Title: Free Speech aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information
Abstract: IntroductionThe stakes are higher now than ever before in determining the First Amend- ment protections due government insiders who leak information to the press. Prior to the George W. Bush administration, only one person in American history had been successfully prosecuted for such a leak, and only two prosecu- tions had been brought.1 The Bush administration placed greater heat on leakers. It successfully prosecuted one leaker and opened investigations against others.2 The Obama administration turned the heat to levels that are stifling. By the end of its third year, the Administration had initiated six prosecutions, doubling the number previously brought by all past administrations combined.3The rise in prosecutions, coupled with other developments - most notably a series of disclosures from the WikiLeaks website - has brought a renewed focus to the First Amendment status of information and those who dissemi- nate it. Most of the attention and concern, however, have centered on the protections due non-governmental third parties who publish information that is leaked to them. A common, albeit not unanimous, refrain among academic commentators is that third-party publishers merit substantial First Amendment protections.4 Commentators warn, for example, that prosecuting WikiLeaks would open the proverbial door to prosecuting The New York Times or other traditional news sources that regularly publish information.5 Similar concerns were expressed when the Bush administration brought the first prosecu- tion in history against two government outsiders to whom information was leaked.6Yet commentators are notably less outspoken on the topic of protecting government insiders who leak information to the press in the first place. There simply has not been much sustained academic focus on the topic. Of the commentary that exists, the common view is that publishers must be strongly protected under the First Amendment, while leakers can be punished with little or no constitutional difficulty.7 The distinction is said to turn largely on the fact that persons with authorized access to information are in special positions of trust and thus have effectively waived protections against prosecu- tion for leaks.8 To be sure, this argument and related points have their dissent- ers.9 Nonetheless, a comprehensive case for providing leakers with substantial First Amendment protections from prosecution remains to be made.10This article argues that, contrary to the conventional wisdom, leakers merit robust First Amendment protections against prosecution. In Part I, the article summarizes the two major arguments against protection. The first, more sweep- ing position is that all leaks of classified - meaning the unauthorized conveyance or retention of information by anyone, whether a govern- ment insider or third-party publisher - are fully or largely unprotected. The second, more nuanced view is that speech must be protected when disseminated by third-party publishers, but that government insiders who leak information should be little shielded from prosecution. In addition to summarizing these positions as taken in academic and political forums and legal briefs, Part I discusses aspects of the case law that support them.Part II challenges the views summarized in Part I. It explains that there is widespread consensus that a major concern underlying the First Amendment's speech and press clauses is the need for information flow to support constitu- tional democracy. Furthermore, the executive branch itself is designed to enable insiders and outsiders to discover and respond to executive misdeeds. The free speech and press clauses are among the mechanisms that support this design. These mechanisms would lose essential meaning if speech could be stripped of most or all First Amendment protection by virtue of its being stamped classi- fied, or if executive branch insiders - the only persons structurally situated to discover executive misdeeds - were stripped of protection by virtue of their insider status. …
Publication Year: 2013
Publication Date: 2013-01-01
Language: en
Type: article
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Cited By Count: 1
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