Academic journal article Texas Law Review

Eliminating Public Disclosures of Government Information from the Reach of the Espionage Act*

Academic journal article Texas Law Review

Eliminating Public Disclosures of Government Information from the Reach of the Espionage Act*

Article excerpt

I. Introduction

A government must protect its citizens from other nations or individuals who would inflict harm upon them. One element of accomplishing this goal is the prevention of disclosures of secret information that could endanger national security. The government can do this by restricting access to information on the front end, through its extensive and complex classification system. Alternatively, in the event that such information reaches the hands of someone not authorized to receive it,1 the government may attempt to deter the disclosure of such information by criminally prosecuting the individual for disclosing it, or just for failing to promptly return it.2

The latter strategy poses a significant threat to a democratic society. Although the government certainly has the duty to protect the security of the nation, one of the most fundamental and important constitutional values in the United States is the right of free speech.3 Particularly valued under the protections of the First Amendment is the discussion of issues relating to the government.4 Public discourse about government activity can serve as a principal check on executive power in the context of national security and international affairs.5 One could very plausibly argue that no topic of public discourse could be more important and worthy of protection than the security of the nation. Thus, any statute purporting to criminalize speech relating to government affairs, especially those involving national security, must be carefully scrutinized.

Such a statute has existed in the government's legal arsenal for over fifty years in its present form-§ 793(e) of the Espionage Act, which provides in pertinent part:

Whoever having unauthorized possession of, access to, or control over any... information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted... to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it... [s]hall be fined under this title or imprisoned not more than ten years, or both.6

Notably, this provision is broad enough to allow the government to prosecute private citizens for disclosing-or even retaining1-information somehow "relating to the national defense."8 Journalists, commentators, and Supreme Court Justices have recognized that the breadth of § 793(e) could allow the government to prosecute members of the media for publishing information about U.S. foreign policy and the national defense.9 In fact, former Attorney General Alberto Gonzales admitted that the Department of Justice was considering prosecution of the New York Times for exposing the federal warrantless wiretapping program and the Washington Post for revealing the CIA's use of secret prisons in Eastern Europe to detain and interrogate persons of interest in the "war on terror."10

The fact that the language of § 793(e) is broad enough to encompass these types of disclosures is unacceptable from both constitutional and policy perspectives.11 Aside from actual prosecution, even the threat of prosecution alone is sufficient to create significant problems under First Amendment analysis. Ultimately, because § 793(e) is a content-based restriction of speech, it must be the least restrictive means of achieving the compelling government interest in protecting national security-and this Note will show that it does not satisfy this test. More specifically, the statute infringes on First Amendment values because its vague language does not give speakers sufficient notice as to which disclosures are protected and which can be prosecuted. This results in a chilling effect on free speech that the Supreme Court has repeatedly proscribed in its First Amendment jurisprudence. …

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