Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information

Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information

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The stakes are higher now than ever before in determining the First Amendment protections due government insiders who leak classified information to the press. Prior to the George W. Bush administration, only one person in American history had been successfully prosecuted for such a leak, and only two prosecutions had been brought. The Bush administration placed greater heat on leakers. It successfully prosecuted one leaker and opened investigations against others. The Obama administration turned the heat to levels that are stifling. By the end of its third year, the Administration had initiated six prosecutions, doubling the number previously brought by all past administrations combined.

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  • Daniel Chung

    I want to thank you for your very insightful article concerning the current (albeit sparse) federal caselaw surrounding “classified information” and its treatment of classified information vis-a-vis the First Amendment. It seems very much on point given the recent revelations by Edward Snowden regarding the NSA programs in place. Although viscerally I don’t view Snowden as a legitimate whistleblower, your arguments supported by facts as well as legal doctrine make a great case as to why the treatment of “classified” information as speech that is beyond First Amendment protection cannot be simply accepted on the premise of protecting national security interests. I will read the article again just because it raises issues that are certain to arise, if and when Snowden is ever brought back to the United States.