Leak prosecutions and the First Amendment: new developments and a closer look at the feasibility of protecting leakers.

• Author: Kitrosser, Heidi
• Position: Abstract through II. The Core Positions in Debates over Leaker Protections, p. 1221-1247

ABSTRACT

This Article revisits the free speech protections that leakers are due in light of recent commentaries and events. Among other things, the Article critiques arguments to the effect that the Obama Administration's uptick in leak prosecutions does not threaten the system of free speech because plenty of classified information still makes its way into newspapers and the absolute number of leaker prosecutions remains very low. Such positions overlook the slanted impact that prosecutions and investigations are likely to have--and reportedly have had--on the speech marketplace. The Article also explains that even though the increase in prosecutions and other recent developments, including new government surveillance practices, heightens existing strains on the marketplace of ideas, the developments themselves are not the source of those strains. The core source is a legal framework in which the government is assumed to have a wide leeway to prosecute leaks of classified information with only a very minimal burden to show possible national security harm and no obligation to assess the value of the information at stake. This framework, particularly when combined with the classification system's dramatic overbreadth, leaves the door wide open for content-targeted prosecutions and slanted chilling effects corresponding to administration-unfriendly views. Recent developments simply highlight and exacerbate these problems. The developments illuminate the need for First Amendment standards that meaningfully define and limit the subsets of classified information whose conveyance the government can prosecute constitutionally. In past work, I have proposed such standards. In this Article--building partly on the facts of recent leak cases and partly on this Article's own responses to recent commentaries--I elaborate on those standards and their potential applications.

TABLE OF CONTENTS INTRODUCTION I. THE STATUTORY AND DOCTRINAL LANDSCAPE A. Statutory Avenues to Prosecute Leakers B. Judicial Precedent and Leaky Government Insiders II. THE CORE POSITIONS IN DEBATES OVER LEAKER PROTECTIONS A. The Executive Discretion Approach B. The Mixed Approach C. The Speaker Protective Approach 1. The Basic Constitutional Case 2. The Realities of the Classification System and the Relevance of the Same to Leaker Protections III. POST-9/11 DEVELOPMENTS AND THEIR IMPACT ON THE "UNRULY CONTEST" A. New Developments and Arguments that These Developments Strengthen the Government's Hand B. The View that New Developments Do Not Strengthen, and May Weaken, the Government's Hand IV. THE ONGOING NEED TO CURTAIL EXECUTIVE DISCRETION TO PROSECUTE LEAKERS V. DOCTRINAL STANDARDS AND FEASIBILITY OBJECTIONS A. Feasibility Objections to a Substantive Judicial Role B. General Reflections on Feasibility C. On Proposed First Amendment Standards and Doctrinal Flexibility D. Fine-Tuning and Applying the Standards in the Courts 1. Points of Potential Guidance on the National Security Side of the Balance a. Proper or Improper Classification b. How and to Whom the Information is Disclosed c. Whether and How Widely the Information Already Is Known 2. Points of Potential Guidance on the Public Interest Side of the Balance a. Reasonable Arguments Could Be Made to the Effect that Unknown Programs Were Illegal b. Whether Alternative Effective Means of Disclosure Were Available and If so Were Exhausted c. Extent to Which Debate or Action in Fact Were Generated by a Leak CONCLUSION INTRODUCTION

The Obama Administration is walking a political and legal tightrope of late, committed to demonstrating both that it has the will and the ability to stop leaks of national security information to the press, and that it supports and protects national security journalism. This high-wire act was inspired, at least partly, by external pressures. From the beginning, the administration faced skepticism about its national security bona fides and pressure to stop national security leaks. (1) At the same time, the administration has prosecuted more leakers of classified information than all previous administrations combined. (2) Although transparency advocates had already criticized the administration's prosecution record, a far louder outcry followed revelations that it had aggressively pursued journalists' records in the course of investigating leaks. (3) Most alarming to some was the fact that the administration had referred to a journalist as an alleged leaker's criminal coconspirator in a warrant application pertaining to a leak investigation, heightening concerns that the administration might prosecute journalists for publishing stories containing classified information. (4) In the wake of the revelations and ensuing outcry, the administration sought to assure journalists that its commitment to stopping leakers is equaled by its belief in a free press. (5)

Describing the balance that the administration strives to strike, President Obama told an audience at the National Defense University on May 23, 2013, that "we must enforce consequences for those who break the law and breach their commitment to protect classi- fied information. But a free press is also essential for our democracy.... Journalists should not be at legal risk for doing their jobs." (6) Indeed, the administration indicated that it would not prosecute Julian Assange of WikiLeaks because it believed that it "could not do so without also prosecuting U.S. news organizations and journalists" who published the classified information. (7)

The notion that it is both legally sound and logically desirable to accord few, if any, protections to those who leak classified information to the press, while providing the press broad protections for publishing such information, is not a new one. (8) To the contrary, a number of commentators have adopted this "mixed approach" over the years. Indeed, the mixed approach can fairly be described as the mainstream position on classified information leaks and publications, both because of its number of prominent adherents and because it strikes a middle ground between alternatives. (9) Furthermore, although the case law leaves room for argument in different directions, it is fair to say that it most closely approximates the mixed approach. (10)

In discussing the mixed approach and its alternatives, it is important to be clear on the relationship between constitutional and nonconstitutional arguments. For example, although the Obama Administration indicates that it will not prosecute journalists for publishing classified information, it has not stated that it lacks a legal right to do so. Indeed, some of the administration's arguments in litigation to prosecute leakers suggest that its constitutional power to punish classified information's conveyance is broad enough to cover press publications. (11) Others propose statutory protections for leakers that extend beyond the First Amendment rights that they believe leakers possess. (12)

This Article discusses classified information leaks insofar as they relate to the Constitution, particularly to the First Amendment. In discussing the mixed approach, for example, the Article refers predominantly to the constitutional version of the approach--that is, to the notion that the press deserves strong First Amendment protections whereas leakers warrant few, if any, of the same. Nonetheless, as this Article's analysis reflects, matters of policy and practice are hardly irrelevant to the First Amendment questions at issue. For one thing, given the First Amendment's relative lack of textual or historical guidance, speech and press clause inquiries necessarily entail consideration of the theories and purposes underlying the clauses and how best to implement them through standards or apply them to particular facts. Furthermore, analyses of administrative practices and their effects--whether or not those practices are motivated by constitutional reasoning--can be very informative as to the practical impacts of particular legal standards on the speech marketplace. Such information, in turn, is relevant to questions of how best to achieve constitutional goals.

Whether its expressed commitment to a mixed approach is motivated by constitutional or policy concerns or both, developments in the Obama Administration provide important occasion to revisit the question of the First Amendment protections due to leakers. The administration's unparalleled numerical record of prosecuting cases, combined with new technological surveillance tools and the administration's known uses of the same, offer a new vantage point from which to consider the impact of leak prosecutions on the speech marketplace, and to assess the practice of the mixed approach in particular. More so, these developments have sparked important new commentaries by other observers.

This Article builds on my own earlier analyses in light of recent events and commentaries. Elsewhere, I have argued that the principles and purposes underlying the First Amendment and the separation of powers demand a level of skepticism toward classification decisions, and a valuing of information about government, that can only be reflected in meaningful constitutional protections for leakers. (13) This is particularly so in light of the unique constitutional roles of executive branch employees and contractors. (14) Government insiders have a relationship of trust with the government that outsiders lack. (15) Yet insiders also are uniquely positioned to...