Kinsley is offering a mainstream position: that government "must" have the final say, not some pixel-pusher elected by no one. But I don't think he can persuasively defend that position, having already stipulated that the Snowden leaks are a legitimate scoop, especially if he's unwilling to call for journalists at The Guardian, the Washington Post, and the New York Times to be charged criminally.

In defense of the role journalists at those publications play: The least-bad system isn't one where government punishes journalists at its discretion, or can preemptively stop them from publishing classified information. Neither is the least-bad system one in which government employees can leak anything—nuclear codes, troop movements—without legal consequences.

The least-bad system is one where leakers can be charged and punished for giving classified secrets to journalists (which isn't to say that they always should be), but where journalism based on classified information is never criminalized. Insofar as that standard is anti-democratic, it is no more anti-democratic than the First Amendment to the Constitution, in which it is grounded. "Congress shall make no law... abridging the freedom of speech, or of the press." That is an explicit protection for newspapers to publish in the face of government objections.

A "Fourth Estate" was built into our system.

Rather than dwell in abstractions, I'd ask Kinsley to empirically assess who best decides what information is in the public interest. De facto policy in the U.S. has long been the system I favor and Kinsley attacks. How has that system performed? Kinsley could tally every leak of classified information that journalists have published against the government's wishes. How many of those stories have advanced the public interest? How many have done actual harm to national security? What are the most important benefits Americans have gained from the publication of classified material and what are the most terrible costs we've suffered?

Bearing in mind that Kinsley regards the Snowden leaks as an important, legitimate scoop, the conclusion that he'd most likely reach at the end of the exercise is clear: that the de facto system, in which journalists are neither prevented from publishing nor punished after the fact, has produced benefits that far outweigh its costs. In fact, I'm skeptical that Kinsley could cite anything in the costs-incurred column so grave that it merits any reform in secrecy's direction. (What does he regard as the most damaging press-facilitated leak in history? That no obvious candidate springs to mind is telling, especially given how many familiar examples we can cite of classified leaks exposing scurrilous behavior.)

This is where the hypotheticals might start. Just as torture apologists invoke the ticking-time-bomb scenario because nothing in the past or the likely future bolsters their position, proponents of punishing journalists for leaks could lean on made up scenarios.