Congress's Plans to Alter the Espionage Act Are Clearly Unconstitutional

The so-called SHIELD Act, which has been introduced in both Houses of Congress, would amend the Espionage Act of 1917 to make it a crime for any person knowingly and willfully 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 or... concerning the identity of a classified source or informant" who is working with the intelligence community of the United States.

Although this Act may well be constitutional as applied to a government employee who unlawfully "leaks" such material to persons who are unauthorized to receive it, it is plainly unconstitutional as applied to other individuals or organizations who might publish or otherwise disseminate the information after it has been leaked. With respect to such other speakers, the Act violates the First Amendment unless, at the very least, it is expressly limited to situations in which the dissemination of the specific classified information at issue poses a clear and present danger of grave harm to the nation.

The clear and present danger standard, in varying forms, has been a central element of our First Amendment jurisprudence ever since Justice Oliver Wendell Holmes first enunciated it in his 1919 opinion in Schenk v. United States. In the 90 years since Schenck, the precise meaning of "clear and present danger" has evolved, but the principle that animates the standard was stated eloquently by Justice Louis D. Brandeis in his brilliant 1927 concurring opinion in Whitney v. California:

Those who won our independence... did not exalt order at the cost of liberty... [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... challenge a law abridging free speech . . . by showing that there was no emergency justifying it.

This principle is especially powerful in the context of government efforts to suppress speech concerning the activities of the government itself, for as James Madison observed, "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." As Madison warned, if citizens do not know what their own government is doing, then they are hardly in a position to question its judgments or to hold their elected representatives accountable. Government secrecy, although sometimes surely necessary, can also pose a direct threat to the very idea of self-governance.

Nonetheless, the First Amendment does not compel government transparency. It leaves the government extraordinary autonomy to protect its own secrets. It does not accord anyone the right to have the government disclose information about its actions or policies and it cedes to the government considerable authority to restrict the speech of its own employees. What it does not do, however, is leave the government free to suppress the free speech of others when it has failed itself to keep its own secrets. At that point, the First Amendment kicks in with full force, and, as Brandeis explained, only an emergency can justify suppression.

We might think of this like the attorney-client privilege. The client is free to keep matters secret by disclosing them to no one. He is also free to disclose certain matters to his attorney, who is under a legal obligation to respect the confidentiality of her client's disclosures. In this sense, the attorney is like the government employee. If the attorney violates the privilege by revealing the client's confidences to a reporter, the attorney can be punished, but the newspaper cannot constitutionally be punished for disseminating the information.