Freedom of the Whistleblowers: Why Prosecuting Government Leakers Under the Espionage Act Raises First Amendment Concerns

Catherine Taylor
Catherine Taylor earned her J.D from Chicago-Kent College of Law in 2017 and she is currently licensed to practice law in Illinois. Catherine thanks her friends and family for helping her in the writing process. She thanks Professor Steven Heyman for his guidance on her first few drafts. The views expressed in this article do not reflect the views of her employer.

Introduction

In 2013, an employee of a defense contractor at the National Security Agency (“NSA”) provided journalists with top-secret agency documents.1 This led to revelations about widespread Internet and phone surveillance by the NSA of both domestic and foreign targets, including tens of millions of Americans and thirty-five world leaders.2 On June 5, 2013, The Guardian published the first article based on these leaks.3 The Guardian, as well as The Washington Post, would go on to win the 2014 Pulitzer Prize for Public Service for their reporting on this surveillance.4 In describing why The Guardian won, the Pulitzer Prize website states, “For its revelation of widespread secret surveillance by the National Security Agency, helping through aggressive reporting to spark a debate about the relationship between the government and the public over issues of security and privacy.”5 The government employee, on the other hand, would not meet with such praise. Federal prosecutors filed a criminal complaint against Edward Snowden.6 He was charged with three felonies, including two under the Espionage Act of 1917.7 One charge specifically fell under § 793(d) of the Act, which states:8

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, pho­tograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense 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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it. . . Shall be fined under this title or imprisoned not more than ten years, or both (emphasis added).9

Section 793(e) of the Act also contains a provision pertaining to individuals having unauthorized possession of the documents set out above, and its text almost perfectly mirrors the language of § 793(d).10 So, since the government brought charges against Edward Snowden under § 793(d), is it fair to say that the government may also bring charges against Pulitzer-Prize winning newspaper The Guardian, or its journalists and editors, under § 793(e) of the Act? After all, The Guardian had unauthorized possession of documents that, according to the government, related to national defense.

While the Supreme Court has never concluded whether applying § 793(e) to the press would violate the First Amendment, a member of the press has still never successfully been prosecuted for publishing classified government information. This is likely because (1) national security has never genuinely been at a serious risk, as required under the Act, and (2) there are strong policy reasons for safeguarding the press from such charges. A free press plays a vital role in our democracy, and convicting the press under the Espionage Act could potentially chill speech critical to public discourse. Convicting a government employee who discloses classified, national security information to the press raises these same First Amendment concerns. Consequently, such a person ought to be protected from prosecution.

Part I of this article will analyze the relationship between the First Amend­ment and the press, particularly with respect to the press’s publication of national security information. It will first seek to define the press, before analyzing case law involving the publication of a source’s unlawfully obtained information. It will then consider why the press has never been prosecuted under the Espionage Act. Part II will discuss the relationship between the First Amendment and whistleblowers within the context of national secu­rity. Like Part I, it will begin by defining the term “whistleblower” before analyzing relevant case law. This part will conclude by considering possible protections for whistleblowers. Part III will compare any identified First Amendment protections of the press to those of whistleblowers, and finally, this article will argue that Congress should pass legislation to protect the rights of whistleblowers who, under certain circumstances, leak classified national security information to the press.

1. The First Amendment and the press

In order to make a proper comparison between the First Amendment pro­tections of the press and First Amendment protections of whistleblowers, it is important to understand what the press actually is. Black’s Law Dictionary defines “press” as “[t]he news media; print and broadcast news organiza­tions collectively.”11 T herefore, t he p ress m ay i nclude newspapers, b ooks, magazines, and even television networks.12 A lthough t he S upreme C ourt has never decided whether a particular litigant was part of the “press,” “[t]he Court on other occasions has mentioned ‘publishers and broadcasters,’ ‘the media,’ ‘editorial judgment,’ ‘editorial control,’ ‘journalistic discretion,’ and ‘newsgathering’ as possible objects of protection.”13

The definition of “the press” has evolved greatly over time, and due to advancements in technology and changes in the media industry, it continues to evolve.14 Scholars have often looked to a functional definition, defining members of the press by analyzing what that potential member does rather than looking at who that potential member is.15 For example, some argue that journalism identifies the proper function of the press, a point which the Supreme Court has seemingly endorsed.16 Looking at dictionary definitions, Merriam-Webster provides an unhelpful and circular definition, defining a “journalist” as “a person engaged in journalism.”17 Likewise, “journalism” is defined as “the collection and editing of news for presentation through the media.”18 It is a daunting task to thoroughly define the “press,” and some have argued for a narrow definition.19 Nevertheless, the general purpose of the press is to provide information to the public, and courts have treated traditional newspapers, like The Washington Post, as undisputed parts of the press.20

1. The press and national security

Under the First Amendment, neither freedom of speech nor freedom of the press is absolute; “[f]reedom of speech thus does not comprehend the right to speak on any subject at any time.”21 The Supreme Court has explained that the First Amendment does not protect (1) language intended to incite, provoke, and encourage resistance to the United States in times of war,22 or (2) language that incites or produces imminent lawless action.23 Moreover, under the First Amendment, the press does not have a constitutional right of special access to information not available to the public generally.24 Importantly, the Supreme Court has also contended that, in the interest of securing news or otherwise, the First Amendment does not confer “a license on either the reporter or his news sources to violate valid criminal laws.”25 As stated by the Court, “[a]lthough stealing documents or private wiretapping could provide news­worthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.”26

While the Supreme Court has never actually held that the United States could prosecute the press for publishing classified information relating to national security, it considered the question in New York Times Co. v. United States.27

1. New York Times Co. v. U.S. and its concurring opinions

In this case, the government sought to enjoin The New York Times and The Washington Post from publishing the contents of a classified study.28 In a short per curiam opinion, the Supreme Court held that the government had not met its burden of showing justification for imposing a prior restraint of expression.29 The Justices on the Court were split in their analyses, with Justices Black, Brennan, Douglas, Stewart, White, and Marshall each filing separate concurring opinions, and Chief Justice Burger and Justices Harlan and Blackmun each filing separate dissenting opinions.30 I n t heir v arious opinions, a few Justices considered whether the government could punish the publication of information that had been obtained unlawfully, specifically questioning whether the government could charge the press under § 793(e) of the Espionage Act.31

It is important to highlight that there are two main issues involving the application of § 793(e) to the press: a statutory issue and a constitutional one. The former involves looking to the language of § 793(e) and the legislative history of the Act as a whole, and asking whether or not § 793(e) could apply to the press.32 If it can apply, the second question deals with the constitu­tional issue: does the application of this provision to the press violate the First Amendment? For the purposes of this article, I will largely focus on the constitutional arguments presented by the Justices, and thereby assume that the answer to the first question is yes.

In his concurring opinion, Justice Black, joined by Justice Douglas, took the strongest stance in favor of First Amendment protection.33 According to Justice Black, “every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.”34 Black wrote that enjoining the publication of news “would make a shambles of the First Amendment.”35

To support his opinion, Justice Black cited the origin story of the Bill of Rights.36 Black noted that, before the enactment of the Bill of Rights, James Madison proposed what became the First Amendment in three parts, one of which stated: “[t]he people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”37 According to Justice Black, the Bill of Rights “changed the original Constitution into a new charter under which no branch of government could abridge the people’s freedoms of press, speech, religion, and assembly.”38

In response to the argument that the general powers of the government de­lineated in the original Constitution could be interpreted to limit guarantees in the Bill of Rights, Justice Black responded, “I can imagine no greater perver­sion of history.”39 He argued that the history and text of the First Amendment demonstrate that the press “must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.”40 Justice Black argued that, through the First Amendment, the framers of the First Amend­ment gave protection to the press in order for it to fulfill its vital democratic role—“to serve the governed, not the governors.”41 “The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people.”42 Justice Black believed that The New York Times and The Washington Post should “be commended” for serving this purpose.43

Justice Black also disagreed with the notion that Congress could make laws enjoining publication of current news in the name of “national security.”44 According to him, holding that the President has “inherent power” to halt the publication of news would “wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make ‘secure.’”45 Justice Black further stated that the term “national security” is broad and vague and “[t]he guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”46

Although he joined in Justice Black’s opinion, Justice Douglas wrote separately as well.47 Douglas stated that there was “no room for governmen­tal restraint on the press.”48 In his opinion, he concluded that § 793(e) of the Espionage Act could not apply to the press 49 and asserted that “[s]ecrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions there should be ‘uninhibited, robust, and wide-open’ debate.”50

Justice Brennan also wrote separately to emphasize that “the First Amend­ment stands as an absolute bar to the imposition of judicial restraints in circumstances of the kind presented by these cases.”51 He explained that Court precedent shows that there is a “single, extremely narrow class of cases” in which the ban on prior judicial restraint may be overcome, and those cases occur only when the Nation is at war.52 Justice Brennan asserted that the government presented no evidence suggesting that the publications would cause an event like the “nuclear holocaust.”53 “Thus,” he wrote, “only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order.”54

In sum, the opinions of Justices Black, Douglas, and Brennan indicate that there is a constitutional problem in applying § 793(e) to the press. The opinions of Chief Justice Burger and Justices White, Stewart, and Blackmun, on the other hand, suggest the contrary.

Justice White wrote that newspapers would not necessarily be immune from criminal action, regardless of whether a ban on the publication of sensitive documents was terminated.55 He noted that the government could have suc­cessfully proceeded another way, arguing that during the enactment of the Espionage Act, some members of Congress had “little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing infor­mation of the type Congress had itself determined should not be revealed.”56 Justice White stated that the Criminal Code contained many provisions rel­evant to the present situation (e.g., § 797, which makes it a crime to publish certain photos or drawings of military installations), and “the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish.”57 He expressed that he would have “no difficulty” in sustaining convictions.58 Likewise, Justice White was open to the possibility of prosecuting members of the press under § 793(e), highlighting the broad definition of “national defense.”59

In a related opinion, Justice Stewart asserted that

[i]n the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry—in an informed and critical public opinion which alone can here protect the values of democratic government.60

Because of this, Justice Stewart argued, “a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people.”61 That being said, Justice Stewart noted that an effective national defense requires confidentiality, and frequently, absolute secrecy.62 Importantly, he joined Justice White’s opinion.63

Chief Justice Burger and Justice Blackmun also agreed with Justice White’s opinion “with respect to penal sanctions concerning communication or retention of documents or information relating to the national defense.”64 Therefore, four Justices implied that the application of § 793(e) to the press would pass constitutional muster. It’s worth mentioning that Justice Marshall considered § 793(e), but his opinion remained arguably neutral, meaning he did not take a definitive stance in either direction.65 Likewise, Justice Harlan remained silent on the issue.66 Therefore, the majority of the Court left open the possibility that newspapers could be prosecuted under the Espionage Act.

2. Additional case law

Although the Supreme Court left open the question of whether the govern­ment could prosecute the press for publishing unlawfully obtained classified government information, the Court has ruled that when information is law­fully obtained, the state may not punish the publication of that information unless necessary to further a substantial interest.67

In Smith v. Daily Mail Publishing Co., the Court reviewed a West Virginia statute making it a crime for a newspaper to publish, without the written approval of the juvenile court, the name of any youth charged as a juvenile offender.68 Through talking to witnesses, the police, and an assistant pros­ecuting attorney, the respondent newspapers obtained the name of a juvenile alleged to have shot a classmate, which the papers eventually published in their articles.69 The respondents alleged that the statute violated the First and Fourteenth Amendments of the U.S. Constitution as well as the State’s Con­stitution.70 They argued that, since the statute requires court approval prior to publication, it was a “prior restraint” on speech; therefore, it bore “a ‘heavy presumption’ against its constitutional validity” which the State’s interest in the anonymity of a juvenile offender could not overcome.71 The petitioners, the prosecuting attorney, and the Circuit Judges of Kanawha County, West Virginia, did not dispute that the statute operated as a prior restraint, but instead argued that the law was still constitutional because of a great state interest in protecting the identity of juveniles.72

The Court first asserted, “[w]hether we view the statute as a prior restraint or as a penal sanction for publishing lawfully obtained, truthful information is not dispositive because even the latter action requires the highest form of state interest to sustain its validity.”73 The Court ultimately concluded that it did not have to decide whether the statute operated as a prior restraint since the statute could not satisfy the constitutional standards defined in Landmark Communications, Inc.74

Next, the Court contended that “[a] free press cannot be made to rely solely upon the sufferance of government to supply it with information,” and held “[i]f the information is lawfully obtained, as it was here, the state may not punish its publication except when necessary to further an interest more substantial than is present here.”75 “Our recent decisions demonstrate that state action to punish the publication of truthful information seldom can satisfy constitutional standards.”76 Noting that its holding was narrow, the Court determined that (1) the State’s interest in the statute was insufficient to criminalize the newspapers’ conduct, and (2) the statute did not accomplish its stated purpose because it did not restrict electronic media.77 Ultimately, the Court held that the West Virginia statute abridged freedom of the press.78

Although not in the context of classified government documents affect­ing national security, the Supreme Court has also protected the press’s right to publish unlawfully obtained i nformation, so long a s t he press obtained the information lawfully.79 In Bartnicki v. Vopper, the Court held that “the repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue” was protected.80 At issue in the case was a conversation between a teacher’s union chief negotiator and the union’s president regarding contentious collective-bargaining negotiations between the union and school board, which had been intercepted and recorded by an unknown individual.81 The tape of the conversation was then put in the mailbox of the head of a local taxpayers’ association, who sent it to a radio host, and other members of the media.82 After the parties settled the dispute, a radio host played the call on his talk show and soon after, another station broadcasted the tape.83

The respondents, the radio host, and the head of a local taxpayers’ or­ganization, were criminally charged under 18 U.S.C. § 2511(1)(c), and its Pennsylvania counterpart, which makes it an offense for any person to in­tentionally disclose to another “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.”84 Because the interception was intentional, and therefore unlawful—a fact the respondents “had a reason to know”—the disclosure of the conversation violated the statutes; however, the question as to whether the application of the statutes violated the First Amendment still remained.85

The Supreme Court first noted that the respondents played no part in the illegal interception of the conversation, nor did they learn the identity of the person who taped it.86 The Court also noted that the respondents obtained access to the tape lawfully and, importantly, the subject matter of the con­versation was a matter of public concern.87 The Court further explained that (1) enforcing the provision implicated the core purposes of the First Amend­ment because it imposed sanctions on publishing truthful information of public concern, and (2) publishing matters of public importance outweighed individual privacy concerns.88 Finally, the Court concluded that the negotia­tions between the union and school board were “unquestionably a matter of public concern, and respondents were clearly engaged in debate about that concern.”89 Therefore, the Court held that the respondents’ conduct was worthy of constitutional protection.90

Lower courts have further considered the question posed in New York Times Co.91 In U.S. v. Rosen, the government charged the employees of the American Israel Public Affairs Committee (AIPAC), a pro-Israel lobbyist organization, with violating 18 U.S.C. § 793 of the Espionage Act for conspiring to transmit information relating to the national defense to those not entitled to receive it.92 The defendants included AIPAC’s Director of Foreign Policy Issues, who “was primarily engaged in lobbying officials of the executive branch with policy-making authority over issues of interest to AIPAC.”93 He did not have security clearance during the time of the alleged conspiracy.94 Another defendant was AIPAC’s Senior Middle East Analyst, and he had never held a security clearance.95 Yet another alleged co-conspirator worked on the Iran desk in the Office of the Secretary of the Department of Defense, and he held a top-secret security clearance.96

The indictment alleged that, in furtherance of their lobbying activities, the defendants fostered relationships with government officials who had access to sensitive government information, which they ultimately obtained and transmitted to persons not otherwise entitled to receive it, such as members of the media and foreign government officials.97 For example, one of the de­fendants had allegedly told an unnamed foreign official that he had “picked up an extremely sensitive piece of intelligence” concerning terrorist activities in Central Asia, which he described as “codeword protected intelligence.”98 The defendant relayed this information to the official, and both parties continued the discussion a few weeks later.99 Moreover, the second defendant told the same official that he had obtained a “secret FBI, classified FBI report” relat­ing to the Khobar Towers bombing from three different sources, including a member of the United States government, and later told the foreign official that he had interested a member of the media in the report.100

About a year and a half later, the defendants met with a US government official who had access to classified information relating to U.S. strategy pertaining to a certain Middle Eastern country.101 After the meeting, one of the defendants allegedly conversed with a member of the media, where he disclosed classified information relating to the U.S. government’s delibera­tions on its strategy towards the Middle Eastern country.102 Over the next few years, defendants continued to procure and disclose classified information relating to national defense to AIPAC staff, foreign officials, and journal­ists.103 At one point, one of the defendants even created a document from the appendix of a U.S. draft internal policy document, which he faxed to another defendant’s AIPAC office.104

The defendants argued that § 793 (1) violated the Due Process Clause of the Fifth Amendment for being unconstitutionally vague, (2) abridged their First Amendment right to free speech and right to petition the government, and (3) was facially overbroad.105 The defendants also argued that the court should avoid constitutional questions by “interpreting the statute as apply­ing only to the transmission of tangible items, i.e., documents, tapes, discs, maps and the like.”106 In addressing the First Amendment arguments,107the District Court rejected the government’s proposed categorical rule that es­pionage statutes can never violate the First Amendment,108 stating: “[i]n the broadest terms, the conduct at issue—collecting information about United States’ foreign policy and discussing that information with government of­ficials (both United States and foreign), journalists, and other participants in the foreign policy establishment—is at the core of the First Amendment’s guarantees.”109 The court then concluded that the application of § 793 to individuals who, in an attempt to influence United States foreign policy, transfer the Government’s national defense secrets to those not entitled to receive them, still receives First Amendment scrutiny.110 “So, too, the mere invocation of ‘national security’ or ‘government secrecy’ does not foreclose a First Amendment inquiry.”111

To determine whether the government’s interest prevailed over the First Amendment, the court began with an assessment of the competing societal interests at stake.112 I n t he p resent c ase, t he d efendants w ere a ccused o f disclosing government information that could threaten the security of the nation, and it was “‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”113 The court delineated the difference between § 793(d) and § 793(e) and concluded that the former applied to individuals with access to information by virtue of their official position who “are often bound by contractual agreements whereby they agree not to disclose classified information.”114 Such individuals are in a position of trust with the government.115 On the other hand, § 793(e) applies to people “who have no employment or contractual relationship with the government, and therefore have not exploited a relationship of trust to obtain the national defense information they are charged with disclosing.”116

With respect to the first category, the court stated that the Constitution permits prosecution “for the disclosure of information relating to the national defense when that person knew that the information is the type which could be used to threaten the nation’s security, and that person acted in bad faith, i.e., with reason to believe the disclosure could harm the United States or aid a foreign government.”117 “Indeed, the relevant precedent teaches that the Constitution permits even more drastic restraints on the free speech rights of this class of persons.”118 The court contended that “government employees’ speech can be subjected to prior restraints where the government is seeking to protect its legitimate national security interests,” and “Congress may con­stitutionally subject to criminal prosecution anyone who exploits a position of trust to obtain and disclose NDI to one not entitled to receive it.”119

With respect to the second category, the court determined that “the gov­ernment can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.”120 Citing the opinions in New York Times Co., the court noted that punishing persons beyond governmental trust (i.e., persons in the second category) is constitutional, but only when national security is genuinely at risk.121 The court also cited the concurring opinions in U.S. v. Morison, a case that will be analyzed more thoroughly in Part II of this article. According to the District Court in Rosen, the Morison concurrences argued that juries in espionage cases should have an instruction limiting “information relating to the national defense” to information “potentially damaging to the United States or . . . useful to an enemy of the United States.”122 Without this limitation, the District Court posited, “the statute could be used to punish a newspaper for publishing a classified document that simply recounts official misconduct in awarding defense contracts.”123 Such a prosecution would violate the First Amendment.124 Therefore, the court concluded that (1) “information relating to the national defense, whether tangible or intangible, must necessarily be information which if disclosed, is potentially harmful to the United States, and the defendant must know that disclosure of the information is potentially harmful to the United States,”125 and (2) § 793(e) did not violate the defendants’ First Amendment rights.126 However, the court also suggested that Congress may need to thoroughly review and revise the provisions of the Espionage Act to reflect societal changes as well as “contemporary views about the appropri­ate balance between our nation’s security and our citizens’ ability to engage in public debate about the United States’ conduct in the society of nations.” 127

Although the court in Rosen considered the Speech Clause, as opposed to the Press Clause, which is examined in Part II of this article, it is worth noting here that the court considered both §§ 793(d) and (e) of the Espionage Act, the latter of which would apply to the press. Moreover, the court specifi­cally stated that a statute punishing a newspaper for publishing a classified document “simply recount[ing] official misconduct in awarding defense contracts” would violate the First Amendment.128 The court emphasized the importance of considering whether or not the disclosure of the national defense information would be harmful to the United States, which is instruc­tive for future cases.129

There is still no Supreme Court precedent directly answering the question of whether the government could prosecute the press for disclosing unlaw­fully obtained national security information, although Supreme Court and lower court case law seem to suggest that prosecution is possible. But, even if prosecution were permissible, courts have made it clear that the national security interest underlying such a case must be very strong, “since state action to punish the publication of truthful information seldom can satisfy constitutional standards.”130

It is also worth noting that, throughout these cases, there seems to be a reoc­curring theme of public discourse. Even Justice Stewart in New York Times Co., where he implied that prosecuting the press was possible, indicated that an informed and critical public opinion protects the values of a democratic government.131 Justice Stewart stated that a free press serves the basic purpose of the First Amendment, and without a free press, there cannot be enlightened people.132 This sentiment was continued in Smith and Bartnicki as well, where the Supreme Court reiterated the importance of free speech and a free press to the public.133 Rosen similarly balances societal interests with national se­curity, noting that even seemingly clear-cut cases deserve First Amendment scrutiny.134 Hence, the government remains reluctant to prosecute the press, and courts resist upholding convictions against journalists.

1. Why hasn’t the government prosecuted the press?

Although some court opinions suggest that the government can prosecute the press without violating the First Amendment, neither a journalist nor newspaper has ever been successfully prosecuted for the publication of clas­sified information. This is likely for two reasons: (1) national security has never been genuinely at risk,135 and (2) there are strong policy reasons for safeguarding the press. The right to publish is “central to the First Amend­ment and the basic existence of constitutional democracy:”

As private and public aggregations of power burgeon in size and the pres­sures for conformity necessarily mount, there is obviously a continuing need for an independent press to disseminate a robust variety of information and opinion through reportage, investigation, and criticism, if we are to preserve our constitutional tradition of maximizing freedom of choice by encouraging diversity of expression.136

Since a free press plays a vital and transparent role in American society, prosecuting a journalist or news organization could potentially leave the First Amendment in a state of shock, creating ambiguity in the law and, more importantly, chilling speech critical to public discourse. 137

The very idea of a free press, of course, is being challenged and may be legally redefined as a result of the Trump administration. During his Senate confirmation hearings, Attorney General Jeff Sessions responded to a question regarding “whether he would abide by current Justice Department regula­tions that make it difficult to subpoena or prosecute reporters, and whether he would pledge not to ‘put reporters in jail for doing their job,’” with a non-committal answer.138 He mentioned that while there is deference to the news media, the media “could be a mechanism through which unlawful intelligence is obtained.”139 In light of Sessions’s answer, the following questions arise:

(1) Does the First Amendment protect whistleblowers from prosecution under the Espionage Act when disclosing classified information relating to national security to the press, unless national security is at a genuine risk?

(2) Should the same, broad First Amendment arguments made to protect the press from prosecution be extended to whistleblowers whose disclosures serve the public interest?

1. Whistleblowers and the First Amendment

According to Black’s Law Dictionary, a “whistleblower” is “[a]n employee who reports employer wrongdoing to a governmental or law-enforcement agency.”140 A prior edition of Black’s defined a “whistle blower” as “[a]n em­ployee who refuses to engage in and/or reports illegal or wrongful activities of his employer or fellow employees,” which notably does not include the “to a government or law-enforcement agency” limitation.141

In the Whistleblower Protection Act (WPA) of 1989, a whistleblower is defined as an employee who “reasonably believes [government conduct] evidences (i) any violation of any law, rule, or regulation, or (ii) gross mis­management, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”142 Importantly, the protec­tions of the WPA do not extend to an employee whose disclosure is either (1) specifically prohibited by law, or (2) “specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.”143 Furthermore, qualifying as a whistleblower under the WPA does not necessarily safeguard a person from criminal prosecution.144 The WPA also excludes most intelligence agencies—such as the FBI, CIA, and NSA—from its protection.145 Additionally, “[t]o make a whistleblower claim under the WPA, a petitioner must first exhaust his administrative remedies and make a non-frivolous allegation of an adverse personnel action based on a protected disclosure.”146 Therefore, a government employee of the NSA who leaks classified national security information to the press would not be protected by the WPA and, more fundamentally, would not be categorized as a “whistleblower” under it.147

Because whistleblowers should receive expanded protection for certain disclosures of classified national security information under federal law, this article will rely on the colloquial usage of “whistleblower,” which defines the term more broadly. Thus, a whistleblower will refer to “an employee who makes a public disclosure of an employer’s or other employee’s corruption or wrongdoing.”148

1. Whistleblowers and national security

Whistleblowers are typically government employees, and the Supreme Court has ruled that “[w]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their commu­nications from employer discipline.”149

When working in an intelligence agency, government employees with access to classified information are in a high position of trust with the gov­ernment.150 In Snepp v. United States, Snepp published a book about certain CIA activities in South Vietnam based on his experiences as a CIA agent.151 Snepp did not submit the book to the agency for prepublication review, which was an express condition of his employment with the CIA.152 The government argued that this condition was an “integral part” of his “concurrent undertak­ing ‘not to disclose any classified information relating to the Agency without proper authorization.’”153 Snepp sought to prevent the CIA from enforcing the agreement, and he also argued that punitive damages were an inappropriate remedy for the breach of his promise to submit all writings about the agency for prepublication review.154

The Court first stated that Snepp’s employment “involved an extremely high degree of trust.”155 The first sentence of the signed agreement acknowledged this trust relationship, and after signing, Snepp was “assigned to various positions of trust” and had “frequent access to classified information, includ­ing information regarding intelligence sources and methods,” which served as the basis for his book.156 Moreover, since Snepp violated the employment agreement by not submitting his material for prepublication, “he exposed the classified information with which he had been entrusted.”157 In order to violate the employment agreement, the Court ruled that Snepp’s book did not have to contain classified information.158 R ather, it r uled t hat Snepp’s failure to submit his work for prepublication undermined the CIA’s ability to perform its statutory duties.159

Similarly, when an employee in a high position of trust with the government impedes American intelligence operations by stealing classified information and delivering it to the press, that employee may be prosecuted under the Espionage Act.160 In United States v. Morison, the defendant appealed his conviction, which included a conviction for violating two provisions of the Espionage Act based on his “unauthorized transmittal of certain satellite secured photographs of Soviet naval preparations to ‘one not entitled to re­ceive them’ (count 1) and the obtaining of unauthorized possession of secret intelligence reports and the retaining of them without delivering them to ‘one entitled to receive’ them (count 3).”161

In Morison, the defendant was employed at the Naval Intelligence Support Center at Suitland, Maryland.162 By the nature of his position, the defendant had been given a security clearance of “Top Secret–Sensitive Compartmented Information” and, in connection with his security clearance, had signed a Non–Disclosure Agreement.163 Prior to his criminal conduct, the defendant had been doing off-duty work for Jane’s Fighting Ships, “an annual English publication which provided current information on naval operations interna­tionally,” and began providing information to its affiliate publication, Jane’s Defence Weekly.164 His arrangement with Jane’s had been submitted to and approved by the Navy on condition that the defendant did not supply any classified information on the Navy or extract unclassified data on any subject and forward it to Jane’s.165

Despite the defendant’s agreement with the Navy, he began to correspond with the editor-in-chief of Jane’s regarding full-time employment and ulti­mately met with him.166 The editor-in-chief expressed interest in securing details on an explosion at a Naval Base, and the defendant responded that the explosion “was a much larger subject than even they had thought and there was a lot more behind it.”167 The defendant also said that he could provide material on the explosion if Jane’s was interested, and ultimately sent “about three typed pages of material background.”168 Soon thereafter, the defendant also sent “two other items on further explosions that had occurred at the site on different dates and also a mention of one particular explosion in East Germany.”169

After he sent the above materials, the defendant saw photographs—stamped “Secret” and with a “Warning Notice: Intelligence Sources or Methods In­volved” imprinted on the borders—on the desk of another employee in the vaulted area where the defendant worked.170 These photos depicted a Soviet aircraft carrier under construction in a Black Sea naval shipyard produced by a KH–11 reconnaissance satellite photographing machine.171 The defendant took the photos, removed any notices of confidentiality and secrecy, and mailed them to the editor-in-chief of Jane’s Defence Weekly, who published the photographs and made the pictures available to other news agencies.172

With respect to his convictions under § 793(d) and (e) of the Espionage Act, the defendant argued that these subsections should only apply to con­duct represented “in classic spying and espionage activity” by persons who transmitted “national security secrets to agents of foreign governments with intent to injure the United States.”173 He asserted that he did not engage in “classic spying” because he leaked the documents to the press, instead of transmitting them to a foreign government.174 The Fourth Circuit disagreed, concluding that a literal construction of the Espionage Act applied to the defendant’s conduct, and no exceptional conditions required it to depart from that construction.175 The court also concluded that the legislative history of the Espionage Act did not support the defendant’s construction.176

Importantly, the Fourth Circuit considered the legislative history in relation to the First Amendment and noted that it was silent as to whether Congress intended § 793(d) and (e) “to exempt from its application the transmittal of secret military information by a defendant to the press or a representative of the press.”177 The court also noted that there was “little or no discussion of the First Amendment in the legislative record directly relating to sections 793(d) and (e) in this connection.”178 In support of this conclusion, the court cited to Professor Rabban, who had concluded that the focus of First Amendment discussion during the enactment of the Espionage Act was

‘[a] provision of the bill that would have allowed the President to censor the press [which] dominated congressional discussion and was eventually elimi­nated by the conference committee’ but ‘[i]ronically, the section of the bill that ultimately provided the basis for most of the prosecutions [which included section 793(d), subsection (e) not being added until the 1950 revision] hardly received any attention’ in that discussion.179

Thus, there was “no evidence whatsoever” that “Congress intended to exempt from the coverage of § 793(d) national defense information by a governmental employee . . . simply because he transmitted it to a representative of the press.”180

Finally, the court noted that this was not a prior restraint case, but a case where a military intelligence employee had signed a letter of agreement with the Navy, purloined photos marked as “Secret” from Navy intelligence files, and “willfully” transmitted them to “one not entitled to receive it.”181 Thus, the court held that the First Amendment did not offer relief to the defendant merely because the transmittal was to a representative of the press.182 Ac­cording to the court:

[I]t seems beyond controversy that a recreant intelligence department employee who had abstracted from the government files secret intelligence information and had xf transmitted or given it to one “not entitled to receive it” as did the defendant in this case, is not entitled to invoke the First Amendment as a shield to immunize his act of thievery.” To permit the thief thus to misuse the Amend­ment would be to prostitute the salutary purposes of the First Amendment.183

Consequently, the court found that Congress could validly prohibit a government employee in possession of secret military intelligence material from transmitting that material to the press under the First Amendment.184

Notably, the court echoed the government’s argument that the defendant was not exposing corruption or wrongdoing, but was focused on transferring the photos for personal gain.185 The defendant, Morison, would likely disagree with that characterization.186 Nevertheless, the takeaway from Morison is that there is no protection for a government employee who discloses classified information to the press simply because the disclosure was made to the press. Moreover, while Morison was charged and successfully convicted, Jane’s Defence Weekly is still a running publication.187

1. The inadequacy of existing protections

As stated in Rosen, government employees are held in a position of trust and, therefore, the Constitution permits greater restraints on their free speech rights.188 This diminished protection under the First Amendment is likely why the government isn’t as shy about prosecuting government employees as it is the press. Between 1945 and 2014, the government used the Espionage Act eleven times to prosecute government workers who shared classified informa­tion with journalists.189 Seven of those prosecutions occurred under Barack Obama’s presidency, although two were inherited from President George W. Bush’s Department of Justice.190

Other administrations have used different tactics to penalize leakers, such as employing administrative sanctions and penalties.191 Due to personal privacy protections, these sanctions and penalties are difficult to track.192 Arguably, however, there is recourse for government employees seeking to report government wrongdoing. While the whistleblowers discussed in this paper are not protected under the Whistleblower Protection Act, employees may still find solace in President Obama’s Presidential Policy Directive 19 or the Intelligence Community Whistleblower Protection Act.193

Although his administration prosecuted more leakers than any other admin­istration, President Obama issued Presidential Policy Directive 19 (PPD-19) in 2012.194 He sought to protect intelligence community employees with ac­cess to classified information from retaliation for reporting waste, fraud, and abuse.195 However, as Edward Snowden argued, PPD-19 falls short because it may not apply to contractors.196 Section B of PPD-19 prohibits retaliation against whistleblowers by taking away the whistleblowing employee’s access to classified information.197 The word “employee” is not defined in the direc­tive, and Section A, which also seeks to protect whistleblowing employees, does not appear to cover contractors.198 Therefore, a contractor like Edward Snowden—who is not an employee—would not be protected.199 Moreover, presidential directives can be abolished without Congressional approval, rendering PPD-19 subject to nullification.200

Likewise, the Intelligence Community Whistleblower Protection Act (IC­WPA) of 1998 may not provide much protection to whistleblowers.201 ICWPA was designed to provide “a secure means for employees to report to Congress allegations regarding classified information.”202 However, ICWPA does not pro­tect employees from retaliation by their respective agencies.203 Under ICWPA, whistleblowing employees must report to their agency Inspector General (IG), who, upon finding that the allegations are credible, forwards the complaint to the agency head.204 The agency head then decides how to proceed.205 This is problematic when the allegation involves the employee’s superiors.206

Alternatively, if the IG does not find the employee’s complaint credible, the employee may submit the information to Congress.207 Because the Act doesn’t protect against retaliation, whistleblowers may be afraid to approach Congress.208 Further, there are a vast number of hurdles to overcome before alleging classified wrongdoing before Congress, and as indicated by Edward Snowden, officials might not take proper action to address the employee’s concerns.209 This is why whistleblowers feel the need to go to the press.210 For example, Thomas Drake, a senior executive at the NSA, followed every rule in the book when attempting to report waste and mismanagement at the NSA.211 Drake alerted his bosses, the NSA’s Inspector General, the Defense Department’s Inspector General, and the Congressional intelligence com­mittees about alleged illegal activities.212 After the government failed to take his complaints seriously, Drake eventually contacted The Baltimore Sun.213 He was indicted by a grand jury on several charges, including § 793(e) of the Espionage Act.214

In sum, whistleblowers can raise a First Amendment defense. However, because they are in positions of trust with the government, this defense ap­pears unlikely to succeed. In addition, the same zealous First Amendment arguments made by courts for protecting the press have not been made to the same degree for whistleblowers, even if the whistleblowers disclose informa­tion vital to public discourse. Adequate protection simply does not exist for whistleblowers under current federal laws.

III. The distinction between the press and whistleblowers

As demonstrated above, current precedent suggests that both the press and whistleblowers may be prosecuted under the Espionage Act for the publication and disclosure of classified, government documents relating to national secu­rity. While both the press and whistleblowers may use the First Amendment as a defense, the government and the courts are more reluctant to prosecute and convict the press because of potential First Amendment concerns. For example, prosecuting the press under the Espionage Act could chill the free press, an institution vital to our democracy. Furthermore, a free press “most vitally serves the basic purpose of the First Amendment,” and it keeps the electorate informed and engaged.215 Courts don’t seem to share these same apprehensions when applying the Espionage Act to government employees who disclose classified information to the press. Newspapers get Pulitzers, while whistleblowers face prison.

As noted above, this article relies on the colloquial definition of a whistle­blower, which is defined as an employee who publicly discloses an employer’s (or other employee’s) corruption or wrongdoing.216 A journalist is a person engaged in journalism, and journalism is the collection and editing of news for presentation through the media.217 But what is a whistleblower, if not someone who collects news (e.g., specific documents proving government corruption), for presentation through the media (e.g., a public disclosure)? It’s worth repeating that in his concurring opinion in New York Times Co., Justice Black emphasized that the framers of the First Amendment protected the press so that it could serve the governed, not the governors.218 He noted that the press was protected in order to “bare the secrets of government and inform the people.”219

Government employees who disclose classified information to the press in or­der to expose government corruption and wrongdoing serve a similar function. The reports by The Guardian and The Washington Post may have “spark[ed] a debate about the relationship between the government and the public over issues of security and privacy,” but if it weren’t for Edward Snowden, there would have been no report.220 Moreover, whistleblowers, to some extent, exercise journalistic discretion, by considering which issues are relevant to the public and ultimately deciding which documents to disclose to the press.221 While some may argue that changes in the NSA have not been drastic enough since Snowden’s disclosure, the government has taken steps to ensure more transpar­ency within the intelligence community. For example, in 2014, President Obama implemented Presidential Policy Directive 28, which required the intelligence community to implement “appropriate safeguards” for the personal informa­tion of people caught up in the surveillance efforts.222 For the first time, the personal information of non-citizens may only be kept by the government for five years unless there is a national security concern.223 Furthermore, Snowden disclosed that the NSA had monitored the phones of 35 world leaders, and since this disclosure some names have been removed from the list.224 Regardless of how one perceives the magnitude of these changes, or assigns Snowden credit for their implementation, there’s no doubt that Snowden’s disclosures had some impact on the public debate over surveillance.225

Whistleblowers inform the public, and as stated by Justice Stewart, an informed and critical public opinion protects the values of a democratic government.226 Since the right to publish is “central to the First Amendment and the basic existence of constitutional democracy,” surely, in certain cir­cumstances, there should be a right to provide the information to the press.227 “[I]f we are to preserve our constitutional tradition of maximizing freedom of choice by encouraging diversity of expression,” we need to ensure the protection of expression.228

Conclusion

As suggested by the court in Rosen, Congress may need to thoroughly re­view and revise the provisions of the Espionage Act to reflect societal changes as well as “contemporary views about the appropriate balance between our nation’s security and our citizens’ ability to engage in public debate about the United States’ conduct in the society of nations.”229 There are many actions Congress can take to reflect these changes and adequately provide a safety net for government employees who wish to expose corruption within their respective agencies.

First, § 793(d) of the Espionage Act could be interpreted to apply only to individuals acting in bad faith, i.e., where an employee discloses classified information with the purpose to harm the United States or aid a foreign government.230 Such an amendment might discourage future whistleblower prosecutions. Congress could also amend the ICWPA to protect whistleblow­ers from employer retaliation. This may encourage government employees to follow procedure rather than go to straight to the press. Finally, Congress could enact new legislation that sets out a balancing test for whistleblowers seeking to disclose information to the press. For example, if, after exhausting all internal avenues, a government employee were to disclose classified information to the press exposing corruption, wrongdoing, or similar issues of public concern, the employee should be protected from prosecution, provided the information does not put the United States at an imminent or serious national security risk—such as in wartime.231 This new legislation would protect a narrow class of whistleblowers seeking to promote transparency in the government and serve the American people, while still allowing for prosecution for the disclosure of information that puts the country at a genuine risk.

As evidenced by the 2014 Pulitzer Prizes, implied by case law, and shown by the prosecution of government employees, the First Amendment appears to protect the press more than its sources. Both the press and whistleblowers, as colloquially understood, play a central role in our democracy, and criminal­izing disclosures of certain classified information by either raises considerable First Amendment concerns. Consequently, both the press and whistleblowers deserve substantial protection from prosecution under the Espionage Act of 1917, and steps should be taken by Congress to ensure such protection.

__________________

NOTES

1. See Luke Harding, How Edward Snowden Went From Loyal NSA Contractor to Whistleblower, Guardian(Feb. 1, 2014, 6:00 AM), https://www.theguardian.com/ world/2014/feb/01/edward-snowden-intelligence-leak-nsa-contractor-extract; see also Edward Snowden: Leaks that Exposed US Spy Programme, BBC News (Jan. 17, 2014), http://www.bbc.com/news/world-us-canada-23123964.

2 See id.

3. See Verizon Forced to Hand Over Telephone Data—Full Court Ruling, Guardian(June 5, 2013, 11:40 PM), https://www.theguardian.com/world/interactive/2013/jun/06/ verizon-telephone-data-court-order.
4. See 2014 Pulitzer Prizes: Journalism, The Pulitzer Prizes, http://www.pulitzer.org/ prize-winners-by-year/2014 (last visited May 12, 2017).
5. Id.
6. Peter Finn & Sari Horwitz, U.S. Charges Snowden with Espionage, Wash. Post (June 21, 2013), https://www.washingtonpost.com/world/national-security/us-charges-snowden-with-espionage/2013/06/21/507497d8-dab1-11e2-a016-92547bf094cc_story. html?utm_term=.9255a0bcb58e.
7. Scott Shane, Ex-Contractor Is Charged in Leaks on N.S.A. Surveillance, N.Y. Times (June 21, 2013), http://www.nytimes.com/2013/06/22/us/snowden-espionage-act.html.
8. See Vanessa Dennis & Elizabeth Shell, 11 ‘Leakers’ Charged With Espionage, PBSNewshour (July 12, 2013), http://www.pbs.org/newshour/spc/multimedia/espionage/.
9. 18 U.S.C. § 793(d) (2016).
10. 18 U.S.C. § 793(e) (2016).
11. Black’s Law Dictionary (10th ed. 2014).
12. David A. Anderson, Freedom of the Press, 80 Tex. L. Rev. 429, 436 (2002) (referencing a 1974 speech by Justice Stewart).
13. Id.
14. See id. at 450-51 (“What history shows is that journalism has changed, conceptions of press have changed, and judicial (and perhaps popular) enthusiasm for protecting the press has waxed and waned. Whatever ‘press’ might mean today will necessarily be quite different from what it meant to the Framers, and probably from what it has meant at other times since then.”).
15. Sonja R. West, Awakening the Press Clause, 58 UCLAL. Rev. 1025, 1054 (2011).
    16. See Anderson, supra note 12, at 447-48 (“[E]ven an originalist might conclude that the Press Clause should be interpreted to protect whatever constitutionally important function the eighteenth-century press served, and they might conclude that today that function is served by journalism. That seems to be what the Supreme Court has done.”). However, Anderson highlights the potential issues with defining “press” as journalism by function. Id. at 446-82. “The issue here is not whether history proves that press means journalism, but whether journalism might provide a satisfactory—if changing—conception of press. It can do so only if journalism can be distinguished from other types of information busi­nesses.” Id. at 451.
16. Journalist, Merriam-Webster, https://www.merriam-webster.com/dictionary/journalist (last visited May 12, 2017).
17. Journalism, Merriam-Webster, https://www.merriam-webster.com/dictionary/journalism (last visited May 12, 2017).
18. See West, supra note 15, at 1056.
19. See, e.g., Mills v. Alabama, 384 U.S. 214 (1966) (holding that a state law interpreted to criminally punish an editor for the publication of a newspaper editorial that urged people to vote a particular way on election day violated freedom of the press). “The Alabama Corrupt Practices Act by providing criminal penalties for publishing editorials such as the one here silences the press at a time when it can be most effective. It is difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press.” Id. at 219; see also Anderson, supra note 12, at 436 (“The cases in which the [Supreme] Court seems to rely on the Press Clause have involved newspapers or magazines whose status as press was unquestioned.”); but see id. at 441 (discussing media convergence and stating newspapers may no longer be a “self-contained species of press”). Anderson also notes that while independence is paramount to journalism, various factors, such as financial demands, audience interests, influence of advertisers, and editors’ self-interests, may affect journalistic independence of traditional newspapers. See id. at 453-66.
20. Am. Commc’ns Assn. v. Douds, 339 U.S. 382, 394 (1950).
21. See Abrams v. United States, 250 U.S. 616 (1919).
22. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”).
23. See Branzburg v. Hayes, 408 U.S. 665, 684 (1972) (holding that it is neither a violation of free speech nor free press to require a newsman to appear and testify before a grand jury). “If there is no First Amendment privilege to refuse to answer the relevant and material questions asked during a good-faith grand jury investigation, then it is a fortiori true that there is no privilege to refuse to appear before such a grand jury until the Government demonstrates some ‘compelling need’ for a newsman’s testimony.” Id. at 708. The First Amendment does not protect citizens from disclosing information that they received in confidence to a grand jury. Id. at 682.
24. Id. at 691.
25. Id.; see id. at 691-92 (“The [First] Amendment does not reach so far as to override the interest of the public in ensuring that neither reporter nor source is invading the rights of other citizens through reprehensible conduct forbidden to all other persons.”).
26. New York Times Co. v. United States, 403 U.S. 713 (1971).
27. Id. at 714.
28. Id.
29. Id. at 714–63.
30. See id. at 733–40.
31. See id. at 721 (“Thus, it is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act.”).
32. See id. at 714–20.
33. New York Times Co., 403 U.S. at 715.
34. Id.
35. See id.
36. Id. at 716 (citing 1 Annals of Cong. 434).
37. Id.
38. Id.
39. Id. at 717.
40. New York Times Co., 403 U.S. at 717.
41. Id.
42. Id.
43. Id. at 718.
44. Id. at 719.
45. Id.
46. See New York Times Co., 403 U.S. at 720.
47. Id.
48. Id. at 721–22.
49. Id. at 724.
50. Id. at 725.
51. Id. at 726.
52. New York Times Co., 403 U.S. at 726.
53. Id. at 726–27.
54. See id. at 733.
55. Id. at 734.
56. Id. at 735-36.
57. Id. at 737.
58. New York Times Co., 403 U.S. at 737–40 (citing Gorin v. United States, 312 U.S. 19 (1941) and stating that national defense information is “obviously not limited to that threatening ‘grave and irreparable’ injury to the United States” Id. at 740.).
59. Id. at 728.
60. Id.
61. See id.
62. See id. at 730.
63. New York Times Co., 403 U.S. at 752.
64. Id. at 745.
65. See id. at 752–59.
66. Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 104 (1979).
67. Id. at 98-99.
68. Id. at 99.
69. Id. at 100.
70. Id. at 100-01.
71. Id.
72. Smith, 443 U.S.. at 101-02.
73. Id. at 102. In Landmark, the Court considered whether the state interests served by the confidentiality of Virginia Judicial Inquiry and Review Commission proceedings were “sufficient to justify the encroachment on First Amendment guarantees,” where the statute in question imposed criminal sanctions on the defendant for publishing an article that 1) reported on a pending inquiry by the Virginia Judicial Inquiry and Review Commission and 2) identified the state judge whose conduct was being investigated. 435 U.S. 829, 841-42 (1978). The Court stated, “neither the Commonwealth’s interest in protecting the reputation of its judges, nor its interest in maintaining the institutional integrity of its courts is sufficient to justify the subsequent punishment of speech at issue here, even on the assumption that criminal sanctions do in fact enhance the guarantee of confidentiality.” Id. at 841. “[T]he publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth’s interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom.” Id. at 838.
74. Smith, 443 U.S. at 102-04 (quoting Landmark, 435 U.S. at 838, Cox Broad. Corp. v. Cohn, 420 U.S. 469, 495 (1975) and Oklahoma Publ’g Co. v. District Court, 430 U.S. 308, 355 (1977)).
75. Id. at 102.
76. Id. at 104–05.
77. Id. at 106.
78. Bartnicki v. Vopper, 532 U.S. 514 (2001).
79. Id. at 517–18.
80. Id. at 518.
81. Id. at 519
82. Id.
83. Id. at at 525; 18 U.S.C. § 2511(1)(c).
84. Bartnicki, 532 U.S. at 525. It should be noted that this case was seemingly analyzed under the Speech Clause as opposed to the Press Clause. See id. at 529 (“Accordingly, we consider whether, given the facts of these cases, the interests served by § 2511(1)(c) can justify its restrictions on speech.”) (emphasis added).
85. Id.
86. Id.
87. Id. at 534-35. “We think it clear that parallel reasoning requires the conclusion that a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Id. at 535.
88. Id. at 535.
89. Id; but see id. at 540 (Breyer, J., concurring) (“Thus, in finding a constitutional privilege to publish unlawfully intercepted conversations of the kind here at issue, the Court does not create a ‘public interest’ exception that swallows up the statutes’ privacy-protecting general rule. Rather, it finds constitutional protection for publication of intercepted information of a special kind. Here, the speakers’ legitimate privacy expectations are unusually low, and the public interest in defeating those expectations is unusually high.”) (emphasis added).
90. See United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006), amended, WL 5049154 (2006), aff’d, 557 F.3d 192 (4th Cir. 2009) (affirming the district court’s evidentiary rul­ings challenged by the government).
91. Id. at 607-08.
92. Id. at 608.
93. Id.
94. Id.
95. Id.
96. Rosen, 445 F. Supp. 2d at 608.
97. Id.
98. Id.
99. Id.
100. Id.
101. Id.
102. Rosen, 445 F. Supp. 2d at 608–10.
103. Id. at 609.
104. Id. at 607. One defendant was additionally charged with aiding and abetting the transmis­sion of such information as well, in violation of 18 U.S.C. § 793(d) (2016). Id.
105. Id. This is similar to the statutory issue discussed briefly in the New York Times Co. case. See supra note 32 and accompanying text.
106. Id. at 610.
107. Id. at 629–30.
108. Rosen, 445 F. Supp. 2d at 630.
109. Id.
110. Id.
111. See id. at 633.
112. Id. at 633–34. (quoting Haig v. Agee, 453 U.S. 280, 307 (1981)). “Agee is as free to criticize the United States government as he was when he held a passport—always subject, of course, to express limits on certain rights by virtue of his contract with the government.” Id. at 636 (quoting Haig, 453 U.S. at 308).
113. Rosen, 445 F. Supp. 2d at 635.
114. Id.
115. Id.
116. Id.
117. Id.
118. Rosen, 445 F. Supp. 2d at 636.
119. Id. at 637.
120. Id. at 639.
121. See United States v. Morison, 844 F.2d 1057, 1080-86 (4th Cir. 1988).
122. Rosen, 445 F. Supp. 2d at 639.

124 Id. at 640.

125. Id.
126. Id. at 641. The court also held that defendants’ overbreadth challenge of § 793 failed. Id. at 643.
127. Id. at 646.
128. Id. at 640.
129. See id.
130. Smith v. Daily Mail Pub. Co., 443 U.S. 97, 102 (1979).
131. See New York Times Co. v. United States, 403 U.S. 713, 728 (1971).
132. Id.
133. See Bartnicki v. Vopper, 532 U.S. 514, 525 (2001) (stating that the subject matter was a matter of public concern).
134. Rosen, 445 F. Supp. 2d at 630.
135. Edward Snowden’s disclosures prompted a discussion of the potential risk to national security. In September 2016, the House Intelligence Committee issued an executive summary of its report on the Edward Snowden investigation, which noted that Snowden caused damage to national security. See Steven Nelson, In Declassified Edward Snowden Report, Committee Walks Back Claims About ‘Intentional Lying,’ U.S. News & World Report (Dec. 22, 2016, 3:39 PM), https://www.usnews.com/news/articles/2016-12-22/ in-declassified-edward-snowden-report-committee-walks-back-claims-about-intentional-lying. The summary asserted that Snowden was a “serial exaggerator and fabricator” and made claims about Snowden to support this theory; however, footnotes were added to the full report after the publication of the executive summary that acknowledged information contrary to some of these claims. Id. Moreover, the full report states that “the most recent DoD review identified 13 high-risk issues” related to the disclosures and notes that some of the information released, if procured by the Russian and Chinese governments, could put American troops “at greater risk in any future conflict.” Review of the Unauthorized Disclosures of Former National Security Agency Contractor Edward Snowden, U.S. House of Representatives 1, 22 (2016), available at https://intelligence.house.gov/uploadedfiles/ hpsci_snowden_review_declassified.pdf. While those claims may be true, it is important to note that most of the report is redacted, including 1) the 13 high-risk issues, 2) examples showing how “Snowden’s disclosures caused massive damage to national security,” and 3) the estimated cost to recover from the damage Snowden caused to SIGINT capabilities. Id. at 22-30. Therefore, it is difficult to gauge when national security is at a genuine risk.
136. Branzburg v. Hayes, 408 U.S. 665, 727 (1972).
137. See also Mary-Rose Papandrea, Lapdogs, Watchdogs, and Scapegoats: The Press and National Security Information, 83 Indiana L. J. 233, 278 (2008) (“Although the courts have not expressly addressed the constitutionality of prosecuting the press for publishing classified national security information . . . current First Amendment jurisprudence sug­gests some constitutional limitations on the government’s prosecutorial powers.”). In her article, Papandrea analyzes the cases set out herein, and ultimately argues that, in order for the government to prosecute a nongovernmental actor, such as the press, for disseminating national security information, the government should show that the actor intended to harm the United States or help a foreign nation. See id. at 278-305.
138. Peter Sterne, Sessions ‘Not Sure’ Whether He Would Prosecute Journalists, Politico (Jan. 10, 2017, 4:49 PM), https://www.politico.com/blogs/on-media/2017/01/sessions-not-sure-whether-he-would-prosecute-journalists-233431.
139. Id.
140. Black’s Law Dictionary, supra note 11 (emphasis added). See also Lindsay B. Barnes, The Changing Face of Espionage: Modern Times Call for Amending the Espionage Act, 46 McGeorge L. Rev. 511, 522 (2014) (citing the definition for “whistleblower” as provided in Black’s Law Dictionary).
141. Black’s Law Dictionary (6th ed. 1990).
142. See Barnes, supra note 140, at 522; 5 U.S.C. § 2302(b)(8)-(9) (2017) (citing 5 U.S.C. § 2302(b)(8)(A)(i)-(ii) (2016)). Through the “Whistleblower Protection Enhancement Act of 2012,” Congress made changes to chapter 23, which included, among other amendments, (1) changing “a violation” to “any violation” in (b)(8), and (2) expanding the individual right of action (IRA) right to include most reprisal claims under 5 U.S.C. § 2302(b)(9). Pub. L. No. 112-199 (2012). Signed into law by President Obama, this Act amended chapter 23 of title 5 “to clarify the disclosures of information protected from prohibited personnel practices, require a statement in non-disclosure policies, forms, and agreements that such policies, forms, and agreements conform with certain disclosure protections, provide certain authority for the Special Counsel, and for other purposes.” Id.; see also Prohibited Personnel Practices: Our Process, OCS.gov, https://osc.gov/Pages/ppp-ourprocess.aspx (last visited Feb. 13, 2018).
143. See 5 U.S.C. § 2302(b)(8) (2016).
144. See 5 U.S.C. § 2302(b)(8)-(9) (2016).
145. See 5 U.S.C.A. § 2302(a)(2)(C)(ii) (2016); but see 5 U.S.C § 2303 (2016) (setting out protections for FBI employees); see also “Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2016,” Publ. L. No.114-302 (amending 5 U.S.C. § 2303 to expand protections for FBI employees).
146. Kahn v. Dep’t of Justice, 618 F.3d 1306, 1311 (Fed. Cir. 2010).
147. Instead, a person falling under § 793 of the Espionage Act would likely be categorized as a “leaker,” which has no legal definition. Barnes, supra note 140 at 521-25; see also Nick Gass, White House: Snowden ‘Is Not a Whistleblower,’ Politico (Sept. 14, 2016), http:// www.politico.com/story/2016/09/edward-snowden-not-whistleblower-earnest-228163 (Josh Earnest states that Edward Snowden is not a whistleblower.).
148. Whistleblower, Dictionary.com, http://www.dictionary.com/browse/whistleblower (last visited May 13, 2017).
149. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
150. See Snepp v. United States, 444 U.S. 507 (1980).
151. Id.
152. Id. at 507-08.
153. Id. at 508.
154. Id. at 507.
155. Id. at 510.
156. Id. at 511.
157. Id.
158. Id.
159. Id. at 512-13; (the Director of the CIA testified that this book and others like it have im­peded American intelligence operations); but see id. at 518-19 ( Stevens, J., dissenting) (Stevens disagreed with the imposition of a constructive trust, arguing that Snepp did not breach his duty to protect confidential information, but rather breached a contractual duty “imposed in aid of the basic duty to maintain confidentiality, to obtain prepublication clearance.” “Like an ordinary employer, the CIA has a vital interest in protecting certain types of information; at the same time, the CIA employee has a countervailing interest in preserving a wide range of work opportunities (including work as an author) and in protecting his First Amendment rights. The public interest lies in a proper accommoda­tion that will preserve the intelligence mission of the Agency while not abridging the free flow of unclassified information.” Id. at 520 (emphasis added)).
160. See United States v. Morison, 844 F.2d 1057 (4th Cir. 1988).
161. Id. at 1060.
162. Id.
163. Id.
164. Id.
165. Id.
166. Morison, 844 F.2d at 1060-61.
167. Id. at 1061.
168. Id.
169. Id.
170. Id.
171. Id.
172. Id.
173. Morison, 844 F.2d at 1063.
174. Id.
175. Id. at 1063-64. This is similar to the statutory issue discussed briefly in the New York Times Co. case. See supra note 32 and accompanying text.
176. Morison, 844 F.2d at 1064.
177. Id. at 1067.
178. Id.
179. Id. at 1067-68 (citing David M. Rabban, The Emergence of Modern First Amendment Doctrine, 50 U. Chi.L.Rev. 1205, 1218 (1983)).
180. Id. at 1068.
181. Id.
182. Id.
183. Id. at 1069–70.
184. Morison, 844 F.2d at 1070.
185. Id. at 1077. (“[T]he defendant in this case was not fired by zeal for public debate into his acts of larceny of government property; he was using the fruits of his theft to ingratiate himself with one from whom he was seeking employment. It can be said that he was mo­tivated not by patriotism and the public interest but by self-interest.”).
186. See Anthony Lewis, Abroad at Home; The Pardons in Perspective, N.Y. Times (Mar. 3, 2001), https://www.nytimes.com/2001/03/03/opinion/abroad-at-home-the-pardons-in-perspective.html (“Because he was concerned about growth of the Soviet Navy, he sent a satellite photograph of a new Soviet ship under construction to a defense magazine.”).
187. See Jane’s Defence Weekly, IHSMarkit, https://ihsmarkit.com/products/janes-defence-news-weekly.html (last visited Mar. 20, 2018). President Bill Clinton eventually pardoned Morison. See Lewis, supra note 186.
188. United States v. Rosen, 445 F. Supp. 2d 602, 635 (E.D. Va. 2006).
189. Jon Greenberg, CNN’s Tapper: Obama Has Used Espionage Act More Than All Previous Administrations, PunditFact (Jan. 10, 2014, 10:00 AM), http://www.politifact.com/punditfact/ statements/2014/jan/10/jake-tapper/cnns-tapper-obama-has-used-espionage-act-more-all-/.
190. Id.
191. Id.
192. Id.
193. See Glenn Kessler, Edward Snowden’s Claim That He Had ‘No Proper Channels’ for Protection As a Whistleblower, Wash. Post (Mar. 12, 2014), https://www.washingtonpost. com/news/fact-checker/wp/2014/03/12/edward-snowdens-claim-that-as-a-contractor-he-had-no-proper-channels-for-protection-as-a-whistleblower/?utm_term=.2f603228fb8e.
194. See Office of the White House Press Secretary, Presidential Policy Directive 19- ProtectingWhistleblowers withAccess to Classified Information(Oct. 12, 2012).
195. Id.
196. Kessler, supra note 193.
197. Id.
198. Id.
199. Id. The Intelligence Authorization Act for FY2014, Pub. L. No. 113-126 (2014), seemingly codifies and expands some of PPD-19’s protections; however, “protections extend only to employees of ‘covered intelligence community element[s],’ and therefore do not appear to apply to [Intelligence Community] contractors.” Rodney M. Perry, Cong. ResearchServ., R43765, Intelligence Whistleblower Protections: InBrief 7 (2014), https:// fas.org/sgp/crs/intel/R43765.pdf.
200. See Perry, supra note 199, at 6; see also What is an Executive Order?, AmericanBar Assoc’n, https://www.americanbar.org/publications/insights_on_law_andsociety/17/fall- 2016/what-is-an-executive-order.html (last visited May 19, 2018).
201. Intelligence Community Whistleblower Protection Act, Pub. L. No. 105–272 (1998); Intelligence Community Whistleblower Protection Act (ICWPA): About the ICWPA, Dep.t of Defense Office of Inspector General, http://www.dodhotline.dodig.mil/programs/ whistleblower/icwpa.html (last visited May 19, 2018).
202. Intelligence Community Whistleblower Protection Act (ICWPA): About the ICWPA, Office of Inspector General: U.S. Dep’t. of Defense, http://www.dodig.mil/programs/whistle­blower/icwpa.html.
203. See Daniel D’Isidoro, Protecting Whistleblowers and Secrets in the Intelligence Community, Harv. L. Sch.: Nat’l Security J. (Sept. 29, 2014), http://harvardnsj.org/2014/09/protecting-whistleblowers-and-secrets-in-the-intelligence-community/; see also Perry, supra note 199, at 2; Kessler, supra note 193.
204. See 50 U.S.C. § 3517(d)(5) (2015) (ICPWA provisions pertaining to CIA employees and contractors).
205. See id.; see also Mieke Eoyang, Should Intelligence Whistleblowers Be Protected?, The Atlantic(Jan 23, 2016), https://www.theatlantic.com/politics/archive/2016/01/ should-intelligence-whistleblowers-be-protected/424872/.
206. See id. Protections for whistleblowers outside the Intelligence Community are also lacking. For example, the Supreme Court recently held that, in order to qualify as a “whistleblower” under the Dodd-Frank Wall Street Reform and Consumer Protection Act, an individual must report a violation of the securities laws to the SEC; otherwise, the anti-retaliation provision of the Dodd-Frank act does not extend to said individual. Digital Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 772-73 (2018).
207. See 50 U.S.C. § 3517(d)(5)(d)(i)-(ii) (2017) (to submit a complaint to Congress, the employee must still contact the agency head)..
208. See Perry, supra note 199 at Summary (“However, intelligence whistleblowers could face retaliation from their employers for their disclosures, and the fear of such retaliation may deter whistleblowing.” Id. “None of these measures protect against retaliation or potential criminal liability arising from disclosures to media sources.” Id.).
209. See Eoyang, supra note 205.
210. Id.
211. Kessler, supra note 193.
212. D’Isidoro, supra note 203.
213. Id.
214. Dennis & Shell, supra note 8. Drake ultimately reached a plea agreement, where he only pled guilty to one count of exceeding the authorized use of a government computer and avoided prison time. See David Wise, Leaks and the Law: The Story of Thomas Drake, SmithsonianMag. (Aug. 2011), https://www.smithsonianmag.com/history/leaks-and-the-law-the-story-of-thomas-drake-14796786/.
215. New York Times Co. v. United States, 403 U.S. 713, 728 (1971).
216. See Whistleblower, supra note 148.
217. See Journalist, supra note 17.
218. New York Times Co., 403 U.S. at 717.
219. Id. While Justice Black’s absolutism is not widely shared nor employed by the Supreme Court, his sentiment regarding the importance of the press to society has been echoed throughout most of the cases discussed in this paper. See, e.g., Smith v. Daily Mail Publ’g. Co., 443 U.S. 97 (1979).
220. See 2014 Pulitzer Prizes, supra note 4.
221. See Anderson, supra note 12 (mentioning “journalistic discretion” as a possible object of protection under the Press Clause).
222. Sarah Childress, How the NSA Spying Programs Have Changed Since Snowden, PBS(Feb. 9, 2015), http://www.pbs.org/wgbh/frontline/article/how-the-nsa-spying-programs-have-changed-since-snowden/.
223. Id.
224. Id.
225. See Lori Grisham, 4 Things That Changed Since Snowden Leaks, USAToday (Jun. 5, 2014,9:13 AM), https://www.usatoday.com/story/news/nation-now/2014/06/05/changes-since-snowden-leaks/9978561/.
226. New York Times Co., 403 U.S. 713, 728 (1971).
227. Branzburg v. Hayes, 408 U.S. 665, 727 (1972).
228. Id.
229. United States v. Rosen, 445 F. Supp. 2d 602, 646 (E.D. Va. 2006).
230. See Papandrea, supra note 137, at 298. (“[C]ourts should require the government to prove not only that the publication of the information at issue caused immediate, serious, and direct harm to the national defense, but also that the offender intended to harm the United States or to aid a foreign country, or acted with reckless indifference to the same.”). Papandrea’s proposed “intent” standard “would permit liability based on ‘reckless indifference.’” Id. at 299.
231. This legislation seemingly fits with Justice Brennan’s opinion in the New York Times Co. case. See New York Times Co., 403 U.S. at 726.