A House Built on Sand: The Constitutional Infirmity of Espionage Act Prosecutions for Leaking to the Press

19 First Amendment L. Rev. (Forthcoming 2021)

91 Pages Posted: 13 Apr 2021

See all articles by Heidi Kitrosser

Heidi Kitrosser

University of Minnesota - Twin Cities - School of Law

David Schulz

Yale University - Law School

Date Written: April 7, 2021


Since 9/11 our government has embarked on an unprecedented surge in leak investigations and Espionage Act prosecutions for the disclosure of classified information to the American press—punishing disclosures about mass surveillance of U.S. citizens, Russian interference in the U.S. election, FBI targeting of Muslim groups, and other issues of legitimate public concern. These prosecutions are designed to squelch the flow of classified information to the public, and they do. Free speech doctrine teaches that criminal prosecutions of those who leak information of public concern to the press warrant searching judicial review. Courts nonetheless routinely brush aside free speech concerns in Espionage Act leak cases, essentially applying a broad national security exception to the First Amendment that extends deep deference to executive branch judgments about the needs of national security, ignores the realities of a bloated classification system that often conceals mismanagement, waste and misconduct, and undertakes virtually no assessment of the First Amendment interests at stake.

This paper presents for the first time an in-depth-analysis of the shaky precedential edifice upon which rests today’s use of the Espionage Act to target those who leak to the press. It demonstrates that for decades after its passage in 1917, the Espionage Act was used to pursue only classic acts of espionage. Indeed, the notion that the Act might be weaponized against media leaks was virtually unthinkable in 1917, as was the modern classification system itself. Given these factors, as well as the absence of a well-developed First Amendment jurisprudence throughout the first half of the 20th century, courts readily dismissed First Amendment challenges to early Espionage Act spying prosecutions.

When the government much later began to use the Act to prosecute leaks to the press, courts cloaked their intuitions about national security exceptionalism in the vestments of these inapt early precedents. In so doing, courts sidestepped the substantial constitutional concerns presented by media leak prosecutions. This approach is epitomized by the Fourth Circuit’s 1988 ruling in United States v. Morison, the first – and still the only -- appellate court opinion to address the First Amendment limits to an Espionage Act prosecution for leaking to the press. District courts routinely cite to Morison, echoing its reasoning and the inapposite precedent on which it relied.

This paper lays bare the fundamental failure of the courts to address serious First Amendment concerns presented by such Espionage Act prosecutions, and the urgent need for them to do so. It reviews the legislative, prosecutorial and judicial history of the Espionage Act, and explores some of the key forces that propelled its evolution into the Justice Department’s tool of choice to enforce broad executive declarations of secrecy. It then demonstrates through a careful case-by-case dissection, the absence of any solid precedential foundation establishing that the Espionage Act can constitutionally be used to criminalize leaks to the press, and finally provides a brief overview of steps that could be taken to safeguard the important First Amendment concerns presented in such prosecutions.

Keywords: espionage act, First Amendment, national security, whistleblowers, classified information, reporter's privilege

Suggested Citation

Kitrosser, Heidi and Schulz, David, A House Built on Sand: The Constitutional Infirmity of Espionage Act Prosecutions for Leaking to the Press (April 7, 2021). 19 First Amendment L. Rev. (Forthcoming 2021), Available at SSRN: https://ssrn.com/abstract=3825222

Heidi Kitrosser (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

David Schulz

Yale University - Law School ( email )

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