Nigeria Content Online

The so-called
Shield bill, which was recently introduced in both houses of Congress
in response to the WikiLeaks disclosures, would amend the Espionage Act
of 1917 to make it a crime for any person knowingly and willfully to
disseminate, “in any manner prejudicial to the safety or interest of
the United States,” any classified information “concerning the human
intelligence activities of the United States.”

Although this
proposed law may be constitutional as applied to government employees
who unlawfully leak such material to people who are unauthorized to
receive it, it would plainly violate the First Amendment to punish
anyone who might publish or otherwise circulate the information after
it has been leaked. At the very least, the act must be expressly
limited to situations in which the spread of the classified information
poses a clear and imminent danger of grave harm to the nation.

The clear and
present danger standard has been a central element of our First
Amendment jurisprudence ever since Justice Oliver Wendell Holmes Jr.’s
1919 opinion in Schenk v. United States. In the 90 years since, the
precise meaning of “clear and present danger” has evolved, but the
animating principle was stated brilliantly by Justice Louis D. Brandeis
in his 1927 concurring opinion in Whitney v. California.

The founders “did
not exalt order at the cost of liberty,” wrote Brandeis; on the
contrary, they understood that “only an emergency can justify
repression. Such must be the rule if authority is to be reconciled with
freedom. Such … is the command of the Constitution. It is, therefore,
always open to Americans to challenge a law abridging free speech and
assembly by showing that there was no emergency justifying it.”

On the other hand,
the First Amendment does not compel government transparency. It leaves
the government extraordinary autonomy to protect its own secrets. It
does not accord anyone the right to have the government disclose
information about its actions or policies, and it cedes to the
government considerable authority to restrict the speech of its own
employees. What it does not do, however, is allow the government to
suppress the free speech of others when it has failed to keep its own
secrets.

We might think of
this like the attorney-client privilege. If a lawyer reveals his
client’s confidences to a reporter, he can be punished for violating
that privilege – but the newspaper cannot constitutionally be punished
for publishing the information.

There are very
good reasons why it makes sense to give the government so little
authority to punish the circulation of unlawfully leaked information.

First, the mere
fact that such information might “prejudice the interests of the United
States” does not mean that that harm outweighs the benefit of
publication; in many circumstances, it may be extremely valuable to
public understanding. Consider, for example, classified information
about the absence of weapons of mass destruction in Iraq.

Second, the
reasons that government officials want secrecy are many and varied.
They range from the truly compelling to the patently illegitimate. As
we have learned from our own history, it is often very tempting for
government officials to overstate their need for secrecy, especially in
times of national anxiety. A strict clear and present danger standard –
rather than an unwieldy and unpredictable case-by-case balancing of
harm against benefit – establishes a high bar to protect us against
this danger.

And finally, a
central principle of the First Amendment is that the suppression of
free speech must be the government’s last rather than its first resort
in addressing a problem. The most obvious way for the government to
prevent the danger posed by the circulation of classified material is
by ensuring that information that must be kept secret is not leaked in
the first place.

Indeed, the
Supreme Court made this point quite clearly in its 2001 decision in
Bartnicki v. Vopper, which held that when an individual receives
information “from a source who obtained it unlawfully,” that individual
may not be punished for publicly disseminating the information “absent
a need … of the highest order.”

The court
explained that if the sanctions now attached to the underlying criminal
act “do not provide sufficient deterrence,” then perhaps they should be
“made more severe” – but “it would be quite remarkable to hold” that an
individual can constitutionally be punished merely for publishing
information because the government failed to “deter conduct by a
non-law-abiding third party.” This is a sound solution.

If we grant the
government too much power to punish those who disseminate information,
then we risk too great a sacrifice of public deliberation; if we grant
the government too little power to control confidentiality at the
source, then we risk too great a sacrifice of secrecy. The answer is
thus to reconcile the irreconcilable values of secrecy and
accountability by guaranteeing both a strong authority of the
government to prohibit leaks and an expansive right of others to
disseminate information to the public.

Geoffrey R. Stone
is a professor of law at the University of Chicago and the chairman of
the board of the American Constitution Society.

© 2011 The New York Times