I’ve been putting off weighing in on the WikiLeaks release of thousands of embassy dispatches, casting about for a way to rationalize the absolutely necessary freedom of speech and press against the legitimate guard against potential physical danger to those who provide information to our nation confidentially.
I should have known Geoffrey Stone, the constitutional scholar I heard speak at UNLV’s Boyd Law School and who signed my copy of his book “Perilous Times,” would have a cogent explanation.
Writing in The New York Times, Stone cuts to the chase as to the recently introduced Shield Law amendment of the Espionage Act of 1917 that would make it a crime to disseminate classified information about U.S. intelligence activities.
“Although this proposed law may be constitutional as applied to government employees who unlawfully leak such material to people who are unauthorized to receive it, it would plainly violate the First Amendment to punish anyone who might publish or otherwise circulate the information after it has been leaked,” Stone writes. “At the very least, the act must be expressly limited to situations in which the spread of the classified information poses a clear and imminent danger of grave harm to the nation.
“The clear and present danger standard has been a central element of our First Amendment jurisprudence ever since Justice Oliver Wendell Holmes Jr.’s 1919 opinion in Schenck v. United States. In the 90 years since, the precise meaning of ‘clear and present danger’ has evolved, but the animating principle was stated brilliantly by Justice Louis D. Brandeis in his 1927 concurring opinion in Whitney v. California. The founders ‘did not exalt order at the cost of liberty,’ wrote Brandeis; on the contrary, they understood that ‘only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such … is the command of the Constitution. It is, therefore, always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.’”
So far, the WikiLeaks documents have proven embarrassing, but hardly signify an emergency.
Stone goes on to note that the First Amendment merely bars Congress from abridging free speech, it does not require transparency. It does not protect leakers who are a part of the government, subject to its rules. They may be punished for breaking the rules.
But recipients of leaks are under no restraints, unless a clear and present danger can be demonstrated. He compares this to an attorney who violates attorney-client privilege. The lawyer can be punished for breaking the rules, but not the newspaper that publishes the information.
Though Holmes set an impossibly low bar in Schenck, saying that arguing the draft violated the 13th Amendment was tantamount to falsely shouting fire in a theater, Stone says the Supreme Court raised the bar in its 2001 decision in Bartnicki v. Vopper. That ruling held that those who got information from a source who obtained it unlawfully may not be punished for disseminating the information “absent a need … of the highest order.”
Stone, a professor of law at the University of Chicago and the chairman of the board of the American Constitution Society, concludes, “The answer is thus to reconcile the irreconcilable values of secrecy and accountability by guaranteeing both a strong authority of the government to prohibit leaks and an expansive right of others to disseminate information to the public.”
The chapter on Schenck and the following ones about Holmes’ change of view under the influence of Learned Hand is worth the price of “Perilous Times.”
Here is a sample of Stone’s views on various justices and their contributions, including the aforementioned Holmes: