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A HELPING HAND: ADDRESSING NEW
IMPLICATIONS OF THE ESPIONAGE ACT ON
FREEDOM OF THE PRESS
Laura Barandes*
INTRODUCTION
In Washington, D.C., information often surpasses cash as the most
valuable form of currency.1 Over the course of five years, two lobbyists
from the American Israel Public Affairs Committee (AIPAC) cultivated
a relationship with Pentagon official Lawrence Franklin2 and had a
series of meetings with him in and around the nation’s capitol.3 During
these meetings, Franklin discussed information not publicly available on
sensitive matters related to the Middle East, the lobbyists’ primary area
of concern.4 No classified documents were secreted away from the
Pentagon and most of the meetings consisted of verbal exchanges.5 The
lobbyists subsequently shared this information with AIPAC, foreign
officials, and members of the media, with the intention of influencing
public policy.6 From all outward appearances, it was business as usual
* Notes Editor, Cardozo Law Review. J.D. Candidate (2008), Benjamin N. Cardozo School
of Law; B.A. (1999) Swarthmore College. I would like to thank Professor Kevin Stack for his
enthusiastic guidance, Alan J. Feld for his sage advice, and my family for its unwavering support
1 John M. de Figueiredo, Lobbying and Information in Politics, 4 BUS. & POL. 2 (2002),
available at http://web.mit.edu/jdefig/www/papers/lobbying_information.pdf. De Figueiredo
argues that “the more influential instrument in affecting policy outcomes is not campaign
contributions, but information” and that “[t]he manifestation of information transfer between
interest groups and policy-makers is lobbying.” Id. at 2.
2 Franklin worked at the Department of Defense on the Iran desk and had top security
clearance during the time period of the alleged conspiracy. United States v. Rosen, 445 F. Supp.
2d 602, 608 (E.D. Va. 2006).
3 Superseding Indictment at Counts I & II, United States v. Rosen, 487 F. Supp. 2d 721
(E.D. Va. Aug. 4, 2006) (No. 1:05cr225), available at http://www.fas.org/irp/ops/
ci/franklin0805.pdf [hereinafter Superseding Indictment].
4 Id.
5 Id. See also Memorandum of Law in Support of Defendants Steven J. Rosen’s & Keith
Weissman’s Motion to Dismiss Superseding Indictment at 3-4, United States v. Rosen, 487 F.
Supp. 2d 721 (E.D. Va. Jan. 19, 2006) (No. 1:05cr225), available at
http://www.fas.org/sgp/jud/rosen011906.pdf [hereinafter Defendants Motion to Dismiss].
6 Superseding Indictment, supra note 3, at Count I, Overt Acts ¶¶ 1, 3, 5, 6-7, 8-10, 17-18,
371
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in the beltway.
That changed on August 4, 2004. A federal grand jury indicted
Franklin and the two lobbyists, Steven J. Rosen and Keith Weissman,7
for violating sections 793(d)8 and (e)9 of the Espionage Act. Under the
first provision, prosecutors charged the lobbyists with conspiring to leak
“information relating to the national defense” that was in the authorized
possession of Franklin.10 Under the second provision, prosecutors
charged them with having “unauthorized possession” of the same
information and sharing it with persons “not entitled to receive it.”11
Soon after the indictment, Franklin pled guilty,12 but the Department of
Justice has continued to pursue the case against Rosen and Weissman
and the District Court has ruled that the prosecution can go forward.13
In the current climate of international terrorism, coupled with an
administration committed to a strong unitary executive position,14 this
28, 35, 43, 44-48.
7 At the time of the alleged conspiracy, Rosen served as AIPAC’s Director of Foreign Policy
Issues and Weissman was AIPAC’s Senior Middle East Analyst; both men engaged in lobbying
officials within the executive branch. Rosen, 445 F. Supp. 2d at 608.
8 Section 793(d) of the Espionage Act provides:
Whoever, lawfully having possession of, access to, or control over. . . any document,
writing, code book, signal book, sketch, [or] photograph . . . relating to the national
defense, or information relating to the national defense which information the
possessor has reason to believe could be used to the injury of the United States or the
advantage of any foreign nation, willfully communicates, delivers, transmits . . . the
same to any person not entitled to receive it, or willfully retains the same . . . shall be
fined under this title or imprisoned not more than ten years or both.
18 U.S.C. § 793(d) (2000).
9 Section 793(e) of the Espionage Act prohibits essentially the same conducts as subsection
(d), except that it applies to those with “unauthorized” possession of the material at issue. 18
U.S.C. § 793(e).
10 Superseding Indictment, supra note 3, at Count I.
11 Id. at Count II.
12 Lawrence Franklin, charged as a co-conspirator, pled guilty and was sentenced to ten years
in prison. See Order of Judgment at 5, United States v. Franklin, No. 1:05cr225 (E.D. Va. Jan.
20, 2006); see also Transcript of Sentencing Hearing, United States v. Franklin, No. 1:05cr225
(E.D. Va. Jan. 20, 2006), available at http://www.fas.org/sgp/jud/franklin012006.pdf.
13 For an in-depth examination of the court’s decision, see Recent Case, Constitutional Law –
Due Process and Free Speech—District Court Holds That Recipients of Government Leaks Who
Disclose Information “Related to the National Defense” May Be Prosecuted Under the
Espionage Act—United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006), 120 HARV. L. REV.
821 (2007) [hereinafter Due Process and Free Speech].
14 In a speech delivered to the Federalist Society in 2000, then-Judge Samuel A. Alito
described the theory as accepting that “all federal executive power is vested by the Constitution in
the President,” thus envisioning a diminished role for Congress. Alito explained that in his view,
the Constitution grants the president ''not just some executive power, but the executive power—
the whole thing." Charlie Savage, Schumer Questions Nominee's Theory on Executive Role,
BOSTON GLOBE, Jan. 10, 2006, at A6. For an extended examination of the theory from several of
its academic supporters, see Christopher S. Yoo, Steven G. Calabresi & Anthony J. Colangelo,
The Unitary Executive in the Modern Era, 1945-2004, 90 IOWA L. REV 601 (2005). For the
opposing view, see Jennifer Van Bergen, The Unitary Executive: Is the Doctrine Behind the Bush
Presidency Consistent with a Democratic State?, FINDLAW, Jan. 9, 2006,
http://writ.news.findlaw.com/commentary/20060109_bergen.html.
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prosecution might not seem unexpected. The AIPAC case, however,
presents a novel use of the Espionage Act because the defendants were
not government employees.
The question of whether the Act should apply in this context has its
roots in the 1971 Pentagon Papers case.15 The government sought to
enjoin the New York Times and Washington Post from publishing
classified documents but did not actually prosecute under any statute.
Justice White, in his concurrence, rejected the government’s request for
an injunction or “prior restraint”16 and addressed sua sponte the
possibility of applying the Espionage Act to newspapers postpublication.17 That opinion is widely credited with opening the door to
prosecuting the press, but the theory remained untested. The Cold War
case, United States v. Morison, went one step further, finding the Act
covered press leaks. 18 Yet, Morison still involved a government official
found guilty of using his access to classified material in violation of the
Espionage Act.19
In contrast, the United States government has not alleged that the
AIPAC lobbyists, who were not government employees, stole or
obtained classified material for the purpose of transmitting it to a
foreign government or spies, the more traditional understanding of
espionage. Instead, the government alleged that the lobbyists possessed
orally-conveyed information and shared it with a “person not entitled to
receive it.”20 This prosecution, and the fact that a federal judge has
allowed it to survive a motion to dismiss,21 portends a potentially
overbroad application of the Espionage Act. Specifically, having made
the leap from government employee to lay person, it is an
uncomfortably short hop from lobbyist to journalist.22
Congress has revisited the statute several times since its original
enactment in 1917, and while not increasing its clarity, repeatedly
rejected the kind of encroachment on free speech that the AIPAC
prosecution represents.23 Though currently targeting lobbyists, an
overly broad statutory application by courts ultimately threatens and
15 N.Y. Times Co. v. United States, 403 U.S. 713 (1971). See Part IV.A for a full discussion
of the case.
16 N.Y. Times stood for the proposition that, under the First Amendment, the press must be
allowed to publish the news, no matter what the source, without censorship. The court did not
actually rule on the question of what kind of sanctions might be imposed after such publication.
See Part IV.A.
17 N.Y. Times, 403 US at 730-40 (White, J., concurring).
18 United States v. Morison, 844 F.2d 1057 (4th Cir. 1988).
19 Id. See Part IV.B for a full discussion of the case.
20 18 U.S.C. § 793(e) (2000).
21 United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006); see also Due Process and
Free Speech, supra note 13.
22 See Part I.B.
23 See Part II for discussion of the legislative history of the Espionage Act.
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chills the press,24 the lifeline of an informed electorate.25 Press leaks
have played an important role in the political process, especially when
government exercises its significant power to keep the substance and
tactics of its policy-making shielded from public scrutiny.26
In addition, though application to non-governmental officials is
novel, conflict between the statute and the First Amendment is not. In
times of war, courts have often played the part of referee between the
executive, legislature, and American people with regard to national
security information.27 Nevertheless, while many courts and academics
have pointed to the ambiguity and confusion inherent in the statute’s
language, none has found the Espionage Act unconstitutionally vague.28
The approaches of modern courts to remedy the inadequacies of the
statute have included inferences as to the meaning of undefined terms,
such as “relating to the national defense,” and limiting jury instructions
that stretch the statute beyond the limits Congress authorized with
sufficient clarity.29
This Note argues that in view of the statute’s ambiguity, courts
should narrowly apply section 793 of the Espionage Act to avoid
serious First Amendment implications. The approach of Judge Learned
Hand, who stood in lone opposition to a judicial trend against free
speech during World War I under the 1917 Espionage Act,30 provides
24 See Fred Kaplan, You’re a Spy, SLATE, Feb. 15, 2006, http://www.slate .com/id/2136324;
Oct.
3,
2005,
Eli
J.
Lake,
Trouble
for
Journalists,
NEW REPUBLIC,
http://www.tnr.com/doc.mhtml?i=20051010&s=lake101005; Scott Shane & David Johnston, ProIsrael Lobbying Group Roiled by Prosecution of Two Ex-Officials, N.Y. TIMES, March 5, 2006,
http://www.nytimes.com/2006/03/05/politics/05aipac.html?_r=1&adxnnl=1&oref=slogin&adxnnl
x=1190233705-3uFyTG7iKA4ejADjzleUyg; see also Jack Shafer, Bill Keller in Chains:
Commentary’s Case for Prosecuting the Times Under the Espionage Act, SLATE, March 9, 2006,
http://www.slate.com/id/2137792 (addressing the extension of the AIPAC prosecution theory to
the New York Times).
25 James Madison wrote:
A popular Government, without popular information, or the means of acquiring it, is
but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever
govern ignorance. And a people who mean to be their own Governors must arm
themselves with the power which knowledge gives.
Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 WRITINGS OF JAMES MADISON
103 (Gaillard Hunt ed., 1910).
26 See infra Part I.A for a discussion of the value and purpose of leaks.
27 See Dennis v. United States, 341 U.S. 494 (1951), where the Supreme Court held that,
while the First Amendment is still “applicable when war clouds are not figments of the
imagination no less than when they are,” free speech is not absolute and “must, on occasion, be
subordinated to other values and considerations.” Id. at 520, 503. See, e.g., Part III for a
discussion of World War I cases and Part IV.A and B for discussion of cases which occurred
during the Vietnam and Cold Wars.
28 See generally Harold Edgar & Benno C. Schmidt, Jr., The Espionage Statutes and
Publication of Defense Information, 73 COLUM. L. REV. 929 (1973).
29 See United States v. Morison, 844 F.2d 1057 (4th Cir. 1988).
30 See Masses Pub. Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917); see also the discussion of the
case in Part III.C.
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an instructive blueprint for courts going forward in cases like the
AIPAC prosecution. Though the Second Circuit reversed Judge Hand’s
decision in 1917,31 courts have ultimately vindicated his basic
presumption of First Amendment protection in a more recent line of free
speech cases.32 Judge Hand used strict interpretation to limit the impact
of the Espionage Act, simultaneously affirming the great power of
Congress to restrict even fundamental freedoms while asserting that
courts should require legislative clarity for judicial enforcement.33
In order to understand what is at stake in this discussion, Part I of
this Note addresses the role of government press leaks in maintaining an
informed and responsive electorate and articulates the lobbyist-reporter
connection. Part II moves on to the Espionage Act itself, tracing the
legislative history and evolution of its highly problematic text. Part III
examines the first wave of litigation under the original Espionage Act of
1917 during World War I and introduces the prescient approach of
Judge Learned Hand in applying the statute. Part IV addresses the next
wave of litigation associated with the Espionage Act, walking through a
series of modern controversies. The first was the 1971 Pentagon Papers
case, which addressed possible prosecution of the press under the
statute, and the second was the Cold War case that moved a step further
by applying the statute to a press leak. The progression of these two
cases set the stage for the AIPAC litigation, which extended the reach of
the statute to non-government officials—an inclusion that for the first
time potentially encompasses journalists. Part V then examines a
parallel string of modern First Amendment cases in order to
demonstrate the reemergence of Judge Hand’s approach to free speech.
Finally, Part VI argues that this century-old approach lends itself to the
modern application of section 793 to non-government officials and,
specifically, members of the press.
I. PUBLIC POLICY AND PUBLIC KNOWLEDGE
A.
The Value of Press Leaks
The conflict between the need for secrecy and the need for public
information in the sensitive area of national security has raged since the
beginning of the nation.34 Justice Stewart wrote that in areas where the
31
32
Masses Pub. Co. v. Patten, 246 F. 24 (2d Cir. 1917).
See infra Part V for a discussion of how Judge Hand’s approach reemerged in free speech
cases.
33
34
See infra Part III.C for a full examination of Judge Hand’s approach in his Masses opinion.
John Woestendiek, Secret Weapon: High-level Leaking, For Reasons Good and Bad, Has
Long Been Part of U.S. Political Reality, BALTIMORE SUN, Oct. 14, 2003, at 1E.
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national checks and balances tend to be absent, such as the national
defense, an informed electorate may well be the sole guardian of
democratic government and restraint on the executive branch.35 The
channel through which the public receives such information, when the
full power of the state has been imposed to retain secrecy, is often the
press.36 Indeed, in several recent situations, government policies
arguably related to the national defense would have remained unknown
to the public but for press leaks.
The Abu Ghraib controversy is an infamous example.37 On
January 13, 2004, a military investigator received an anonymous letter
and disk with photographs documenting abuse at Abu Ghraib prison in
Iraq.38 The information was leaked to CBS News, which delayed airing
the photographs at the behest of the government until April 29, 2004.39
The public outcry in the United States and around the world
commenced immediately and the government has had to contend with
increased public scrutiny of military practices in Iraq.40
In another example, the Washington Post reported in November
2005 that the CIA was hiding and interrogating terrorist suspects in
secret prisons outside the United States.41 President Bush later
surprised many inside and outside of government by confirming the
existence of these prisons.42 Interestingly, negative public reaction was
35
36
N.Y. Times Co. v. United States, 403 U.S. 713, 728 (1971) (Stewart, J., concurring).
Id. at 728 (Stewart, J., concurring) (“For this reason, it is perhaps here [in the area of
national defense] that a 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.”).
37 Abu Ghraib was originally one of Saddam Hussein’s torture chambers, but became
infamous after photographs surfaced of U.S. military personnel abusing Iraqi prisoners. For
complete coverage of the story and a timeline of events, see Abu Ghraib Prison,
http://www.washingtonpost.com/wpWASHINGTONPOST.COM,
dyn/content/linkset/2006/02/15/LI2006021501067.html (last visited Nov. 26, 2006).
38 In a Soldier’s Words, an Account of Concerns, N.Y. TIMES, May 22, 2004, at A8.
39 A Timeline of the Abuse Controversy, U.S.A. TODAY, May 9, 2004,
http://www.usatoday.com/news/world/iraq/2004-05-09-timeline-abuse_x.htm.
40 See, e.g., Editorial, The Nightmare at Abu Ghraib, N.Y. TIMES, May 3, 2004, at A22; Hiwa
Osman, Op-Ed, Barbarians at the Gate; America’s Last Chance in Iraq, WASH. TIMES, May 5,
2004, at A17; Editorial, Jules Witcover, Losing the Public Relations War in Iraq, BALTIMORE
SUN, May 5, 2004, at 19A. But see Editorial, Abuse and Accountability, WALL ST. J., May 3,
2004, at A20 (stating the news does not suggest systemic problem and that “U.S. has probably
gone too easy on most arrested Iraqis”).
41 Dana Priest, CIA Holds Terror Suspects in Secret Prisons, WASH. POST, Nov. 2, 2005, at
A1. At the time, the Defense Department had produced reams of information about its detention
rules in response to the abuse at Abu Ghraib prison in Iraq, but had not acknowledged the
existence of so-called “black sites.” Priest wrote that officials feared worldwide rebukes and
exposure to legal challenges at home and in foreign courts. Id.
42 President George W. Bush, President Discusses Creation of Military Commissions to Try
Suspected Terrorists (Sept. 6, 2006), available at http://www.whitehouse.gov/news/
releases/2006/09/20060906-3.html (“In addition to the terrorists held at Guantanamo, a small
number of suspected terrorist leaders and operatives captured during the war have been held and
questioned outside the United States, in a separate program operated by the Central Intelligence
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accompanied by a reported sense of relief from within the CIA itself,
where many carrying out the detention program expressed discomfort
with both the prevailing counterterrorism policies and the intense
secrecy surrounding them.43
Just a month later, the New York Times reported that after the
September 11, 2001 attacks, President Bush secretly approved the use
of domestic wiretapping by the National Security Agency (NSA)
without the authority of a court order.44 The program, ostensibly
intended to collect evidence of terrorist activity, represented a “sea
change” in NSA practice.45 The disclosure put government officials on
the spot to justify the program to the public.46 Even so, through its
discretional prosecutorial authority, the Justice Department
subsequently opened several leak investigations involving the CIA
secret prisons,47 the NSA wiretapping program,48 and also the exposure
of covert CIA officer Valerie Plame.49
Agency.”).
43 Dana Priest, Officials Relieved Secret Is Shared, WASH. POST, Sept. 7, 2006, at A17.
44 James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES,
Dec. 16, 2005, at A1; see also Paul Farhi, At the Times, a Scoop Deferred, WASH. POST, Dec. 17,
2005, at A7 (discussing the decision to delay publication for a year after the newspaper’s editors
met with White House officials).
45 Risen & Lichtblau, supra note 44, at A1.
46 Most recently, Attorney General Alberto R. Gonzales announced that the Bush
administration will discontinue warrantless wiretaps. Jess Bravin, Warrantless Wiretaps to
Cease: Bush Aims to Avoid Potential Battles, WALL ST. J., Jan. 18, 2007, at A11. Critics argue
that the matter remains unsettled because it is unclear what kind of approval the Foreign
Intelligence Surveillance Act (FISA) courts will give, case by case, or something more broad.
Dan Eggen, Court Will Oversee Wiretap Program: Change Does Not Settle Qualms About
Privacy, WASH. POST, Jan. 18, 2007, at A1. In addition, Gonzales explicitly suggested at the
time that the Times might be prosecuted for violating provisions of the Espionage Act. Geoffrey
R. Stone, Government Secrecy vs. Freedom of the Press, 1 HARV. L. & POL’Y REV. 185, 185
(2007).
47 Richard B. Schmitt, Congress, Bush Poised for 1st Friction, L.A. TIMES, Jan. 3, 2007
(“The disclosure of the CIA ‘black sites’ in late 2005 triggered a congressional furor—and a
Justice Department leak investigation into a Washington Post report that broke the news.”); see
also Daniel Schorr, The Next CIA Leak Case, CHRISTIAN SCI. MONITOR, Nov. 18, 2005, at 9,
available at http://www.csmonitor.com/2005/1118/p09s01-cods.html.
48 Dan Eggen, Justice Dept. Investigating Leak of NSA Wiretapping, WASH. POST, Dec. 31,
2005, at A1; Scott Shane, Criminal Inquiry Opens into Leak in Eavesdropping, N.Y. TIMES, Dec.
31, 2005, at A1. The New York Times reported that Vice President Dick Cheney said in a
December 20, 2005 press conference that he felt the newspaper’s decision to publish the
information “damages national security.” Id.
49 Former U.S. Ambassador Joseph Wilson IV alleged that members of the Bush team
exposed his wife’s status as an undercover CIA officer in retaliation for his going public with
criticism of the administration. The claim resulted in the federal criminal indictment of Vice
President Dick Cheney’s former Chief of Staff, I. Lewis “Scooter” Libby, by the Department of
Justice. For more information about the Valerie Plame scandal, see CNN.com, Special Reports—
CIA Leak Investigations, http://www.cnn.com/SPECIALS/2005/cia.leak/ (last visited Jan. 22,
2007).
In 2006, the Justice Department also sought to examine “phone records of two New York
Times reporters in a leak investigation of a terrorism-funding probe.” Tim Annett, Crumple
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The United States government has long been concerned with
classifying potentially damaging documents and the current
administration is no exception.50 In contrast to the Presidential Records
Act of 1978,51 which granted public access to all official records of
former presidents after no more than twelve years, President Bush
issued an order asserting an expansive view of executive privilege; it
allowed a president to restrict any document indefinitely and shifted the
burden to researchers to prove their need for access.52 That stance
contrasts the observation of Justice Stewart that government should aim
for “maximum possible disclosure” to maintain its credibility with the
public.53
In the aftermath of September 11, then Attorney General John
Ashcroft issued a memorandum to the heads of all federal agencies
stating that he would defend any discretionary decision to withhold
Freedom of Information Act (FOIA) information as long as it had some
legal basis.54 The presumption of withholding was a reversal of former
Attorney General Janet Reno’s standard which presumed access unless
Zone, WALL ST. J., Nov. 27, 2006, at A1.
50 Ron Suskind, Send in the Subpoenas, WASH. POST, Nov. 19. 2006, at B1 (“[T]he
administration’s position on keeping secrets secret is strong. Virtually no one now in the
government advocates disclosure—the default setting is to classify everything.”). By one
estimate, a secret program at the National Archives has re-classified more than 55,000 documents
since 1999 that were previously available. Scott Shane, U.S. Reclassifies Many Documents in
Secret Review, N.Y. TIMES, at A6 (Feb. 21, 2006).
51 Pub. L. No. 95-591, 92 Stat. 2523 (codified as amended at 44 U.S.C. §§ 2201-2207
(2000)).
52 Exec. Order No. 13,233, 66 Fed. Reg. 56,025 (Nov. 1, 2001). Most notably, section 7
asserts that “[t]his order does not limit the former President’s or the incumbent President’s right
to withhold records on any ground supplied by the Constitution, statute, or regulation.” Id.; see
also Society of American Archivists, Call to Action on Executive Order 13233,
http://www.archivists.org/news/actnow.asp (last visited Nov. 5, 2006) (collection of official
documents and letters of concern); Jane E. Kirtley, Transparency and Accountability in a Time of
Terror: The Bush Administration’s Assault on Freedom of Information, 11 COMM. L. & POL’Y
479, 486-87 (2006). Legislation to reaffirm the original Presidential Records Act died in the
House. Id. at 489.
53 Justice Stewart wrote:
For when everything is classified, then nothing is classified, and the system becomes
one to be disregarded by the cynical or the careless, and to be manipulated by those
intent on self-protection or self-promotion. I should suppose, in short, that the
hallmark of a truly effective internal security system would be the maximum possible
disclosure, recognizing that secrecy can best be preserved only when credibility is truly
maintained.
N,Y. Times Co. v. United States, 403 U.S. 713, 729 (1971) (Stewart, J., concurring).
54 Kirtley, supra note 52, at 491 (quoting Memorandum from John Ashcroft, Attorney
General, to Heads of All Fed. Dep’ts & Agencies (Oct. 12, 2001),
http://www.usdoj.gov/oip/foiapost/2001foiapost19.htm). Federal agencies are generally required
under FOIA to disclose records requested in writing by any person. These agencies may,
however, withhold information pursuant to nine exemptions and three exclusions under the FOIA
statute. USDOJ, Freedom of Information Act (FOIA), http://www.usdoj.gov/oip/index.html (last
visited August 11, 2007).
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“there was a risk of foreseeable harm . . . .”55 In March 2002, then
Chief of Staff Andrew Card issued another memo, asking the agency
heads to review any information that had not already been classified and
to use all possible FOIA exemptions when requests for access are
made.56 FOIA requests for records relating to the wars in Afghanistan
and Iraq have been regularly rebuffed.57 These situations provide the
most compelling case for the value of leaks as the only vehicle to public
scrutiny.
It is against this backdrop—heightened fears of international
terrorism, government secrecy, and increased classification of
information58—that the impact of criminalizing publication of leaked
information takes on increased significance. Without these leaks to the
press, the public would not have access to information necessary to curb
potential government abuses at the ballot box.59 A focus on the right to
free speech in a time of war, when intolerance to dissent and deference
to government authority on national security matters run high, provides
the greatest insight into how Americans truly value that right.60
Understanding the vital role of free speech in this context, courts
should not apply the Espionage Act to criminalize leaks of classified
information where it strays too far into the sphere of protected rights.
Specifically, the threat of criminal prosecution against journalists could
damage the mechanism through which the public stays informed on
issues most vital to the country. By charging the AIPAC lobbyists, nongovernment officials, the government opened that door.
B.
The Lobbyist-Journalist Connection
While the AIPAC case involves lobbyists charged with “willfully
communicat[ing] . . . information related to the national defense” to any
person “not entitled to receive it,” publications immediately seized upon
the prosecution as a shot across the bow of the press.61 The Wall Street
55
56
Kirtley, supra note 52, at 491.
Id. at 493. Federal agencies are compelled under FOIA, originally passed in 1966, to
provide the public with information subject to nine exemptions. 5 U.S.C. § 552(b) (2000).
57 Kirtley, supra note 52, at 495.
58 Soon after the September 11 attacks, the Bush administration began advocating for a war
different from those in the past. See Rice: Terrorism Fight a New Kind of War, CNN.com, Sept.
20, 2001, http://archives.cnn.com/2001/US/09/19/ret.rice.security/index.html.
59 Bruce Fein, A More Secret Government?, WASH. TIMES, Aug. 22, 2006, at A15 (“[A]s
Congress has increasingly defaulted on its constitutional obligation to oversee the executive
branch, the need has increased for an unfettered press to expose and to deter presidential
mischief.”).
60 See generally, GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME FROM
THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM (W.W. Norton & Co., Inc. 2004).
61 See Susan Burgess, The Big Chill: An Espionage Act Case in a Virginia Federal Court
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Journal editorial page noted that the lobbyists were indicted for “doing
exactly what hundreds of journalists do in Washington to make a living,
albeit for a much larger audience.”62 In fact, while government
attorneys noted in their January 30, 2006 filing that prosecuting “an
actual member of the press for publishing classified information leaked
to it by a government source” would certainly “not be undertaken
lightly,” they did not foreclose the option.63 The government merely
stated that the AIPAC case did not directly implicate the constitutional
issue for journalists because the two defendants were not themselves
members of the press.64 Interestingly, however, the government also
argued that Branzburg v. Hayes,65 which defeated journalist testimonial
privilege in criminal cases, undermined the defendants’ case.66 By
focusing on Branzburg, the government foreshadows the possibility of
prosecuting journalists under the Espionage Act, for there, the majority
held that the First Amendment does not give a reporter license to violate
valid criminal laws “in the interest of securing news or otherwise.”67
The AIPAC lobbyists are similarly situated to journalists in terms
of their status as non-government employees. Courts have used the
classification system to define the otherwise vague statutory phrase
“related to the national defense,”68 an approach that has traction where
the defendant is in a position to understand the system generally, knows
the actual classified status of a particular piece of information, and has
taken an oath to protect it. Until the AIPAC prosecution, the
government had not sought to apply the statute to those who do not fit
Exposes the Murky Standards Governing National Security Discussions, NEWS MEDIA & L.,
Spring 2006, at 4, available at http://www.rcfp.org/news/mag/30-2/cov-thebigch.html; Lake,
supra note 24; Eric Lichtblau & David Johnston, Administration Takes Broad Reading of
Espionage Law, N.Y. TIMES, Aug. 6, 2005, at A10; Shafer, supra note 24; see also Scott Johnson,
Exposure: Did the New York Times Break the Law With its Wire-tapping Story?, THE WKLY.
STANDARD, Jan. 24, 2006.
62 Editorial, Espionage Acting, WALL ST. J., Aug. 17, 2006, at A8. Others have also argued
that “President Bush and his successors can be expected with the benefit of Rosen and Weissman
to manipulate news coverage by investigating and prosecuting perceived media critics while
turning a blind eye to defenders.” Fein, supra note 59, at A15.
63 Government’s Consolidated Responses to Defendants’ Pretrial Motion at 16, United States
v. Rosen, 487 F. Supp. 2d 721 (E.D. Va. 2006) (No. 1:05cr225), available at
http://www.fas.org/sgp/jud/aipac013006.pdf (emphasis in original) [hereinafter Government’s
Consolidated Responses]. See also Stephen I. Vladeck, Inchoate Liability and the Espionage Act:
The Statutory Framework and the Freedom of the Press, 1 HARV. L. & POL’Y REV. 219. 221
(2007) (“[T]here are numerous statutes under which the press may find itself liable for the
gathering and reporting of stories implicating government secrecy, especially as courts
increasingly embrace theories of third-party inchoate liability under the Espionage act, as in the
AIPAC case.”).
64 Government’s Consolidated Responses, supra note 63, at 17.
65 408 U.S. 665 (1972).
66 Government’s Consolidated Responses, supra note 63, at 16-18.
67 Branzburg, 408 U.S. at 691.
68 United States v. Morison, 844 F.2d, 1057, 1073 (1988); see infra Part IV.B.
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that role. Having crossed into the realm of non-governmental
employees, there is arguably little difference between a lobbyist and a
journalist, assuming the government believes that the First Amendment
grants neither person permission to evade criminal prosecution in the
name of reporting news.69
Under that scenario, courts, none of which have declared the
Espionage Act unconstitutionally vague or overbroad as applied,70 are
faced with the task of supplying the text with appropriate meaning that
comports with First Amendment values. Their task is all the more
difficult because of the “incomprehensible” nature of the Espionage
Act, especially the parts of section 793 at issue in the AIPAC case.
II. ORIGINS OF THE ESPIONAGE ACT
A.
Conflicting Public Values
Government has an interest in keeping certain information related
to the national defense secret, and surely some of it should be kept out
of non-government hands.71 Such a policy, however, necessarily
deprives the public of the ability to consider and judge—as voters—
government actions on many significant issues.72 The conflict between
these two competing values is especially plain during times of war, and
would seem to invite decisive congressional legislation on the subject.
Yet, Congress has, at best, failed to address the issue clearly and, at
worst, has produced a law that is “in many respects
incomprehensible.”73
Sections 793(d) and (e) of the Espionage Act, at issue in the
AIPAC case, provide prime examples of this legislative failure.74 These
69
70
Government’s Consolidated Responses, supra note 63, at 16-18.
See Gorin v. United States, 312 U.S. 19 (1941) (finding predecessor version of section 793
constitutional where defendants argued indefiniteness in language of statute); see United States v.
Dedeyan, 584 F.2d 36 (4th Cir. 1978) (finding scienter requirement sufficient to give meaning to
“relating to national defense” phrase); United States v. Morison, 604 F. Supp. 655, 659 (D. Md.
1985) (finding intent related to the act, not the ultimate purpose, sufficient and that injury to
United States could be inferred).
71 Edgar & Schmidt, supra note 28, at 934.
72 Id.
73 Id.
74 See supra Part IB for a discussion of the problematic language. In his dissenting opinion in
the Pentagon Papers Case, Justice Harlan referred to section 793(e) as a “singularly opaque
statute.” N.Y. Times Co. v. United States, 403 U.S. 713, 754 (1973) (Harlan, J., dissenting). In
United States v. Morrison, the District Court noted that it is “impossible to determine what
Congress meant when it passed the statute,” 604 F. Supp at 659, and on appeal the Fourth Circuit
stated that “the Espionage Act statutes as now broadly drawn are unwieldy and imprecise
instruments for prosecuting government leakers” and invited Congress to provide a resolution
“through carefully drawn legislation.” 844 F.2d 1057, 1085-86 (4th Cir. 1988) (Wilkinson, J.,
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sections make it unlawful to willfully retain or disclose information
related to the national defense.75 Because neither provision explicitly
requires intent to harm the United States, if applied broadly by courts,
they would appear to criminalize acquisition and publication of most or
all national defense information by the media.76 Such an application
goes further than Congress intended, further than even executive
officials have historically understood the Act to reach, and further than
the confusing statutory language allows.77
B.
Legislative History
Congress has addressed the intersection of national security and
publication at several legislative moments and consistently emphasized
the importance of protecting citizens’ efforts to express views and seek
The Defense Secrets Act of 191179 represented
information.78
Congress’s initial attempt to secure defense information.80 Prior to that
concurring) (internal quotations omitted).
75 See statutory text supra, note 8.
76 Edgar & Schmidt, supra note 28, at 938. “The unfortunate ambiguity of the relevant
statutes creates the real problem in these cases; it is at least plausible to find a violation of these
provisions by even the most well-intentioned (and passive) reporters.” Vladeck, supra note 63, at
232.
77 Judge T.S. Ellis III, in denying Rosen and Weissman’s motion to dismiss, found that those
who retain information “related to the national defense” and disclose it to others “not entitled to
receive it” fall under the sweep of the statute. Due Process and Free Speech, supra note 13, at
821. Such an understanding stands “in the wake of more than half a century of judicial efforts to
impose constitutionally acceptable limitations on various incarnations of the espionage statutes.”
Id. at 824.
78 Edgar & Schmidt, supra note 28, at 939.
79 Section I of the Defense Secrets Act of 1911 provided that:
[W]hoever, for the purpose of obtaining information respecting the national defense, to
which he is not lawfully entitled, goes upon any vessel, or enters any navy-yard, naval
station, fort, battery, torpedo station, arsenal, camp, factory, building, office, or other
place connected with the national defense . . . ; or whoever, when lawfully or
unlawfully upon any vessel, or in or near any such place, without proper authority,
obtains, takes, or makes, or attempts to obtain . . . any document, sketch, photograph,
photographic negative, plan, model or knowledge of anything connected with the
national defense to which he is not entitled; or whoever, without proper authority,
receives or obtains, or undertakes or agrees to receive or to obtain from any person,
any such document . . . knowing the same to have been so obtained, taken or made; or
whoever having possession of or control over any such document . . . willfully and
without proper authority, communicates or attempts to communicate the same to any
person not entitled to receive it, or to whom the same ought not, in the interest of the
national defense, be communicated at that time . . . shall be fined . . . or
imprisoned . . . .
Act of March 3, 1911, ch. 226, 36 Stat. 1084 (1911) (repealed 1917) (emphasis added). This
section is the precursor to section 793(d) and (e), which adopted the undefined terms “not entitled
to receive it,” and “anything connected with the national defense.” See Edgar & Schmidt, supra
note 28, at 939.
80 Edgar & Schmidt, supra note 28, at 939-40.
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Act, federal laws dealt only with espionage insofar as criminalizing
unlawful entry into military bases, theft of government property, and
treason.81 The 1911 Act went further, criminalizing communication of
defense information to those “not entitled to receive it,” the most
problematic language inherited by the current sections 793(d) and (e).
Notably, there was no focus on the press or publication during the
cursory legislative discussion of the 1911 Act.82
In contrast to the 1911 Act, the debate about the Espionage Act of
1917 easily fills three hundred pages of the Congressional Record.83
Introduced a mere two days after President Woodrow Wilson
announced that the United States was severing diplomatic ties with
Germany, the administration’s original proposal included a strong push
for executive branch control of publications.84 President Wilson
asserted that prosecutorial discretion would sufficiently curb any abuse
of statutory authority.85 Congress, however, defeated the proposed
broad controls on publication and expressly conditioned any such
restriction on the narrow mens rea or intent to injure the United States.86
It thus rejected a grant of broad power to the executive branch, though it
did codify some restriction on the press and publication where
criminalization was properly predicated on intent requirements.87
In 1932, Congress passed narrowly tailored legislation proscribing
publication of any matter originally transmitted in foreign code.88
Congress again debated and mostly rejected broader controls on
publication under the Internal Security Act of 1950.89 It enacted section
798, which criminalized only publication of information related to
domestic codes and intelligence operations.90 More significantly,
however, the 1950 Act extended section 793 by enacting subsection (e),
which rendered mere retention of defense information a crime, and
81
82
83
84
85
86
Id. (referencing 35 Stat. 1097 (1909) and 35 Stat. 1038 (1909)).
Id. at 940.
Id.
Id. at 941.
Id.
Id. The rejected version of section 793 read:
During any national emergency resulting from a war to which the United States is a
party, or from threat of such a war, the President may, by proclamation, declare the
existence of such emergency and, by proclamation, prohibit the publishing or
communicating of, or the attempting to publish or communicate any information
relating to the national defense which, in his judgment, is of such character that it is or
might be useful to the enemy.
65 CONG. REC. 1763 (1917) (emphasis added).
87 Edgar & Schmidt, supra note 28, at 941.
88 Id. at 942 (citing An Act for the Protection of Government Records, ch. 57, 48 Stat. 122
(1933) (current version at 18 U.S.C. § 952 (2000)).
89 Pub. L. No. 81-831, § 1(b), 64 Stat. 987 (1950)(codified as amended in scattered sections
of 50 U.S.C.). This provision was in response to activities of a former State Department codebreaker. Id. (referencing § 18, 64 Stat. 997, 1004).
90 Edgar & Schmidt, supra note 28.
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prohibited any individual from communicating such information to
persons “not entitled to receive it”—failing to include a special intent
requirement.91 This provision represented a departure from Congress’s
established approach, which thus far had made such prohibitions
conditional on actual intent to injure the United States or give aid to a
foreign government.92
Taken together, the congressional debates preceding passage of the
Acts of 1911, 1917, and 1950 on the issue of publication suggest that
the Espionage statutes were not meant to apply generally to the
publication of defense information.93 Congress rejected the 1957
recommendation of the Commission on Government Security to
criminalize publication of classified information after substantial
discussion of the issue.94 Furthermore, that the executive branch has
repeatedly sponsored (failed) legislation with broader restrictions on the
press suggests that executive officials have not understood the existing
legislation to apply so broadly.95
As for sections 793(d) and (e) in their current form,96 the text
retains several significant ambiguities of language and logic so that
91
92
Id.
Id. The failure to impose a culpability requirement has been described as “an amazing
oversight” that does not reflect the complete committee discussion. Id. at 1021. In addition, the
retention of information element leads to an absurd result, because it “presumably makes it
criminal to retain one’s memories.” Id.
93 Id. at 942.
94 The Commission proposed that “Congress enact legislation making it a crime for any
person willfully to disclose without proper authorization, for any purpose whatever, information
classified ‘secret’ or ‘top secret,’ knowing, or having reasonable grounds to believe, such
information to have been so classified.” N.Y. Times Co. v. United States, 403 U.S. 713, 747
(Marshall, J., concurring) (quoting REPORT OF COMMISSION ON GOVERNMENT SECURITY 619-20
(1957)). For congressional discussion, see 103 CONG. REC. 10447-50 (1957). In the Pentagon
Papers case, Justice Marshall identified rejection of this proposal as one basis for refusing to
grant the government’s request to enjoin publication of the Pentagon Papers. N.Y. Times, 403
U.S. at 747 (Marshall, J., concurring) He stated that Congress refused to make such publication a
crime, and the “Court has no such power [to remake that decision].” Id.
95 More than one administration has told Congress that the legislation does not cover
publication of secret national defense information. Edgar & Schmidt, supra note 28, at 937.
President Wilson resubmitted his proposal to restrict press freedoms after the 1917 Act was
passed, and letters between congressmen and the Attorney General demonstrate both the utter
confusion about the statute’s application and the administration’s understanding that it would not
apply to the press. Id. at 1025-30. Unfortunately, rather than amend or clarify the statute,
Congress simply stated that there was no censorship problem and added an anti-censorship
statement:
Nothing in this Act shall be construed to authorize, require, or establish military or
civilian censorship or in any way to limit or infringe upon freedom of the press or of
speech as guaranteed by the Constitution of the United States and no regulation shall
be promulgated hereunder having that effect.
Internal Security Act of 1950, Pub. L. No. 81-831, § 1(b), 64 Stat. 987 (1950) (codified as
amended in scattered sections of 50 U.S.C.). Whether this provision did more than preclude prior
restraint of publication, however, remains unclear. Edgar & Schmidt, supra note 28, at 1027.
96 See 18 U.S.C. § 793(d)-(e) (2000).
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courts should be alert to potential abuses in application, as with the
AIPAC case. These ambiguities include the highly problematic
“retention of information” provision97 and the absence of key
definitions for “willfully,” “entitled to receive,” “related to the national
defense,” and “information.”98
For instance, the Senate Report is silent as to whether the inclusion
of “information” was meant simply to distinguish between documents
and other tangible sources, or to emphasize that oral communication
would also be criminal.99 The House Report is even more confusing.
On the one hand, it suggests that the absence of an intent requirement in
section 793(d) is acceptable because the persons affected are
presumably officials in the government they seek to betray—but then
there is no discussion of why the intent requirement is also absent from
section 793(e), which applies to non-government citizens.100 Similarly,
the Reports provide no guidance on the other terms listed above.
To the extent that Congress has spoken explicitly on the issue, it
has protected publications. Still, both the text of the statute and its
associated legislative history demonstrate significant ambiguities with
sections 793(d) and (e), all the more evident when courts have tried to
make sense of and apply the provisions, most often during times of war.
One danger of such imprecise statutory language is that it allows
prosecutors too much discretion in deciding what constitutes criminal
conduct. Indeed, prosecutors made quick use of the discretion allowed
by such imprecise statutory language after Congress enacted the
Espionage Act of 1917.101
III. FREE SPEECH AND WORLD WAR I
At the beginning of World War I, President Woodrow Wilson
spearheaded a campaign that led to the prosecution of approximately
two thousand men and women for opposition to the war in general and
the military draft in particular.102 The weapon of that campaign was the
97
98
See discussion supra note 92.
Experts have suggested that Congress had no clear understanding of sections 793(d) and (e)
and note that the provisions were paid little attention and “tucked away” inside the enormous Act
of 1950 as an effort to deal with the perceived threat of communism. Edgar & Schmidt, supra
note 28, at 1022.
99 Id. at 1023. The oral transmission issue is one under discussion in the pending prosecution
of former AIPAC lobbyists Rosen and Weissman. See Defendants Motion to Dismiss, supra note
5, at 3-4.
100 Edgar & Schmidt, supra note 28, at 1024.
101 See infra Part III.
102 See Geoffrey R. Stone, Judge Learned Hand and the Espionage Act of 1917: A Mystery
Unraveled, 70 U. CHI. L. REV. 335, 336-38 (2003).
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Espionage Act of 1917,103 the antecedent of the current Act. The
original bill was proposed with a provision that would have rendered
unlawful the act of publishing any information that the President
determined to be of possible use to the enemy during a time of war.104
The provision sparked heated debate in Congress and a firestorm of
criticism from the press. The American Newspaper Publishers’
Association opposed its adoption on the grounds of infringement on
fundamental rights and use of overly broad terms that assigned too
much power to the prosecuting authority.105
Indeed, several congressmen also expressed concern about the
impact on free speech.106 Ultimately, the legislation passed, but without
the controversial provision regarding publication of information. Taken
as a whole, the Espionage Act of 1917 in its final form did reflect
congressional concern for military matters. The elimination of the
press-related provision, however, signaled the implicit rejection by
Congress of impinging too greatly on First Amendment freedoms.107
The problem was that courts, influenced by wartime fears, applied the
statute more broadly than Congress intended.
A.
The Cases and Controversies
Despite the rejection of the press-related provision, courts applied
the Espionage Act liberally to political dissenters in the feverish climate
of World War I.108 The Department of Justice prosecuted thousands of
103
Section 3 of the Espionage Act of 1917 provided:
Whoever, when the United States is at war, shall willfully make or convey false reports
or false statements with intent to interfere with the operation or success of the
military . . . to promote the success of its enemies and . . . shall willfully cause or
attempt to cause insubordination . . . in the military or naval forces of the United States,
or shall willfully obstruct the recruiting or enlistment service of the United States . . .
shall be punished by a fine of not more than $10,000 or imprisonment for not more
than twenty years, or both.
Pub. L. No. 65-24, 40 Stat. 217, 219.
104 Stone, supra note 102, at 345. The section would have prohibited anyone from publishing
information in wartime that the President himself found of possible use to the enemy. Id.
105 The New York Times argued:
The proposed legislation strikes at the fundamental rights of the people, not only assailing their
freedom of speech, but also seeking to deprive them of the means of forming intelligent opinion.
It is drastic, yet vague, in its terms, providing the severest penalties for acts the criminal quality of
which is to be determined hereafter under a delegated authority.
Publishers Call for a Free Press, N.Y. TIMES, April 26, 1917, at 4.
106 For example, Representative Martin B. Madden of Illinois argued that “while we are
fighting to establish the democracy of the world, we ought not to do the thing that will establish
autocracy in America.” Stone, supra note 102, at 348 (quoting 65 CONG. REC. H1773 (May 3,
1917) (statement of Rep. Madden)) (internal quotes omitted).
107 Stone, supra note 102, at 352.
108 Id. at 337.
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individuals for anti-war activities and statements, and federal courts
followed the prosecutors’ lead.109 The following are some particularly
illustrative examples.
In Shaffer v. United States,110 the defendant argued that his book
did not contain false statements as described by the statute, but merely
his own anti-war opinion.111 The Ninth Circuit rejected his plea, stating
that while opposing the war was not itself a criminal act, writings put
through the U.S. mail that would tend to cause insurrection or impede
recruitment violated the statute.112 The court concluded that anti-war
rhetoric would necessarily damage patriotism and interfere with the will
of citizens to enlist.113
In Schenck v. United States,114 the Supreme Court upheld the
conviction of two alleged members of a socialist organization for
attempting to cause insubordination and for obstructing military
recruitment under the Espionage Act, by distributing leaflets opposing
the military draft.115 The Schenck Court observed that even the most
broad protection of free speech would not allow a man to shout fire
falsely in a crowded theater, and that the issue was simply whether the
words used would create a “clear and present danger” of violating the
statute.116 The court found that the 1917 Act encompassed both the
broader notion of conspiring to obstruct recruitment using speech or
writings, as well as actual obstruction.117
B.
Judge Learned Hand Stands Alone
Against this backdrop of what many have described as political
109 Id. at 336-42 (highlighting a series of notable federal cases of the era in main text and
footnotes).
110 255 F. 886 (9th Cir. 1919).
111 Under section 3 of the Act it was unlawful, while the country was at war, for any person
willfully to “make or convey false reports or false statements with intent to interfere with the
operation or success of the military. . . or to promote the success of its enemies” or willfully to
“cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military”
or to “obstruct the recruiting or enlistment service of the United States.” Espionage Act of 1917,
Pub. L. No. 65-24, 40 Stat 217, 219. Punishment included a fine and/or a prison sentence of up to
twenty years. Id.
112 Shaffer, 255 F. at 888.
113 Id. (“To teach that patriotism is murder and the spirit of the devil, and that the war against
Germany was wrong and its prosecution a crime, is to weaken patriotism and the purpose to enlist
or to render military service in the war.”).
114 249 U.S. 47 (1919).
115 Id. at 48-49.
116 Id. at 52 (“The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to prevent.”).
117 Id.
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prosecutions,118 Judge Learned Hand took a different position from his
colleagues. In Masses Publication Co. v. Patten,119 Judge Hand granted
an injunction against the U.S. Postmaster who had refused to mail a
magazine containing anti-war material.120
While taking great pains to acknowledge the significant power of
Congress to curb freedom of expression in a time of war,121 Judge Hand
construed the statute as not encompassing the publication at issue in the
case, explaining that not all forms of political agitation are alike. He
argued that if a person stops short of explicitly instructing others that
they must resist the law, such a person should not be found to be in
violation of the Espionage Act.122 To hold otherwise, Judge Hand
surmised, would be to accept that the statute implicated “every political
agitation” that might lead to seditious sentiment among citizens.123
Such broad application would read “revolutionary purpose” into the
language of the Act, an interpretation Judge Hand believed had no
reasonable basis in congressional intent.124 In his analysis, Judge Hand
did not challenge congressional power to restrict freedoms during
wartime.125 Instead, he limited the reach of the then current statute by
suggesting that if the government wanted to make the text more
sweeping, Congress itself had the obligation to make any necessary
changes to the legislation.126
Most significantly, Judge Hand supported his narrow approach to
interpretation by noting the fundamental right at stake. Assuming that
Congress indeed has the power to restrict freedom of expression during
wartime, Judge Hand concluded that “its exercise is so contrary to the
use and wont of our people that only the clearest expression of such a
power justifies the conclusion that it was intended.”127 Put simply, in
order to restrict free speech, Congress must be extremely explicit in its
118 Stone, supra note 102, at 337 (“John Lord O’Brian, the Head of the War Emergency
Division of the Department of Justice, observed shortly after the war ended that ‘immense
pressure’ was ‘brought to bear throughout the war on the Department of Justice in all parts of the
country for indiscriminate prosecution’ of dissenters and for ‘wholesale repression and restraint
of public opinion.’”(quoting John Lord O'Brian, Civil Liberty in War Time, 42 REP. N.Y. ST. B.A.
275, 306 (1919)).
119 244 F. 535 (S.D.N.Y. 1917).
120 Id. at 535.
121 Id. at 538 (“It may be that the peril of war, which goes to the very existence of the state,
justifies any measure of compulsion, any measure of suppression, which Congress deems
necessary to its safety, the liberties of each being in subjection to the liberties of all.”).
122 Id. at 540.
123 Id.
124 Id.
125 Id. at 543 (“I make no question of the power of Congress to establish a personal censorship
of the press under the war power; that question . . . does not arise.”).
126 Id. at 538 (“If Congress has omitted repressive measures necessary to the safety of the
nation . . . the responsibility rests upon Congress and with it the power to remedy that
omission.”).
127 Id. at 540.
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legislative wording because such a restriction impacts the fundamental
right to free speech.128
Judge Hand’s decision was swiftly overturned.129 The Second
Circuit declared the magazine in violation of the Espionage Act and
stated that even if such a determination were unclear, the Court would
not overrule the Postmaster’s decision where the decision was
appropriately within his discretion.130 Judge Hand arguably postponed
his own promotion to the Second Circuit with the Masses opinion,131 but
he put on record the notion that the Espionage Act did not have to be
painted with the broad brush pursued by the Wilson administration and
applied by the federal judiciary.132 Standing alone, Judge Hand’s
opinion highlighted and protected First Amendment values at a time
when such a position ran counter to wartime political will.133
While Judge Hand’s approach was rejected in 1917, his more
rights-protective view eventually took hold in the Supreme Court during
the 1950s, as the standard of “clear and present danger” lost favor.134
Similarly, to countervail the “tide of suppression of dissent”135 that can
rise in the country during wartime, today’s courts should look to Judge
Hand’s approach as a map of values and procedure to address the
pressure applied by the current Espionage Act on free speech. Doing so
would allow appropriate statutory interpretation where the current
statutory text is so ambiguous and poorly drafted.136
128 As one analyst observed, Judge Hand’s opinion used “legislative purpose read in the
context of constitutional values—values expressed in a manner as noble as we have on the
books. . . . [and] that articulation of values was simply used to justify the narrow interpretation of
the statute.” Gerald Gunther, Learned Hand and the Origins of Modern First Amendment
Doctrine: Some Fragments of History, 27 STAN. L. REV. 719, 725 (1975).
129 Masses Pub. Co. v. Patten, 246 F. 24 (2d Cir. 1917).
130 Id. at 39.
131 Gunther, supra note 128, at 731. Judge Hand was not promoted to the Second Circuit until
1924. Id. at 731 n.61.
132 Stone, supra note 102, at 357.
133 Judge Hand’s opinion “was rare judicial effort to stem the mounting tide of suppression of
dissent,” as well as “an articulation of first amendment values and an elaboration of free speech
doctrine . . . . ” Gunther, supra note 128, at 720.
134 See infra Part V.B.
135 Gunther, supra note 128, at 720.
136 See supra Part II for a discussion of the ambiguous statutory text.
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IV. MODERN APPLICATION: SECTION 793 AND PRESS FREEDOM IN 1971
AND 1984
A.
Vietnam: The Pentagon Papers Case
The first seeds of applying the modern Espionage Act137 to the
press were sown in the Pentagon Papers Case, which involved balancing
the legitimate need for government secrecy on national security matters
with the need of the people to be informed about the most vital areas of
national concern.138
Robert McNamara, Secretary of Defense under Presidents
Kennedy and Johnson, had commissioned a report on American
involvement in the Vietnam War in 1967.139 The study, which included
approximately 4,000 pages of documents and 3,000 pages of analysis,
was classified as top secret; even President Johnson was unaware of its
Daniel Ellsberg, a former Marine, worked as a
existence.140
government consultant at the RAND corporation141 where two of the
fifteen copies of the Papers were held.142 Characterized as a Vietnam
hawk turned war critic, Elsberg had contributed to the study and over
time became focused on changing the course of U.S. policy in
Vietnam.143 He gained access to the Papers, made copies, and turned
the materials over to the New York Times.144 After a restraining order
thwarted his attempt for publication, Ellsberg made a similar
submission to the Washington Post.145 The request for an injunction
marked the first time that the federal government went to court to
attempt to stop the press from disclosing national security
137 Prior to the Pentagon Papers case, the original Espionage Act of 1917 was revised on
September 23, 1950. Internal Security Act of 1950, Pub. L. No. 81-831, § 18, 64 Stat. 987, 1003
(codified as amended in scattered sections of 50 U.S.C.).
138 N.Y. Times Co. v. United States, 403 U.S. 713 (1971). As discussed supra, it was indeed
the first time the Court had offered significant insight into the conflict between national security
and the First Amendment, but the decision focused narrowly on the issue of prior restraints, not
post-publication prosecution. Jereen Trudell, The Constitutionality of Section 793 of the
Espionage Act and Its Application to Press Leaks, 33 WAYNE L. REV. 205, 210 (1986); see also
DAVID RUDENSTINE, THE DAY THE PRESSES STOPPED: A HISTORY OF THE PENTAGON PAPERS
CASE 6 (1996).
139 William R. Glendon, The Pentagon Papers—Victory for a Free Press, 19 CARDOZO L.
REV. 1295, 1295 (1998).
140 Id. at 1295-96.
141 The RAND Corporation is a global policy think tank that supplies research and analysis to
the United States armed forces, other governments, and private organizations. See RAND
Corporation, About RAND, http://www.rand.org/about/ (last visited Nov. 3, 2006).
142 Glendon, supra note 139, at 1296.
143 Id.
144 Id. He did make the decision to withhold some 800 pages which he deemed too sensitive
for release, called the “Diplomatic Track.” Id.
145 Id.
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information.146 The rest is expedited judicial history: 147 The district
court judges in Washington and New York both ruled against the
government, the government lost its appeal at the Supreme Court, and
the publication of the Papers sparked a national debate over the merits
of the war.148 The Pentagon Papers controversy may have indeed led to
the ultimate collapse of the Nixon presidency.149
The Supreme Court issued its opinion on June 30, 1971, just four
days after oral arguments.150 The Justices fractured into several groups,
with six rejecting the merits of the government’s arguments for an
injunction.151 Ostensibly, the decision was a victory for the press, as it
allowed publication of the controversial information to commence over
government objection. Lurking behind the face of the per curiam
opinion, however, Justice White’s concurrence articulated the press’s
seeming vulnerability to future attacks under section 793 of the
Espionage Act, though that statute was not at issue in the case.152
Justices Black, Douglas, and Brennan took the position, to varying
degrees, that under the First Amendment, “the press must be left free to
publish news, whatever the source, without censorship, injunctions, or
prior restraints.”153 For Black, that the issue arose in the context of war
seemed only to strengthen this presumption of protection.154
Justices Stewart and Marshall concurred on separation of powers
grounds;155 Justices Burger, Harlan, and Blackmun dissented,156 but it is
146
147
RUDENSTINE, supra note 138, at 2.
U.S. District Judge Murray I. Gurfein, who issued the initial restraining order, wrote that
the government had not met its burden and that “[a] secure nation requires a free press, even one
that is ‘cantankerous,’ ‘obstinate,’ and ‘ubiquitous.’” Id. at 3. The two courts of appeals reached
different conclusions; the Second Circuit ordered Judge Gurfein to hold additional hearings,
while the D.C. Circuit affirmed the trial court’s decision. Id.
148 “The publication sparked a huge controversy about whether the government . . . had
intentionally misled the American public . . . . This had a powerful impact on the political
prospects of many Democratic party leaders, some of whom were considering running for the
party’s presidential nomination in 1972.” Id. at 5; see also Glendon, supra note 139, at 1306.
149 RUDENSTINE, supra note 138, at 6.
150 N.Y. Times Co. v. United States, 403 U.S. 713 (1971).
151 Id. at 714.
152 Id. at 730-40 (Stewart, J., concurring).
153 Id. at 717 (Black, J., concurring). Interestingly, William Rehnquist had recently joined the
Office of Legal Counsel and the Justice Department and was tasked with evaluating the law of
prior restraint. He focused on the wartime setting as support for stopping the newspapers from
publishing. RUDENSTINE, supra note 138, at 79-81.
154 N.Y. Times, 403 U.S. at 717 (Black, J., concurring) (“[P]aramount among the
responsibilities of a free press is the duty to prevent any part of the government from deceiving
the people and sending them off to distant lands to die of foreign fevers and foreign shot and
shell.”).
155 Justices Stewart and Marshall argued separately that the court was faced with a separation
of powers problem, and it was not the Court’s role to grant the Executive Branch “the power
Congress refused to give.” Id. at 747 (Marshall, J., concurring).
156 The Justices wrote separately but mainly objected to the “unseemly haste” in which the
cases were conducted. Id. at 748 (Burger, J., dissenting).
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Justice White’s concurrence that stands out. He concurred solely on the
ground of “concededly extraordinary protection against prior
restraints,”157 but then addressed how a successful prosecution after
publication might proceed under the Espionage Act (even though the
government had not raised the issue).158 Justice White opined that the
prior restraint doctrine does not suggest that newspapers have some
kind of blanket protection to publish and that the government’s failure
to raise a statute for authority greatly influenced the outcome of the
case.159
New York Times general counsel James C. Goodale had argued
among his colleagues that it was an unsettled legal question whether
such publication violated any provision of federal espionage laws.160
But under Justice White’s theory, section 793(e) would require only that
the government prove willful conduct, not intent to injure the United
States.161 Justice White warned that “it seems undeniable that a
newspaper, as well as others unconnected with the government, are
vulnerable to prosecution under section 793(e) if they communicate or
withhold the materials covered by that section.”162
Justice White’s opinion, while not binding on that issue, opened
the door to press-related prosecutions under the Espionage Act. In fact,
the government later brought charges against Ellsberg and his RAND
Corporation colleague Anthony Russo, but the case was dismissed due
to extensive prosecutorial misconduct, leaving Justice White’s
observation untested.163 A Maryland District Court would revisit the
issue one decade and one war later in United States v. Morison.164
157 Id. at 730. (White, J., concurring). Prior restraint would have meant granting an injunction
before the information was published, as opposed to prosecuting the publishers after the fact.
158 Though Justice White did not go so far as to say that the newspapers had or would be
committing a crime, “neither the Times nor the Post could have conceived of White’s opinion as
anything but a strong recommendation that the government prosecute them.” RUDENSTINE, supra
note 138, at 311.
159 N.Y. Times, 403 U.S. at 733. (White, J., concurring) (“[The Prior restraint doctrine] does
not mean that the law either requires or invites newspapers or others to publish . . . or that they
will be immune from criminal action if they do. . . . That the Government mistakenly chose to
proceed by injunction does not mean that it could not successfully proceed in another way.”).
160 RUDENSTINE, supra note 138, at 51, 57.
161 N.Y. Times, 403 U.S. at 738-39 (White, J., concurring).
162 Id. at 740 n.9.
163 The dismissal came in the wake of disclosure by the government that the FBI had
wiretapped Ellsberg’s phone conversations in 1969 and 1970 and that all records had disappeared.
Martin Arnold, New Trial Barred, N.Y. TIMES, May 11, 1973, at 1. When he issued his decision,
United States District Court Judge William Matthew Byrne Jr. said that the government’s
behavior had “offended a sense of justice,” and he “decided to declare a mistrial and grant the
motion for dismissal.” Id.
164 604 F. Supp. 655 (D. Md. 1985), aff’d 844 F.2d 1057 (4th Cir. 1988), cert. denied 488 U.S.
908 (1988).
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B.
393
The Cold War: United States v. Morison165
In 1984, analysts at the Naval Intelligence Support Center (NISC)
used classified information in a report concerning an explosion at a
Soviet naval base.166 Samuel Loring Morison was employed at NISC
during that period,167 but also worked off-duty for Jane’s Defense
Weekly, a British publication.168 Around the time that he sought fulltime employment with Jane’s, Morison mailed satellite photographs of
the Soviet ship to Derek Wood, his editor at the magazine.169 Morison
had removed the borders of the photographs that contained the words
“Top Secret” and a warning notice before mailing them to Wood.170
Authorities linked Morison to the photographs with a fingerprint; in
addition, a typewriter ribbon found in his office showed that he had
written multiple letters to Jane’s, including one containing a summary
of the secret report.171
A jury convicted Morison of willfully causing copies of three
photographs, allegedly related to the national defense, to be transmitted
to persons “not entitled to receive them,” in violation of section 793(d),
and willfully retaining the photographs without authorization, in
violation of section 793(e).172 Morison argued on appeal that the laws
underlying these offenses were unconstitutionally vague and overbroad,
that the Act was intended only to punish espionage in its classic sense,
and that his conduct did not fall within the traditional understanding of
sharing information with a foreign government with the intent to injure
the United States.173
Specifically, Morison attacked the phrase “relating to the national
defense” as vague and in no way effective notice of what kind of
information the statute covers.174 Unlike its predecessor provision,
165 844 F.2d 1057 (4th Cir. 1988). On January 20, 2001, President Bill Clinton issued a
pardon for Morison. See James Risen, Clinton Did Not Consult C.I.A. Chief on Pardon, Official
Says, N.Y. TIMES, Feb. 16, 2001, at A12. Senator Daniel P. Moynihan had written a 1998 letter
in support of a pardon for Morison, the only person convicted for leaking classified information
to the press.
Letter from Senator Moynihan to the President (Sept. 29, 1998),
http://www.fas.org/sgp/news/2001/04/moynihan.html. For an opposing editorial by the U.S.
attorney who handled Morison on appeal, see Breckinridge L. Willcox, Editorial, Speaking of
Pardons, WASH. POST, Feb. 24, 2001, at A23.
166 Morison, 844 F.2d at 1061.
167 Morison had been given a security clearance of “Top Secret-Sensitive Compartmented
Information.” Id. at 1060.
168 Id.
169 Id.
170 Id.
171 Id. at 1062.
172 Id. at 1060.
173 Id. at 1063.
174 Id.
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which the Supreme Court upheld as constitutional,175 section 793 does
not contain an explicit intent requirement regarding injury to the United
States. Section 793 instead attaches “willfulness” only to a defendant’s
act of communicating or conveying the information or documents; a
further motive is unnecessary.176 The Fourth Circuit rejected Morison’s
arguments, content that the District Court properly remedied the
undefined terms in the statute with its jury instruction.177
Significantly, however, the Fourth Circuit appeared to limit its
decision to the facts of the case, which were that Morison was a
government employee who had security clearance, understood the
classified nature of the information from the perspective of an insider,
and signed agreements to that effect.178 The court found that the statute
was not unconstitutionally vague “as applied to this defendant,”179
arguably because of his particular employment situation. Morison was
in a position to know the classification system, in a sense putting him on
notice about the term “relating to the national defense.”180 Thus, despite
his role at Jane’s, the Court treated Morison as a government official
who leaked information to the press, not as a member of the press
himself. As such, the Court did not issue a definitive answer to the
question of whether or how the Espionage Act would apply to the press
as recipients of the information—it stopped at deciding that the Act
applied to press leaks in addition to leaks to foreign governments. In
fact, Judge Wilkinson explicitly emphasized that the question of
whether the statute should be applied to the press was not before the
Court.181 He did offer, however, that press organizations probably
would not be prosecuted under the statute.182
175 Gorin v. United States, 312 U.S. 19 (1941). Gorin involved the Espionage Act of 1917
which required intent to commit espionage in order to be convicted and provided in section 1(a)
that “whoever, for the purpose of obtaining information respecting the national defense with
intent or reason to believe that the information to be obtained is to be used to the injury of the
United States, or to the advantage of any foreign nation . . . .” Id. at 21 n.1 (quoting Espionage
Act of 1917, Pub. L. No. 65-24, 40 Stat. 217) (emphasis added).
176 Morison argued that the District Court erred in its instructions to the jury that “[p]roof of
the most laudable motives, or any motive at all, is irrelevant under the statute.” Morison, 844
F.2d at 1072 (internal quotations omitted).
177 Jury instructions included this section: “An act is done wilfully [sic] if it is done voluntarily
and intentionally and with the specific intent to do something that the law forbids. That is to say,
with a bad purpose either to disobey or to disregard the law.” Id. at 1071 (emphasis in original).
178 The Court noted that Morison “knew that he was dealing with national defense material,”
and that “[h]e was an experienced intelligence officer . . . instructed on all the regulations
concerning the security of secret national defense materials.” Id. at 1073.
179 Id. (emphasis added); see also id. at 1074 (referencing the particular defendant).
180 Trudell, supra note 138, at 218-19.
181 Morison, 844 F.2d at 1085 (Wilkinson, J., concurring) (“[I]t is important to emphasize
what is not before us today. This prosecution was not an attempt to apply the espionage statute to
the press for either the receipt or publication of classified materials.”).
182 Id. at 1081. Critics of the statute agreed with this assessment as early as 1971, arguing that
while “[i]t may seem paradoxical to provide the press with the privilege of publishing the fruits of
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That open question brings this discussion to the present, deciding
whether in the wake of Morison, courts should allow the government
broad power to restrain public debate of defense matters by applying the
Espionage Act to the press. As an answer to that difficulty, vestiges of
Judge Hand’s Masses opinion have continued to be relevant in the
context of free speech and offer a workable approach for courts in
analyzing section 793 of the Espionage Act.
V. HAND’S APPROACH REEMERGES IN FREE SPEECH CASES
One difficulty with the Espionage Act cases is that they tend to
arise during periods of significant debate about national policy, such as
in times of war.183 During these periods, as highlighted in the cases
examined above from World War I, Vietnam, and the Cold War, the
judiciary has been extremely deferential to congressional and executive
power to limit the flow of information.184 While respecting the power
of Congress to make law, courts should require explicit and clearly
worded statutory language before applying restrictions on fundamental
First Amendment freedoms. That approach is an echo of Judge Hand’s
words that the use of congressional power to curb free speech runs so
strongly against the values of the American system that only the clearest
expression of such limitations should be accepted as directive.185
A.
Leaving Schenck Behind
In 1917, the country and the courts were not ready for Judge
Hand’s curbing of Espionage Act prosecutions by the Department of
Justice, as evidenced by the Second Circuit’s reversal on appeal.186 In
Schenck v. United States,187 two years after Judge Hand’s decision in
Masses, the Supreme Court articulated the “clear and present danger”
formulation that would apply to Congress’s power to curb freedom of
speech. That standard lasted until the 1950s and 1960s, when Judge
Hand’s ideas finally resurfaced.188 While the following cases involve
a crime . . . it seems to us that an asymmetry of obligations . . . should be preserved, at least until
such time as far-reaching institutional changes are made . . . . ” Edgar & Schmidt, supra note 28,
at 1086.
183 Id. at 933.
184 See discussion supra Parts III and IV, respectively.
185 Masses Pub. Co. v. Patten, 244 F. 535, 540 (S.D.N.Y. 1917).
186 Masses Pub. Co. v. Patten, 246 F. 24 (2d Cir. 1917).
187 249 U.S. 47, 52 (1919).
188 Gunther, supra note 128, at 752 (discussing “a belated adoption by the Supreme Court of
aspects of the Masses approach . . . after the rise and decline of Schenck’s clear and present
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the Smith Act189 and a state statute, the vindication of Judge Hand’s
basic methodology is still illustrative for courts today when applying
free speech values to an interpretation of the Espionage Act.
B.
Yates Starts the Trend
In Yates v. United States,190 fourteen members of the Communist
Party in California were charged with violating the Smith Act by
advocating the overthrow of the United States government. The Court
ordered the acquittal of five defendants and remanded the remaining
defendants, directing the lower court to instruct the jury differently in
how to apply the statute.191 To that end, echoing Judge Hand in Masses,
Justice Harlan took pains to distinguish advocacy of theory from
advocacy of specific action.192 Recognizing the liberty interest at stake,
Justice Harlan wrote that in construing the Smith Act, the Court “should
not assume that Congress chose to disregard a constitutional danger
zone so clearly marked.”193 Mirroring the approach Judge Hand used in
Masses, Justice Harlan interpreted the statute in terms of “constitutional
presuppositions” and required strict standards of proof.194
danger standard . . . . ”).
189 While the Espionage Act criminalized the communication of information relating to the
national defense to those not entitled to receive it, the Smith Act criminalized advocating violence
against the government or organizing to do so:
Sec. 2. (a) It shall be unlawful for any person —
(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity,
desirability, or propriety of overthrowing or destroying any government in the United
States by force or violence . . . ;
(3) to organize or help to organize any society, group, or assembly of persons who
teach, advocate, or encourage the overthrow or destruction of any government in the
United States by force or violence; or to be or become a member of, or affiliate with,
any such society, group, or assembly of persons, knowing the purposes thereof.
Alien Registration Act (Smith Act of 1940), ch. 439, 54 Stat. 670, 671 (1940) (codified as
amended at 18 U.S.C. § 2385 (2000).
190 354 U.S. 298 (1957); see also Scales v. United States, 367 U.S. 203 (1961) (applying and
upholding Yates).
191 Yates, 354 U.S. at 324 (“[W]e are unable to regard the District Court’s charge upon this
aspect of the case as adequate. The jury was never told that the Smith Act does not denounce
advocacy in the sense of preaching abstractly the forcible overthrow of the Government.”).
192 The majority interpreted the Smith Act such that it did not “prohibit[] advocacy and
teaching of forcible overthrow [of the government] as an abstract principle, divorced from any
effort to instigate action to that end . . . .” Id. at 318.
193 Id. at 319.
194 Gunther, supra note 128, at 753.
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Brandenburg Seals the Deal
In what became the seminal case on the issue, Brandenburg v.
Ohio,195 the Supreme Court drew a similar distinction between
advocacy of thought and advocacy of action, articulating the clearest
and farthest-reaching standard for First Amendment protection on
record.196 The Court reversed the conviction of a Ku Klux Klan leader
who had been found guilty of violating the Ohio Criminal Syndicalism
statute197 for advocating unlawful means of accomplishing political
reform and for voluntarily assembling with his group to teach such a
doctrine. While Brandenburg did not involve a statute related to
national defense issues, the case did take place during the Vietnam War,
with the attendant climate, and its proposition is relevant for the
understanding of mainstream First Amendment jurisprudence. The
Court found the state statute unconstitutional because free speech and
free press guarantees did not allow the state to forbid advocacy of force
unless that advocacy was intended and likely to produce imminent
unlawful action; as the statute did not draw that distinction, it
improperly proscribed speech constitutionally “immunized” from
government restriction.198
Thus, the thread of Judge Hand’s First Amendment protection
presumption in Masses appears to connect decades later to the
Brandenburg line of cases. In Masses, Judge Hand found that a person
who stops short of the explicit act forbidden by statute should not be
found in violation or else the statute would cover too many forms of
political agitation.199 As discussed in the Brandenburg line of cases,
such broad application of a statute implicating First Amendment
freedoms would go too far, especially where legislative wording does
not provide clear direction, as the court found in Yates.200
195
196
197
395 U.S. 444 (1969).
Gunther, supra note 128, at 754.
The statute criminalized “advocat[ing] . . . the duty, necessity, or propriety of crime,
sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or
political reform” as well as “voluntarily assembl[ing] with any society, group, or assemblage of
persons formed to teach or advocate the doctrines of criminal syndicalism.’” Brandenburg v.
Ohio, 395 U.S. 444, 444-45 (1969) (quoting Ohio Rev. Code Ann. § 2923.13 (1969))
Brandenburg invalidated the Ohio Statute. Id..
198 Id. at 448.
199 Masses Pub. Co. v. Patten, 244 F. 535, 540 (S.D.N.Y 1917) (arguing that to follow the
government’s interpretation of the statute would mean that “every political agitation which can be
shown to be apt to create a seditious temper is illegal”).
200 354 U.S. 298 (1957).
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VI. A HELPING HAND APPROACH TO SECTION 793
Judge Hand’s free speech understanding has ultimately been
vindicated through the progression of these First Amendment cases.
Such a reaffirmation suggests that when a court today is interpreting a
statute that implicates the First Amendment, it should begin from a
presumption of protection, requiring Congress to be explicitly clear
before applying the law broadly—even when the case takes place in the
context of wartime, as it did in Masses. Section 793 of the Espionage
Act, as applied to the press, not only involves a First Amendment
question, but offers fertile ground for application of Judge Hand’s actual
methodology from Masses, due in no small measure to the poorly
drafted statutory language.
A.
Courts Attempt to Remedy Textual Gaps
The text and legislative history of section 793 have left courts
without definitions of key terms in the statute.201 Courts have often
looked for definitions in other parts of the law or referred to general
public “common sense” knowledge, and have used limiting jury
instructions to remedy these deficiencies. In Gorin v. United States,202
two defendants were convicted of violating the Espionage Act of 1917,
parts of which were precursors to the current section 793. On appeal,
the Supreme Court found that “related to the national defense” was not
impermissibly vague203 and that the trial court had properly instructed
the jury as to how it should consider the meaning of that phrase—that
whether the information related to the national defense was not a matter
of law for the court to decide.204
Interestingly, the 1941 Gorin court pointed to the existence of a
scienter requirement in the statute as a strong indicator of the law’s
fairness.205 In contrast, by the time section 793 emerged from Congress
201
202
203
See discussion supra Part II.
312 U.S. 19 (1941).
Id. at 32 (“[T]he words of the statute are sufficiently specific to advise the ordinary man of
its scope.”).
204 Id. (“The question of the connection of the information with national defense is a question
of fact to be determined by the jury . . . .”). One problem with leaving such a determination to the
jury was anticipated during congressional testimony concerning the 1917 Act, namely that “in a
time of war a jury . . . is no less liable to hysteria than those higher up.” Stone, supra note 102, at
351 (quoting Hearings on H.R. 291 Before the H. Comm. on the Judiciary, 65th Cong. 12-13
(Apr. 9 & 12, 1917) (testimony of Professor Emily Balch of Wellesley College)).
205 The Court noted that:
The obvious delimiting words in the statute are those requiring “intent or reason to
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in 1950, that mens rea requirement was replaced with a notion of
“willfully” communicating, regardless of motive.206 In Morison, the
defendant argued that the absence of a bad faith requirement should
have rendered the statute unconstitutionally vague. Both the district
court and the Fourth Circuit rejected this argument, asserting that
“willfully” committing the act, whether or not with the purpose of
injuring the United States or aiding a foreign government, fulfilled any
constitutional need for intent.207 Taken to its broadest conclusion, the
Fourth Circuit’s assessment seems to indicate that anyone could commit
this act—whether AIPAC lobbyists or the press—by publishing the
information.
B.
Remedy Reaches Its Limit
Yet, while the Morison court maintained that sections 793(d) and
(e) were constitutional, it relied heavily on the position of the defendant
as a government employee to explain why his actions rose to the level
of willfulness.208 Morison knew he was dealing with classified material,
he knew the relevance of that material to the national defense, he was an
experienced intelligence officer informed of the regulations involved,
and he had signed agreements to that effect.209 Such an individual
differs greatly from a lobbyist or journalist who has no such security
clearance, no first-hand knowledge of the classification system, and has
made no agreements with the government. In this way, the AIPAC
lobbyists are similarly situated with journalists as frequent non-official
recipients of government information. Reliance on the defendant’s
status in Morison suggests that the statute is best read to apply only to
government employees or officials and should not be extended to
members of the press.210 Such an extension would necessarily implicate
the First Amendment far more significantly and put courts in the
believe that the information to be obtained is to be used to the injury of the United
States, or to the advantage of any foreign nation.” This requires those prosecuted to
have acted in bad faith. The sanctions apply only when scienter is established.
Gorin, 312 U.S. at 27-28.
206 Edgar & Schmidt, supra note 28, at 942.
207 See United States v. Morison, 604 F. Supp. 655, 658-59 (D. Md. 1985), aff’d 844 F.2d
1057, 1072 (4th Cir. 1988), cert. denied 488 U.S. 908 (1988).
208 Morison, 844 F.2d at 1073; see also Due Process and Free Speech, supra note 13, at 825.
209 Morison, 844 F.2d at 1060.
210 Due Process and Free Speech, supra note 13, at 825. Even one author, who argues that
“the costs of leaks may be too high a price to pay—even for the freedom to express ourselves on
important issues,” also asserts that after the Morison holding, “the press need not fear prosecution
whenever they discover or receive and publish information that relates to the national defense”
because the government would be risking exposure of the very information it wants to protect and
it is not clear that section 793 applies to “publishing.” Trudell, supra note 138, at 227, 228 n.126.
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position of prioritizing a purported congressional intent—inferred from
ambiguous text and absent definitions—over the compelling value of
free speech.211
In contrast, Judge Hand argued in Masses that while Congress may
have the power to set more intrusive restrictions on freedom of the
press, courts should not infer such delegation of power without clear
and unambiguous language to that effect.212 Thus, in this mold, courts
can show deference to congressional authority while simultaneously
requiring clarity when national defense concerns run up against First
Amendment freedoms. This approach is not limited in its source to the
words of Judge Hand, but involves the well-known doctrine of
avoidance as applied to constitutional questions: where even a
reasonable statutory construction would raise significant constitutional
problems, a court will look to a different construction as long as such an
interpretation does not plainly contradict congressional intent.213
With regard to sections 793(d) and (e), a case could be made (and
was made by the Court in Morison)214 that the statute does not raise
serious constitutional problems where the defendant is a government
employee, not a member of the press, and criminalization of publication
itself is not at issue.215 People might reasonably disagree as to whether
the statute should apply to government employees who leak to the press
rather than to a foreign government in the more traditional espionage
context, but application to journalists outside the sphere of government
employment is a more significant extension.216 That Morison removed
the words “Top Secret” and other warning information from the
photographs only highlights the danger of applying the statute to
non-governmental employees, whether lobbyists or journalists; a
non-governmental employee viewing an altered document would not
know whether, or to what degree, the original document had been
classified.
211 “Unlike public employees, who have agreed to abide by constitutionally permissible
restrictions of their speech, journalists and publishers have not agreed to waive their rights.”
Stone, supra note 46, at 191 (emphasis in original).
212 Masses Pub. Co. v. Patten, 244 F. 535, 540 (S.D.N.Y. 1917).
213 Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945, 1948-49 (1997).
214 Morison, 844 F.2d at 1073-74.
215 Id. at 1085; Jacqueline Reardon, Comment, Espionage Law—First Amendment—Applying
the Espionage Statutes to Press Leaks, United States v. Morison, 844 F.2d 1057 (4th Cir. 1988),
13 SUFFOLK TRANSNAT’L L. REV., 455, 465 (1989) (“In weighing competing policy concerns . . .
the court ignored a compelling interest in the freedom of the press, and the public’s right to
know.”).
216 See generally Due Process and Free Speech, supra note 13, at 821.
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Hand Applied
If courts now apply the Espionage Act so as to allow prosecution
of journalists not only for publishing any information relating to the
national defense, but also for retaining such information in their files (or
even memories),217 the chilling effect would be profound and implicate
the First Amendment significantly. In order to avoid this infringement
on a fundamental value, courts should apply the statute in view of its
textual ambiguity and opaque congressional intent.218 Just as Judge
Hand worried in Masses that applying the 1917 Act to the defendants
would be to accept that it covered every political agitation that might
lead to sedition,219 so, too, should modern courts worry that applying
sections 793(d) and (e) to the press without an explicit declaration from
Congress would be an over-inclusive intrusion on fundamental First
Amendment freedoms. Legislation that effects a significant chill on
national debate about defense policy, though arguably within
congressional discretion, implicates such a significant American value
that only its clearest expression should suffice. 220
In fact, even Justice White, generally credited with opening the
door to prosecuting the press under the Espionage Act,221 noted that one
of the reasons he refused to grant an injunction was the absence of
express and narrowly tailored congressional authorization to do so,222
echoing the words of Judge Hand in Masses. Moreover, although
Justice White stated that he would have no trouble sustaining
convictions under section 793,223 it is possible he meant merely to imply
that the statute is not impermissibly vague, not that the defendant
newspapers had necessarily committed a crime or would do so by
publishing the Papers.224
217
218
219
220
See Edgar & Schmidt, supra note 28, at 942.
See discussion supra Part II.
Masses Pub. Co. v. Patten, 244 F. 535, 540 (S.D.N.Y. 1917).
As Judge Hand noted: “It may be that fundamental rights of the individual must stand in
abeyance, even including the right of the freedom of the press.” when in the peril of war, but the
question is simply “how far Congress . . . has . . . seen fit to exercise a power which may extend
to measures not yet even considered, but necessary to the existence of the state as such.” Id. at
538.
221 See discussion supra Part IV.A.
222 N.Y. Times Co. v. United States, 403 U.S. 713, 731 (1971) (“[T]he United States has not
satisfied the very heavy burden that it must meet to warrant an injunction against publication in
these cases, at least in the absence of express and appropriately limited congressional
authorization for prior restraints in circumstances such as these.”) (White, J., concurring)
(emphasis added).
223 Id. at 737.
224 At the conclusion of his concurring opinion, Justice White wrote:
I am not, of course, saying that either of these newspapers has yet committed a crime
or that either would commit a crime if it published all the material now in its
possession. That matter must await resolution in the context of a criminal proceeding
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Justice White’s opinion, though not addressing the issue directly,
also suggested a practical reason why courts are not in the best position
to extend section 793 to the press, and why the conflict between
national security and freedom of public information does not lend itself
well to interstitial judicial remedies. In order to understand a judicial
decision most fully, to avoid and anticipate future litigation, parties
must have “full elaboration” of the facts which led to the decision.225
Such transparency is difficult or impossible where the controversy itself
concerns keeping that information secret. As the Supreme Court
observed in the Pentagon Papers case, it would be unhelpful in the long
run to construct judge-made standards in an area where so many
discussions would need to be in camera.226
Thus, until and unless Congress addresses the competing values of
free speech and national security with acceptable precision, courts
should consciously limit the extension of section 793 to those few
situations clearly delineated in the statute and its history. Certainly,
traditional acts of espionage would be covered, and though legitimate
argument might ensue over leaks to the press by government officials,
publication itself should not be covered by section 793; prosecution as
to the latter would risk improper restrictions of free speech without
express congressional authorization.
CONCLUSION
As the United States continues to wage an unprecedented and
open-ended war on terror, it is even more important for courts to
articulate an appropriate understanding of the Espionage Act as applied
to non-government officials, a group that includes members of the
press. The current prosecution of the two AIPAC lobbyists, greenlighted by a federal court, serves as a warning sign of dangerous judicial
application of the statute. Putting the press in the prosecutorial
crosshairs for publishing secret government information would have a
chilling effect on public discourse. As the 2006 midterm elections
demonstrated, an informed electorate holds a potential check on
expansive executive power during wartime. With an eye toward
protecting that public discourse, Judge Learned Hand’s application of
if one is instituted by the United States.
Id. at 740. But see RUDENSTINE, supra note 138, at 311 (arguing that Justice White’s opinion
could not be viewed as anything but urging the government to prosecute the newspapers under
the Espionage Act for publishing).
225 Edgar & Schmidt, supra note 28, at 933.
226 Id.; N.Y. Times, 403 U.S. at 732 (noting that the material at issue in the case remains
sealed, is not properly discussed in the opinions, and thus offers little guidance to other courts).
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the original Espionage Statute during World War I, demanding explicit
congressional directive when restricting free speech, provides a map for
courts to address the issue today.