Academic journal article William and Mary Law Review

Leak Prosecutions and the First Amendment: New Developments and a Closer Look at the Feasibility of Protecting Leakers

Academic journal article William and Mary Law Review

Leak Prosecutions and the First Amendment: New Developments and a Closer Look at the Feasibility of Protecting Leakers

Article excerpt

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. …

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