DAVID SCHULZ & BRIAN O’NEILL
The Espionage Act, 18 U.S.C. § 793(d)–(e), makes it a crime for anyone without prior authorization to disclose “information relating to the national defense” if there is “reason to believe” that disclosure could harm the United States or aid a foreign government. This loosely worded prohibition can be read to subject government whistleblowers to imprisonment for disclosing “information relating to the national defense” to a journalist without authorization; it can also be read to jail journalists for reporting such information. For more than fifty years, the Act was used only to prosecute traitors and spies as Congress intended, but after 9/11, its broad language was repeatedly invoked to prosecute government employees who leaked information to the press. No appellate court has yet addressed the First Amendment’s limits on the government’s ability to punish the public disclosure of accurate, newsworthy information the Executive branch had classified to protect
national security.
Answering this critical question has become an issue of immediate concern with the return of Donald Trump to the White House. The first-ever use of the Espionage Act to indict the publisher of a classified leak (and not just the leaker) was brought during Trump’s first term in office, when Espionage Act charges were filed against WikiLeaks founder Julian Assange. But that case was resolved with a plea during the Biden administration, so the Act’s constitutional limits remain undetermined even as the new Trump administration makes chilling the press a governing priority and regularly invokes national security as justification for presidential action.
Identifying the First Amendment limits to the Espionage Act is complicated because it will require a court to resolve a clash of two fundamental values—protecting freedom of expression and protecting national security. This Essay outlines an approach to resolving this clash, drawn from procedures and standards developed by courts to adjudicate conflicts between freedom of expression and other fundamental values—personal reputation and privacy. It first reviews the scope of the Espionage Act, the absence of judicial precedent defining the First Amendment’s limit on the Act’s reach, and the impact of this ambiguity on journalists and their sources. It then considers standards and procedures developed to conform the common law of defamation and privacy to the First Amendment’s commands that should inform how the First Amendment limits Espionage Act liability when information of public concern is leaked to the press. These include: 1) the muscular gate-keeping role given to judges to screen out meritless claims; 2) requiring those seeking to punish a speaker to prove either a culpable state of mind or actual, speech-caused injury; 3) applying standards intended to balance the competing interests predictably and provide clarity to guide behavior; and 4) requiring courts to independently ensure that record evidence convincingly supports any sanction imposed on speech.
This Essay contends that identifying the constitutional constraints needed to prevent the Espionage Act from becoming a retaliatory tool to punish disclosures of government misconduct and abuse will require procedural solutions as much as substantive ones. The answer need not depend on courts inventing a new doctrine. It can come from familiar First Amendment practice developed in defamation and privacy cases and from the judiciary’s established role in policing secrecy claims in other contexts.