A Bill has recently been introduced in both Houses of the US Congress, in response to the Wikileaks disclosures, to amend the US Espionage Act 1917 to make it a criminal offence for any person knowingly and wilfully to disseminate, “in any manner prejudicial to the safety or interest of the United States”, any classified information “concerning the human intelligence activities of the United States”.  This proposal would appear to be constitutional with respect to US Government employees who leak such material to those who are unauthorised to receive it.  But what about the constitutionality of criminalising anyone who publishes the information after it has been leaked, especially given that the proposed new offence is not, at any rate expressly, limited to situations in which the spread of the classified information poses a “clear and present danger” of grave national harm?

The “clear and present danger” standard has been the governing principle under the First Amendment to the US Constitution since Supreme Court Justice Oliver Wendell Holmes Opinion in Schenk v United States in 1919.  The principle was stated by Supreme Court Justice Louis D. Brandeis in Whitney v California in 1927.  The founding fathers of the US “did not exalt order at the cost of liberty”, wrote Brandeis.  On the contrary, they understood that “only an emergency can justify repression.  Such must be the rule if authority is to be reconciled with freedom.  Such … is the command of the Constitution.  It is, therefore, always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it”.

Writing in the New York Times on 3 January 2011, Geoffrey R. Stone, Professor of Law at the University of Chicago, and Chairman of the Board of the American Constitution Society, explains that the First Amendment does not compel Government transparency.  It leaves the Government autonomy to protect its own secrets.  It does not accord anyone the right to have the Government disclose information about its actions or policies.  It cedes to the Government authority to restrict the speech of its own employees.  What it does not do, however, is allow the Government to suppress the free speech of others when it has failed to keep its own secrets.

Professor Stone gives a number of reasons why it is right to give the Government limited scope for penalising the circulation of unlawfully leaked information.

First, the mere fact that such information might “prejudice the interests of the United States” does not mean that that harm outweighs the benefit of publication. In many circumstances, it may be extremely valuable to public understanding. Consider, for example, classified information about the absence of weapons of mass destruction in Iraq. Second, the reasons that Government officials want secrecy are many and varied. They range from the compelling to the illegitimate. It is tempting for Government officials to overstate the need for secrecy, especially in times of national anxiety.  Third, a central principle of the First Amendment is that the suppression of free speech must be the Government’s last rather than its first resort in addressing a problem. The most obvious way for the Government to prevent the danger posed by the circulation of classified material is by ensuring that information that should be kept secret is not leaked in the first place. The Supreme Court in Bartnicki v Vopper in 2001 held that when an individual receives information “from a source who obtained it unlawfully,” that individual may not be punished for publicly disseminating the information “absent a need … of the highest order”. The Supreme Court explained that if the sanctions now attached to the underlying criminal act do not provide sufficient deterrence, then perhaps they should be made more severe,  but that “it would be quite remarkable to hold” that an individual can constitutionally be punished merely for publishing information because the Government failed to “deter conduct by a non-law-abiding third party”.  Professor Stone concludes that if  the Government is granted too much power to punish those who disseminate information, then one risks too great a sacrifice of public deliberation; if, on the other hand, the Government is granted too little power to control confidentiality at the source, then  one risks too great a sacrifice of secrecy. The answer is to reconcile the values of secrecy and accountability by guaranteeing both a strong authority for the Government to prohibit leaks and an expansive right for others to disseminate information to the public.

James Goudie QC