WikiLeaks and the First Amendment

I. INTRODUCTION II. NATIONAL SECURITY AND FREE SPEECH III. THE DILEMMA IV. THE RIGHTS OF PUBLIC EMPLOYEES V. THE RIGHT TO DISSEMINATE INFORMATION VI. CONCLUSION I. INTRODUCTION After the controversy over WikiLeaks erupted, (1) members of Congress introduced the proposed SHIELD Act ("the Act"), which would have amended the Espionage Act of 1917 to make it a crime for any person knowingly and willfully to disseminate, in any manner prejudicial to the safety or interest of the United States, "any classified information" (2) "concerning the human intelligence activities of the United States or ... concerning the identity of a classified source or informant" (3) working with the intelligence community of the United States. Although the Act might be constitutional as applied to a government employee, like Bradley Manning, who "leaks" such classified material, it is plainly unconstitutional as applied to others, like Julian Assange and WikiLeaks, who subsequently publish or otherwise disseminate such information. With respect to such other individuals or organizations, the Act violates the First Amendment unless, at the very least, it is expressly limited to situations in which the individual knows that the dissemination of the classified material poses a clear and present danger of grave harm to the nation. The clear and present danger standard, in varying forms, has been a central element of our First Amendment jurisprudence ever since Justice Oliver Wendell Holmes first enunciated it in his 1919 opinion in Schenck v. United States. (4) In the ninety years since Schenck, the precise meaning of "clear and present danger" has shifted, (5) but the principle that animates the standard was stated eloquently by Justice Louis D. Brandeis in his brilliant 1927 concurring opinion in Whitney v. California: Those who won our independence by revolution were not cowards.... They did not exalt order at the cost of liberty .... Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such ... is the command of the Constitution. It is therefore, always open to Americans to challenge a law abridging free speech ... by showing that there was no emergency justifying it. With that observation in mind, I will examine two central questions: (1) Does the clear and present danger standard apply to unlawful leaks of classified information by government employees?; and (2) Does the clear and present danger standard apply to the dissemination of classified information derived from those unlawful leaks? These are fundamental First Amendment questions. Before turning to them, though, a bit of historical context is necessary. II. NATIONAL SECURITY AND FREE SPEECH A wartime environment inevitably intensifies the tension between individual liberty and national security. But there are wise and unwise ways to strike the appropriate balance. Throughout American history, our government has excessively restricted public discourse in the name of national security. In 1798, for example, on the eve of a threatened conflict with France, Congress enacted the Sedition Act of 1798, which effectively made it a crime for any person to criticize the president, Congress, or the government itself. (7) During the Civil War, the government shut down "disloyal" newspapers and imprisoned critics of the president's policies. (8) During World War I, the government enacted the Espionage Act of 1917 and the Sedition Act of 1918, which made it unlawful for any person to criticize the war, the draft, the government, the president, the flag, the military, or the cause of the United States. (9) As a consequence, free and open debate was almost completely stifled. (10) Later, during the Cold War, as Americans were whipped into frenzy of fear of the "Red Menace," loyalty programs, political infiltration, blacklisting, legislative investigations, and criminal prosecutions of supposed Communist "subversives" and sympathizers swept the nation. …