "exceptional circumstances," Burlington Northern R. Co. v. B.M.W.E, --- U.S. ----, 107 S.Ct. 1841, 1860, 95 L.Ed.2d 381 (1987), where "a literal reading of [the] statute [will] produce a result 'demonstrably at odds with the intentions of its drafters,' " United States v. Locke, 471 U.S. 84, 93, 105 S.Ct. 1785, 1792, 85 L.Ed.2d 64 (1985), or " 'where acceptance of that meaning would lead to absurd results ... or would thwart the obvious purpose of the statute,' " Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 643, 98 S.Ct. 2053, 2061, 56 L.Ed.2d 591 (1978), citing Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 1166, 14 L.Ed.2d 75 (1965), or where "an absolutely literal reading of a statutory provision is irreconcilably at war with the clear congressional purpose, [in which case] a less literal construction ... [may] be considered." United States v. Campos-Serrano, 404 U.S. 293, 298, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971). None of those "exceptional" conditions for a departure from the rule for literal construction exists in this case. For that reason there is no reason or warrant for looking to the legislative history of sections 793(d) and (e) to ascertain their meaning.

We are convinced, though, that the legislative history will not support the defendant's construction of sections 793(d) and (e). When a statute is a part of a larger Act as these statutes are, the starting point for ascertaining legislative intent is to look to other sections of the Act in pari materia with the statute under review. Erlenbaugh v. United States, 409 U.S. 239, 244-47, 93 S.Ct. 477, 480-82, 34 L.Ed.2d 446 (1972).8 Section 793(d) was a part of the Espionage Act of 1917;9 section 793, however, is but one section of the Espionage Act of 1917; as equally as important a section of the Act was section 794. That Act, with its inclusion of 793(d) and 794, was submitted by the Department of Justice to the Congress. It had been drafted in the Department under the supervision of Assistant Attorney General Charles Warren,10 a respected authority on constitutional law and the author of one of the most exhaustive and distinguished histories of the Supreme Court of the United States when published.11 The purpose of the drafter was to break down the Act into very specific sections, prescribing separate and distinct offenses or crimes, and providing varying punishments for conviction under each section dependent on the seriousness of each of the offenses. This purpose of the Act was recognized by us in Boeckenhaupt v. United States, 392 F.2d 24, 28 (4th Cir.1968), cert. denied, 393 U.S. 896, 89 S.Ct. 162, 21 L.Ed.2d 177 (1968) and we in that case upheld the power of the Congress so to break down the Espionage Act with separate and distinct sections, covering separate and distinct activities, saying:

We do not doubt the power and authority of Congress to break down into separate offenses various aspects of espionage activity and to make each separate aspect punishable as provided separately in 18 U.S.C. Sec. 793 and 18 U.S.C. Sec. 794.

It is obvious from this quotation from Boeckenhaupt that we in that case concluded that sections 793 and 794 were intended to and did cover separate and distinct offenses, with separate and distinct punishment provided for each offense. It is important, therefore, to ascertain the essential element in each section which made it separate and distinct from the other. Both statutes dealt in common with national defense materials and both statutes define the national interest materials covered by them in substantially the same language. Both prohibit disclosure. The two statutes differ--and this is the critical point to note in analyzing the two statutes--in their identification of the person to whom disclosure is prohibited. In section 793(d) that party to whom disclosure is prohibited under criminal sanction is one "not entitled to receive" the national defense material. Section 794 prohibits disclosure to an "agent ... [of a] foreign government...." Manifestly, section 794 is a far more serious offense than section 793(d); it covers the act of "classic spying"; and, because of its seriousness, it authorizes a far more serious punishment than that provided for section 793(d). In section 794, the punishment provided is stated to be "punish[ment] by death or by imprisonment for any term of years or for life" (Italics added). The punishment for violation of section 793(d) is considerably more lenient: A fine of "not more than $10,000 or imprisoned not more than ten years, or both." In short, section 794 covers "classic spying"; sections 793(d) and (e) cover a much lesser offense than that of "spying" and extends to disclosure to any person "not entitled to receive" the information. It follows that, considered in connection with the structure and purposes of the Espionage Act as a whole and with other sections of the Act in pari materia with it, section 793(d) was not intended to apply narrowly to "spying" but was intended to apply to disclosure of the secret defense material to anyone "not entitled to receive" it, whereas section 794 was to apply narrowly to classic spying.

Beyond this, the legislative record itself shows unmistakably that section 793(d) was intended to apply to disclosure simply to anyone "not entitled to receive" national defense information and was specifically not restricted to disclosure to "an agent ... [of a] foreign government." Thus, when the Espionage Act was submitted to the Senate by Senator Overman on behalf of the Senate Judiciary Committee he was queried on the language in what was later codified as section 793(d) identifying the person to whom disclosure of secret national defense information was prohibited by that section; that is, he was asked to interpret the meaning of the phrase to "one not entitled to receive it" in the statute. His response was: "That (i.e., not entitled to receive) means against any statute of the United States or against any rule or regulation prescribed."12 Senator (later Justice) Sutherland, also a member of the Judiciary Committee, observed at the time that "the phrase 'lawfully entitled' means nothing more and nothing less than that the particular information must have been forbidden, not necessarily by an act of Congress; because in dealing with military matters the President has very great powers."13 As so explained section 793(d) was accepted at the time by the Senate and this interpretation remained throughout the legislative process as the accepted definition of the meaning of the critical phrase. Later, when Congress was enacting a revision of the Espionage Act in 1950 by adding certain language to sections 793(d) and a new subsection (e), the House Judiciary Committee, in a report on the revised statute, had occasion to advert again to the meaning of the words "one entitled to receive" secret national defense information. It said:

Section 1(d) [793(d) ] provides that those having lawful possession of the items described therein relating to the national defense who willfully communicate or cause to be communicated, or attempt to communicate them to an unauthorized person, or who willfully fail to deliver them to an authorized person on demand, shall be guilty of a crime.14

It seems abundantly clear from this legislative history that sections 793(d) and (e) were not intended to be restricted in application to "classic spying" but were intended to criminalize the disclosure to anyone "not entitled to receive it."15 Accordingly, whether we look to the literal language of the statutes themselves, to the structure of the Act of which the sections were a part, or to the legislative history, sections 793(d) and (e) may not be limited in their scope to "classic spying," as the defendant argues.

As a final argument for narrowing the statutes to spying, the defendant points to the fact that only in one publicized case has the Government sought to prosecute anyone who had disclosed national defense information to one who was not "an agent of ... a foreign government" but to one simply "not entitled to receive" the information and in that one case the prosecution had been dismissed for prosecutorial misconduct.16 It describes all the other prosecutions under the Espionage Act to involve disclosures or delivery to an agent of a foreign government. From this failure of prosecution of anyone for disclosure to one not an agent of a foreign government, the defendant would find proof that the government itself had considered the statutes, whatever their clear language, to apply solely to spying.

It is true that some prosecutions under these statutes have involved defendants alleged to have been acting for a foreign government though many of them also contained counts under sections 793(d) and (e) and that apparently only one prosecution of someone not a "spy" prior to this one has been initiated solely under these statutes--a prosecution that was aborted by prosecutorial misconduct.17 This statement, though strictly accurate, is misleading. It is true that the Russo case is the only case in which the prosecution was based solely on a violation of sections (d) and (e), but it is not correct to say that there have not been other cases in which the defendant was prosecuted under sections 793(d) and (e). Actually, United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir.1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982), United States v. Kampiles, 609 F.2d 1233 (7th Cir.1979), United States v. Boyce, 594 F.2d 1246 (9th Cir.1979) and United States v. Smith, 592 F.Supp. 424 (S.D.Va.1984), vacated and remanded on other grounds, 780 F.2d 1102 (4th Cir.1985), for instance, all included separate counts covering violations of sections (d) and (e) and the defendant was convicted under these counts. Practically all these cases included, of course, counts under section 794, too, and the defendants were convicted under these counts. But the important fact is that sections 793(d) and (e) are not treated as obsolete sections but have been the basis for prosecution in a number of cases. Moreover, Congress has not treated these statutes as obsolete. In the 1950 revision, it strengthened section 793 by adding (e) and, so strengthened, reenacted the section.

It is unquestionably true that the prosecutions generally under the Espionage Act, and not just those under section 793(d), have not been great. This is understandable. Violations under the Act are not easily established. The violators act with the intention of concealing their conduct. They try, as the defendant did in this case, to leave few trails. Moreover, any prosecution under the Act will in every case pose difficult problems of balancing the need for prosecution and the possible damage that a public trial will require by way of the disclosure of vital national interest secrets in a public trial. Haig v. Agee, 453 U.S. 280, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981). All these circumstances suggest that the rarity of prosecution under the statutes does not indicate that the statutes were not to be enforced as written. We think in any event that the rarity of the use of the statute as a basis for prosecution is at best a questionable basis for nullifying the clear language of the statute, and we think the revision of 1950 and its reenactment of section 793(d) demonstrate that Congress did not consider such statute meaningless or intend that the statute and its prohibitions were to be abandoned.

We therefore conclude that the legislative history does not justify the rewriting of this statute so as to nullify its plain language by limiting the statutes' application to the "classic" spy, even if we should assume--in our opinion, improperly--that it was appropriate to look to legislative history in order to ascertain the application of the plain literal language of sections 793(d) and (e). Nor do we find of any relevance whether there have been few prosecutions under these sections.

The legislative record is similarly silent on any Congressional intent in enacting sections 793(d) and (e) to exempt from its application the transmittal of secret military information by a defendant to the press or a representative of the press. Actually, there was little or no discussion of the First Amendment in the legislative record directly relating to sections 793(d) and (e) in this connection. There was, it is true, discussion of the First Amendment during the enactment of the Espionage Act of 1917 as a whole, but Professor Rabban, who reviewed carefully the legislative record, concluded that the focus of such discussion was on "[a] provision of the bill that would have allowed the President to censor the press dominated congressional discussion and was eventually eliminated by the conference committee" but "[i]ronically, the section of the bill that ultimately provided the basis for most of the prosecutions [which included section 793(d), subsection (e) not being added until the 1950 revision] hardly received any attention" in that discussion. Rabban, The Emergence of Modern First Amendment Doctrine, 50 U.Chi.L.Rev. 1205, 1218 (1983). What legislative discussion of section 793(d) as there was related to the meaning of the phrase "one not entitled to receive it" and the term "information respecting the national defense." We deal with these discussions later in our disposition of consideration of the defendant's vagueness and overbreadth claims. There is, however, no evidence whatsoever in the legislative record that the Congress intended to exempt from the coverage of section 793(d) national defense information by a governmental employee, particularly by one who had purloined from the files of the Department such information, simply because he transmitted it to a representative of the press.

But, though he cannot point to anything in the legislative record which intimates that Congress intended to exempt "leaks to the press," as the defendant describes it, he argues that, unless such an exemption is read into these sections they will run afoul of the First Amendment. Actually we do not perceive any First Amendment rights to be implicated here. This certainly is no prior restraint case such as New York Times v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), and United States v. Progressive, Inc., 467 F.Supp. 990, and 486 F.Supp. 5 (W.D.Wis.1979). It is a prosecution under a statute, of which the defendant, who, as an employee in the intelligence service of the military establishment, had been expressly noticed of his obligations by the terms of his letter of agreement with the Navy, is being prosecuted for purloining from the intelligence files of the Navy national defense materials clearly marked as "Intelligence Information" and "Secret" and for transmitting that material to "one not entitled to receive it." And the prosecution premises its prosecution on establishing that he did this knowingly and "wilfully" as evidenced by the manner in which he sought to conceal the "Secret" character of the information and the efforts he had taken to thwart any tracing of the theft to him. We do not think that the First Amendment offers asylum under those circumstances, if proven, merely because the transmittal was to a representative of the press. This conclusion in our view follows from the decision in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

In Branzburg, a news reporter had written, and his paper had published, an article describing certain criminal activity by two individuals witnessed by the reporter under a pledge by him that he would protect the identity of the two offenders. A grand jury investigating the criminal activity subpoenaed the reporter in order to examine him on the identity of the two individuals and on their criminal activity. He sought to avoid the process on the ground that it would be a violation of his First Amendment right in news-gathering to require him to expose or identify his informants. He said to deny him protection in this regard would make it extremely difficult, if not impossible, for him to gather news. The Supreme Court denied the plea, and, in the course of so doing, made certain rulings which are pertinent in this connection. The Court, in Justice White's opinion in that case, said at 691-92, 92 S.Ct. at 2661-62:

It would be frivolous to assert--and no one does in these cases--that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news. Neither is immune, on First Amendment grounds, from testifying against the other, before the grand jury or at a criminal trial. The Amendment does not reach so far as to override the interest of the public in ensuring that neither reporter nor source is invading the rights of other citizens through reprehensible conduct forbidden to all other persons. To assert the contrary proposition"is to answer it, since it involves in its very statement the contention that the freedom of the press is the freedom to do wrong with impunity and implies the right to frustrate and defeat the discharge of those governmental duties upon the performance of which the freedom of all, including that of the press, depends.... It suffices to say that, however complete is the right of the press to state public things and discuss them, that right, as every other right enjoyed in human society, is subject to the restraints which separate right from wrong-doing." Toledo Newspaper Co. v. United States, 247 U.S. 402, 419-20 [38 S.Ct. 560, 564, 62 L.Ed. 1186 (1918) ].18

United States v. Marchetti, 466 F.2d 1309, 1317 (4th Cir., cert. denied, 409 U.S. 1063, 93 S.Ct. 553, 34 L.Ed.2d 516 (1972), though not as directly on point as Branzburg, is instructive in this regard. In that case, the United States sought an injunction to prevent a former Central Intelligence Agency [CIA] employee, who had signed a confidentiality agreement not to divulge naval classified information to which he had access from publishing classified CIA information after he left the CIA. The employe