{"id":291,"date":"2018-07-20T11:59:15","date_gmt":"2018-07-20T15:59:15","guid":{"rendered":"https:\/\/www.nlg.org\/nlg-review\/?post_type=article&p=291"},"modified":"2018-07-20T11:59:15","modified_gmt":"2018-07-20T15:59:15","slug":"freedom-of-the-whistleblowers-why-prosecuting-government-leakers-under-the-espionage-act-raises-first-amendment-concerns","status":"publish","type":"article","link":"https:\/\/www.nlg.org\/nlg-review\/article\/freedom-of-the-whistleblowers-why-prosecuting-government-leakers-under-the-espionage-act-raises-first-amendment-concerns\/","title":{"rendered":"Freedom of the Whistleblowers: Why Prosecuting Government Leakers Under the Espionage Act Raises First Amendment Concerns"},"content":{"rendered":"

Catherine Taylor<\/strong>
\nCatherine 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.<\/em><\/p>\n

Introduction<\/strong><\/p>\n

In 2013, an employee of a defense contractor at the National Security Agency (\u201cNSA\u201d) 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 <\/em>published the first article based on these leaks.3 The Guardian<\/em>, as well as The Washington Post<\/em>, would go on to win the 2014 Pulitzer Prize for Public Service for their reporting on this surveillance.4 In describing why The Guardian <\/em>won, the Pulitzer Prize website states, \u201cFor 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.\u201d5 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 \u00a7 793(d) of the Act, which states:8<\/p>\n

Whoever, lawfully having possession of<\/em>, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, pho\u00adtograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense<\/em>, or information relating to the national defense <\/em>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<\/em>, 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<\/em>).9<\/p>\n

Section 793(e) of the Act also contains a provision pertaining to individuals having unauthorized possession <\/em>of the documents set out above, and its text almost perfectly mirrors the language of \u00a7 793(d).10 So, since the government brought charges against Edward Snowden under \u00a7 793(d), is it fair to say that the government may also bring charges against Pulitzer-Prize winning newspaper The Guardian, <\/em>or its journalists and editors, under \u00a7 793(e) of the Act? After all, The Guardian <\/em>had unauthorized possession of documents that, according to the government, related to national defense.<\/p>\n

While the Supreme Court has never concluded whether applying \u00a7 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.<\/p>\n

Part I of this article will analyze the relationship between the First Amend\u00adment and the press, particularly with respect to the press\u2019s publication of national security information. It will first seek to define the press, before analyzing case law involving the publication of a source\u2019s 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 secu\u00adrity. Like Part I, it will begin by defining the term \u201cwhistleblower\u201d 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.<\/p>\n

    \n
  1. The First Amendment and the press <\/strong><\/li>\n<\/ol>\n

    In order to make a proper comparison between the First Amendment pro\u00adtections of the press and First Amendment protections of whistleblowers, it is important to understand what the press actually is. Black\u2019s Law Dictionary <\/em>defines \u201cpress\u201d as \u201c[t]he news media; print and broadcast news organiza\u00adtions collectively.\u201d11 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 \u201cpress,\u201d \u201c[t]he Court on other occasions has mentioned \u2018publishers and broadcasters,\u2019 \u2018the media,\u2019 \u2018editorial judgment,\u2019 \u2018editorial control,\u2019 \u2018journalistic discretion,\u2019 and \u2018newsgathering\u2019 as possible objects of protection.\u201d13<\/p>\n

    The definition of \u201cthe press\u201d 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 \u201cjournalist\u201d as \u201ca person engaged in journalism.\u201d17 Likewise, \u201cjournalism\u201d is defined as \u201cthe collection and editing of news for presentation through the media.\u201d18 It is a daunting task to thoroughly define the \u201cpress,\u201d 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<\/em>, as undisputed parts of the press.20<\/p>\n

      \n
    1. The press and national security <\/strong><\/li>\n<\/ol>\n

      Under the First Amendment, neither freedom of speech nor freedom of the press is absolute; \u201c[f]reedom of speech thus does not comprehend the right to speak on any subject at any time.\u201d21 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 \u201ca license on either the reporter or his news sources to violate valid criminal laws.\u201d25 As stated by the Court, \u201c[a]lthough stealing documents or private wiretapping could provide news\u00adworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.\u201d26<\/p>\n

      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<\/em>.27<\/p>\n

        \n
      1. New York Times Co. v. U.S. <\/em>and its concurring opinions <\/strong><\/li>\n<\/ol>\n

        In this case, the government sought to enjoin The New York Times <\/em>and The Washington Post <\/em>from publishing the contents of a classified study.28 In a short per curiam <\/em>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 \u00a7 793(e) of the Espionage Act.31<\/p>\n

        It is important to highlight that there are two main issues involving the application of \u00a7 793(e) to the press: a statutory issue and a constitutional one. The former involves looking to the language of \u00a7 793(e) and the legislative history of the Act as a whole, and asking whether or not \u00a7 793(e) could <\/em>apply to the press.32 If it can apply, the second question deals with the constitu\u00adtional 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.<\/p>\n

        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, \u201cevery moment\u2019s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.\u201d34 Black wrote that enjoining the publication of news \u201cwould make a shambles of the First Amendment.\u201d35<\/p>\n

        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: \u201c[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.\u201d37 According to Justice Black, the Bill of Rights \u201cchanged the original Constitution into a new charter under which no branch of government could abridge the people\u2019s freedoms of press, speech, religion, and assembly.\u201d38<\/p>\n

        In response to the argument that the general powers of the government de\u00adlineated in the original Constitution could be interpreted to limit guarantees in the Bill of Rights, Justice Black responded, \u201cI can imagine no greater perver\u00adsion of history.\u201d39 He argued that the history and text of the First Amendment demonstrate that the press \u201cmust be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.\u201d40 Justice Black argued that, through the First Amendment, the framers of the First Amend\u00adment gave protection to the press in order for it to fulfill its vital democratic role\u2014\u201cto serve the governed, not the governors.\u201d41 \u201cThe Government\u2019s 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.\u201d42 Justice Black believed that The New York Times <\/em>and The Washington Post <\/em>should \u201cbe commended\u201d for serving this purpose.43<\/p>\n

        Justice Black also disagreed with the notion that Congress could make laws enjoining publication of current news in the name of \u201cnational security.\u201d44 According to him, holding that the President has \u201cinherent power\u201d to halt the publication of news would \u201cwipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make \u2018secure.\u2019\u201d45 Justice Black further stated that the term \u201cnational security\u201d is broad and vague and \u201c[t]he guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.\u201d46<\/p>\n

        Although he joined in Justice Black\u2019s opinion, Justice Douglas wrote separately as well.47 Douglas stated that there was \u201cno room for governmen\u00adtal restraint on the press.\u201d48 In his opinion, he concluded that \u00a7 793(e) of the Espionage Act could not apply to the press 49 and asserted that \u201c[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 \u2018uninhibited, robust, and wide-open\u2019 debate.\u201d50<\/p>\n

        Justice Brennan also wrote separately to emphasize that \u201cthe First Amend\u00adment stands as an absolute bar to the imposition of judicial restraints in circumstances of the kind presented by these cases.\u201d51 He explained that Court precedent shows that there is a \u201csingle, extremely narrow class of cases\u201d 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 \u201cnuclear holocaust.\u201d53 \u201cThus,\u201d he wrote, \u201conly 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.\u201d54<\/p>\n

        In sum, the opinions of Justices Black, Douglas, and Brennan indicate that there is a constitutional problem in applying \u00a7 793(e) to the press. The opinions of Chief Justice Burger and Justices White, Stewart, and Blackmun, on the other hand, suggest the contrary.<\/p>\n

        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 suc\u00adcessfully proceeded another way, arguing that during the enactment of the Espionage Act, some members of Congress had \u201clittle doubt that newspapers would be subject to criminal prosecution if they insisted on publishing infor\u00admation of the type Congress had itself determined should not be revealed.\u201d56 Justice White stated that the Criminal Code contained many provisions rel\u00adevant to the present situation (e.g., \u00a7 797, which makes it a crime to publish certain photos or drawings of military installations), and \u201cthe newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish.\u201d57 He expressed that he would have \u201cno difficulty\u201d in sustaining convictions.58 Likewise, Justice White was open to the possibility of prosecuting members of the press under \u00a7 793(e), highlighting the broad definition of \u201cnational defense.\u201d59<\/p>\n

        In a related opinion, Justice Stewart asserted that<\/p>\n

        [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\u2014in an informed and critical public opinion which alone can here protect the values of democratic government.60<\/p>\n

        Because of this, Justice Stewart argued, \u201ca 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.\u201d61 That being said, Justice Stewart noted that an effective national defense requires confidentiality, and frequently, absolute secrecy.62 Importantly, he joined Justice White\u2019s opinion.63<\/p>\n

        Chief Justice Burger and Justice Blackmun also agreed with Justice White\u2019s opinion \u201cwith respect to penal sanctions concerning communication or retention of documents or information relating to the national defense.\u201d64 Therefore, four Justices implied that the application of \u00a7 793(e) to the press would pass constitutional muster. It\u2019s worth mentioning that Justice Marshall considered \u00a7 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.<\/p>\n

          \n
        1. Additional case law <\/strong><\/li>\n<\/ol>\n

          Although the Supreme Court left open the question of whether the govern\u00adment could prosecute the press for publishing unlawfully obtained classified government information, the Court has ruled that when information is law\u00adfully <\/em>obtained, the state may not punish the publication of that information unless necessary to further a substantial interest.67<\/p>\n

          In Smith v. Daily Mail Publishing Co.<\/em>, 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 pros\u00adecuting 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\u2019s Con\u00adstitution.70 They argued that, since the statute requires court approval prior to publication, it was a \u201cprior restraint\u201d on speech; therefore, it bore \u201ca \u2018heavy presumption\u2019 against its constitutional validity\u201d which the State\u2019s 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<\/p>\n

          The Court first asserted, \u201c[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.\u201d73 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.<\/em>74<\/p>\n

          Next, the Court contended that \u201c[a] free press cannot be made to rely solely upon the sufferance of government to supply it with information,\u201d and held \u201c[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.\u201d75 \u201cOur recent decisions demonstrate that state action to punish the publication of truthful information seldom can satisfy constitutional standards.\u201d76 Noting that its holding was narrow, the Court determined that (1) the State\u2019s interest in the statute was insufficient to criminalize the newspapers\u2019 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<\/p>\n

          Although not in the context of classified government documents affect\u00ading national security, the Supreme Court has also protected the press\u2019s right to publish unlawfully <\/em>obtained i nformation, so long a s t he press obtained the information lawfully.79 In Bartnicki v. Vopper<\/em>, the Court held that \u201cthe repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue\u201d was protected.80 At issue in the case was a conversation between a teacher\u2019s union chief negotiator and the union\u2019s 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\u2019 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<\/p>\n

          The respondents, the radio host, and the head of a local taxpayers\u2019 or\u00adganization, were criminally charged under 18 U.S.C. \u00a7 2511(1)(c), and its Pennsylvania counterpart, which makes it an offense for any person to in\u00adtentionally disclose to another \u201cthe 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.\u201d84 Because the interception was intentional, and therefore unlawful\u2014a fact the respondents \u201chad a reason to know\u201d\u2014the 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<\/p>\n

          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 con\u00adversation was a matter of public concern.87 The Court further explained that (1) enforcing the provision implicated the core purposes of the First Amend\u00adment 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 negotia\u00adtions between the union and school board were \u201cunquestionably a matter of public concern, and respondents were clearly engaged in debate about that concern.\u201d89 Therefore, the Court held that the respondents\u2019 conduct was worthy of constitutional protection.90<\/p>\n

          Lower courts have further considered the question posed in New York Times Co.<\/em>91 In U.S. v. Rosen<\/em>, the government charged the employees of the American Israel Public Affairs Committee (AIPAC), a pro-Israel lobbyist organization, with violating 18 U.S.C. \u00a7 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\u2019s Director of Foreign Policy Issues, who \u201cwas primarily engaged in lobbying officials of the executive branch with policy-making authority over issues of interest to AIPAC.\u201d93 He did not have security clearance during the time of the alleged conspiracy.94 Another defendant was AIPAC\u2019s 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<\/p>\n

          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 de\u00adfendants had allegedly told an unnamed foreign official that he had \u201cpicked up an extremely sensitive piece of intelligence\u201d concerning terrorist activities in Central Asia, which he described as \u201ccodeword protected intelligence.\u201d98 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 \u201csecret FBI, classified FBI report\u201d relat\u00ading 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<\/p>\n

          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\u2019s delibera\u00adtions 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 journal\u00adists.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\u2019s AIPAC office.104<\/p>\n

          The defendants argued that \u00a7 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 \u201cinterpreting the statute as apply\u00ading only to the transmission of tangible items, i.e., <\/em>documents, tapes, discs, maps and the like.\u201d106 In addressing the First Amendment arguments,107the District Court rejected the government\u2019s proposed categorical rule that es\u00adpionage statutes can never violate the First Amendment,108 stating: \u201c[i]n the broadest terms, the conduct at issue\u2014collecting information about United States\u2019 foreign policy and discussing that information with government of\u00adficials (both United States and foreign), journalists, and other participants in the foreign policy establishment\u2014is at the core of the First Amendment\u2019s guarantees.\u201d109 The court then concluded that the application of \u00a7 793 to individuals who, in an attempt to influence United States foreign policy, transfer the Government\u2019s national defense secrets to those not entitled to receive them, still receives First Amendment scrutiny.110 \u201cSo, too, the mere invocation of \u2018national security\u2019 or \u2018government secrecy\u2019 does not foreclose a First Amendment inquiry.\u201d111<\/p>\n

          To determine whether the government\u2019s 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 \u201c\u2018obvious and unarguable\u2019 that no governmental interest is more compelling than the security of the Nation.\u201d113 The court delineated the difference between \u00a7 793(d) and \u00a7 793(e) and concluded that the former applied to individuals with access to information by virtue of their official position who \u201care often bound by contractual agreements whereby they agree not to disclose classified information.\u201d114 Such individuals are in a position of trust with the government.115 On the other hand, \u00a7 793(e) applies to people \u201cwho 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.\u201d116<\/p>\n

          With respect to the first category, the court stated that the Constitution permits prosecution \u201cfor 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\u2019s security, and that person acted in bad faith, i.e., <\/em>with reason to believe the disclosure could harm the United States or aid a foreign government.\u201d117 \u201cIndeed, the relevant precedent teaches that the Constitution permits even more drastic restraints on the free speech rights of this class of persons.\u201d118 The court contended that \u201cgovernment employees\u2019 speech can be subjected to prior restraints where the government is seeking to protect its legitimate national security interests,\u201d and \u201cCongress may con\u00adstitutionally subject to criminal prosecution anyone who exploits a position of trust to obtain and disclose NDI to one not entitled to receive it.\u201d119<\/p>\n

          With respect to the second category, the court determined that \u201cthe gov\u00adernment can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.\u201d120 Citing the opinions in New York Times Co.<\/em>, 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<\/em>, a case that will be analyzed more thoroughly in Part II of this article. According to the District Court in Rosen<\/em>, the Morison <\/em>concurrences argued that juries in espionage cases should have an instruction limiting \u201cinformation relating to the national defense\u201d to information \u201cpotentially damaging to the United States or . . . useful to an enemy of the United States.\u201d122 Without this limitation, the District Court posited, \u201cthe statute could be used to punish a newspaper for publishing a classified document that simply recounts official misconduct in awarding defense contracts.\u201d123 Such a prosecution would violate the First Amendment.124 Therefore, the court concluded that (1) \u201cinformation 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,\u201d125 and (2) \u00a7 793(e) did not violate the defendants\u2019 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 \u201ccontemporary views about the appropri\u00adate balance between our nation\u2019s security and our citizens\u2019 ability to engage in public debate about the United States\u2019 conduct in the society of nations.\u201d 127<\/p>\n

          Although the court in Rosen <\/em>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 \u00a7\u00a7 793(d) and (e) of the Espionage Act, the latter of which would apply to the press. Moreover, the court specifi\u00adcally stated that a statute punishing a newspaper for publishing a classified document \u201csimply recount[ing] official misconduct in awarding defense contracts\u201d 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 instruc\u00adtive for future cases.129<\/p>\n

          There is still no Supreme Court precedent directly answering the question of whether the government could prosecute the press for disclosing unlaw\u00adfully 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, \u201csince state action to punish the publication of truthful information seldom can satisfy constitutional standards.\u201d130<\/p>\n

          It is also worth noting that, throughout these cases, there seems to be a reoc\u00adcurring theme of public discourse. Even Justice Stewart in New York Times Co.<\/em>, 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 <\/em>and Bartnicki <\/em>as well, where the Supreme Court reiterated the importance of free speech and a free press to the public.133 Rosen <\/em>similarly balances societal interests with national se\u00adcurity, 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.<\/p>\n

            \n
          1. Why hasn\u2019t the government prosecuted the press? <\/strong><\/li>\n<\/ol>\n

            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 clas\u00adsified 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 \u201ccentral to the First Amend\u00adment and the basic existence of constitutional democracy:\u201d<\/p>\n

            As private and public aggregations of power burgeon in size and the pres\u00adsures 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<\/p>\n

            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<\/p>\n

            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 \u201cwhether he would abide by current Justice Department regula\u00adtions that make it difficult to subpoena or prosecute reporters, and whether he would pledge not to \u2018put reporters in jail for doing their job,\u2019\u201d with a non-committal answer.138 He mentioned that while there is deference to the news media, the media \u201ccould be a mechanism through which unlawful intelligence is obtained.\u201d139 In light of Sessions\u2019s answer, the following questions arise:<\/p>\n

            (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?<\/p>\n

            (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?<\/p>\n

              \n
            1. Whistleblowers and the First Amendment <\/strong><\/li>\n<\/ol>\n

              According to Black\u2019s Law Dictionary<\/em>, a \u201cwhistleblower\u201d is \u201c[a]n employee who reports employer wrongdoing to a governmental or law-enforcement agency<\/em>.\u201d140 A prior edition of Black\u2019s defined a \u201cwhistle blower\u201d as \u201c[a]n em\u00adployee who refuses to engage in and\/or reports illegal or wrongful activities of his employer or fellow employees,\u201d which notably does not include the \u201cto a government or law-enforcement agency\u201d limitation.141<\/p>\n

              In the Whistleblower Protection Act (WPA) of 1989, a whistleblower is defined as an employee who \u201creasonably believes [government conduct] evidences (i) any violation of any law, rule, or regulation, or (ii) gross mis\u00admanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.\u201d142 Importantly, the protec\u00adtions of the WPA do not extend to an employee whose disclosure is either (1) specifically prohibited by law, or (2) \u201cspecifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.\u201d143 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\u2014such as the FBI, CIA, and NSA\u2014from its protection.145 Additionally, \u201c[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.\u201d146 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 \u201cwhistleblower\u201d under it.147<\/p>\n

              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 \u201cwhistleblower,\u201d which defines the term more broadly. Thus, a whistleblower will refer to \u201can employee who makes a public disclosure of an employer\u2019s or other employee\u2019s corruption or wrongdoing.\u201d148<\/p>\n

                \n
              1. Whistleblowers and national security <\/strong><\/li>\n<\/ol>\n

                Whistleblowers are typically government employees, and the Supreme Court has ruled that \u201c[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 commu\u00adnications from employer discipline.\u201d149<\/p>\n

                When working in an intelligence agency, government employees with access to classified information are in a high position of trust with the gov\u00adernment.150 In Snepp v. United States<\/em>, 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 \u201cintegral part\u201d of his \u201cconcurrent undertak\u00ading \u2018not to disclose any classified information relating to the Agency without proper authorization.\u2019\u201d153 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<\/p>\n

                The Court first stated that Snepp\u2019s employment \u201cinvolved an extremely high degree of trust.\u201d155 The first sentence of the signed agreement acknowledged this trust relationship, and after signing, Snepp was \u201cassigned to various positions of trust\u201d and had \u201cfrequent access to classified information, includ\u00ading information regarding intelligence sources and methods,\u201d which served as the basis for his book.156 Moreover, since Snepp violated the employment agreement by not submitting his material for prepublication, \u201che exposed the classified information with which he had been entrusted.\u201d157 In order to violate the employment agreement, the Court ruled that Snepp\u2019s book did not have to contain classified information.158 R ather, it r uled t hat Snepp\u2019s failure to submit his work for prepublication undermined the CIA\u2019s ability to perform its statutory duties.159<\/p>\n

                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<\/em>, the defendant appealed his conviction, which included a conviction for violating two provisions of the Espionage Act based on his \u201cunauthorized transmittal of certain satellite secured photographs of Soviet naval preparations to \u2018one not entitled to re\u00adceive them\u2019 (count 1) and the obtaining of unauthorized possession of secret intelligence reports and the retaining of them without delivering them to \u2018one entitled to receive\u2019 them (count 3).\u201d161<\/p>\n

                In Morison, <\/em>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 \u201cTop Secret\u2013Sensitive Compartmented Information\u201d and, in connection with his security clearance, had signed a Non\u2013Disclosure Agreement.163 Prior to his criminal conduct, the defendant had been doing off-duty work for Jane\u2019s Fighting Ships, <\/em>\u201can annual English publication which provided current information on naval operations interna\u00adtionally,\u201d and began providing information to its affiliate publication, Jane\u2019s Defence Weekly<\/em>.164 His arrangement with Jane\u2019s <\/em>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\u2019s.<\/em>165<\/p>\n

                Despite the defendant\u2019s agreement with the Navy, he began to correspond with the editor-in-chief of Jane\u2019s <\/em>regarding full-time employment and ulti\u00admately 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 \u201cwas a much larger subject than even they had thought and there was a lot more behind it.\u201d167 The defendant also said that he could provide material on the explosion if Jane\u2019s <\/em>was interested, and ultimately sent \u201cabout three typed pages of material background.\u201d168 Soon thereafter, the defendant also sent \u201ctwo 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.\u201d169<\/p>\n

                After he sent the above materials, the defendant saw photographs\u2014stamped \u201cSecret\u201d and with a \u201cWarning Notice: Intelligence Sources or Methods In\u00advolved\u201d imprinted on the borders\u2014on 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\u201311 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\u2019s Defence Weekly<\/em>, who published the photographs and made the pictures available to other news agencies.172<\/p>\n

                With respect to his convictions under \u00a7 793(d) and (e) of the Espionage Act, the defendant argued that these subsections should only apply to con\u00adduct represented \u201cin classic spying and espionage activity\u201d by persons who transmitted \u201cnational security secrets to agents of foreign governments with intent to injure the United States.\u201d173 He asserted that he did not engage in \u201cclassic spying\u201d 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\u2019s 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\u2019s construction.176<\/p>\n

                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 \u00a7 793(d) and (e) \u201cto exempt from its application the transmittal of secret military information by a defendant to the press or a representative of the press.\u201d177 The court also noted that there was \u201clittle or no discussion of the First Amendment in the legislative record directly <\/em>relating to sections 793(d) and (e) in this connection.\u201d178 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<\/p>\n

                \u2018[a] provision of the bill that would have allowed the President to censor the press [which] dominated congressional discussion and was eventually elimi\u00adnated by the conference committee\u2019 but \u2018[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\u2019 in that discussion.179<\/p>\n

                Thus, there was \u201cno evidence whatsoever\u201d that \u201cCongress intended to exempt from the coverage of \u00a7 793(d) national defense information by a governmental employee . . . simply because he transmitted it to a representative of the press.\u201d180<\/p>\n

                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 \u201cSecret\u201d from Navy intelligence files, and \u201cwillfully\u201d transmitted them to \u201cone not entitled to receive it.\u201d181 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 Ac\u00adcording to the court:<\/p>\n

                [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 \u201cnot entitled to receive it\u201d as did the defendant in this case, is not entitled to invoke the First Amendment as a shield to immunize his act of thievery.\u201d To permit the thief thus to misuse the Amend\u00adment would be to prostitute the salutary purposes of the First Amendment.183<\/p>\n

                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<\/p>\n

                Notably, the court echoed the government\u2019s 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 <\/em>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\u2019s Defence Weekly <\/em>is still a running publication.187<\/p>\n

                  \n
                1. The inadequacy of existing protections <\/strong><\/li>\n<\/ol>\n

                  As stated in Rosen<\/em>, 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\u2019t 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 informa\u00adtion with journalists.189 Seven of those prosecutions occurred under Barack Obama\u2019s presidency, although two were inherited from President George W. Bush\u2019s Department of Justice.190<\/p>\n

                  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\u2019s Presidential Policy Directive 19 or the Intelligence Community Whistleblower Protection Act.193<\/p>\n

                  Although his administration prosecuted more leakers than any other admin\u00adistration, President Obama issued Presidential Policy Directive 19 (PPD-19) in 2012.194 He sought to protect intelligence community employees with ac\u00adcess 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\u2019s access to classified information.197 The word \u201cemployee\u201d is not defined in the direc\u00adtive, and Section A, which also seeks to protect whistleblowing employees, does not appear to cover contractors.198 Therefore, a contractor like Edward Snowden\u2014who is not an employee\u2014would not be protected.199 Moreover, presidential directives can be abolished without Congressional approval, rendering PPD-19 subject to nullification.200<\/p>\n

                  Likewise, the Intelligence Community Whistleblower Protection Act (IC\u00adWPA) of 1998 may not provide much protection to whistleblowers.201 ICWPA was designed to provide \u201ca secure means for employees to report to Congress allegations regarding classified information.\u201d202 However, ICWPA does not pro\u00adtect 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\u2019s superiors.206<\/p>\n

                  Alternatively, if the IG does not find the employee\u2019s complaint credible, the employee may submit the information to Congress.207 Because the Act doesn\u2019t 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\u2019s 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\u2019s Inspector General, the Defense Department\u2019s Inspector General, and the Congressional intelligence com\u00admittees about alleged illegal activities.212 After the government failed to take his complaints seriously, Drake eventually contacted The Baltimore Sun<\/em>.213 He was indicted by a grand jury on several charges, including \u00a7 793(e) of the Espionage Act.214<\/p>\n

                  In sum, whistleblowers can raise a First Amendment defense. However, because they are in positions of trust with the government, this defense ap\u00adpears 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 informa\u00adtion vital to public discourse. Adequate protection simply does not exist for whistleblowers under current federal laws.<\/p>\n

                  III. The distinction between the press and whistleblowers <\/strong><\/p>\n

                  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 secu\u00adrity. 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 \u201cmost vitally serves the basic purpose of the First Amendment,\u201d and it keeps the electorate informed and engaged.215 Courts don\u2019t 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.<\/p>\n

                  As noted above, this article relies on the colloquial definition of a whistle\u00adblower, which is defined as an employee who publicly discloses an employer\u2019s (or other employee\u2019s) 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\u2019s worth repeating that in his concurring opinion in New York Times Co.<\/em>, 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 \u201cbare the secrets of government and inform the people.\u201d219<\/p>\n

                  Government employees who disclose classified information to the press in or\u00adder to expose government corruption and wrongdoing serve a similar function. The reports by The Guardian <\/em>and The Washington Post <\/em>may have \u201cspark[ed] a debate about the relationship between the government and the public over issues of security and privacy,\u201d but if it weren\u2019t 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\u2019s disclosure, the government has taken steps to ensure more transpar\u00adency within the intelligence community. For example, in 2014, President Obama implemented Presidential Policy Directive 28, which required the intelligence community to implement \u201cappropriate safeguards\u201d for the personal informa\u00adtion 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\u2019s no doubt that Snowden\u2019s disclosures had some impact on the public debate over surveillance.225<\/p>\n

                  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 \u201ccentral to the First Amendment and the basic existence of constitutional democracy,\u201d surely, in certain cir\u00adcumstances, there should be a right to provide the information to the press.227 \u201c[I]f we are to preserve our constitutional tradition of maximizing freedom of choice by encouraging diversity of expression,\u201d we need to ensure the protection of expression.228<\/p>\n

                  Conclusion <\/strong><\/p>\n

                  As suggested by the court in Rosen<\/em>, Congress may need to thoroughly re\u00adview and revise the provisions of the Espionage Act to reflect societal changes as well as \u201ccontemporary views about the appropriate balance between our nation\u2019s security and our citizens\u2019 ability to engage in public debate about the United States\u2019 conduct in the society of nations.\u201d229 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.<\/p>\n

                  First, \u00a7 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 <\/em>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 whistleblow\u00aders 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 <\/em>or serious <\/em>national security risk\u2014such 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.<\/p>\n

                  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 criminal\u00adizing 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.<\/p>\n

                  __________________<\/p>\n

                  NOTES<\/p>\n

                    \n
                  1. See <\/em>Luke Harding, How Edward Snowden Went From Loyal NSA Contractor to Whistleblower<\/em>, 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, <\/em>BBC News (Jan. 17, 2014), http:\/\/www.bbc.com\/news\/world-us-canada-23123964.<\/li>\n<\/ol>\n

                    2 See id. <\/em><\/p>\n

                      \n
                    1. See Verizon Forced to Hand Over Telephone Data\u2014Full Court Ruling<\/em>, Guardian(June 5, 2013, 11:40 PM), https:\/\/www.theguardian.com\/world\/interactive\/2013\/jun\/06\/ verizon-telephone-data-court-order.<\/li>\n
                    2. See 2014 Pulitzer Prizes: Journalism<\/em>, The Pulitzer Prizes, http:\/\/www.pulitzer.org\/ prize-winners-by-year\/2014 (last visited May 12, 2017).<\/li>\n
                    3. Id. <\/em><\/li>\n
                    4. Peter Finn & Sari Horwitz, U.S. Charges Snowden with Espionage<\/em>, 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.<\/li>\n
                    5. Scott Shane, Ex-Contractor Is Charged in Leaks on N.S.A. Surveillance<\/em>, N.Y. Times (June 21, 2013), http:\/\/www.nytimes.com\/2013\/06\/22\/us\/snowden-espionage-act.html.<\/li>\n
                    6. See <\/em>Vanessa Dennis & Elizabeth Shell, 11 \u2018Leakers\u2019 Charged With Espionage<\/em>, PBSNewshour (July 12, 2013), http:\/\/www.pbs.org\/newshour\/spc\/multimedia\/espionage\/.<\/li>\n
                    7. 18 U.S.C. \u00a7 793(d) (2016).<\/li>\n
                    8. 18 U.S.C. \u00a7 793(e) (2016).<\/li>\n
                    9. Black\u2019s Law Dictionary (10th ed. 2014).<\/li>\n
                    10. David A. Anderson, Freedom of the Press<\/em>, 80 Tex. L. Rev. 429, 436 (2002) (referencing a 1974 speech by Justice Stewart).<\/li>\n
                    11. Id. <\/em><\/li>\n
                    12. See id. <\/em>at 450-51 (\u201cWhat 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 \u2018press\u2019 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.\u201d).<\/li>\n
                    13. Sonja R. West, Awakening the Press Clause<\/em>, 58 UCLAL. Rev. 1025, 1054 (2011).
                      \n16. See <\/em>Anderson, supra <\/em>note 12, at 447-48 (\u201c[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.\u201d). However, Anderson highlights the potential issues with defining \u201cpress\u201d as journalism by function. Id. <\/em>at 446-82. \u201cThe issue here is not whether history proves that press means journalism, but whether journalism might provide a satisfactory\u2014if changing\u2014conception of press. It can do so only if journalism can be distinguished from other types of information busi\u00adnesses.\u201d Id. <\/em>at 451.<\/li>\n
                    14. Journalist<\/em>, Merriam-Webster, https:\/\/www.merriam-webster.com\/dictionary\/journalist (last visited May 12, 2017).<\/li>\n
                    15. Journalism<\/em>, Merriam-Webster, https:\/\/www.merriam-webster.com\/dictionary\/journalism (last visited May 12, 2017).<\/li>\n
                    16. See <\/em>West, supra <\/em>note 15, at 1056.<\/li>\n
                    17. See, e.g., <\/em>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). \u201cThe 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.\u201d Id. <\/em>at 219; see also <\/em>Anderson, supra <\/em>note 12, at 436 (\u201cThe cases in which the [Supreme] Court seems to rely on the Press Clause have involved newspapers or magazines whose status as press was unquestioned.\u201d); but see id. <\/em>at 441 (discussing media convergence and stating newspapers may no longer be a \u201cself-contained species of press\u201d). Anderson also notes that while independence is paramount to journalism, various factors, such as financial demands, audience interests, influence of advertisers, and editors\u2019 self-interests, may affect journalistic independence of traditional newspapers. See id. <\/em>at 453-66.<\/li>\n
                    18. Am. Commc\u2019ns Assn. v. Douds, <\/em>339 U.S. 382, 394 (1950).<\/li>\n
                    19. See <\/em>Abrams v. United States, 250 U.S. 616 (1919).<\/li>\n
                    20. See <\/em>Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (\u201c[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.\u201d).<\/li>\n
                    21. See <\/em>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). \u201cIf 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 \u2018compelling need\u2019 for a newsman\u2019s testimony.\u201d Id. <\/em>at 708. The First Amendment does not protect citizens from disclosing information that they received in confidence to a grand jury. Id. <\/em>at 682.<\/li>\n
                    22. Id. <\/em>at 691.<\/li>\n
                    23. Id.<\/em>; see id. <\/em>at 691-92 (\u201cThe [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.\u201d).<\/li>\n
                    24. New York Times Co. v. United States, 403 U.S. 713 (1971).<\/li>\n
                    25. Id. <\/em>at 714.<\/li>\n
                    26. Id. <\/em><\/li>\n
                    27. Id. <\/em>at 714\u201363.<\/li>\n
                    28. See id. <\/em>at 733\u201340.<\/li>\n
                    29. See id. <\/em>at 721 (\u201cThus, it is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act.\u201d).<\/li>\n
                    30. See id. <\/em>at 714\u201320.<\/li>\n
                    31. New York Times Co.<\/em>, 403 U.S. at 715.<\/li>\n
                    32. Id. <\/em><\/li>\n
                    33. See id. <\/em><\/li>\n
                    34. Id. <\/em>at 716 (citing 1 Annals of Cong. 434).<\/li>\n
                    35. Id. <\/em><\/li>\n
                    36. Id. <\/em><\/li>\n
                    37. Id. <\/em>at 717.<\/li>\n
                    38. New York Times Co.<\/em>, 403 U.S. at 717.<\/li>\n
                    39. Id. <\/em><\/li>\n
                    40. Id. <\/em><\/li>\n
                    41. Id. <\/em>at 718.<\/li>\n
                    42. Id. <\/em>at 719.<\/li>\n
                    43. Id. <\/em><\/li>\n
                    44. See New York Times Co.<\/em>, 403 U.S. at 720.<\/li>\n
                    45. Id. <\/em><\/li>\n
                    46. Id. <\/em>at 721\u201322.<\/li>\n
                    47. Id. <\/em>at 724.<\/li>\n
                    48. Id. <\/em>at 725.<\/li>\n
                    49. Id. <\/em>at 726.<\/li>\n
                    50. New York Times Co.<\/em>, 403 U.S. at 726.<\/li>\n
                    51. Id. <\/em>at 726\u201327.<\/li>\n
                    52. See id. <\/em>at 733.<\/li>\n
                    53. Id. <\/em>at 734.<\/li>\n
                    54. Id. <\/em>at 735-36.<\/li>\n
                    55. Id. <\/em>at 737.<\/li>\n
                    56. New York Times Co.<\/em>, 403 U.S. at 737\u201340 (citing Gorin v. United States, 312 U.S. 19 (1941) and stating that national defense information is \u201cobviously not limited to that threatening \u2018grave and irreparable\u2019 injury to the United States\u201d Id. <\/em>at 740.).<\/li>\n
                    57. Id. <\/em>at 728.<\/li>\n
                    58. Id. <\/em><\/li>\n
                    59. See id. <\/em><\/li>\n
                    60. See id. <\/em>at 730.<\/li>\n
                    61. New York Times Co.<\/em>, 403 U.S. at 752.<\/li>\n
                    62. Id. <\/em>at 745.<\/li>\n
                    63. See id. <\/em>at 752\u201359.<\/li>\n
                    64. Smith v. Daily Mail Publ\u2019g Co., 443 U.S. 97, 104 (1979).<\/li>\n
                    65. Id. <\/em>at 98-99.<\/li>\n
                    66. Id. <\/em>at 99.<\/li>\n
                    67. Id. <\/em>at 100.<\/li>\n
                    68. Id. <\/em>at 100-01.<\/li>\n
                    69. Id. <\/em><\/li>\n
                    70. Smith, <\/em>443 U.S.. at 101-02.<\/li>\n
                    71. Id. <\/em>at 102. In Landmark, <\/em>the Court considered whether the state interests served by the confidentiality of Virginia Judicial Inquiry and Review Commission proceedings were \u201csufficient to justify the encroachment on First Amendment guarantees,\u201d 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, \u201cneither the Commonwealth\u2019s 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.\u201d Id. <\/em>at 841. \u201c[T]he publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth\u2019s 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.\u201d Id. <\/em>at 838.<\/li>\n
                    72. Smith<\/em>, 443 U.S. at 102-04 (quoting Landmark<\/em>, 435 U.S. at 838, Cox Broad. Corp. v. Cohn, <\/em>420 U.S. 469, 495 (1975) and Oklahoma Publ\u2019g Co. v. District Court, <\/em>430 U.S. 308, 355 (1977)).<\/li>\n
                    73. Id. <\/em>at 102.<\/li>\n
                    74. Id. <\/em>at 104\u201305.<\/li>\n
                    75. Id. <\/em>at 106.<\/li>\n
                    76. Bartnicki v. Vopper, 532 U.S. 514 (2001).<\/li>\n
                    77. Id. <\/em>at 517\u201318.<\/li>\n
                    78. Id. <\/em>at 518.<\/li>\n
                    79. Id. <\/em>at 519<\/li>\n
                    80. Id. <\/em><\/li>\n
                    81. Id. <\/em>at at 525; 18 U.S.C. \u00a7 2511(1)(c).<\/li>\n
                    82. Bartnicki, <\/em>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<\/em>. at 529 (\u201cAccordingly, we consider whether, given the facts of these cases, the interests served by \u00a7 2511(1)(c) can justify its restrictions on speech.\u201d) (emphasis added).<\/li>\n
                    83. Id. <\/em><\/li>\n
                    84. Id. <\/em><\/li>\n
                    85. Id. <\/em>at 534-35. \u201cWe think it clear that parallel reasoning requires the conclusion that a stranger\u2019s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.\u201d Id. <\/em>at 535.<\/li>\n
                    86. Id. <\/em>at 535.<\/li>\n
                    87. Id; but see id. <\/em>at 540 (Breyer, J., concurring) (\u201cThus, in finding a constitutional privilege to publish unlawfully intercepted conversations of the kind here at issue, the Court does not create a \u2018public interest\u2019 exception that swallows up the statutes\u2019 privacy-protecting general rule. Rather, it finds constitutional protection for publication of intercepted information of a special kind. Here, the speakers\u2019 legitimate privacy expectations are unusually low, and the public interest in defeating those expectations is unusually high.<\/em>\u201d) (emphasis added).<\/li>\n
                    88. See <\/em>United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006), amended<\/em>, WL 5049154 (2006), aff\u2019d<\/em>, 557 F.3d 192 (4th Cir. 2009) (affirming the district court\u2019s evidentiary rul\u00adings challenged by the government).<\/li>\n
                    89. Id. <\/em>at 607-08.<\/li>\n
                    90. Id. <\/em>at 608.<\/li>\n
                    91. Id. <\/em><\/li>\n
                    92. Id. <\/em><\/li>\n
                    93. Id. <\/em><\/li>\n
                    94. Rosen<\/em>, 445 F. Supp. 2d at 608.<\/li>\n
                    95. Id. <\/em><\/li>\n
                    96. Id. <\/em><\/li>\n
                    97. Id. <\/em><\/li>\n
                    98. Id. <\/em><\/li>\n
                    99. Id. <\/em><\/li>\n
                    100. Rosen<\/em>, 445 F. Supp. 2d at 608\u201310.<\/li>\n
                    101. Id. <\/em>at 609.<\/li>\n
                    102. Id. <\/em>at 607. One defendant was additionally charged with aiding and abetting the transmis\u00adsion of such information as well, in violation of 18 U.S.C. \u00a7 793(d) (2016). Id. <\/em><\/li>\n
                    103. Id. <\/em>This is similar to the statutory issue discussed briefly in the New York Times Co. <\/em>case. See supra <\/em>note 32 and accompanying text.<\/li>\n
                    104. Id. <\/em>at 610.<\/li>\n
                    105. Id. <\/em>at 629\u201330.<\/li>\n
                    106. Rosen<\/em>, 445 F. Supp. 2d at 630.<\/li>\n
                    107. Id. <\/em><\/li>\n
                    108. Id. <\/em><\/li>\n
                    109. See id. <\/em>at 633.<\/li>\n
                    110. Id. <\/em>at 633\u201334. (quoting Haig v. Agee, 453 U.S. 280, 307 (1981)). \u201cAgee is as free to criticize the United States government as he was when he held a passport\u2014always subject, of course, to express limits on certain rights by virtue of his contract with the government.\u201d Id. <\/em>at 636 (quoting Haig<\/em>, 453 U.S. at 308).<\/li>\n
                    111. Rosen<\/em>, 445 F. Supp. 2d at 635.<\/li>\n
                    112. Id. <\/em><\/li>\n
                    113. Id. <\/em><\/li>\n
                    114. Id. <\/em><\/li>\n
                    115. Id. <\/em><\/li>\n
                    116. Rosen<\/em>, 445 F. Supp. 2d at 636.<\/li>\n
                    117. Id. <\/em>at 637.<\/li>\n
                    118. Id. <\/em>at 639.<\/li>\n
                    119. See <\/em>United States v. Morison, 844 F.2d 1057, 1080-86 (4th Cir. 1988).<\/li>\n
                    120. Rosen<\/em>, 445 F. Supp. 2d at 639.<\/li>\n<\/ol>\n

                      124 Id. <\/em>at 640.<\/p>\n

                        \n
                      1. Id. <\/em><\/li>\n
                      2. Id. <\/em>at 641. The court also held that defendants\u2019 overbreadth challenge of \u00a7 793 failed. Id. <\/em>at 643.<\/li>\n
                      3. Id. <\/em>at 646.<\/li>\n
                      4. Id. <\/em>at 640.<\/li>\n
                      5. See id. <\/em><\/li>\n
                      6. Smith v. Daily Mail Pub. Co., 443 U.S. 97, 102 (1979).<\/li>\n
                      7. See <\/em>New York Times Co. v. United States, 403 U.S. 713, 728 (1971).<\/li>\n
                      8. Id. <\/em><\/li>\n
                      9. See <\/em>Bartnicki v. Vopper, 532 U.S. 514, 525 (2001) (stating that the subject matter was a matter of public concern).<\/li>\n
                      10. Rosen<\/em>, 445 F. Supp. 2d at 630.<\/li>\n
                      11. Edward Snowden\u2019s 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 <\/em>Steven Nelson, In Declassified Edward Snowden Report, Committee Walks Back Claims About \u2018Intentional Lying<\/em>,\u2019 <\/em>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 \u201cserial exaggerator and fabricator\u201d 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. <\/em>Moreover, the full report states that \u201cthe most recent DoD review identified 13 high-risk issues\u201d related to the disclosures and notes that some of the information released, if procured by the Russian and Chinese governments, could put American troops \u201cat greater risk in any future conflict.\u201d Review of the Unauthorized Disclosures of Former National Security Agency Contractor Edward Snowden<\/em>, U.S. House of Representatives 1, 22 (2016), available at <\/em>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 \u201cSnowden\u2019s disclosures caused massive damage to national security,\u201d and 3) the estimated cost to recover from the damage Snowden caused to SIGINT capabilities. Id. <\/em>at 22-30. Therefore, it is difficult to gauge when national security is at a genuine risk.<\/li>\n
                      12. Branzburg v. Hayes, 408 U.S. 665, 727 (1972).<\/li>\n
                      13. See also <\/em>Mary-Rose Papandrea, Lapdogs, Watchdogs, and Scapegoats: The Press and National Security Information<\/em>, 83 Indiana L. J. 233, 278 (2008) (\u201cAlthough the courts have not expressly addressed the constitutionality of prosecuting the press for publishing classified national security information . . . current First Amendment jurisprudence sug\u00adgests some constitutional limitations on the government\u2019s prosecutorial powers.\u201d). 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<\/em>. at 278-305.<\/li>\n
                      14. Peter Sterne, Sessions \u2018Not Sure\u2019 Whether He Would Prosecute Journalists<\/em>, 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.<\/li>\n
                      15. Id. <\/em><\/li>\n
                      16. Black\u2019s Law Dictionary, supra <\/em>note 11 (emphasis added<\/em>). See also <\/em>Lindsay B. Barnes, The Changing Face of Espionage: Modern Times Call for Amending the Espionage Act<\/em>, 46 McGeorge L. Rev. 511, 522 (2014) (citing the definition for \u201cwhistleblower\u201d as provided in Black\u2019s Law Dictionary).<\/li>\n
                      17. Black\u2019s Law Dictionary (6th ed. 1990).<\/li>\n
                      18. See <\/em>Barnes, supra <\/em>note 140, at 522; 5 U.S.C. \u00a7 2302(b)(8)-(9) (2017) (citing 5 U.S.C. \u00a7 2302(b)(8)(A)(i)-(ii) (2016)). Through the \u201cWhistleblower Protection Enhancement Act of 2012,\u201d Congress made changes to chapter 23, which included, among other amendments, (1) changing \u201ca violation\u201d to \u201cany violation\u201d in (b)(8), and (2) expanding the individual right of action (IRA) right to include most reprisal claims under 5 U.S.C. \u00a7 2302(b)(9). Pub. L. No. 112-199 (2012). Signed into law by President Obama, this Act amended chapter 23 of title 5 \u201cto 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.\u201d Id.<\/em>; see also Prohibited Personnel Practices: Our Process<\/em>, OCS.gov, https:\/\/osc.gov\/Pages\/ppp-ourprocess.aspx (last visited Feb. 13, 2018).<\/li>\n
                      19. See <\/em>5 U.S.C. \u00a7 2302(b)(8) (2016).<\/li>\n
                      20. See <\/em>5 U.S.C. \u00a7 2302(b)(8)-(9) (2016).<\/li>\n
                      21. See <\/em>5 U.S.C.A. \u00a7 2302(a)(2)(C)(ii) (2016); but see <\/em>5 U.S.C \u00a7 2303 (2016) (setting out protections for FBI employees); see also <\/em>\u201cFederal Bureau of Investigation Whistleblower Protection Enhancement Act of 2016,\u201d Publ. L. No.114-302 (amending 5 U.S.C. \u00a7 2303 to expand protections for FBI employees).<\/li>\n
                      22. Kahn v. Dep\u2019t of Justice, 618 F.3d 1306, 1311 (Fed. Cir. 2010).<\/li>\n
                      23. Instead, a person falling under \u00a7 793 of the Espionage Act would likely be categorized as a \u201cleaker,\u201d which has no legal definition. Barnes, supra <\/em>note 140 at 521-25; see also <\/em>Nick Gass, White House: Snowden \u2018Is Not a Whistleblower<\/em>,\u2019 <\/em>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.).<\/li>\n
                      24. Whistleblower<\/em>, Dictionary.com, http:\/\/www.dictionary.com\/browse\/whistleblower (last visited May 13, 2017).<\/li>\n
                      25. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).<\/li>\n
                      26. See <\/em>Snepp v. United States, 444 U.S. 507 (1980).<\/li>\n
                      27. Id. <\/em><\/li>\n
                      28. Id. <\/em>at 507-08.<\/li>\n
                      29. Id. <\/em>at 508.<\/li>\n
                      30. Id. <\/em>at 507.<\/li>\n
                      31. Id. <\/em>at 510.<\/li>\n
                      32. Id. <\/em>at 511.<\/li>\n
                      33. Id. <\/em><\/li>\n
                      34. Id. <\/em><\/li>\n
                      35. Id. <\/em>at 512-13; (the Director of the CIA testified that this book and others like it have im\u00adpeded American intelligence operations); but see id. at 518-19 <\/em>( 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 \u201cimposed in aid of the basic duty to maintain confidentiality, to obtain prepublication clearance.\u201d \u201cLike 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 accommoda\u00adtion that will preserve the intelligence mission of the Agency while not abridging the free flow of unclassified information.<\/em>\u201d Id. <\/em>at 520 (emphasis added)).<\/li>\n
                      36. See <\/em>United States v. Morison, 844 F.2d 1057 (4th Cir. 1988).<\/li>\n
                      37. Id. <\/em>at 1060.<\/li>\n
                      38. Id. <\/em><\/li>\n
                      39. Id. <\/em><\/li>\n
                      40. Id. <\/em><\/li>\n
                      41. Id. <\/em><\/li>\n
                      42. Morison, <\/em>844 F.2d at 1060-61.<\/li>\n
                      43. Id. <\/em>at 1061.<\/li>\n
                      44. Id. <\/em><\/li>\n
                      45. Id. <\/em><\/li>\n
                      46. Id. <\/em><\/li>\n
                      47. Id. <\/em><\/li>\n
                      48. Id. <\/em><\/li>\n
                      49. Morison, <\/em>844 F.2d at 1063.<\/li>\n
                      50. Id. <\/em><\/li>\n
                      51. Id. <\/em>at 1063-64. This is similar to the statutory issue discussed briefly in the New York Times Co. <\/em>case. See supra <\/em>note 32 and accompanying text.<\/li>\n
                      52. Morison<\/em>, 844 F.2d at 1064.<\/li>\n
                      53. Id. <\/em>at 1067.<\/li>\n
                      54. Id. <\/em><\/li>\n
                      55. Id. <\/em>at 1067-68 (citing David M. Rabban, The Emergence of Modern First Amendment Doctrine, <\/em>50 U. Chi.L.Rev. 1205, 1218 (1983)).<\/li>\n
                      56. Id. <\/em>at 1068.<\/li>\n
                      57. Id. <\/em><\/li>\n
                      58. Id. <\/em><\/li>\n
                      59. Id. <\/em>at 1069\u201370.<\/li>\n
                      60. Morison, <\/em>844 F.2d at 1070.<\/li>\n
                      61. Id. <\/em>at 1077. (\u201c[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 mo\u00adtivated not by patriotism and the public interest but by self-interest.\u201d).<\/li>\n
                      62. See <\/em>Anthony Lewis, Abroad at Home; The Pardons in Perspective<\/em>, N.Y. Times (Mar. 3, 2001), https:\/\/www.nytimes.com\/2001\/03\/03\/opinion\/abroad-at-home-the-pardons-in-perspective.html (\u201cBecause 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.\u201d).<\/li>\n
                      63. See Jane\u2019s Defence Weekly<\/em>, IHSMarkit, https:\/\/ihsmarkit.com\/products\/janes-defence-news-weekly.html (last visited Mar. 20, 2018). President Bill Clinton eventually pardoned Morison. See <\/em>Lewis, supra <\/em>note 186.<\/li>\n
                      64. United States v. Rosen, 445 F. Supp. 2d 602, 635 (E.D. Va. 2006).<\/li>\n
                      65. Jon Greenberg, CNN\u2019s Tapper: Obama Has Used Espionage Act More Than All Previous Administrations<\/em>, 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-\/.<\/li>\n
                      66. Id. <\/em><\/li>\n
                      67. Id. <\/em><\/li>\n
                      68. Id. <\/em><\/li>\n
                      69. See <\/em>Glenn Kessler, Edward Snowden\u2019s Claim That He Had \u2018No Proper Channels\u2019 for Protection As a Whistleblower<\/em>, 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.<\/li>\n
                      70. See <\/em>Office of the White House Press Secretary, Presidential Policy Directive 19- ProtectingWhistleblowers withAccess to Classified Information(Oct. 12, 2012).<\/li>\n
                      71. Id. <\/em><\/li>\n
                      72. Kessler, supra <\/em>note 193.<\/li>\n
                      73. Id. <\/em><\/li>\n
                      74. Id. <\/em><\/li>\n
                      75. Id. <\/em>The Intelligence Authorization Act for FY2014, Pub. L. No. 113-126 (2014), seemingly codifies and expands some of PPD-19\u2019s protections; however, \u201cprotections extend only to employees of \u2018covered intelligence community element[s],\u2019 and therefore do not appear to apply to [Intelligence Community] contractors.\u201d Rodney M. Perry, Cong. ResearchServ., R43765, Intelligence Whistleblower Protections: InBrief 7 (2014), https:\/\/ fas.org\/sgp\/crs\/intel\/R43765.pdf.<\/li>\n
                      76. See <\/em>Perry, supra <\/em>note 199, at 6; see also What is an Executive Order?<\/em>, AmericanBar Assoc\u2019n, https:\/\/www.americanbar.org\/publications\/insights_on_law_andsociety\/17\/fall- 2016\/what-is-an-executive-order.html (last visited May 19, 2018).<\/li>\n
                      77. Intelligence Community Whistleblower Protection Act, Pub. L. No. 105\u2013272 (1998); Intelligence Community Whistleblower Protection Act (ICWPA): About the ICWPA<\/em>, Dep.t of Defense Office of Inspector General, http:\/\/www.dodhotline.dodig.mil\/programs\/ whistleblower\/icwpa.html (last visited May 19, 2018).<\/li>\n
                      78. Intelligence Community Whistleblower Protection Act (ICWPA): About the ICWPA<\/em>, Office of Inspector General: U.S. Dep\u2019t. of Defense, http:\/\/www.dodig.mil\/programs\/whistle\u00adblower\/icwpa.html.<\/li>\n
                      79. See <\/em>Daniel D\u2019Isidoro, Protecting Whistleblowers and Secrets in the Intelligence Community<\/em>, Harv. L. Sch.: Nat\u2019l Security J. (Sept. 29, 2014), http:\/\/harvardnsj.org\/2014\/09\/protecting-whistleblowers-and-secrets-in-the-intelligence-community\/; see also <\/em>Perry, supra <\/em>note 199, at 2; Kessler, supra <\/em>note 193.<\/li>\n
                      80. See <\/em>50 U.S.C. \u00a7 3517(d)(5) (2015) (ICPWA provisions pertaining to CIA employees and contractors).<\/li>\n
                      81. See id.; see also <\/em>Mieke Eoyang, Should Intelligence Whistleblowers Be Protected?<\/em>, The Atlantic(Jan 23, 2016), https:\/\/www.theatlantic.com\/politics\/archive\/2016\/01\/ should-intelligence-whistleblowers-be-protected\/424872\/.<\/li>\n
                      82. See id. <\/em>Protections for whistleblowers outside the Intelligence Community are also lacking. For example, the Supreme Court recently held that, in order to qualify as a \u201cwhistleblower\u201d 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).<\/li>\n
                      83. See <\/em>50 U.S.C. \u00a7 3517(d)(5)(d)(i)-(ii) (2017) (to submit a complaint to Congress, the employee must still contact the agency head)..<\/li>\n
                      84. See <\/em>Perry, supra <\/em>note 199 at Summary (\u201cHowever, intelligence whistleblowers could face retaliation from their employers for their disclosures, and the fear of such retaliation may deter whistleblowing.\u201d Id. <\/em>\u201cNone of these measures protect against retaliation or potential criminal liability arising from disclosures to media sources.\u201d Id.<\/em>).<\/li>\n
                      85. See <\/em>Eoyang, supra <\/em>note 205.<\/li>\n
                      86. Id. <\/em><\/li>\n
                      87. Kessler, supra <\/em>note 193.<\/li>\n
                      88. D\u2019Isidoro, supra <\/em>note 203.<\/li>\n
                      89. Id. <\/em><\/li>\n
                      90. Dennis & Shell, supra <\/em>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 <\/em>David Wise, Leaks and the Law: The Story of Thomas Drake<\/em>, SmithsonianMag. (Aug. 2011), https:\/\/www.smithsonianmag.com\/history\/leaks-and-the-law-the-story-of-thomas-drake-14796786\/.<\/li>\n
                      91. New York Times Co. v. United States, 403 U.S. 713, 728 (1971).<\/li>\n
                      92. See Whistleblower<\/em>, supra <\/em>note 148.<\/li>\n
                      93. See Journalist<\/em>, supra <\/em>note 17.<\/li>\n
                      94. New York Times Co.<\/em>, 403 U.S. at 717.<\/li>\n
                      95. Id. <\/em>While Justice Black\u2019s 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\u2019g. Co., 443 U.S. 97 (1979).<\/li>\n
                      96. See 2014 Pulitzer Prizes<\/em>, supra <\/em>note 4.<\/li>\n
                      97. See <\/em>Anderson, supra <\/em>note 12 (mentioning \u201cjournalistic discretion\u201d as a possible object of protection under the Press Clause).<\/li>\n
                      98. Sarah Childress, How the NSA Spying Programs Have Changed Since Snowden<\/em>, PBS(Feb. 9, 2015), http:\/\/www.pbs.org\/wgbh\/frontline\/article\/how-the-nsa-spying-programs-have-changed-since-snowden\/.<\/li>\n
                      99. Id. <\/em><\/li>\n
                      100. Id. <\/em><\/li>\n
                      101. See <\/em>Lori Grisham, 4 Things That Changed Since Snowden Leaks<\/em>, USAToday (Jun. 5, 2014,9:13 AM), https:\/\/www.usatoday.com\/story\/news\/nation-now\/2014\/06\/05\/changes-since-snowden-leaks\/9978561\/.<\/li>\n
                      102. New York Times Co<\/em>., 403 U.S. 713, 728 (1971).<\/li>\n
                      103. Branzburg v. Hayes, <\/em>408 U.S. 665, 727 (1972).<\/li>\n
                      104. Id.<\/em><\/li>\n
                      105. United States v. Rosen, 445 F. Supp. 2d 602, 646 (E.D. Va. 2006).<\/li>\n
                      106. See <\/em>Papandrea, supra <\/em>note 137, at 298. (\u201c[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.\u201d). Papandrea\u2019s proposed \u201cintent\u201d standard \u201cwould permit liability based on \u2018reckless indifference.\u2019\u201d Id<\/em>. at 299.<\/li>\n
                      107. This legislation seemingly fits with Justice Brennan\u2019s opinion in the New York Times Co. case. See New York Times Co.<\/em>, 403 U.S. at 726.<\/li>\n<\/ol>\n","protected":false},"excerpt":{"rendered":"

                        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 […]<\/p>\n","protected":false},"author":32,"featured_media":0,"menu_order":71,"comment_status":"closed","ping_status":"closed","template":"","format":"standard","meta":{"_kad_blocks_custom_css":"","_kad_blocks_head_custom_js":"","_kad_blocks_body_custom_js":"","_kad_blocks_footer_custom_js":"","footnotes":"","_members_access_role":[],"_members_access_error":""},"categories":[],"tags":[],"issuem_issue":[113],"class_list":["post-291","article","type-article","status-publish","format-standard","hentry","issuem_issue-nlg-review-vol-74-no-4-winter-2017","post"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t