First Amendment Sentence Mitigation: Beyond a Public Accountability Defense for Whistleblowers

Abstract

Public accountability defenses for whistle-blowers who reveal national security information to the media or the public have largely failed. Courts have rejected such arguments and Congress has not provided a statutory defense. This Article argues that the appropriate place to consider public accountability factors in whistle-blower cases is at sentencing. Courts can take, and have taken, substantive First Amendment rights into consideration at sentencing as mitigating factors. Courts do so rarely and cautiously, usually in moments of perceived breakdown in the political processes that facilitate the more typical role of individual rights as limits on government action. Examining historical sentencing practices in fugitive slave rescue and conscientious objector cases, this Article demonstrates the historical validity of taking substantive constitutional interests into account at sentencing — and that the constitution does not evaporate with a verdict. This Article also argues that a moment of breakdown is occurring with regards to the Espionage Act and use of rights as limitations on government action. Because of this failure, courts should implement sentence mitigation on the basis of First Amendment interests in whistle-blower cases, providing an immediate pragmatic solution and potentially prompting a more sustainable long-term approach to government whistle-blowers.

Keywords: Espionage Act, Whistle-blowers, First Amendment