Leaker Traitor Whistleblower Spy: National Security Leaks and the First Amendment

INTRODUCTIONThe public debate surrounding the Bradley Manning and Edward Snowden leaks involves a "name game": Are they traitors, spies, or whistleblowers? Each of these labels carries "connotations of righteousness and wrongdoing."1 To the executive branch, however, these labels are irrelevant.2 It regards all unauthorized disclosures of national security information the same way - regardless of why or to whom the leaks are made - because all leaks expose government secrets and undermine the executive's ability to control the dissemination of information to the public.3Historically the executive branch has seldom pursued criminal leak prosecutions.4 Consequently, until the recent uptick in leak prosecutions, it was easy to argue that the First Amendment offered no protection to government insiders - including present and former government employees and independent contractors5 - who reveal national security information without authorization. Indeed, many scholars defending the right of the press to publish secrets simultaneously argue that the First Amendment imposes virtually no limit on the government's ability to punish leakers.6 This is not surprising, given that arguments that the press has virtual immunity to disseminate national security information are likely to be more palatable if the government has unbridled power to stop the flow of information at its source. It is also easy to make this distinction between government insiders and outsiders when prosecutions against both are more hypothetical than real.Times have changed. The Obama Administration has undertaken more leak prosecutions than all prior Administrations combined.7 The wisdom of some of these leak prosecutions, such as the prosecutions of Bradley Manning and Thomas Drake, is questionable at best, and demonstrates a disturbing level of prosecutorial overzealousness.8 The dramatic crackdown on leakers has created a chilling effect on potential sources of national information for the press and, in turn, the public. In addition, the increase in leak prosecutions threatens the work of the press directly. If the government continues to prosecute leaks, it may more frequently issue subpoenas to reporters, as it has done in the Jeffrey Sterling prosecution,9 or seek information about reporters' communications from third parties, as it did when it obtained the personal and professional phone records for Associated Press reporters without prior notice to them.10 Most alarmingly, the revelation that an FBI investigator had described in an affidavit a Fox News reporter as "aiding and abetting" the unauthorized disclosure of national security information had led to fears that the government may prosecute members of the press.11 Commentators have slowly begun to recognize that if leaks play an important role in our society, we should protect not only the media outlets that publish the leaked information, but also the leakers themselves.12Although a few scholars have recognized that penalties against leakers raise legitimate First Amendment issues,13 most of the scholarship in this area dates back to the time of Samuel Morison's prosecution for delivering classified satellite photos to Jane's Weekly in 1988.14 Even more importantly, none of the prior scholarship regarding the rights of leakers has grappled with the complications posed by massive changes in communications technology in the last two decades, including the decline of traditional media as the exclusive arbiter of the flow of national security information between the government and the public. Changes in communications technology and the media have made it exponentially more difficult to make distinctions among the different types of leakers.This Article focuses on rebutting the prevailing view among the public, commentators, and scholars that leakers lack First Amendment rights. It concludes that these rights are, in fact, substantial. The First Amendment should support the common sense distinction between those who leak information with the purpose and effect of contributing to the public debate, and those who engage in espionage or even treason by giving national security information to foreign countries or organizations. …