There is surprisingly little case law on § 795—I wasn’t aware of it until a colleague pointed it out, and I study this stuff for a living. Going back more than 60 years, I found only 11 cases citing the statute, and no challenges to its constitutionality. The case closest factually to the Blade’s appears to be the most recent—Genovese v. Town of Southhampton, decided in 2013 by the US District Court for the Eastern District of New York. A woman stopped her car on a public road to photograph a restored helicopter on the grounds of an airport, half of which is an Air Force base. She took the photos from the airport’s fence line, shooting what was visible from the road. The woman was detained and later filed a lawsuit alleging, among other things, that she was unlawfully detained.
The court dismissed all of her claims for various reasons, and found that the police had probable cause to detain the woman for violating § 795 by photographing a “vital military installation.” Remarkably, her attorneys didn’t challenge the statute, and in fact they wrote in a letter to the court: “[T]here is nothing to oppose the applicability of 18 U.S.C. § 795 in this matter.” It’s worth mentioning that the case is distinguishable from The Blade’s in at least one major way: The woman had a semiautomatic assault rifle in a gun case in plain view in the front passenger seat of her car, a fact that certainly would make her less sympathetic to the court in the context of an unlawful detainment claim.
So, if the government does cite § 795, what would that mean for The Blade’s lawsuit? Even if a court agreed that the statute gave military police good reason to detain Fraser and Linkhorn, the law likely would not provide a complete defense to all of the newspaper’s claims—10 in total arising from the First, Fourth, and Fifth Amendments, as well as the Privacy Protection Act. That law, passed in 1980, generally makes it “unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize” work product and documentary materials “possessed by a person in connection with a purpose to disseminate to the public a newspaper … or other similar form of public communication.” (Remember, the guards didn’t just detain the journalists; they also allegedly deleted Fraser’s photos.)
Further, § 795 is susceptible to a facial challenge—i.e., a claim that the statute is unconstitutional on its face, that it always operates unconstitutionally. The law “seems overly broad because it doesn’t distinguish military secrets and what is plainly visible to the public,” said Cindy Gierhart, a legal fellow at the Reporters Committee for Freedom of the Press. “The US military has very good reasons for keeping certain information regarding its equipment, weapons, and operations secret, but making it a crime to photograph the outside of a building that is plainly marked as a government facility, is viewable to any passerby or on Google Street View, and doesn’t betray any military secrets doesn’t serve any purpose.”
Indeed, it’s true that the government controls access to its military installations, commanding officers enjoy discretion in the discharge of their duties, and neither military installations nor battlefields are public forums—but if a statute is so broadly written that it deters free expression, it can be struck down on its face because of its chilling effect, even if the statute prohibits acts that legitimately may be prohibited. Moreover, when the government wants to advance an interest (e.g., protecting sensitive military installations) and it has available a variety of effective means, it must choose the one that least interferes with expressive rights.
To spell out the logic of Gierhart’s comments a bit further, then: If a law fails to distinguish what can be seen readily from a public street and a space so “vital” it “requir[es] protection against the general dissemination of information relative thereto,” the law stands to interfere with the general right, under the First Amendment and state common law, to observe, record, and publish what easily can be seen or heard in public. The ruling in Genovese, the 2013 case, didn’t acknowledge that issue—but, again, the attorneys didn’t “oppose the applicability” of § 795. The Blade’s lawsuit could become the first challenge to the statute.
Assuming, again, that the government cites § 795 when it decides it’s ready to identify the “Federal law and Army Regulations” in question. In any case, we’ll be watching how this unfolds.