Leakers and the First Amendment

There has always been an active debate about whether the First
Amendment affords government outsiders (like the media) any protection
when they disseminate classified national security information without
authorization.  As I mentioned in my last blog post,
however, critics of the most recent round of high-profile leaks have
targeted their attacks almost exclusively on the leakers themselves and
not on the news outlets that published the leaks.  So the question is,
do leakers have any First Amendment right to disclose national security
information to government outsiders without authorization?

At the outset, let me just say leakers have a variety of statutory
arguments they might make if prosecuted under the Espionage Act and
related statutes.   Charlie Savage recently outlined a few of these
arguments here.
In addition, one of the obstacles the government might face is that in
order to prove that the disclosure was harmful to national security,
they might have to reveal even more national security secrets (often
called “graymail”).  This is one reason why the Drake prosecution fell apart.

An addition obstacle to any First
Amendment claim is that all public employees with access to sensitive
national security information are required to sign nondisclosure
agreements in which they agree to submit any writings related to their
employment to prepublication review.  Thus, it would be easy to argue
that employees who have signed such agreements have waived any First
Amendment rights they might have otherwise enjoyed.  The validity of
these waivers is a difficult issue, especially given the uncertainty of
the unconstitutional conditions doctrine.  I will not address the
validity of these waivers in this post, but I welcome any suggestions
readers might have about how to undertake this analysis.

The Supreme Court has never addressed whether the First Amendment would protect leakers.  Although in the Pentagon Papers case
the Court certainly left open the possibility of criminal prosecutions
against both the press and the leakers, the prosecutions against the
leakers ended in a mistrial due to prosecutorial misconduct.  In
addition, in United States v. Aguilar,
the Court stated that with respect to those who have voluntarily
assumed the duty of confidentiality, “government restrictions on
disclosure are not subject to the same stringent standards that would
apply to efforts to impose restrictions on unwilling members of the
public.”

If the Supreme Court ever heard a case involving the First Amendment
rights of leakers, a big question would be whether the Court would
analyze this question using the framework it has used to address the
free speech claims of public employees generally.  Historically the
government could punish its employees without worrying about the First
Amendment, but this is no longer the law.   Instead, the Court has
recognized that government employees can make valuable contributions to
the public debate.  That said, the Court has placed a number of
important restrictions on any First Amendment claim an employee might
bring: (1) the speech cannot be made pursuant to the employee’s job
duties; (2) the speech must be about a matter of public concern; and (3)
the employee’s interest in the speech must outweigh the government’s
interest in the efficient provision of services it provides through its
employees.

The first requirement comes from the Court’s 2006 decision in Garcetti v. Ceballos.
The primary rationale for the decision was that the government has a
right to control what it pays for.  Stephen Vladeck has argued that Garcetti would
strip public employee whistleblowers of free speech protection.  Steve
bases this conclusion on language in the Court’s opinion that the First
Amendment does not protect speech “that owes its existence to to a
public employee’s professional responsibilities.”  He argues that
because national security employees would not have access to
confidential information but for their employment, they must have no
First Amendment right to share that information.

Steve’s argument is certainly plausible, but it does not seem to be
consistent with the main thrust of the opinion.   The bulk of Garcetti
seems to be focused more on whether the speech at issue was made within
the scope of the employee’s job duties. The Court attempted to draw a
line between speech “as an employee” and speech “as a citizen.”  It
would not make a lot of sense to say that a public employee speaks “as
an employee” every time he says something that he learned through work.
Of course if leakers gave information to the media as part of a
coordinated P.R. campaign, as some critics claim occurred with the most
recent leaks, there is a decent argument that Garcetti would bar any First Amendment argument because the leaks were made as part of the employees’ job duties.

Leakers who can survive Garcetti must still contend with two
other obstacles to a First Amendment claim.  The first is the
requirement that their speech involve a matter of public concern, a
requiring the Court established in Connick v. Myers.
The idea beyond this requirement is that the First Amendment should not
“constitutionalize” every employee grievance.  As I have discussed in a
prior article,
determining what constitutes a matter of public concern is notoriously
difficult, but in most leak cases, this requirement should not be much
of a stumbling block.  It certainly would not be a problem in a case
involving any of the most recent high-profile leaks.

The final – but most difficult – step for public employees would be to survive the balancing test the Court set out in Pickering v. Board of Education.
Under this test, a court must balance the interests of the employee to
comment on a matter of public concern against the interests of the
government, as an employer, in promoting the efficiency of the services
it provides to the public.  In Pickering itself, the Court left
open the possibility that this balancing test would not apply in cases
where “the need for confidentiality is so great that even completely
correct public statements might furnish a permissible ground for
dismissal.”  If the Court rejected a categorical approach, then it would
face the daunting task of balancing the employee’s interest in
disclosure against the government’s asserted need for continued secrecy.
One would hope that at least some leakers – particularly whistleblowers
who reveal government misconduct and waste – would prevail under this
standard.  I will leave for another day a discussion of how the
balancing test would come out for the current crop of leaks.

The problem is that the Court might not follow its own framework for
analyzing the First Amendment rights of public employees.  In its 1988
decision Snepp v. CIA,
the Court upheld the imposition of a constructive trust on all the past
and future from the sale of a highly critical book about CIA activities
in Vietnam because the author of the book – a former CIA employee – ignored
his agreement to submit any of its writings to the CIA for
prepublication review.  The government conceded that Snepp had not
published any classified information, but it contended that it was
damaged by Snepp’s failure to go through prepublication review because
it gave rise to the “appearance” that the government cannot control the
dissemination of its secrets and thereby made it difficult for it to
obtain the cooperation of foreign intelligence sources.

Snepp is a good example of why the Court should never (or at
least rarely) decide cases without the benefit of briefing or oral
argument.   One of the many problems with the decision is that the Court
did not even mention Pickering or the general framework it had
established for the free speech claims of public employees.  The focus
of the opinion was on what remedy to impose for Snepp’s breach of
contract and not the validity of the contract itself.  Although the
decision does not bode well for leakers, the fact remains that it did
not directly address what First Amendment rights they might have, if
any.

The only court to address whether government insiders have any First
Amendment right to leak information to the media is the Fourth Circuit
in United States v. Morison. In
that case, a naval intelligence officer gave satellite photographs of
Soviet naval preparations to the British publisher of a periodical about
naval operations internationally.  In addition to rejecting Morison’s
statutory arguments that the Espionage Act applied only in traditional
espionage cases, the court also rejected his First Amendment defense.
In addition to citing Snepp (which it recognized was not directly on point), the majority opinion cited Branzburg v. Hayes for
the proposition that the First Amendment does not provide the press or
its sources with immunity from otherwise valid criminal laws.  The court
also held that the relevant Espionage Act statutes were not overbroad
because the limiting instructions to the jury required it to find that
the government demonstrated that the information was closely held and
that the disclosure was “potentially damaging to the United States or
useful to an enemy.”  Notably, however, the two concurring opinions
recognized that the First Amendment argument was not frivolous and left
open the possibility for a case-by-case analysis of the issue,
particularly in cases involving leaks revealing government waste or
misconduct.

Mary-Rose Papandrea is an associate professor at the Boston College Law
School.  Her teaching interests include civil procedure, constitutional
law, media law, and national security and civil liberties. Her research
focuses on the impact of new technology on our understanding of the
First Amendment and media law. This article was cross-posted on Concurring Opinions.

(Image courtesy of Flickr user Fredrick Linge, licensed under CC BY-NC 2.0 license)