Top Secret: When Our Government Keeps Us in the Darkby Geoffrey R. Stone
Since September 11, 2001, the United States has investigated and prosecuted public employees, journalists, and the press for the dissemination of classified information relating to the national security. What is the cause of the recent tension between the government and the press? Perhaps the media are pressing more aggressively to pierce the government's shield of
Since September 11, 2001, the United States has investigated and prosecuted public employees, journalists, and the press for the dissemination of classified information relating to the national security. What is the cause of the recent tension between the government and the press? Perhaps the media are pressing more aggressively to pierce the government's shield of secrecy. Perhaps the government is pressing more aggressively to expand its shield of secrecy. Perhaps both factors are at work. Top Secret explores not why this is happening, but whether the measures taken and suggested by the executive branch to prevent and punish the public disclosure of classified information are consistent with the First Amendment. This book, the first in the Free Expression in America series, addresses four critical issues: a public employee's right to disclose classified information to a journalist, the government's right to punish the press for publishing classified information, the government's right to punish a journalist for soliciting such information, and a journalist's right to keep his sources anonymous.
The Washington Post
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When Our Government Keeps Us in the Dark
By Geoffrey R. Stone Rowman & Littlefield Publishing Group
Copyright © 2007
Geoffrey R. Stone
All right reserved.
Chapter One Government Employees
I BEGIN with individuals who are not government employees. In what circumstances may such persons be held legally accountable for revealing information to a journalist for the purpose of publication? The answer to this question will enable us to establish a baseline definition of First Amendment rights. I will then inquire whether the rights of government employees are any different.
Freedom to Share Information
In general, an individual, who is not a government employee, has a broad First Amendment right to reveal information to a journalist for the purpose of publication. There are a few limitations, however.
First, the Supreme Court has long recognized that there are "certain well defined and narrowly limited classes of speech," such as false statements of fact, obscenity, and threats, that "are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Because such categories of speech have "low" First Amendment value, they may be restricted without satisfying the usual demands of the First Amendment.
For example, if X makes a knowingly false and defamatorystatement about Y to a journalist, with the understanding that the journalist will publish the information, X might be liable to Y for the tort of defamation. Or, if X reveals to a reporter that Y was raped, with the expectation that the reporter will publish the information, X might be liable to Y for invasion of privacy. The public disclosure of Y's identity, unlike the fact of the rape, might be thought to be of such slight value to public debate that it can be prohibited in order to protect Y's privacy.
Second, private individuals sometimes voluntarily contract with other private individuals to limit their speech. Violation of such a private agreement might be actionable as a breach of contract. For example, if X takes a job as a salesman and agrees as a condition of employment not to disclose his employer's customer list to competitors, he might be liable for breach of contract if he reveals the list to a reporter for a trade journal with the expectation that the journal will publish the list. Or, if Y accepts employment as a chemist and agrees not to disclose her company's trade secrets, she might be liable for breach of contract if she reveals the information to a journalist. In these circumstances, the individual has voluntarily agreed to limit what otherwise would be a First Amendment right. Such privately negotiated waivers of constitutional rights are usually enforceable.
Third, there might be situations, however rare, in which an individual discloses previously nonpublic information to a journalist in circumstances in which publication of the information would be so dangerous to society that the individual might be punished for disclosing it to the journalist. For example, suppose a scientist discovers how to produce the ebola virus from ordinary household materials. The harm caused by the public dissemination of that information might be so likely, imminent, and grave that the scientist could be punished for facilitating its publication.
These examples illustrate the few circumstances in which an individual might be held legally responsible for disclosing information to a journalist for the purpose of publication. In general, however, the First Amendment accords individuals very broad freedom to share information with reporters for the purpose of publication.
Limitations on Public Employees' Speech
To what extent is a government employee in a similar position? When we ask about the First Amendment rights of public employees, we must focus on the second of the three situations examined above. It is the waiver-of-rights issue that poses the critical question. Although the first and third situations are relevant in the public employee context, it is the waiver issue that is at the core of the matter.
At first blush, it might seem that, whatever might be the case with private employers, the government cannot constitutionally insist that individuals surrender their First Amendment rights as a condition of public employment. Surely, it would be unconstitutional, for example, for the government to require individuals to agree as a condition of employment that they will never criticize the president, practice the Muslim faith, or assert their constitutional right to be free from unreasonable searches and seizures. It would be no answer for the government to point out that the individuals had voluntarily agreed not to criticize the president, practice their faith, or assert their Fourth Amendment rights, for even if individuals consent to surrender their constitutional rights in order to obtain a government job, the government cannot constitutionally condition employment on the waiver of those rights. As the Supreme Court has long held, "unconstitutional conditions" on public employment violate the Constitution. The government cannot legitimately use its leverage over jobs, welfare benefits, driver's licenses, tax deductions, zoning waivers, and the like to extract waivers of constitutional rights.
One might argue that because private employers can constitutionally extract concessions from their employees as a condition of employment, including waivers of what would otherwise be constitutional rights, the government should be able to do the same. There are three answers to this argument. First, the Constitution does not bind private employers. It binds only the government. Second, the government's scale and power are so vast that it can have a much more pervasive impact on individual freedom than private employers. Third, because government is not profit-driven, it is much more likely than private employers to sacrifice economic efficiency in order to achieve other, especially political, goals. The government, for example, is much more likely than private employers to refuse to hire people who do not support the party in power, thus leveraging government power for political advantage.
This does not mean, however, that the government may never require individuals to waive their constitutional rights as a condition of public employment. There are at least two circumstances, relevant to the issue under consideration, in which the government may restrict the First Amendment rights of its employees. First, as the Supreme Court noted in Pickering v. Board of Education, the government
has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees.
The government has a legitimate interest in running efficiently, and some restrictions of employee speech might be reasonably necessary to achieve that efficiency. The Hatch Act, for instance, prohibits public employees from taking an active part in political campaigns. The goal is to insulate public employees from undue political pressure and improper influence. To enable public employees to perform their jobs properly, the government may require them to waive what would otherwise be the First Amendment right to participate in partisan political activities.
Another illustration might involve a police officer who uses racist language in a street encounter. In such circumstances, the police department might reasonably conclude that the officer can no longer perform her job effectively or that her continued employment would seriously undermine the department's credibility with the community. As Pickering observed, it may be appropriate in such circumstances to "balance" the competing interests.
Similarly, a government employee's disclosure of confidential information to a journalist for the purpose of publication might jeopardize the government's ability to function effectively. For example, if an IRS employee gives a reporter X's confidential tax records, this might seriously impair the public's confidence in the tax system and thus undermine the government's capacity to function efficiently.
A second reason why the government may sometimes restrict what otherwise would be the First Amendment rights of public employees is that the employee learns the information only by virtue of his government employment. Arguably, it is one thing for the government to prohibit its employees from speaking in ways other citizens can speak, but something else entirely for it to prohibit them from speaking in ways other citizens cannot speak. If a public employee gains access to confidential information only because of his public employment, then prohibiting him from disclosing that information to anyone outside the government might be said not to restrict his First Amendment rights at all, because he had no right to know the information in the first place. The presence of this factor adds weight to the government's side of the Pickering balance.
There is little clear law on this question. In Snepp v. United States, however, the Supreme Court held that a former employee of the CIA could constitutionally be held to his agreement not to publish "any information or material relating to the Agency, its activities or intelligence activities generally, either during or after the term of [his] employment, [without] specific prior approval by the Agency." The Court did not suggest that every government employee can be required to abide by such a rule. Rather, it emphasized that a "former intelligence agent's publication of ... material relating to intelligence activities can be detrimental to vital national interests."
In light of Snepp and Pickering, it seems reasonable to assume that a public employee who discloses classified information relating to the national security to a journalist for the purpose of publication has violated his position of trust and ordinarily may be discharged and/or criminally punished without violating the First Amendment.
It is important to note that this conclusion is specific to public employees. It does not govern those who are not public employees. 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. The analogy is to the private employee who agrees not to disclose his employer's customer lists. Although he might be liable for breach of contract, the journalist to whom he discloses the list and the trade journal that publishes it are not liable to the employer.
Moreover, as the Court recognized in Pickering, the government has greater (though not unlimited) need to restrict the speech of its employees than to restrict the speech of individuals generally. This is because the government's interests in regulating the speech of its employees are different from its interests in regulating speech generally. The government cannot constitutionally punish individuals for making racist comments, but it can discipline a police officer who makes such comments on the job.
The distinction between public employees and other individuals is critical in the context of confidential information. Information the government wants to keep secret may be of great value to the public. The public disclosure of an individual's tax return may undermine the public's confidence in the tax system, but it may also reveal important information about a political candidate's finances. The conclusion that the government has a legitimate reason to prohibit its employees from disclosing such information does not reflect a judgment that the government's interest in confidentiality outweighs the public's interest in disclosure. Indeed, information about a political candidate's finances might be of fundamental significance to public debate. It would plainly be unconstitutional for the government to prohibit the dissemination of such information if it did not come from the government's own files.
In theory, of course, it would be possible for courts to decide in each instance whether an unauthorized disclosure of confidential information by a public employee is protected by the First Amendment because the value of the information to the public outweighs the government's need for secrecy. But such an approach would put courts in an extremely awkward position and would in effect convert the First Amendment into a constitutional Freedom of Information Act. The Supreme Court has sensibly eschewed that approach and granted the government considerable deference in deciding whether and when public employees may disclose confidential government information.
Disclosure of Classified Information
Such disclosures are not always punishable, however. In applying Pickering and Snepp, courts do not give the government carte blanche to insist on secrecy. The government's restrictions must be reasonable.
Returning to the problem of confidential information relating to the national security, I begin with classified information. The existing classification system authorizes public employees to classify any information the unauthorized disclosure of which could reasonably be expected to harm the national security. Access to such information is restricted to individuals with an appropriate security clearance. A government employee may not disclose such information to any person who is not authorized to know it.
The classification system is a highly imperfect guide to the need for confidentiality. The concept "reasonably be expected to harm the national security" is inherently vague and plastic. It is impossible to know from this standard how likely, imminent, or grave the potential harm must actually be. Moreover, the classification process is poorly designed and sloppily implemented. Predictably, the government tends to overclassify information. An employee charged with the task of classifying information inevitably will err on the side of over- rather than underclassification. No employee wants to be responsible for underclassification. In addition, we know from experience that public officials have often abused the classification system to hide from public scrutiny their own misjudgments, incompetence, and venality.
Despite these very real concerns, there is good reason to have clear, simple, and easily administered rules to guide public employees. Hence, a government employee ordinarily can be disciplined, discharged, or prosecuted for knowingly disclosing classified information to a journalist for the purpose of publication.
Requirements for Punishing Disclosure
Are there any circumstances in which a public employee has a First Amendment right to disclose classified information to a journalist for the purpose of publication? Courts have recognized two conditions that must be satisfied in order for the government to criminally punish the employee. First, the government must prove that the disclosure would be "potentially damaging to the United States." Although this judgment is implicit in the very fact of classification, the fact of classification is not conclusive. Because the classification process is imperfect, the courts require independent proof of at least potential harm to the national security.
Second, the government must prove that it has attempted to keep the information secret and that the information was in fact secret before the employee's disclosure. As Judge Learned Hand noted more than sixty years ago, "it is obviously lawful" for a public employee to reveal information that the government has not withheld from the public. The government must prove that the information was "closely held" and "not available to the general public" prior to the disclosure.
Thus, to prosecute a public employee for disclosing classified information to a reporter, the government must prove that the information was not already in the public domain and that the disclosure was potentially damaging to the national security.
This is a far cry from requiring the government to prove that the employee knew the disclosure would create a likely and imminent danger of grave harm to the nation (the standard suggested earlier in the ebola example). The gap between these two standards represents the difference between the rights of ordinary individuals and the rights of public employees. This gap represents what the public employee surrenders as a condition of his employment; it is the effect of Pickering balancing; and it is a measure of the deference we grant to government in the management of its "internal" affairs.
Excerpted from Top Secret by Geoffrey R. Stone Copyright © 2007 by Geoffrey R. Stone. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author
Geoffrey R. Stone is Harry Kalven, Jr. Distinguished Service Professor of Law and former dean at the University of Chicago Law School. His recent book, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism(2004), received the Robert F. Kennedy Book Award for 2005, the Los Angeles Times Book Prize for 2004 as the Best Book in History, and was chosen as one of The New York Times "100 Notable Books of the Year" in 2004.
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