Protecting A Free Press Demands Protecting Whistleblowers

May 20, 2024 In Blog, First Amendment, Privacy, Surveillance By Claire Bleecker

Last month, Daniel Hale published an article in Al Jazeera provocatively entitled “I Was Punished Under the Espionage Act. Why Wasn’t Joe Biden?”^[1].

The piece does not disagree with the decision not to pursue charges against President Biden.^[2]. Rather, it seeks to highlight how blunt an instrument the Espionage Act is when prosecutors decide to use it.^[3]

Hale leaked classified information regarding the government’s drone program to a journalist at The Intercept in 2015.^[4] He was later convicted under the Espionage Act and sentenced to 45 months in prison.^[5]

The Espionage Act, a 1917 statute enacted to prosecute spies,^[6] forbade Hale from introducing evidence that he was motivated—unlike a spy—to help, rather than harm, the American public.^[7]

Hale’s article highlights the disparity between the merciless prosecution of a government worker and the more merciful treatment of a President,^[8] but there’s a more interesting disparity at play.

Although prosecutions of government workers leaking classified information to the press have increased astronomically since 9/11,^[9] no journalist—in the entire history of the United States—has ever been prosecuted for disseminating unlawfully-leaked classified information.^[10] Despite the government’s argument that disclosures of this classified information are inherently harmful,^[11] courts have consistently held that journalists are protected from prosecutions for such disclosures by the First Amendment.^[12]

Justice Brennan, in New York Times v. Sullivan, articulated the constitutional value of speech that criticizes government conduct, emphasizing our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” and that such debate is likely to include “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”^[13] That “profound national commitment” to public debate is honored with The Intercept’s publication of Hale’s revelations—and the government’s lack of interference before publication or after.^[14]

But if we recognize the necessity of publications that expose government abuses why don’t we recognize any First Amendment protections for the whistleblowers who inform those publications?^[15]

The most common answer is that the government worker waived such rights in signing up for the job.^[16] He is like the salesperson hired under the condition that he not disclose his employer’s customer list: he has waived his right to do so.^[17]

Of course, in matters of national security, the employee’s agreement not to disclose government secrets is exceptionally consequential.^[18] An employee like Hale is in a unique position, having been entrusted with our national secrets. Indiscriminate and rampant disclosure of such secrets could result in significant and irreparable harm to the nation.^[19]

But government workers are also in a unique First Amendment position: they alone are privy to secrets about government operations—secrets which the public doesn’t even know they don’t know.^[20] The government whistleblower plays an indispensable role in enabling the public to debate the validity of those operations.^[21] The press cannot be free to inform the public if they themselves are not informed.^[22] And these First Amendment interests should not become irrelevant just because national security concerns are invoked.^[23]

In one of her many wonderful writings on the subject, First Amendment scholar Heidi Kitrosser proposes several ways we should refine our approach to the Espionage Act to reflect these First Amendment concerns.^[24] One proposed refinement is straightforward: no whistleblower should be prosecuted for having exposed conduct that turned out to be illegal.^[25] The government, after all, has no legitimate interest in keeping its own illegality secret.^[26] Other proposed refinements are more nuanced, seeking to calibrate prosecutions to accommodate both public interests in learning of government abuse and national security interests.^[27] She suggests, for example, that no serious criminal conviction should occur unless the government can show that the leaker lacked an objectively reasonable basis to believe that potential national security harms were outweighed by the public interest in disclosure.^[28]

Under this scheme, the court could have taken Hale’s stated intention to help the American public into account and he likely would not have received the sentence he did.^[29]

Whatever amendments are pursued, we shouldn’t waste time. The Espionage Act is a powerful tool, which in the hands of the wrong administration, could be used to effectively eliminate its most-informed critics.^[30]

Footnotes[+]

Footnotes
1	Daniel Hale, I Was Punished Under the Espionage Act. Why Wasn’t Joe Biden?, Al Jazeera (Mar. 5, 2024), https://www.aljazeera.com/opinions/2024/3/5/joe-biden-the-espionage-act-and-me [https://perma.cc/8U9N-XGFP].
2	Id.
3	Id.
4	Brian Stelter, A ‘Second Snowden’ Leaks to The Intercept About ‘Drone Wars’, CNN (Oct. 15, 2015), https://money.cnn.com/2015/10/15/media/intercept-drone-wars/ [https://perma.cc/5Q67-X538].
5	Rachel Weiner, Daniel Hale, Who Leaked Information on U.S. Drone Warfare, Sentenced to 45 Months in Prison, Wash. Post (July 27, 2021), https://www.washingtonpost.com/local/legal-issues/daniel-hale-drone-leak-sentence/2021/07/27/7bb46dd6-ee14-11eb-bf80-e3877d9c5f06_story.html [https://perma.cc/TP7Y-CURD].
6	See Josh Zeman, Note, “A Slender Reed Upon Which to Rely”: Amending the Espionage Act to Protect Whistleblowers, 61 Wayne L. Rev. 149, 151–52 (2015); see also Heidi Kitrosser & David Schulz, A House Built on Sand: The Constitutional Infirmity of Espionage Act Prosecutions for Leaking to the Press, 19 First Amend. L. Rev. 153, 161 (2021).
7	See Ralph Engelman & Carey Shenkman, Don’t Let Trump—or Biden—Distract from the Real Victims of the Espionage Act, 49 Harbinger 13, 17 (2024).
8	See Hale, supra note 1. In laying out this disparity, Hale seemingly conflates “willfulness” with “intent to harm” in several places. For example, he says, “Biden is let off the hook because he did not mean any harm. In contrast, the government’s pre-trial motions in my case argued that I not be allowed to present evidence of what is called my ‘good motives.’” However, the article’s critique of the disparity between the prosecutorial decisions is still relevant.
9	Jameel Jaffer, What We Owe Whistleblowers, Knight First amend. Inst. (Sept. 9, 2021), https://knightcolumbia.org/content/what-we-owe-whistleblowers [https://perma.cc/3ZXQ-RV63].
10	Geoffrey R. Stone, Wikileaks and the First Amendment, 64 Fed. Comm. L.J. 477, 486 (2012).
11	See, e.g., Snepp v. U.S., 444 U.S. 507, 512–13 (1980) (explaining how disclosure of classified information undermines cooperation of friendly nations and foreign agents in US intelligence operations).
12	See Stone, supra note 10, at 486–97 (describing the limited the authority the government has to prevent further dissemination of classified information in the hands of the press).
13	N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
14	See The Drone Papers, The Intercept (Oct. 15, 2015), https://theintercept.com/drone-papers/ [https://perma.cc/4266-EAKA].
15	See, e.g., U.S. v. Morison, 844 F.2d 1057, 1070 (4^th Cir. 1988) (denying First Amendment protection to a government whistleblower convicted under the Espionage Act in saying, “[t]o permit the thief thus to misuse the Amendment would be to prostitute the salutary purposes of the First Amendment”).
16	See Stone, supra note 10, at 483–85 (“[u]nlike government employees, who have agreed to abide by constitutionally permissible restrictions of their speech, journalists and others who might disseminate such information have not agreed to waive their rights.”).
17	See Stone, supra note 10, at 482.
18	See, e.g., Snepp, 44 U.S. at 512–13.
19	Wesley Lowery, Former NSA Head: Snowden Has Done Irreparable Harm to National Security, Wash. Post (June 1, 2014 1:01 PM), https://www.washingtonpost.com/news/post-politics/wp/2014/06/01/former-nsa-head-snowden-has-done-irreparable-harm-to-national-security/ [https://perma.cc/32NL-QL5Q].
20	See Kitrosser, supra note 6, at 206; see also Steven Still, Note, A Public Concern: Protecting Whistleblowers Under the First Amendment, 88 Fordham L. Rev. 1543 (2020).
21	See Kitrosser, supra note 6.
22	Geoffrey R. Stone, Government Secrecy vs. Freedom of the Press, 1 Harv. L. & Pol’y Rev. 185 (2007) (quoting James Madison: “[a] popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both.”).
23	Morison, 844 F.2d at 1081 (Wilkinson, J., concurring) (“The First Amendment interest in informed popular debate does not simply vanish at the invocation of the words ‘national security.’”).
24	Heidi Kitrosser, Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information, 6 J. Nat’l Security L. & Pol’y 409, 440–43 (2013)
25	Id. at 442–43.
26	Stone, supra note 22, at 195.
27	See Kitrosser, supra note 24, at 441.
28	Id.
29	See Exhibit A, USA v. Daniel Everette Hale, No. 19-cr-00059-LO (E.D. Va. July 18, 2021).
30	See, e.g., Jameel Jaffer, The Espionage Act and a Growing Threat to Press Freedom, Knight First Amend. Inst. (June 25, 2019), https://knightcolumbia.org/content/the-espionage-act-and-a-growing-threat-to-press-freedom [https://perma.cc/73UW-GCW8] (noting that Espionage Act investigations have increased with each successive administration and noting James Comey’s unequivocal 2017 statement that he “was eager to find leakers and would like to nail one to a door as a message.”).

Claire Bleecker

Claire Bleecker is a second-year J.D. candidate at Fordham University School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. Before law school, she received her MFA in Fiction from Brooklyn College, where she also taught English composition & creative writing as an adjunct lecturer.

Protecting A Free Press Demands Protecting Whistleblowers

Protecting A Free Press Demands Protecting Whistleblowers

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