Leak Prosecutions and the First Amendment: New Developments and a Closer Look at the Feasibility of Protecting Leakers

Abstract

This Article revisits the free speech protections due leakers in light of recent commentaries and events. Among other things, the Article critiques arguments to the effect that the Obama Administration’s uptick in leak prosecutions does not threaten the system of free speech because plenty of classified information still makes its way into newspapers and the absolute number of leaker prosecutions remains very low. Such positions overlook the slanted impact that prosecutions and investigations are likely to have -- and reportedly have had -- on the speech marketplace. The Article also explains that while the increase in prosecutions and other recent developments, including new government surveillance practices, heighten existing strains on the marketplace of ideas, the developments themselves are not the source of those strains. The core source, rather, is a legal framework in which the government is assumed to have a wide leeway to prosecute leaks of classified information with only a very minimal burden to show possible national security harm and no obligation to assess the value of the information at stake. This framework, particularly when combined with the classification system’s dramatic overbreadth, leaves the door wide open for content-targeted prosecutions, or at minimum for slanted chilling effects corresponding with administration-friendly viewpoints or subject matters. Recent developments simply highlight these basic problems. They also illuminate the need for First Amendment standards that define and limit, in some meaningful way, the subsets of classified information whose conveyance can be prosecuted constitutionally. In past work, I have proposed such standards. This Article, drawing partly on recent leak cases, expands on the nature and feasibility of the standards.