Did WikiLeaks really commit a crime?

As Congress grappled with the WikiLeaks disclosure of classified State Department cables, National Constitution Center Visiting Scholar Geoffrey Stone testified before the House Judiciary Committee last week that proposed changes to the 1917 Espionage Act to deal with further release of classified material would be unconstitutional.

The changes would make it a crime for individuals to disseminate “any classified information … concerning the human intelligence activities of the United States or … concerning the identity of a classified source or informant” in a manner harmful to the safety or interests of the United States.

Stone, an expert on the First Amendment and wartime civil liberties, told the House committee that the proposed changes might be constitutional as applied to a government employee who leaks such classified material, but that they would be “plainly unconstitutional as applied to other individuals who might publish or otherwise disseminate such information,” violating their First Amendment rights.

No precedent


Geoff Stone

Stone noted that in the entire history of the United States, the government has never prosecuted anyone (other than a government employee) for publicly disseminating such information. Here is the key portion from his testimony:

Because there has never been such a prosecution, the Supreme Court has never had occasion to rule on such a case. The closest it has come to such a situation was New York Times v. United States, the Pentagon Papers case, in which the Court held unconstitutional the government’s effort to enjoin the New York Times and the Washington Post from publishing a purloined copy of a top secret Defense Department study of the Vietnam War. Justice Potter Stewart’s opinion best captures the view of the Court: “We are asked,” he wrote, “to prevent the publication . . . of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people.”

Thus, in the Pentagon Papers case, the Court held that although elected officials have broad authority to keep classified information secret, once that information gets into other hands the government has only very limited authority to prevent its further dissemination.This may seem an awkward, even incoherent, state of affairs.

If the government can constitutionally prohibit public employees from disclosing classified information to others, why can’t it enjoin the recipients of that material from disseminating it further? But one could just as easily flip the question. If individuals have a First Amendment right to publish classified information unless publication will “surely result in direct, immediate, and irreparable damage to our Nation or its people,” why should the government be allowed to prohibit its employees from disclosing that information to others merely because it poses a potential danger to the national security?

If we view the issue from the perspective of either the public’s interest in informed discourse or the government’s interest in secrecy, it would seem that the same rule logically should apply to both public employees and those who would disseminate the information.  The very different standards governing public employees, on the one hand, and other speakers, on the other, thus present a puzzle.

As Justice Stewart observed in the Pentagon Papers case, even though the publication of some of the materials at issue might harm “the national interest,” their dissemination could not constitutionally be prohibited unless their dissemination would “surely result in direct, immediate, and irreparable damage to our Nation or its people.” It is important to note that there are sound reasons for this conclusion.

  1. The mere fact that dissemination might harm the national interest does not mean that that harm outweighs the benefits of publication.
  2. A case-by-case balancing of harm against benefit would ultimately prove unwieldy, unpredictable, and impracticable. Thus, just as in the government employee situation, there is a compelling need for a clear and predictable rule.
  3. As we have learned from our own history, there are great pressures that lead both government officials and the public itself to underestimate the benefits of publication and overstate the potential harm of publication in times of national anxiety. A strict clear and present danger standard serves as a barrier to protect us against this danger.
  4. A central principle of the First Amendment is that the suppression of public speech must be the government’s last rather than its first resort in addressing a potential problem. If there are other means by which government can prevent or reduce the danger, it must exhaust those other means before it can suppress the freedom of speech.

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