It violates free speech and is used cynically by government actors. We need a different approach.
There is a reason we have the First Amendment.
That reason isn’t to protect wholesome conversations among your family and friends and not-so-wholesome conversations about what you did over the weekend. It’s to protect controversial speech.
“If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all,” Noam Chomsky once said.
It’s also to protect an industry, the free press, from the kind of top-down interference that could inhibit them from exposing those in power.
The first time the First Amendment was ever challenged in the Supreme Court was in 1919. The case, Schenck v. United States, focused on a Jewish Socialist Party of America leader named Charles T. Schenck. Schenck and others had decided to distribute pamphlets, almost entirely in Yiddish, calling for Americans to resist the draft in particular and war efforts in general during World War I.
This is the case in which the most extreme form of free speech absolutism faced its famous counterargument: You can’t shout fire in a crowded theater. It was a point made by the Supreme Court Justice Oliver Wendell Holmes.
What Holmes failed to mention is that there was a fire in the theater.
During this time, Americans were largely misinformed about what was actually happening during World War I. The bloodshed was far greater and the war more treacherous than they had been led to believe. When Schenck coordinated anti-war messaging, he was prosecuted under the Espionage Act of 1917, which criminalized any efforts to impede the nation’s war actions.
Today, just over a century since the passage of the Espionage Act, we’re still seeing it used to kill free speech on a regular basis. Although it has, since its beginning, endured legal clarifications along the way, we are in a moment in which the law is being weaponized against the public interest.
Some thought that with President Harry Truman’s 1951 executive order, which set the conditions for targeting government leakers rather than journalists who work with them, the Espionage Act had managed to successfully walk a tightrope between national security concerns and First Amendment protections.
Yet when the state is willing to take such drastically punitive measures against its own workers for supplying news organs with what they need to exercise their First Amendment rights in the first place, we might ask: What is left of the First Amendment?
In our own day, the law’s application has seen a significant increase. Though the Espionage Act was sometimes used to go after journalists, whistle-blowers, and others during the George W. Bush administration, it was President Obama who most aggressively used this law to clamp down on leaks. In fact, the Obama administration prosecuted more citizens under the Espionage Act than all previous administrations combined.
The Obama White House didn’t just go after leakers within the government; they used this law to threaten journalists with jail time for not revealing their sources. James Risen, a former New York Times reporter who now works at the Intercept, nearly went to prison for not revealing his sources who exposed the warrantless surveillance of American citizens being conducted by the National Security Agency.
With this precedent firmly in place, the Trump administration has decided to use this method even more aggressively. A former FBI agent named Terry J. Albury and an NSA contractor named Reality Winner are both being charged with leaking classified information to reporters under the Espionage Act by Trump’s Justice Department, and they’re only part of a larger effort by the administration to convict more leakers. U.S. Attorney General Jeff Sessions has publicly acknowledged he is “ramping up” efforts to go after leakers using the Espionage Act.
In Winner’s case, for example, the courts have denied her bail on the grounds of her “dangerousness,” despite the utter lack of evidence that she is dangerous in the first place. And despite the fact that, in the past, “dangerousness” has only been used to deny bail when a defendant is charged with a violent crime, a major drug offense, a crime involving minors, or an offense that could receive life imprisonment or the death penalty. Yet recall why Winner is being charged: She sent a document to a news organization. It is hard to justify pegging her as so dangerous that she must not be allowed bail.
In response, some argue that these whistle-blowers deserve to be punished for giving classified information to journalists, because they say it risks national security. What this line of reasoning fails to take into account is that the whistle-blower system—which ideally would minimize national security risks—is broken.
Whistle-blowers are supposed to be protected if they reveal sensitive information about the government that shows, for instance, that an agency is breaking the law. We are currently in a place where whistle-blowers are instead punished for their efforts, which can cause them to leak to the press instead of going through the traditional whistle-blowing channels.
Edward Snowden, who also faces charges under the Espionage Act, tried to be a whistle-blower while he was working for NSA contractor Booz Allen Hamilton. He was rebuffed—both by the NSA and by the laws that disqualify contractors from whistle-blower protections. Before him, an NSA crypto-mathematician who created the agency’s software that was used for domestic spying named Bill Binney tried to blow the whistle and got nowhere. They were using his software for illegal purposes, but Congress paid no attention, and he allegedly ended up leaking. His house ended up being raided, and he faced massive legal issues.
If the government makes it prohibitively difficult to correctly blow the whistle, and if a law that was written over 100 years ago is being used to threaten the free press and those who would expose corruption and illegal acts, then it’s time to kill that law and resuscitate a robust, democracy-enhancing whistle-blower system. Surely our federal government can prosecute alleged enemies of the state without this 100-year-old law, which was written by people who couldn’t possibly have anticipated where technology and national security in general would be today. Furthermore, we must fix the whistle-blower system so that those who see something illegal happening in the government can say something without facing time in prison or other life-altering consequences.
If you’re not inclined to recognize the value of whistle-blowing for society at large, or the courage it takes to be the one through whom the whistle is blown, consider this write up from the Los Angeles Times about the publication of the Panama Papers in 2016:
The internal data from the dubious Panamanian law firm Mossack Fonseca revealed how dictators, drug cartels, mafia clans, fraudsters, weapons dealers and regimes like North Korea and Iran use offshore shell companies to hide their shady business transactions. The publication of investigations based on the papers brought down prime ministers in Iceland and Pakistan, triggered mass demonstrations and launched criminal trials around the world. Laws have changed and oversight committees have been adopted in numerous countries. The Panama Papers have helped tax authorities recover several hundred million dollars in unpaid taxes and penalties.
All this began with just one individual and his courage: A whistleblower who called himself (or herself, we still don’t know) “John Doe.” He anonymously leaked 2.6 terabytes of data to us. (We try not to think about what the drug dealers, dictators and organized crime figures would do to John Doe, if they could find him.) His life, his job and his family are still at risk because he saw corruption and decided to try to remedy it.
During the Obama presidency, I raised the specter, as a journalist, of a future administration coming along and ratcheting up the application of the Espionage Act in indefensible ways. We are seeing this now, and we need to turn back.
If a leak serves the national interest, and it does not endanger national security, it should be celebrated, not condemned. Yet the state has the machinery to suppress it and to send a powerful message to anyone else who would dare serve their country by informing us of what we need to know. This should not be. It is time to kill the Espionage Act.