Lapdogs, watchdogs, and scapegoats: The press and national security information

Indiana Law Journal

Volumn 83, Issue 1, 2008, Pages 233-305

  Papandrea, Mary Rose ^a  

^a BOSTON COLLEGE   (United States)

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EID: 44649109215     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (687)

1. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1.
2. David Stout, Bush Says U.S. Spy Program Is Legal and Essential, N. Y. TIMES, Dec. 19, 2005, at A1.
3. Rachel Smolkin, Judgment Calls, AM. JOURNALISM REV., Oct.-Nov. 2006, at 22, 23-24.
4. Gabriel Schoenfeld, Has the "New York Times" Violated the Espionage Act?, COMMENT., Mar. 2006, at 23, 31.
5. This Week (ABC television broadcast May 21, 2006);
6. see Scott Shane, Leak of Classified Information Prompts Inquiry, N. Y. TIMES, July 29, 2006, at A10.
7. Eric Alterman, Bush's War on the Press, THE NATION, May 9,2005, at 11 ;
8. Dan Eggen, White House Trains Efforts on Media Leaks, WASH. POST, Mar. 5, 2006, at Al
9. (quoting New York Times Executive Editor Bill Keller as saying "I don't know how far action will follow rhetoric, but some days it sounds like the administration is declaring war at home on the values it professes to be promoting abroad");
10. Interview by Frontline with James Goodale, First Amendment Attorney (PBS television broadcast Oct. 18, 2006) (transcript available at http://www.pbs.org/wgbh/pages/frontline/newswar/interviews/goodale.html) ("The Bush administration, in my humble view, has waged a war against the press, and using the Espionage Act is part of its program to wage that war.").
11. AIPAC lobbies Congress and the executive branch on issues of interest to Israel, including the United States's foreign policy in the Middle East. See What is AIPAC?, http://www.aipac.org/about_AIPAC/default.asp.
12. United States v. Rosen, 445 F. Supp. 2d 602, 607-08 (E.D. Va. 2006).
13. Id. at 609. Franklin has already pleaded guilty to conspiracy to communicate national defense information to one not entitled to receive it, in violation of 18 U.S.C. §§ 793(d) and (g), and to conspiracy to communicate classified information to an agent of a foreign government in violation of 50 U.S.C. § 783 and 18 U.S.C. § 371.
14. Rosen, 445 F. Supp. 2d at 608 n.3.
15. Id. at 607-08, 644.
16. Id. at 637.
17. See Dorothy Rabinowitz, First They Came for the Jews: A Prosecution Under the Espionage Act Threatens the First Amendment, WALL ST. J., Apr. 2, 2007, at Al (arguing that if the AIPAC prosecution is successful, the press has every reason to fear that it could be next).
18. E.g., Fred Kaplan, You're a Spy, SLATE, Feb. 15, 2006, http://www.slate.com/id/2136324.
19. E.g., N.Y. Times Co. v. United States, 403 U.S. 713, 724 (1971) (Douglas, J., concurring) ("Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic enors. Open debate and discussion of public issues are vital to our national health.").
20. See generally HAROLD L. CROSS, THE PEOPLE'S RIGHT TO KNOW. LEGAL ACCESS TO PUBLIC RECORDS AND PROCEEDINGS (1953);
21. ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATIONSHIP TO SELF-GOVERNMENT (1948);
22. JOHN RAWLS, A THEORY OF JUSTICE 224-25 (1971);
23. Vincent Blasi, The Checking Value in First Amendment Theory, 3 AM. B. FOUND. RES. J. 523, 554-67 (1977).
24. Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245, 257 (1961).
25. 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, at 170 (Jonathan Elliot ed., New York, Burt Franklin 1888).
26. Id.
27. 3 HENRY S. RANDALL, LIFE OF THOMAS JEFFERSON 211 (1858),
28. reprinted in JAMES RUSSELL WIGGINS, FREEDOM OR SECRECY 67 (1964).
29. E.g., Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (per curiam) (noting that "the Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence");
30. United States v. Curtiss-Wright Corp., 299 U.S. 304, 320 (1936) ("Secrecy in respect of information gathered by [the Executive's diplomatic and counsular officials] may be highly necessary, and the premature disclosure of it productive of harmful results.").
31. U.S. CONST., art. I, § 5, cl. 3.
32. See, e.g., Curtiss-Wright, 299 U.S. at 319-21.
33. Alexander Hamilton, Reply to Anonymous Charges, in 3 THE RECORDS OF THE FEDERAL CONVENTION 1787, at 368 (Max Farrand ed., 1966).
34. Martin E. Halstuk, Policy of Secrecy-Pattern of Deception: What Federalist Leaders Thought About a Public Right to Know, 1794-98, 7 COMM. L. & POL'Y 51, 59 (2002)
35. (citing Margaret Blanchard, Freedom of the Press, in THE MEDIA IN AMERICA: A HISTORY 108 (William David Sloan & James G. Stovall eds., 1989)). Congress has occasionally conducted secret sessions, typically during impeachment deliberations and discussions of national security issues and confidential information.
36. See generally MILDRED AMER, CONG. RESEARCH SERV., SECRET SESSIONS OF CONGRESS: A BRIEF HISTORICAL OVERVIEW (2004), http://www.fas.org/sgp/crs/RS20145.pdf.
37. HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION 201 (1990).
38. Note, Developments in the Law: The National Security Interest and Civil Liberties, 85 HARV. L. REV. 1130, 1190 (1972).
39. United States v. Morison, 844 F.2d 1057, 1081 (4th Cir. 1988) (Wilkinson, J., concurring).
40. MICHAEL SWEENEY, THE MILITARY AND THE PRESS: AN UNEASY TRUCE 5 (2006).
41. Harold Edgar & Benno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73 COLUM. L. REV. 929, 985 (1973).
42. See, e.g., Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (2004) (suggesting that courts may act independently to preserve executive confidentiality when executive privilege has not yet been asserted);
43. Nixon v. Admin, of Gen. Servs., 433 U.S. 425, 454-55 (1977) (concluding Presidential Recordings and Materials Preservation Act did not violate the presidential privilege of confidentiality);
44. United States v. Nixon, 418 U.S. 683, 713 (1974) (recognizing a qualified executive privilege);
45. In re Sealed Case, 121 F.3d 729, 751-52 (D.C. Cir. 1997) (concluding that the presidential communications privilege extends to communications made by presidential advisors in the course of preparing advice for the President, even when the President is not personally involved in the communication);
46. see also Mark J. Rozell, Executive Privilege and the Modern Presidents: In Nixon's Shadow, 83 MINN. L. REV. 1069 (1999) (discussing the invocation of the executive privilege in the post-Watergate era).
47. See, e.g., Tenet v. Doe, 544 U.S. 1 (2005) (reaffirming the existence of the state secrets doctrine);
48. United States v. Reynolds, 345 U.S. 1 (1953) (explicitly recognizing the state secret doctrine);
49. ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007) (holding that state secrets privilege prevented plaintiffs from establishing standing to challenge NSA warrantless surveillance program);
50. In re Sealed Case, 494 F.3d 139 (D.C. Cir. 2007) (concluding that state secrets doctrine did not mandate dismissal of government employee's claim that another government employee engaged in electronic eavesdropping of plaintiff s telephone conversation in violation of the Fourth Amendment);
51. El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007) (affirming dismissal of challenge to extraordinary rendition on basis of state secret doctrine),
52. cert, denied, 128 S. Ct. 373 (2007);
53. United States v. Adams, 473 F. Supp. 2d 108, 123 (D. Me. 2007) (enjoining Maine Public Utilities Commission from pursuing contempt proceedings against a telecommunications company that refused to disclose whether or not it provided information to the NSA);
54. Al-Haramain Islamic Found., Inc. v. Bush, 451 F. Supp. 2d 1215 (D. Or. 2006) (rejecting government's state secrets claim in case challenging NSA warrantless surveillance program),
55. rev 'd 507 F.3d 1190 (9th Cir. 2007);
56. Terkel v. AT&T Corp., 441 F. Supp. 2d 899 (N.D. 111. 2006) (granting government's motion to dismiss challenge to NSA wiretapping program on state secrets grounds);
57. Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006) (rejecting government's state secrets claim in case alleging that AT&T collaborated with the NSA's warrantless surveillance program);
58. see also Amanda Frost, The State Secret Privilege and Separation of Powers, 75 FORDHAM L. REV. 1931 (2007) (arguing that the state secrets doctrine undermines the executive oversight power of Congress). Congress is considering whether to codify and standardize the application of the privilege.
59. See State Secrets Protection Act, S. 2533, 110th Cong. (2008).
60. E.g., Press Release, President Signs Intelligence Authorization Act, Statement by the President (Dec. 28, 2001), http://www.whitehouse.gov/news/ releases/2001/12/20011228-3.html (asserting President has constitutional authority to withhold from Congress information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties).
61. NATHAN BROOKS, CONG. RESEARCH SERV., THE PROTECTION OF CLASSIFIED INFORMATION: THE LEGAL FRAMEWORK 1 (2004), http://www.firstamendmentcenter.org/pdf/CRS.security4.pdf.
62. Exec. Order No. 8381, 5 Fed. Reg. 1147 (Mar. 22, 1940).
63. Espionage Act of 1938, ch. 2, § 1, 52 Stat. 3. President Roosevelt interpreted "equipment" broadly to include documents held by the Secretaries of War and the Navy. See Developments in the Law, supra note 25, at 1194.
64. Exec. Order No. 10,290, 16 Fed. Reg. 9795 (Sept. 27, 1951).
65. HAROLD C. RELYEA, CONG. RESEARCH SERV., SECURITY CLASSIFIED AND CONTROLLED INFORMATION: HISTORY, STATUS, AND EMERGING MANAGEMENT ISSUES 3 (2007), http://www.fas.org/sgp/crs/ secrecy/RL33494.pdf.
66. Exec. Order No. 10,290, supra note 35;
67. see also Christina Wells, Information Control in Times of Crisis: The Tools of Repression, 30 OHIO N.U. L. REV. 451, 454-57 (2004) (outlining the history of the classification system). The Supreme Court eventually agreed that the Executive has inherent authority to classify information and withhold it from the public.
68. Dep't of the Navy v. Egan, 484 U.S. 518, 527 (1988).
69. Wells, supra note 37, at 456;
70. RELYEA, supra note 36, at 3.
71. Exec. Order No. 13,292, § 1.1, 68 Fed. Reg. 15,315, 15,315 (Mar. 25, 2003). Such information includes: military plans, weapons systems, or operations; foreign government information; intelligence activities, intelligence sources/methods, cryptology; foreign relations/activities of the United States; scientific, technological, or economic matters relating to national security; federal programs for safeguarding nuclear materials or facilities; vulnerabilities or capacities of national security systems; or weapons of mass destruction.
72. Id. at § 1.4.
73. Id. at § 1.2.
74. Id.
75. Id. at § 1.5.
76. Id. at § 1.5(c).
77. Id. at § 1.7(a).
78. See S. Doc No. 105-2, at 11 (1997) (reporting that in the last fifty years, every administration except the Kennedy administration has issued a new executive order on classification).
79. Exec. Order No. 12,958 § 1.2(b), 60 Fed. Reg. 19,825, 19,826 (Apr. 17, 1995).
80. Exec. Order No. 13,292, supra note 39, at § 1.1(c).
81. Id. at § 1.7(c).
82. Id. at § 5.2(b);
83. see also ISOO's Mission, Functions, and Goals, http://www.archives.gov/isoo/about/.
84. INFORMATION SECURTTYOVERSIGHTOFFICE, AUDIT REPORT, WITHDRAWALOFRECORDS FROM PUBLIC ACCESS AT THE NATIONAL ARCHIVES AND RECORDS ADMINISTRATION FOR CLASSIFICATION PURPOSES (2006), http://www.archives.gov/isoo/reports/2006-auditreport.html#found [hereinafter ISOO AUDIT]. For example, the CIA redacted from a document a sentence indicating that the American and British intelligence services worked together during World War II, as well as detailing the number of American spies in 1946, even though this information was contained in a State Department historical volume.
85. Scott Shane, Why the Secrecy? Only the Bureaucrats Know, N.Y. TIMES, Apr. 16, 2006, at D1.
86. ISOO AUDIT, supra note 50.
87. Id.
88. Id.
89. Frank Bass & Randy Herschaft, IM Archived Pages Removed Post-9/11, USA TODAY, Mar. 15, 2007, http://www.usatoday.com/news/ washington/2007-03-13-archives_N.htm.
90. Too Many Secrets: Overclassification as a Barrier to Critical Information Sharing: Hearing Before the Subcomm. on National Security, Emerging Threats, and International Relations of the H. Comm. on Government Reform, 108th Cong. 28 (2004) (statement of J. William Leonard).
91. Id.
92. Lance Gay, 9/11 Panel Says Too Many Documents Are Being Stamped Secret, SEATTLE POST-INTELLIGENCER, May 15, 2004, http://seattlepi.nwsource.com/national/173449_911panel15.html.
93. 403 U.S. 713, 718 (1971).
94. Erwin N. Griswold, Secrets Not Worth Keeping: The Courts and Classified Information, WASH. POST, Feb. 15, 1989, at A25. Another contributing cause of overclassification is the large number of people who are given classification authority, often without adequate training.
95. See Heidi Kitrosser, Classified Information Leaks and Free Speech, (2007) (unpublished manuscript at 15-17, on file with the Indiana Law Journal), available at http://ssrn.com/abstract=958099.
96. 5 U.S.C. § 552 (2000), amended by OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524.
97. Intelligence Community Whistleblower Protection Act of 1998, Pub. L. No. 105-272, 112 Stat. 2413 (codified as amended at 50 U.S.C. § 403(q) (2000 & Supp. IV 2004) (for CIA) and 5 U.S.C. app. 3 § 8H (2000 & Supp. IV 2004) (for other intelligence activities));
98. Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified as amended at 5 U.S.C. § 2302 (2000 & Supp. IV 2004)) (covers most civil service employees);
99. Military Whistleblower Protection Act of 1988, Pub. L. No. 100-456, 102 Stat. 2027 (codified as amended at 10 U.S.C. § 1034 (2000 & Supp. IV 2004)).
100. Alterman, supra note 6, at 14.
101. Id.
102. 5 U.S.C. § 552(b)(1) (2000). Exemption 3 provides that FOIA does not apply to information that is exempted from disclosure under a separate statute.
103. U.S.C. § 552(b)(3) (2000). These separate statutory exemptions often raise national security issues. In addition, FOIA specifically permits the Federal Bureau of Investigation to exercise its discretion in determining whether to disclose documents that "pertain[] to foreign intelligence or counterintelligence, or international terrorism," provided these documents constitute classified information as provided in subsection (b)(1). 5 U.S.C. § 552(c)(3) (2000).
104. EPA v. Mink, 410 U.S. 73, 84 (1973).
105. Freedom of Information Act, Pub. L. No. 93-502, 88 Stat. 1561, 1562 (1974);
106. see generally Mary-Rose Papandrea, Under Attack: The Public's Right to Know and the War on Terror, 25 B.C. THIRD WORLD L. J. 35, 51 (2005).
107. 120 CONG. REC. 17,015, at 17,020 (1974) (remarks of Sen. Kennedy).
108. Id. at 17,019.
109. 5 U.S.C. § 552(a)(4)(B) (2000).
110. See Military Audit Project v. Casey, 656 F.2d 724, 752 (D.C. Cir. 1981) (concluding that, in the absence of evidence of agency bad faith, summary judgment is properly granted to an agency in Exemption 1 cases without an in camera inspection or discovery by the plaintiffs when the affidavits submitted by the agency describe the sensitive documents at issue with reasonably specific detail, present justifications for nondisclosure that are detailed and persuasive, and demonstrate that the information withheld logically falls within the claimed exemption);
111. Hayden v. NSA, 608 F.2d 1381, 1386-87 (D.C. Cir. 1979) (stating that, before conducting in camera review of classified records, courts must first afford agencies the opportunity to prove the records are properly classified by submission of an affidavit or other evidence);
112. People for the Am. Way Found. v. NSA, 462 F. Supp. 2d 21,33-34 (D.D.C 2006) (concluding that, in the absence of contrary evidence or evidence of agency bad faith, an agency declaration is sufficient to demonstrate proper classification when the declaration indicates that the proper procedures were followed and that the information logically fits into Exemption 1);
113. Patricia M. Wald, Two Unsolved Constitutional Problems, 49 U. PITT. L. REV. 753, 760 (1988) (noting that judicial review of classified information under FOIA "often seems to be done in a perfunctory way").
114. But see Fensterwald v. CIA, 443 F. Supp. 667, 669-70 (D.D.C. 1977) (initiating limited in camera review of a sampling of documents where agency offered only "skeletal" justifications to support broad claim of exemption and would risk compromising secrets if required to provide additional explanation).
115. Memorandum from John Ashcroft, Attorney General, to the Heads of all Federal Departments and Agencies (Oct. 12, 2001), available at http://www.usdoj.gov/oip/011012.htm.
116. Id.
117. Id.
118. See National Security Whistleblowers in the Post-September 11th Era: Lost in a Labyrinth and Facing Subtle Retaliation: Hearing Before the Subcomm. on Nat'l Sec., Emerging Threats, and Int'l Relations of the H. Comm. on Gov't Reform, 109th Cong. 292, 293 (2006) (statement of Beth Daley, Senior Investigator, Project on Gov't Oversight).
119. See, e.g., H.R. REP. NO. 110-42, pt. 1, at 3-5 (2007) (detailing numerous loopholes and weaknesses in current federal whistleblower protections).
120. Intelligence Community Whistleblower Protection Act of 1998, Pub. L. No. 105-272, § 702,112 Stat. 2396, 2414-17 (codified as amended at 5 U.S.C. app. 3 § 8H (2000 and Supp. IV 2004) and 50 U.S.C. § 403q(d)(5) (2000 & Supp. IV 2004)). Employees of specified intelligence organizations are protected from retaliation if they intend to report to Congress "an urgent concern," a narrowly defined category of information that includes evidence of flagrant lawbreaking, lying to Congress, and reprisal against whistleblowers protected by the Act.
121. U.S.C. app. 3 § 8H(a)(1)(A)-(C), (g)(1)(A)-(C) (2000);
122. U.S.C. § 403q(d)(5)(A), (G)(i)(I)-(III) (2000). In addition, prior to passing information to one of the congressional intelligence committees, the employee making the disclosure must adhere to a detailed procedure, which includes reporting to the Inspector General, providing notice and a statement to the head of the organization, and receiving direction concerning the communication of the information in a manner consistent with appropriate security practices .
123. U.S.C. app. 3 § 8H(d)(1)-(2) (2000);
124. U.S.C. § 403q(d)(5)(D)(i)-(ii) (2000).
125. 5 U.S.C. § 2302(a)(2) (2000 and Supp. IV 2004).
126. 10 U.S.C. § 1034 (2000 and Supp. IV 2004). No person may restrict a member of the military from lawfully communicating with a member of Congress or an Inspector General.
127. Id. at § 1034(a)(1)-(2). Service members are protected from retaliatory personnel actions in response to a lawful communication to Congress or an Inspector General or in response to any communication to Congress or various military officials that reasonably constitutes evidence of a violation of law or regulation or of gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial danger to public health or safety.
128. Id. at § 1034(b)(1)(A)-(B), (c)(2)(A)-(B).
129. 5 U.S.C. § 2302(a)(2)(C)(ii) (2000);
130. U.S.C. app. 3 § 8H(a)(l)(C) (2000);
131. Czarkowski v. Merit Sys. Prot. Bd., 390 F.3d 1347, 1351 (Fed. Cir. 2004) (concluding that, when transferring a group of employees from the general whistleblower framework to the intelligence community framework, the President must make an express determination on the public record, but he is not required to provide actual notice to employees).
132. 5 U.S.C. § 2302(2)(C)(ii) (2000).
133. Id.
134. Jamie Sasser, Comment, Silenced Citizens: The Post-Garcetti Landscape for Public Sector Employees Working in National Security, 41 U. RICH. L. REV. 759, 780-82 (2007) (giving the DHS example).
135. 5 U.S.C. § 2302(b)(8)(A)-(B) (2000).
136. This Act was codified at 50 U.S.C. § 403(q) (2000) for the CIA;
137. for all other intelligence activities, it was codified under 5 U.S.C. app. 3 § 8H.
138. 50 U.S.C. § 403q(d)(5)(G)(i) (2000).
139. 10 U.S.C. § 1034(2000).
140. Id. § 1034(a)(2).
141. 5 U.S.C. § 2302(b)(8)(A) (2000) (providing that if an employee makes a disclosure to a person other than the Special Counsel or Inspector General of an agency (or a designee), the disclosure is protected only if it "is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs");
142. U.S.C. app. 3 § 8H(a)(1)(A)-(C) (2000 & Supp. IV 2004);
143. U.S.C. § 403q(d)(5)(A) (2000).
144. See 5 U.S.C. app. 3§ 8H(a)(l);
145. U.S.C. § 403q(d)(5)(A).
146. 5 U.S.C. app. 3 § 8H(b) (2000 & Supp. TV 2004);
147. U.S.C § 403q(d)(5)(B) (2000 & Supp. IV 2004).
148. 5 U.S.C. app. 3 § 8H(d) (Supp. IV 2004);
149. U.S.C. § 403q(d)(5)(D) (Supp. IV 2004).
150. Dep't of Navy v. Egan, 484 U.S. 518,529 (1988) (holding that the courts and the Merit Systems Protection Board do not have the authority to review security clearance revocations made by the executive branch);
151. Cheney v. Dep't of Justice, 479 F.3d 1343,1351-52 (Fed. Cir. 2007) (concluding that the court and the Merit Systems Protection Board may review whether revocation of a security clearance conformed to procedural requirements, but may not review the underlying merits of the decision to revoke the clearance without an explicit grant of statutory authority);
152. Hesse v. Dep't of State, 217 F.3d 1372, 1380 (Fed. Cir. 2000) (concluding that the Merit Systems Protection Board lacks authority to review security clearance determinations in the context of the whistleblower actions without specific statutory authority);
153. see also National Security Whistleblowers in the Post-September 11th Era, supra note 74, at 244 (statement of Mark S. Zaid, Managing Partner, Krieger & Zaid, PLLC) (explaining how whistleblowers risk losing security clearance without meaningful review). The House recently passed the Whistleblower Protection Enhancement Act, which adds the revocation of a security clearance to the list of prohibited adverse personnel actions.
154. H.R. 985, 110th Cong. § 10 (2007).
155. This bill is currently under review in a Senate committee. 153 CONG. REC. S3198 (2007).
156. While it is not clear that the revocation of a security clearance would result in the termination of employment for members of the military (since separating a service member is generally more difficult than firing a civilian employee), such a revocation would clearly be a deterrent for potential whistleblowers in the armed services.
157. LOUIS FISHER, CONG. RESEARCH SERV., NATIONAL SECURITY WHISTLEBLOWERS 12-16 (2005), http://www.fas.org/sgp/crs/natsec/RL33215.pdf. In addition, even if the statutory regime were perfect, whistleblowers who suffer an illegal personnel action would have to deal with the inconvenience and uncertainty of bringing a legal challenge against that action because there is no guarantee that federal agencies will follow the protections of the whistleblower laws.
158. See, e.g.. Petitioner's Opening Brief, MacLean v. Dep't of Homeland Sec., No. 06-75112 (9th Cir. Jan. 29, 2007) (arguing that the TSA retroactively labeled a communication as "Sensitive Security Information" in order to specifically target an employee for retribution in response to the employee's protected whistleblowing activity).
159. Richard Halloran, A Primer on the Fine Art of Leaking Information, N. Y. TIMES, Jan. 14, 1983, at A16 (noting the "symbiotic relationship between the Government and the press");
160. Cass Sunstein, Government Control of Information, 74 CAL. L. REV. 889, 902 (1986) (rejecting common assumption that the government and the press are "locked in combat").
161. Richard B. Kielbowicz, The Role of News Leaks in Governance and the Law of Journalists' Confidentiality, 1795-2005, 43 SAN DIEGO L. REV. 425, 430 (2006) (noting that "officials use the media to govern").
162. DEBORAH HOLMES, GOVERNING THE PRESS: MEDIA FREEDOM IN THE U.S. AND GREAT BRITAIN 13 (1986).
163. STEPHEN PONDER, MANAGING THE PRESS: ORIGINS OF THE MEDIA PRESIDENCY, 1897-1933, at 164 (1999).
164. See, e.g., JODY POWELL, THE OTHER SIDE OF THE STORY 35 (1984) (arguing that the relationship between the president and the press is "seriously flawed").
165. JOHN TEBBEL & SARAH MILES WATTS, THE PRESS AND THE PRESIDENCY: FROM GEORGE WASHINGTON TO RONALD REAGAN 15 (1985).
166. Id. at 14-15.
167. Id. at 15.
168. Mark Feldstein, The Jailing of a Journalist: Prosecuting the Press for Receiving Stolen Documents, 10 COMM. L. & POL'Y 137, 149 n.87 (2005).
169. PONDER, supra note 98, at xii.
170. Id.
171. (quoting THE FEDERALIST PAPERS NO. 84, at 517 (Alexander Hamilton) (Clinton Rossiter ed. 1961)).
172. Id. at xii-xiii;
173. see also TEBBEL & WATTS, supra note 100, at 9-10;
174. Kielbowicz, supra note 96,432-41 (detailing the history leaks during this time period).
175. PONDER, supra note 98, at xiii-xvi, 3.
176. Id. at xiii-xv.
177. Id. at xv-xvi.
178. See GEORGE JUERGENS, NEWS FROM THE WHITE HOUSE: THE PRESIDENTIAL-PRESS RELATIONSHIP IN THE PROGRESSIVE ERA 4 (1981).
179. Id. at7-8.
180. Id. at 20.
181. Id. at 41-42 (discussing Roosevelt's use of trial balloons to test public reaction to proposed policies);
182. PONDER, supra note 98, at 47 (noting how President Roosevelt used the press to appeal to the public for support, frequently over congressional opposition);
183. TEBBEL, supra note 100, at 337-38;
184. Kielbowicz, supra note 96, at 444.
185. JUERGENS, supra note 110, at 41-42.
186. Id. at 44.
187. Id.
188. Id.
189. PONDER, supra note 98, at 35-36.
190. Id. at 48.
191. JUERGENS, supra note 110, at 51;
192. PONDER, supra note 98, at 48.
193. PONDER, supra note 98, at 48
194. (quoting Letter from Archie Butt to Mrs. Lewis F.B. Butt (Mar. 28 1909), in THE LETTERS OF ARCHIE BUTT 1:28-32 (Lawrence F. Abbot ed., 1924)).
195. Louis KOENIG, THE INVISIBLE PRESIDENCY 177 (1960).
196. Id.
197. See generally Tom Wicker, Leak On, O Ship of State!, N. Y. TIMES, Jan. 26, 1982, at A15 (summarizing the different types of leaks from government officials and their motivations for leaking information).
198. JUERGENS, supra note 110, at 97-98;
199. PONDER, supra note 98, at 51-61,63-65;
200. TEBBEL, supra note 100, at 353.
201. PONDER, supra note 98, at 59, 74-75;
202. see also JUERGENS, supra note 110, at 112 (discussing Taft's failure to use the newspapers to influence public opinion).
203. MARTIN LINSKY, IMPACT: HOW THE PRESS AFFECTS FEDERAL POLICYMAKING 172 (1986) (explaining that one study reported that 42% of federal officials admitted to leaking information to the press, and that in reality, the number is probably even higher);
204. Note, Keeping Secrets: Congress, the Courts, and National Security Information, 103 HARV. L. REV. 906, 911 (1990).
205. ELIE ABEL, LEAKING: WHO DOES IT? WHO BENEFITS? AT WHAT COST? 36 (1987).
206. Id.
207. James A. Goldston, Jennifer M. Granholm & Robert J. Roberson, Comment, A Nation Less Secure: DiminishedPublic Access to Information, 21 HARV. C.R.-C.L.L. REV. 409, 412-13 n.16 (1986) (quoting affidavit of Theodore C. Sorenson).
208. Note, supra note 127, at 913.
209. ALEXANDER M. HAIG, JR., CAVEAT: REALISM, REAGAN, AND FOREIGN POLICY 17 (1984).
210. See, e.g.. PONDER, supra note 98, at 121 (discussing how President Coolidge would frequently make newsworthy comments during press briefings "off the record," requiring the press to identify the source as a source "close to the President" or as the "White House spokesman," so that if the comments proved erroneous or controversial he could deny them);
211. LEON V. SIGAL, REPORTERS AND OFFICIALS: THE ORGANIZATION AND POLITICS OF NEWSMAKING 140-42 (1973);
212. Robert Pear, Health Aides See a Tax on Benefits Beyond Basic Plan, N.Y. TIMES, Sept. 5,1993, at Al (noting that the Clinton administration openly used leaks to float "trial balloons" concerning proposed health care reforms; a White House spokesman admitted that "[w]e want to explain and communicate our policies to the American people, and we think background discussions are a good way of doing it").
213. HOLMES, supra note 97, at 12 (describing the press as a form of "in-house mail system" for government officials);
214. SIGAL, supra note 133, at 143;
215. Halloran, supra note 95, at A16 (explaining that "'leaking' is not solely nor even largely the province of the dissident. Rather, it is a political instrument wielded almost daily by senior officials within the Administration to influence a decision, to promote policy, to persuade Congress and to signal foreign governments.");
216. see also Frontline: News Wars: Secrets, Sources, & Spin (Part I) (PBS television broadcast Feb. 13, 2007) (explaining that the government uses the elite press, for example The New York Times, the Los Angeles Times, and The Washington Post, to communicate with government bureaucrats and elected officials).
217. SIGAL, supra note 133, at 151.
218. Id. at 145 (quoting aide to President Johnson);
219. see also Wicker, supra note 124, at A15 (explaining that President Reagan "can't stop leaks; no President can and no President really wants to. They only want to stop the leaks they don't like.").
220. PONDER, supra note 98, at 89.
221. SIGAL, supra note 133, at 140-41.
222. ABEL, supra note 128, at 2.
223. Editorial, A Bad Leak, N. Y. TIMES, Apr. 16, 2006, § 4, at 11 (criticizing President Bush for permitting Scooter Libby to leak "cherry-picked portions of the report").
224. E.J. Dionne, Jr., Editorial, All the President's Leaks, WASH. POST, Apr. 11, 2006, at A21;
225. David Johnston & David E. Sanger, In Court Filings, Cheney Aide Says Bush Approved Leak, N.Y. TIMES, April 6, 2006, at A1.
226. Tom Hamburger, Bush Speaks on Disclosure, L.A. TIMES, Apr. 11, 2006, at A4 (reporting on speech in which Bush claimed he did not authorize a "leak" of information from the National Intelligence Estimate in 2003 but rather "declassified" information).
227. ABEL, supra note 128, at 4, 17, 35;
228. MICHAEL BARUCH GROSSMAN & MARTHA JOYNT KUMAR, PORTRAYING THE PRESIDENT: THE WHITE HOUSE AND THE NEWS MEDIA 159 (1981);
229. STEPHEN HESS, THE GOVERNMENT/ PRESS CONNECTION: PRESS OFFICERS AND THEIR OFFICES 76 (1984).
230. Max Frankel, The Washington Back Channel, N. Y. TIMES, Mar. 25, 2007, § 6 (Magazine), at 40.
231. Id.
232. Id.
233. SIGAL, supra note 133, at 143.
234. Frankel, supra note 144.
235. Louis Henkin, The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers, 120 U. PA. L. REV. 271, 278 (1971).
236. See The White House Crisis; Excerpts from the Tower Commission's Report Part IV: What Was Wrong, N.Y. TIMES, Feb. 27, 1987, at A17.
237. U.S. Promises to Release Data on Plutonium Test, N. Y. TIMES, Nov. 21,1993, § 1, at 30.
238. Eric Schmitt, Israel Plays Down Effectiveness of Patriot Missile, N. Y. TIMES, Oct. 31, 1991, at A8.
239. Raymond Bonner, News Organizations Ask White House to Veto Secrecy Measure, N. Y. TIMES, Nov. 1, 2000, at A32;
240. Steven Lee Meyers, Be All That You Can Be: Your Future as an Extortionist, N.Y. TIMES, Oct. 6, 1996, §4, at 7.
241. James Risen, G.I.'s Are Accused of Abusing Iraqi Captives, N. Y. TIMES, Apr. 29, 2004, at A15 (discussing details of the Abu Ghraib prisoner abuse scandal that was discovered through leaked photographs);
242. Minutes II: Abuse of Iraqi POWs by GIs Probed (CBS television broadcast Apr. 28, 2004) available at http://www.cbsnews.com/stories/ 2004/04/27/60II/main614063.shtml (breaking story that prisoners at Abu Ghraid were abused).
243. Dana Priest & Joe Stephens, Pentagon Approved Tougher Interrogations, WASH. POST, May 9, 2004, at Al (breaking story of abuse of prisoners at Guantanamo Bay; sources were military personnel who did not want their identities disclosed).
244. Josh Meyer, U.S. to Hunt Source of Wiretap Leak, CHI. TRIB., Dec. 30, 2005, at C1 (discussing leak of sensitive information concerning wiretapping);
245. Risen & Lichtblau, supra note 1, at Al (breaking NSA warrantless wiretapping story).
246. Jane Mayer, Outsourcing Torture: The Secret History of America's "Extraordinary Rendition" Program, THE NEW YORKER, Feb. 14, 2005, available at http://www.newyorker.com/ archive/2005/02/14/050214fa_fact6.
247. PONDER, supra note 98, at 87. Wilson's plan to limit Cabinet meetings was, somewhat ironically, itself leaked to the press.
248. Id.
249. SIGAL, supra note 133, at 147.
250. TEBBEL & WATTS, supra note 100, at 540.
251. Id. at 546-47.
252. The Supreme Court has held that the First Amendment does not invalidate these contracts. Snepp v. United States, 444 U.S. 507, 512 (1980) (per curiam) (upholding the right of the CIA to require its employees to sign nondisclosure agreements);
253. United States v. Marchetti, 466 F.2d 1309,1317 (4th Cir.),
254. cert, denied, 409 U.S. 1063 (1972) (rejecting First Amendment challenge to nondisclosure agreement).
255. See Wicker, supra note 124, at A15 (noting how President Reagan, fed up with leaks, forced four-star generals and admirals to take lie-detector tests).
256. FBI agents conducting the Valerie Plame leak investigation sought such waivers from senior Bush Administration officials. Adam Liptak, Reporters Face Scrutiny in C.I.A. Leak Inquiry, N. Y. TIMES, Sept. 28, 2004, at A18.
257. David Barstow, Reporter, The New York Times, ABA Forum on Communications Law panel (Feb. 2007).
258. For example, a CIA officer named Mary McCarthy was fired in April 2006 for having unreported media contacts in violation of her security agreement. Although it was initially reported that she was fired because she leaked the black-site story to Dana Priest of The Washington Post, a senior intelligence official later denied that she was the source for that story. R. Jeffrey Smith & Dafna Linzer, Dismissed CIA Officer Denies Leak Role, WASH. POST, Apr. 25, 2006, at A1;
259. see also James Kelly, Shifting the Attack on Leaks, TIME, May 19,1986, at 91 (noting that Assistant Under Secretary for Defense Michael Pillsbury was fired for leaking details of an Administration plan to give Stinger missiles to anti-Communist rebels in Angola and Afghanistan).
260. HOLMES, supra note 97, at 6;
261. see also Wicker, supra note 124, at A15 (noting that President Reagan, like other Presidents before him, reacted to unauthorized leaks by reducing communication with the press).
262. POWELL, supra note 99, at 310 (mentioning that one tactic for dealing with reporters is to intimidate them by threatening never to talk to them again, striking them from the White House Christmas list, or revealing the reporter's affair to his spouse).
263. JUERGENS, supra note 110, at 17;
264. KOENIG, supra note 122, at 172 (noting that President Theodore Roosevelt banished journalists who displeased him to the "Ananias Club," a journalistic doghouse).
265. JUERGENS, supra note 110, at 19 (quoting veteran journalist Isaac Marcosson).
266. Adam Liptak, After Libby Trial, New Era for Government and Press, N. Y. TIMES, Mar. 8, 2007, at A18. Criminal investigations continue to rely on the extraction of source identities from reporters.
267. Philip Shenon, Times Reporter Subpoenaed over Source for Book, N. Y. TIMES, Feb. 1, 2008, at A17.
268. Risen & Lichtblau, supra note 1.
269. Scott Shane, Criminal Inquiry Opens into Leak in Eavesdropping, N. Y. TIMES, Dec. 31, 2005, at A1.
270. MICHAEL S. SWEENEY, THE MILITARY AND THE PRESS: AN UNEASY TRUCE 8-9 (2006) (alteration in original).
271. Id. at 9.
272. Id.
273. Id.
274. Id. at 36.
275. Id. at 45;
276. PONDER, supra note 98, at 93-96.
277. Id. at 36;
278. PONDER, supra note 98, at 96.
279. JUERGENS, supra note 110, at 189.
280. MICHAEL S. SWEENEY, SECRETS OF VICTORY: THE OFFICE OF CENSORSHIP AND THE AMERICAN PRESS AND RADIO IN WORLD WAR II17 (2001).
281. Id.
282. Id. at 54.
283. Id. at 52.
284. Christina E. Wells, Information Control in Times of Crisis: The Tools ofRepression, 30 OHIO N.U. L. REV. 451, 455 (2004).
285. U.S. GOVERNMENT OFFICE OF CENSORSHIP, CODE OF WARTIME PRACTICES FOR AMERICAN BROADCASTERS, at 1-4 (1942)
286. [hereinafter AMERICAN BROADCASTERS];
287. U.S. GOVERNMENT OFFICE OF CENSORSHIP, CODE OF WARTIME PRACTICES FOR THE AMERICAN PRESS
288. 1-4 (1942) [hereinafter AMERICAN PRESS].
289. AMERICAN BROADCASTERS, supra note 186, at 6-8.
290. Id. at 6.
291. AMERICAN PRESS, supra note 186, at 1.
292. Id. at 5.
293. SWEENEY, supra note 181, at 3.
294. Id. at 3-4.
295. Developments in the Law, supra note 25, at 1194;
296. see JAMES RUSSELL WIGGINS, FREEDOM OR SECRECY 95-99 (1956).
297. SWEENEY, supra note 173, at 5.
298. Id.
299. SANFORD J. UNGAR, THE PAPERS & THE PAPERS: AN ACCOUNT OF THE LEGAL AND POLITICAL BATTLE OVER THE PENTAGON PAPERS 111-12 (1972).
300. John F. Kennedy, U.S. President, The President and the Press: Address before the American Newspaper Publishers Association (Apr. 27, 1961), available at http://www.jfklibrary.org/historical+resources/archives/ reference+desk/speeches/jfk/003POF03Newspaperpublishers04271961.htm.
301. MAX FRANKEL, HIGH NOON IN THE COLD WAR: KENNEDY, KHRUSHCHEV, AND THE CUBAN MISSILE CRISIS 108-110 (2004).
302. HOLMES, supra note 97, at 61.
303. Id.
304. Id. at 62.
305. Editorial, Lost Chance?, THE NATION, January 26, 1980, at 67.
306. Richard Zoglin, Questions of National Security, TIME, June 2, 1986, at 67.
307. Id.
308. Id.
309. See id.
310. Id.
311. BEN BRADLEE, A GOOD LIFE: NEWSPAPERING AND OTHER ADVENTURES 474 (1995).
312. Association of American Law Schools, National Security Section Session (Jan. 5, 2007).
313. Instead, as James Risen said, "the real secret here was a political secret and a legal secret . . . not a national security secret." James Risen, Reporting National Security Under Threat of Indictment, 2006 Annual Dinner of Media Law Resource Center, at 12 (transcript on file with the Indiana Law Journal).
314. Dana Priest, CIA Holds Terror Suspects in Secret Prisons, WASH. POST, Nov. 2, 2005, at A1.
315. Id.
316. TOM WICKER, ON PRESS 2 (1978).
317. Richard Zoglin, Questions of National Security: The CIA tangles with the Washington Post and NBC, TIME, June 2, 1986, at 67;
318. see also James Kelly, Shifting the Attack on Leaks: The CIA director hints at prosecutions of news organizations, TIME, May 19, 1986, at 91 (quoting a Justice Department official as reporting that "we're not hot to trot on [prosecuting the press]").
319. Walter Pincus, Silence Angers Judiciary Panel: Justice Official Mum on Possible Prosecution of Journalists, WASH. POST., June 7, 2006, at A05.
320. Mary-Rose Papandrea, Citizen Journalism and the Reporter's Privilege, 91 MINN. L. REV. 515, 521-32 (2007). For example, the website Wikileaks has published a variety of sensitive documents, including the Rules of Engagement for U.S. military forces in Iraq and operating prodecures for Guantanamo Bay prison.
321. See U.S. Rules of Engagement for Iraq, http://www.wikileaks.org/ wiki/US_Rules_of_Engagement_for_Iraq;
322. Camp Delta Standard Operating Procedure (2004), http://www.wikileaks.org/ wiki/Camp_Delta_Standard_ Operating_Procedure.
323. H.R. DOC. NO. 106-309, at 3-4 (2000).
324. Id. at 4.
325. S. 3774, 109th Cong. (2006). The bill proposed in 2006 differed from the 2000 legislation in two ways. First, it limited its application to information or material "properly" classified pursuant to the applicable statute or Executive Order. Second, the proposed legislation exempted the disclosure of classified information to an Article III judge, any member of Congress or committee or subcommittee of Congress, and agents of a foreign power when such disclosure has been authorized.
326. Id.
327. Harold Edgar & Benno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73 COLUM. L. REV. 929 (1973).
328. See, e.g., id. at 934 ("[T]he legislation is in many respects incomprehensible");
329. Anthony Lewis, National Security: Muting the "Vital Criticism, " 34 UCLA L. REV. 1687, 1698 (1987) ("The espionage sections of the Federal Criminal Code are a singularly impenetrable warren of provisions originally passed by Congress under the stresses of World War I");
330. Stephen L. Vladeck, Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the Press, 1 HARV. L. & POL'Y REV. 219, 222 (2007) (noting that the Espionage Act contains "a number of seemingly overlapping and often ambiguous provisions").
331. Act of Mar. 3, 1911, ch. 226, Pub. L. No. 470, 36 Stat. 1804-05 (1911).
332. Edgar & Schmidt, supra note 220, at 939-40.
333. Id. at 940.
334. Id.
335. The basic provisions of the Defense of Secrets Act were codified at 18 U.S.C. § 793(a)-(b) with some important modifications.
336. See 18 U.S.C. § 793 (a)-(b) (2000).
337. Edgar & Schmidt, supra note 220, at 967-69.
338. Gorin v. United States, 312 U.S. 19, 28 (1941). Although this definition of national defense information is potentially limited to military information and tactical plans, lower courts have rejected such a limited construction.
339. See, e.g., United States v. Truong Dihn Hung, 629 F.2d 908, 918 (4th Cir. 1980) (rejecting the defendants' attempt to limit "national defense" information to information concerning military matters);
340. United States v. Boyce, 594 F.2d 1246 (9th Cir. 1979).
341. Gorin, 312 U.S. at 29.
342. Id. at 29-30. In Gorin, the defendant had disclosed to Russia information concerning the comings and goings of Japanese military and civilian officials on the West Coast.
343. Id. at 23. Soon after Gorin was decided, the United States Attorney General issued an opinion stating that Gorin does not apply in cases where national defense information is provided to an allied nation with permission from the government.
344. See 40 Op. Att'y Gen. 247 (1942). The Attorney General was responding to an inquiry from a factory desiring to communicate with allied nations about manufacturing methods and products.
345. Id.
346. United States v. Rosen, 445 F. Supp. 2d 602, 623-24 (2006).
347. Gorin, 312 U.S. at 28 (explaining that if the information is not in fact secret, "there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government").
348. See, e.g., United States v. Heine, 151 F.2d 813, 816 (2d Cir. 1945) (holding that compiling and disseminating to Germany publicly available information concerning the production of airplanes in the United States did not constitute a violation of the Espionage Act because none of the transmitted information was secret). The lower courts have interpreted the Gorin exception for national security information that is not in fact secret relatively narrowly. For example, the Fourth Circuit has held that the fact that some of the information at issue is publicly available is irrelevant if that information was not made publicly available by the government in an official document.
349. United States v. Squillacote, 221 F.3d 542, 577-80 (4th Cir. 2000);
350. see also United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir. 1972) ("Rumor and speculation are not the equivalent of prior disclosure, however, and the presence of that kind of surmise should be no reason for avoidance of restraints upon confirmation from one in a position to know officially.").
351. United States v. Morison, 844 F.2d 1057, 1081 (4th Cir. 1988);
352. Rosen, 445 F. Supp. 2d at 621-22.
353. Id. at 1086 (Phillips, J., concurring).
354. This scienter requirement applies only to the disclosure of "information relating to the national defense" and not to any of the other tangible materials listed in the statute. This premise is clear not only from the plain language of the statute, but also from the legislative history, where the report from the Senate Judiciary Committee, which added the scienter language to the statute, specifically stated that the phrase "which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation" modified only "information relating to the national defense." S. REP. NO. 81-2369, pt. 1, at 9 (1950).
355. Edgar & Schmidt, supra note 220, at 941.
356. Id. at 942.
357. Gorin, 312 U.S. at 27-28;
358. see also United States v. Troung Dihn Hung, 629 U.S. 908, 919 (1980) (approving a jury instruction that defined "bad faith" as "a design to mislead or deceive another. That is, not prompted by an honest mistake as to one's duties, but prompted by some personal or underhanded motive").
359. Rosen, 445 F. Supp. 2d at 626.
360. Id.
361. Id. at 640-41, 641 nn.55, 56.
362. See Edgar & Schmidt, supra note 220, at 1036. Edgar and Schmidt suggest that there is a way to interpret the word "publish" to require making information generally known to the public, whereas "communicating" information requires a more intimate transaction.
363. Id. at 943-44. This approach would ignore the well-established principle of media law that one "publishes" information even when communicating that information to just one other person.
364. United States v. Morison, 844 F.2d 1057, 1063-64 (4th Cir. 1988) (internal quotations omitted).
365. Id. at 1061.
366. Id at 1063-64.
367. Id. at 1064.
368. Id. at 1063.
369. Id. at 1064-65 (discussing differences between 18 U.S.C. §793 (1988) and 18 U.S.C. § 794 (1988)).
370. 18 U.S.C. §794(a) (2000).
371. Edgar & Schmidt, supra note 220, at 943.
372. Id. at 943-44.
373. Id. at 944.
374. Id.
375. Id. at 944-45.
376. Id. at 946.
377. Id. at 965.
378. Id. at 965-66.
379. Id.
380. United States v. Boyce, 594 F.2d 1246,1251 (9th Cir. 1979) ("Under section 798, the propriety of the classification is irrelevant. The fact of classification of a document or documents is enough to satisfy the classification element of the offense."). Section 797, which prohibits the publication of photographs or any representation of a military installation or equipment that the President has declared "as requiring protection against the general dissemination of information relative thereto," also lacks an intent requirement.
381. U.S.C. §797 (2000).
382. Gabriel Schoenfeld, Has the "New York Times" Violated the Espionage Act?, COMMENTARY, March 2006, at 26.
383. See 42 U.S.C. §§2011-2297h (2000).
384. Byron S. Miller, A Law is Passed: The Atomic Energy Act of 1946,15 U. CHI. L. REV. 799, 801 (1948).
385. Id.
386. Id. at 817-19.
387. Howard Morland, Born Secret, 26 CARDOZO L. REV. 1401, 1402 (2005).
388. See, e.g., Atomic Energy: Hearing on H.R. 4280 Before the H. Comm. On Military Affairs, 79th Cong. 98 ( 1945) [hereinafter Statement of Harold Anderson] (Statement of Harold Anderson, Ph.D., of the University of Chicago, Santa Fe, N.M.) ("The greatest progress in understanding comes from research coupled with the fullest and most free discussion and dissemination of its results and the related ideas.");
389. see also Miller, supra, note 262, at 810-13.
390. Miller mentions that during the Manhattan Project an entire laboratory might have exploded had one group of scientists not illicitly leaked information to another. Id. at 811. Harold Anderson also argued that excessive secrecy could actually harm our national security interests by causing foreign governments to become suspicious.
391. Statement of Harold Anderson, supra, at 99 ("In the eyes of a foreign government, the enactment of legislation which shields possible military activities of a government behind a cloak of secrecy is itself an act of aggression" and is "fraught with just the dangers of mutual suspicion which we must endeavor from the beginning to wipe out").
392. Miller, supra note 262, at 814-15.
393. Atomic Energy Act of 1946: Hearings on S. 1717 Before the S. Spec. Comm. on Atomic Energy, 79th Cong. 406 (1946) [hereinafter Atomic Hearings] (testimony of Secretary of War Robert Patterson) ("I don't regard anything as important under present conditions as the atomic bomb.").
394. Miller, supra note 262, at 810.
395. Id. This continues to be the modern public understanding. When the Court of Appeals for the Second Circuit asked Alexander Bickel-who was representing the New York Times in the Pentagon Papers case-to give an example of information that could be subjected to a prior restraint, he suggested a scenario in which "the hydrogen bomb turns up."
396. Transcript of Oral Argument at 44-45,
397. United States v. New York Times, 444 F 2d 544 (2d Cir. 1971) (No. 71-1617),
398. reprinted in 2 THE NEW YORK TIMES COMPANY V. UNITED STATES, A DOCUMENTARY HISTORY, at 929-30 (James C. Goodale ed., Arno Press 1971).
399. See Atomic Hearings, supra note 268, at 86-87 (testimony of Secretary of the Navy James Forrestal);
400. CONG. REC. 6096 (1946) (testimony of Secretary of War Robert Patterson) (expressing concern that the Espionage Act did not permit prosecution of government employees who disseminated national security information, rather than documents, without a specific level of intent). Specifically, some were concerned that the Espionage Act required employees disseminating "information" to do so with a specific level of intent.
401. Id.
402. Atomic Energy Act, Pub. L. No. 79-585, § 10(a), 60 Stat. 755,766 (1946).
403. Atomic Energy Act, S. 1717, 79th Cong. § 10(b) (1946). Congress also considered empowering the Atomic Energy Commission to issue regulations declaring what information could and could not be disseminated, but there were concerns that such an approach might threaten freedom of speech and press by permitting the Commission to act arbitrarily and requiring people to be aware of the constantly changing regulations.
404. CONG. REC. 6096 (1946).
405. 42 U.S.C. § 2014(y) (2000).
406. Roger Funk, National Security Controls on the Dissemination of Privately Generated Scientific Information, 30 UCLA L. REV. 405, 420-21, 434 (1982).
407. L.A. Powe, Jr., The H-Bomb Injunction, 61 U. COLO. L. REV. 55, 56 (1990).
408. 42 U.S.C. § 2274 (2000).
409. Id. § 2274(b).
410. Id. § 2274.
411. Id. § 2275.
412. Id. § 2277.
413. Id. § 2280.
414. 467 F. Supp. 990 (W.D. Wis. 1979). Unlike the Espionage Act, the Atomic Energy Act specifically authorizes the Attorney General to seek injunctive relief against someone who "has engaged or is about to engage" in any violation of its provisions.
415. U.S.C §2280. The district court held that it would have granted prior restraint even in the absence of an authorizing statute because of the likelihood of "grave, direct, immediate and irreparable harm to the United States."
416. Progressive, 467 F. Supp. at 996.
417. Erwin Knoll, The H-Bomb and the First Amendment, 3 WM. & MARY BILL RTS. J. 705, 705-07 (1994). Erwin Knoll, the editor of The Progressive, said that the article was intended to counteract the popular belief "that there is an 'H-Bomb secret' that can be written down on the back of an envelope (or in a magazine article)," and that "[i]f that 'secret' were to fall into the wrong hands . . . we'd all be in a heap of trouble."
418. Id. at 706.
419. HOWARD MORLAND, THE SECRET THAT EXPLODED 145 (1981).
420. Powe, supra note 276, at 56.
421. Id.
422. Id.
423. United States v. Progressive, Inc., 467 F. Supp. 990,994 (W.D. Wis. 1979)
424. (quoting 42 U.S.C. §2274 (1969) (amended 2000)).
425. Id. at 999.
426. Id. at 994.
427. Id. at 996.
428. Ian M. Dumain, No Secret, No Defense: United States v. Progressive, 26 CARDOZO L. REV. 1323, 1332 (2005).
429. Gregg Easterbrook, The Atomic Club: If the Bomb Is So Easy to Make, Why Don't More Nations Have It?, N.Y. TIMES, Jan. 4, 2004, at WK1.
430. E.g., Anthony R. Klein, National Security Information: Its Proper Role and Scope in a Representative Democracy, 42 FED. COMM. L.J. 433,449 (1989).
431. 50 U.S.C. §§421-26 (2000).
432. Charles Mohr, Issue and Debate: Disclosing Intelligence Agents ' Names, N. Y. TIMES, Feb. 6, 1981, at AlO (noting that Congress began to consider the HPA soon after an agent in Athens was killed and another in Jamaica was attacked following the disclosure of their identities).
433. Proposals to Criminalize the Unauthorized Disclosure of the Identities of Undercover United States Intelligence Officers and Agents: Hearings Before the Subcomm. on Legis, of the H. Permanent Select Comm. on Intelligence, 96th Cong. 54 (1980) [hereinafter Proposals to Criminalize] (questioning by Rep. Wyche Fowler) ("[A]nybody and everybody can call himself a journalist and publish anything they want to . . . .");
434. see also Mohr, supra note 297 (commenting on the disclosure of eight senior CIA officials in the Covert Action Information Bulletin).
435. John Crewdson, Internet Blows CIA Cover, CHI. TRIB., Mar. 12,2006, at Cl (explaining how easy it is to discover the identity of CIA agents through the internet);
436. Mohr, supra note 297 (noting that former CIA agent John Stockwell claimed that the agency was "flagrantly careless" about protecting the cover of its agents and protecting their security).
437. Intelligence Identities Protection Legislation: Hearings on S. 2216, et al, Before the S. Select Comm. on Intelligence, 96th Cong. 18-19 (1980) [hereinafter S. 2216 Intelligence Hearings] (testimony of Associate Deputy Attorney General Robert L. Keuch).
438. conceded that graymail was a possibility, but argued, "I think we are willing as a general matter to live with the proposition that guilty people might even get off because we think we are preserving some other very important rights." S. 2216 Intelligence Hearings, supra note 300, at 82 (testimony of Floyd Abrams).
439. 50 U.S.C. § 421(c) (2000).
440. S. 2216 Judiciary Hearing, supra note 306, at 118 (statement of Floyd Abrams).
441. Id. at 117-18.
442. H.R. REP. NO. 97-580, at 10 (1982) (Conf. Rep.), as reprinted in 1982 U.S.C.C.A.N. 145, 175.
443. 50 U.S.C. § 426(10) (2000).
444. The Intelligence Identities Protection Act: Hearing on H.R. 4, Before the Subcomm. on Legis, of the H. Permanent Select Comm. on Intelligence, 97th Cong. 140 (1981).
445. Berman & Halperin, supra note 303, at 50-51.
446. Id. at 52.
447. Id. at 53.
448. In the course of this investigation, Fitzgerald successfully subpoenaed the testimony and notes of several reporters, including Judith Miller and Matthew Cooper. Miller served 85 days in jail before she revealed the identity of her source. David Johnston & Douglas Jehl, Times Reporter Freed from Jail, She Will Testify, N.Y. TIMES, Sept. 30, 2005, at A1.
449. 18 U.S.C. § 649 (2000).
450. Michael E. Tigar, The Right of Property and The Law of Theft, 62 TEX. L. REV. 1443, 1463 (1984).
451. See, e.g., United States v. Fowler, 932 F.2d 306, 310 (4th Cir. 1991) (recognizing that because "information is a species of property and a thing of value," and that "conversion and conveyance of governmental information can violate § 641");
452. United States v. Morison, 844 F.2d 1057, 1077 (4th Cir. 1988) (holding that § 641 applies to maps and photographs);
453. United States v. Girard, 601 F.2d 69, 70-71 (2d Cir. 1979). Some courts have dodged the issue by holding that the use of government computers and copy machines to make copies constituted a violation of the statute, regardless of what information was contained in the documents.
454. United States v. DiGilio, 538 F.2d 972 (3d Cir. 1976).
455. See Tigar, supra note 320, at 1466-68 (discussing the difficulties inherent in declaring a government property right in information).
456. Subsection 793(g) specifically criminalizes the conspiracy to commit any of the offenses listed in § 793. 18 U.S.C. § 793 (2000).
457. 50 U.S.C. § 422(b) (2000).
458. Government's Supplemental Response to Defendants' Motion to Dismiss the Superseding Indictment at 22-30, United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006) (No. 1:05cr225).
459. United States v. Rosen, 445 F. Supp. 2d 602, 630 (E.D. Va. 2006).
460. Id. at 633.
461. Id. at 630-34.
462. Id. at 633.
463. In re Washington Post Co., 807 F.2d 383, 391 (4th Cir. 1986); see also Louis Henkin, Foreign Affairs, in 2 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION, 747, 754 (Leonard W. Levy, Kenneth L. Karst & Dennis J. Mahoney eds., 1987) ("Nothing in the Constitution suggests that the rights of individuals in respect of foreign affairs are different from what they are in relation to other exercises of government power.").
464. 403 U.S. 713 (1971) (per curiam).
465. Id. at 714 (quoting Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)).
466. Cf. id. at 719 (Black, J., concurring) (agreeing with the Court's prior decision not to allow criminal punishment of a man who attended a Communist meeting).
467. Id. at 717 (Black, J., concurring).
468. Id. at 724 (Douglas, J., concurring).
469. Id. at 726-27 (Brennan, J., concurring).
470. 283 U.S. 697, 716 (1931).
471. See New York Times, 403 U.S. at 737-40 (White J., concurring) (noting that the procedures governing a criminal trial render criminal prosecution preferable to prior restraints);
472. id. at 759 (Blackmun, J., dissenting) (agreeing with White's statement discouraging prior restraints). Their statements appeared to warn the New York Times and Washington Post that the First Amendment would serve as no bar to criminal prosecutions against them after publication.
473. Id. at 733 (White, J., concurring) ("That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way."). Although the source of the Pentagon Papers, Daniel Ellsberg, was ultimately prosecuted (the prosecution was dismissed based on government misconduct), the government never attempted to indict the newspapers.
474. Id. at 754 (Harlan, J., dissenting) (mentioning that the documents at issue "were purloined from the Government's possession and that the newspapers received them with knowledge that they had been feloniously acquired");
475. Louis Henkin, the Right to Know and the Duty to Withhold: The Case of the Pentagon Papers, 120 U.PA.L.REV.271, 277 (1971) ("We are not told whether and how much it would matter were it determined that [the Pentagon Papers] were obtained without the Government's consent, that they were taken or copied in violation of such governmental 'title' or right.").
476. See ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 61 (1975).
477. Alexander v. United States, 509 U.S. 544, 553-54 (1993) ("[O]ur decisions have steadfastly preserved the distinction between prior restraints and subsequent punishments. Though petitioner tries to dismiss this distinction as 'neither meaningful nor useful,' ... we think it is critical to our First Amendment jurisprudence."). In at least one prior opinion, the Court had indicated that the government had to meet the same high burden to restrict speech whether it attempted to do so through a prior restraint or through penal sanctions.
478. See, e.g., Smith v. Daily Mail, 443 U.S. 97, 101-02 (1979) (holding that even when a speech restriction is properly categorized as a penal sanction rather than a prior restraint, the government must still demonstrate "the highest form of state interest to sustain its validity").
479. Many commentators have questioned whether there is a meaningful distinction between prior restraints and subsequent criminal punishment. See, e.g., John Calvin Jeffries, Jr., Rethinking Prior Restraint, FIRST AMENDMENT AND NATIONAL SECURITY, May 1984, at 15, 26-27 (arguing that a directed injunction may in fact deter only the speech that is the subject of the injunction, while the threat of subsequent criminal prosecution might deter even more speech);
480. Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the "Chilling Effect", 58 B.U. L. REV. 685, 727 (1978) (noting that "[unchecked discretion, vague standards and incompetent administration, while frequently associated with the system of prior restraint, can just as easily exist in a system of subsequent punishment");
481. but see Vincent Blasi, Toward a Theory of Prior Restraint: The Central Linkage, 66 MINN. L. REV. 11 (1981) (arguing that prior restraints are akin to licensing systems);
482. Thomas I. Emerson, The Doctrine of Prior Restraint, 20 LAW & CONTEMP. PROBS. 648 (1955).
483. Alexander, 509 U.S. at 571-72 (Kennedy, J., dissenting).
484. See Stephen R. Barnett, The Puzzle of Prior Restraint, 29 STAN. L. REV. 539, 551-53 (1977) (explaining that those against whom an injunction is entered can challenge its validity only on direct appeal).
485. OWEN M. FISS, THE CIVIL RIGHTS INJUNCTION 71 (1978) (arguing that one could not generally expect ordinary citizens to be as willing to risk criminal prosecution).
486. Henkin, supra note 339, at 278.
487. See Geoffrey R. Stone, Government Secrecy vs. Freedom of the Press, 1 HARV. L. & POL. REV. 185, 202 (2007) (arguing that the difference between prior restraints and criminal prosecutions in the context of national security information has "less bite" than in cases involving obscenity and libel).
488. 444 U.S. 507 (1980);
489. see also Haig v. CIA, 453 U.S. 280 (1981) (holding that the Secretary of State can withhold the passport of a former CIA employee who revealed the identity of other CIA operatives);
490. United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972) (upholding the constitutionality of secrecy agreement signed by former CLA employee requiring prior approval from the Agency for any publications).
491. Snepp, 444 U.S. at 508.
492. Id. at 510.
493. Id. at 510-11.
494. Id. at 511.
495. Id. at 510 n.3.
496. Stone, supra note 347, at 194.
497. 391 U.S. 563, 568 (1968).
498. RESTATEMENT (THIRD) OF AGENCY § 8.05 cmt. c (2006).
499. Stone, supra note 347, at 196.
500. See Exec. Order No. 13,292, § 1.7(a)(1), 68 Fed. Reg. 15,318 (Mar. 25, 2003) (forbidding classification for the purpose of concealing "violations of law, inefficiency, or administrative error").
501. Stone, supra note 347, at 196.
502. See United States v. Aguilar, 515 U.S. 593, 606 (1995) ("As to one who voluntarily assumed a duty of confidentiality, governmental 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.");
503. Stone, supra note 347, at 191 ("Unlike public employees, who have agreed to abide by constitutionally permissible restrictions of their speech, journalists and publishers have not agreed to waive their rights." (emphasis in original)).
504. See, e.g., Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) (recognizing that the First Amendment protects both the right to impart as well as the right to receive a communication);
505. Stanley v. Georgia, 394 U.S. 557, 564 (1969) (noting that "[i]t is now well established that the Constitution protects the right to receive information and ideas");
506. Martin v. Struthers, 319 U.S. 141, 143 (1943) (explaining the freedom of speech press "necessarily protects the right to receive [literature]").
507. See Zemel v. Rusk, 381 U.S. 1, 17 (1965) (holding that government restrictions on travel to Cuba did not infringe the First Amendment rights of an educational tour group seeking information relevant to the debate on the Cuban embargo).
508. See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986);
509. Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984);
510. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980).
511. See Papandrea, supra note 216;
512. Papandrea, supra note 66.
513. 297 U.S. 233 (1936).
514. Id. at 250.
515. Id. at 243.
516. Martin v. Struthers, 319 U.S. 141 (1943).
517. Lamont v. Postmaster General, 381 U.S. 301 (1965).
518. 381 U.S. 1 (1965).
519. Id. at 4.
520. Id. at 16.
521. Id. at 16-17.
522. 408 U.S. 665, 681 (1972).
523. Id. at 683 (quoting Associated Press v. NLRB, 301 U.S. 103, 132 (1937)).
524. Id. at 681.
525. Id. at 707.
526. Id. at 727-28 (Stewart, J., dissenting).
527. See Papandrea, supra note 216, at 553.
528. Id. at 556-58.
529. 501 U.S. 663, 670 (1991).
530. Id. at 665.
531. Id. at 666.
532. Id. at 669.
533. Id. at 670-71.
534. Id. at 671.
535. Id. at 672.
536. Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1355 (7th Cir. 1995).
537. Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 521 (4th Cir. 1999).
538. Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 102 (1979).
539. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 773 (1976) ("[A] State may [not] completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients.");
540. New York Times Co. v. Sullivan, 376 U.S. 254, 271-73 (1964) (holding that even false speech must be accorded some constitutional protection).
541. E.g., Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 840 (1978) (refusing to determine whether the First Amendment protects the publication of all truthful information and focusing instead on the particular
542. 435 U.S. 829 (1978).
543. Id. at 830-31.
544. Id. at 831.
545. Id. at 837.
546. Id. at 835.
547. Id. at 835-36.
548. Id. at 838.
549. Id. at 845. In a concurring opinion, Justice Stewart disagreed that it was unconstitutional for Virginia to punish third parties for divulging confidential information regarding the commission, but that the law was unconstitutional because Virginia had attempted to apply the law to a newspaper.
550. Id. at 848-49. Justice White argued instead that even though the government may control access to information and punish the criminal acquisition of such information, the "government may not prohibit or punish the publication of that information once it falls into the hands of the press, unless the need for secrecy is manifestly overwhelming," as might exist in cases involving national defense information.
551. Id. at 849. Justice Stewart's concurrence underscores that the Court did not rest its decision solely on the ground that Virginia was attempting to restrict the press.
552. 420 U.S. 469 (1975).
553. Id. at 472 & n.3.
554. Id. at 472 n.3.
555. Id. at 489.
556. Id. at 491.
557. Id. at 496 (citing Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974)).
558. 443 U.S. 97 (1979).
559. Id. at 99.
560. Id. at 104.
561. Id. at 103.
562. Id. at 103-04.
563. Id. at 104-05.
564. 491 U.S. 524 (1989).
565. Id. at 527.
566. Id. at 526 (alteration in original) (quoting FLA. STAT. § 794.03 (1987).
567. Id. at 528.
568. Id. at 532;
569. see also id. at 533 ("We continue to believe that the sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.").
570. 283 U.S. 697, 716 (1931).
571. Florida Star, 491 U.S. at 534.
572. Id. at 535-36.
573. Id. at 536.
574. Id. at 534, 541.
575. Id. at 535 n.8 (emphasis in original);
576. see also id. at 541 ("We do not hold that truthful publication is automatically constitutionally protected .... We hold only that where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order ....").
577. Id. at 536 (emphasis in original).
578. Id. at 540.
579. 532 U.S. 514 (2001).
580. See, e.g., Florida Star, 491 U.S. at 535 n.8;
581. Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 837 (1978).
582. Bartnicki, 532 U.S. at 528 (quoting Boehner v. McDermott, 191 F.3d 463, 484-85 (D.C Cir. 1999) (Sentelle, J., dissenting)).
583. Id. at 518-19 (omission in original).
584. Id. at 519.
585. Federal law provides that any person who "intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; ... shall be punished ...." 18 U.S.C. § 2511(1) (2000).
586. Bartnicki, 532 U.S. at 525.
587. Id. at 525 n.8.
588. Id. at 525.
589. Id. at 529-30.
590. Id. at 530 & n.13.
591. Stevens cited Osbornev. Ohio, 495 U.S. 103 (1990),
592. and New Yorkv. Ferber, 458 U.S. 747 (1982), which held that the First Amendment did not bar convictions for possession or distribution of child pornography.
593. Bartnicki, 532 U.S. at 530 n.13.
594. Bartnicki, 532 U.S. at 530 n.13.
595. Id. at 530-31.
596. Id. at 532 (stating that the Government's second argument was "considerably stronger").
597. Id. at 533.
598. Id.
599. Id. at 534.
600. Id. at 529
601. (quoting Florida Star v. B.J.F., 491 U.S. 524, 532 (1989)).
602. One commentator questioned why the failure of Congress to criminalize the receipt of illicit information had any bearing on the constitutionality of a law criminalizing the publication of that information: [I]t is hard to see why this case should be decided differently if Congress had made the "receipt" of illegally intercepted information itself unlawful. Congress has made unlawful both the "interception" of certain electronic communications and the "disclosure" of that intercepted information. Why should the constitutionality of these provisions depend on whether an interim step between the unlawful interception and the unlawful disclosure is also explicitly made unlawful? Paul Gewirtz, Privacy and Speech, 2001 SUP. CT. REV. 139, 160 n.73 (2001).
603. Bartnicki, 532 U.S. at532n.19.
604. Id. at 535-36 (Breyer, J., concurring).
605. Id. at 538.
606. Id. at 539 (emphasis in original).
607. Id. at 539-40.
608. Id. at 541.
609. Id. at 545 (Rehnquist, C.J., dissenting).
610. Id. at 546 & n.3.
611. Daily Mail involved a law that contained a blanket prohibition on information, no matter how obtained. Id. at 546 n.3.
612. Id. at 546.
613. Id. at 546-47.
614. Id. at 548.
615. Id.
616. Professor Paul Gewirtz has argued that the difference between the Daily Mail cases and Bartnicki is that in the Daily Mail cases, the information at issue was "not unlawfully obtained by the media or by anyone else," as the wiretapped conversation in Bartnicki was. In cases such as Bartnicki, interests in preserving confidentiality and deterring illegal conduct warrant speech restrictions. Gewirtz, supra note 444, at 145-46. But in at least some of the prior cases, the source of the disputed information violated confidentiality rules (if not laws), and prohibiting third parties from publishing such material would reduce the damage such a breach can cause just as much as the federal wiretapping law barring disclosure of illegally intercepted communications.
617. William E. Lee, The Unusual Suspects: Journalists as Thieves, 8 WM. & MARY BILL RTS. J. 53, 56-57 (1999).
618. In Boehner v. McDermott, a minority of judges concluded that Representative McDermott crossed the magic line by disseminating a tape he had received from some constituents with the express knowledge that the tape had been illegally obtained. 484 F.3d 573, 577 n.1 (D.C. Cir. 2007).
619. As Judge Sentelle persuasively explains in his dissenting opinion, however, "[t]here is no distinction of legal, let alone constitutional, significance between our facts and those before the Court in Bartnicki." Id. at 584 (Sentelle, J., dissenting).
620. See Rodney Smolla, Information as Contraband: The First Amendment and Liability for Trafficking in Speech, 96 NW. U. L. REV. 1099, 1128-29 (2002).
621. In the ALPAC case, the defendants are accused of encouraging their source to reveal information by taking him to baseball games and nice dinners, which are not typically considered illegal acts. See United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006).
622. See Bartnicki, 532 U.S. at 538 (Breyer, J., concurring).
623. 844 F.2d 1057 (4th Cir. 1988).
624. 445 F. Supp. 2d 602 (E.D. Va. 2006).
625. Morison, 844 F.2d at 1068.
626. Id.
627. Id. at 1068-69 & n.18 (emphasis omitted).
628. Id. at 1069-70.
629. Id. at 1077.
630. Id.
631. Id. at 1081 (Wilkinson, J., concurring).
632. Id.
633. Id.
634. Id.
635. Id.
636. Id. at 1082-83.
637. Id. at 1084.
638. Id.
639. Id. at 1085 (emphasis in original).
640. United States v. Rosen, 445 F. Supp. 2d 602, 637 (E.D. Va. 2006).
641. Id. at 637-39.
642. Id. at 633-34.
643. Id. at 634-41.
644. E.g., Blasi, supra note 14, at 521 (arguing that criminal prosecutions should be possible only if there is proof that the disclosure "in fact caused serious harm to the government's ability to implement a legitimate and authorized policy");
645. Melville B. Nimmer, National Security Secrets v. Free Speech: The Issues Left Undecided in the Ellsberg Case, 26 STAN. L. REV. 311, 331-32 (1974) (arguing that no criminal prosecution could stand unless '"serious injury' to the state can be proven to be both likely and imminent as a result of [the] public disclosure").
646. Stone, supra note 347, at 204.
647. In some cases, defendants may not have even attempted to consult with government officials about the potential harm that the disclosure of national security information could cause. Such a failure would also be probative, although not conclusive, evidence of the requisite intent.
648. See supra Part III.D.
649. Id.
650. 283 U.S. 697, 716 (1931).
651. It is worth noting that in Bartnicki, the Court did not distinguish between the individual who disclosed the tape he had received anonymously to radio stations and the radio stations who in turn disclosed the information to their listening public. Bartnicki v. Vopper, 532 U.S. 514, 525 n.8 (2001).
652. See Papandrea, supra note 216, at 523-32.
653. Some scholars have questioned whether the speaker's intent should be a relevant factor under the First Amendment. See, e.g., Larry Alexander, Free Speech and Speaker's Intent, 12 CONST. COMMENT. 21 (1995);
654. Frederick Schauer, Intentions, Conventions, and the First Amendment: The Case of Cross-Burning, 55 SUP. CT. REV. 197 (2004).
655. 395 U.S. 444, 447 (1969).
656. Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the Chilling Effect, 58 B.U. L. REV. 685, 724-25 (1978) (discussing intent requirement of Brandenburg test);
657. e.g., Cohen v. California, 403 U.S. 15, 18 (1971) (holding that Cohen's jacket stating "Fuck the Draft" could not constitute incitement because "there [was] no showing of an intent to incite disobedience to or disruption of the draft").
658. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942);
659. see also Kent Greenawalt, Insults and Epithets: Are They Protected Speech?, 42 RUTGERS L. REV. 287, 298 (1990) (arguing that fighting words that are not intended to provoke an immediate breach of the peace should be protected speech).
660. Cohen, 403 U.S. at 18;
661. see also id. at 20 (there was "no showing that anyone who saw Cohen was in fact violently aroused or that [Cohen] intended such a result").
662. 538 U.S. 343, 362-63 (2003). The Court made clear, however, that it is not necessary to demonstrate that the speaker intends to carry out the threat. Id. at 359-60.
663. 376 U.S. 254 (1964).
664. Id. at 270.
665. Id. at 279
666. (citing Speiser v. Randall, 357 U.S. 513, 526 (1958)).
667. Id. at 271-72
668. (citing NAACP v. Button, 371 U.S. 415, 433 (1963)).
669. Id. at 279-80.
670. Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989).
671. St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
672. Harte-Hanks, 491 U.S. at 666 n.7.
673. St. Amant, 390 U.S. at 732.
674. E.g., Edgar & Schmidt, supra note 220, at 934.
675. Id.
676. Although this is unlikely in the cunent day and age, during World War II the Chicago Tribune revealed that the U.S. government had broken the Japanese code, but the Japanese apparently never read the article. LLOYD WENDT, CHICAGO TRIBUNE: THE RISE OF A GREAT AMERICAN NEWSPAPER 627-36 (Rand McNally & Co. 1979).
677. Scott Pelley, Reporting National Security Under Threat of Indictment, 2006 Annual Dinner Media Law Resource Center at 22.
678. Stone, supra note 347, at 205 n.65.
679. Gewirtz, supra note 444, at 148.
680. 128 F.3d 233 (4th Cir. 1997).
681. Id. at 239.
682. Id.
683. Id. at 241.
684. Id. at 242.
685. Id. at 252.
686. 5 U.S.C. § 552 (2000).
687. See supra text accompanying note 331.