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

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.

2 thoughts on “Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information”

  1. 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.

  2. CISPA Legislation Is Disguised Fascism CISPA the Cyber Intelligence Sharing and Protection Act if signed into law will allow the mliitary and NSA warrant-less spying on Americans confidential electronic Communications; any transmitted private information circumventing the fourth amendment. CISPA will allow any self-protected cyber entity to share with the Feds any person s private information that might allegedly relate to a cyber threat or crime. Considering the U.S. Government s current business relationship with telephone and Internet companies, it should be expected the feds would use CISPA to gain unprecedented access to lawful Americans private electronic communications. Almost every week news media reports corrupt police arrested for selling drugs, taking bribes and perjury. It is foreseeable that broad provisions in CISPA that call for private businesses / cyber entities to share with Spy Agencies confidential information will open the door for corrupt government and police to sell a corporations confidential information to its competitors, foreign government and others. CISPA provides insufficient safeguards to control disposition of (shared) confidential corporate / cyber entity information, including confidential information shared by spy agencies with private entities derived from spying on Americans.The recently House Passed Cyber Security Bill overrides the Fourth Amendment. Government may use against Americans in Criminal, Civil and Administrative courts (any information) derived from CISPA warrant-less spying. CISPA will open the door for U.S. Government spy agencies such as NSA; the FBI; government asset forfeiture contractors, any private entity (to take out of context) any innocent hastily written email, fax or phone call to allege a crime or violation was committed to cause a person s arrest, assess fines and or civilly forfeit a business or property. There are more than 350 laws and violations that can subject property to government asset forfeiture. Government civil asset forfeiture requires only a civil preponderance of evidence for police to forfeit property, little more than hearsay. CISPA (warrant-less electronic surveillance) will enable the U.S. Justice Department to bypass the Fourth Amendment, use information extracted from CISPA electronic surveillance) of Americans Web Server Records, Internet Activity, transmitted emails, faxes, and phone calls to issue subpoenas in hopes of finding evidence or to prosecute Citizens for any alleged crime or violation. If the current CISPA is signed into law it is problematic federal, state and local law enforcement agencies and private government contractors will want access to prior Bush II NSA and other government illegally obtained electronic records to secure evidence to arrest Americans; civilly forfeit their homes, businesses and other assets under Title 18USC and other laws. Of obvious concern, what happens to fair justice in America if police become dependent on Asset Forfeiture to help pay their salaries and budget operating costs? Note: the passed Civil Asset Forfeiture Reform Act of 2000 (effectively eliminated) the five year statue of limitations for Government Civil Asset Forfeiture of property: the statute now runs five years (from the date) police allege they learned an asset became subject to forfeiture. If CISPA takes affect, allows (no warrant) electronic government surveillance of Americans, it is expected CISPA will be used by government not only to thwart cyber threats, but to aggressively prosecute Americans and businesses for any alleged crime: U.S. Government spy and police agencies; quasi government contractors for profit, will relentlessly sift through Citizen and businesses (government retained Internet data), emails and phone communications) to discover possible crimes or civil violations. A corrupt U.S. Government Administration too easily use CISPA no-warrant-seized emails, faxes, Internet data and phone call information) to target, blackmail and extort its political opposition; selectively target any Citizen, corporation and others in the manner Hitler used his Nazi passed legislation that permitted no-warrant Nazi police searches and seizure of Citizens and businesses or to extort support for the Nazi fascist government. Hitler Nazi Laws made it possible for the Nazi s to strong-armed German parliament to pass Hitler s 1933 Discriminatory Decrees that suspended the Constitutional Freedoms of German Citizens. History shows how that turned out. CISPA warrant-less electronic surveillance) has the potential of turning America into a similar Fascist Police State.

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