A clear and present danger to Free Speech
THE so-called Shield bill,  which was recently introduced in both houses of Congress in response to  the WikiLeaks disclosures, would amend the Espionage Act of 1917 to  make it a crime for any person knowingly and willfully to disseminate,  “in any manner prejudicial to the safety or interest of the United  States,”  any classified information “concerning the human intelligence  activities of the United States.”          Although this proposed law may be constitutional as applied to  government employees who unlawfully leak such material to people who are  unauthorized to receive it, it would plainly violate the First  Amendment to punish anyone who might publish or otherwise circulate the  information after it has been leaked. At the very least, the act must be  expressly limited to situations in which the spread of the classified  information poses a clear and imminent danger of grave harm to the  nation.          The clear and present danger standard has been a central element of our  First Amendment jurisprudence ever since Justice Oliver Wendell Holmes  Jr.’s 1919 opinion in Schenk v. United States.   In the 90 years since, the precise meaning of “clear and present  danger” has evolved, but the animating principle was stated brilliantly  by Justice Louis D. Brandeis in his 1927 concurring opinion in Whitney v. California.  The founders “did not exalt order at the cost of liberty,” wrote  Brandeis; on the contrary, they  understood that “only an emergency can  justify repression. Such must be the rule if authority is to be  reconciled with freedom. Such ... is the command of the Constitution. It  is, therefore, always open to Americans to challenge a law abridging  free speech and assembly by showing that there was no emergency  justifying it.”          On the other hand, the First Amendment does not compel government  transparency. It leaves the government extraordinary autonomy to protect  its own secrets. It does not accord anyone the right to have the  government disclose information about its actions or policies, and it  cedes to the government considerable authority to restrict the speech of  its own employees. What it does not do, however, is allow the  government to suppress the free speech of others when it has failed to  keep its own secrets.          We might think of this like the attorney-client privilege. If a lawyer  reveals his client’s confidences to a reporter, he can be punished for  violating that privilege — but the newspaper cannot constitutionally be  punished for publishing the information.          There are very good reasons why it makes sense to give the government so  little authority to punish the circulation of unlawfully leaked  information.          First, the mere fact that such information might “prejudice the  interests of the United States” does not mean that that harm outweighs  the benefit of publication; in many circumstances, it may be extremely  valuable to public understanding. Consider, for example, classified  information about the absence of weapons of mass destruction in Iraq.           Second, the reasons that government officials want secrecy are many and  varied. They range from the truly compelling to the patently  illegitimate. As we have learned from our own history,  it is often very tempting for government officials to overstate their  need for secrecy, especially in times of national anxiety. A strict  clear and present danger standard — rather than an unwieldy and  unpredictable case-by-case balancing of harm against benefit —  establishes a high bar to protect us against this danger.          And finally, a central principle of the First Amendment is that the  suppression of free speech must be the government’s last rather than its  first resort in addressing a problem. The most obvious way for the  government to prevent the danger posed by the circulation of classified  material is by ensuring that information that must be kept secret is not  leaked in the first place.          Indeed, the Supreme Court made this point quite clearly in its 2001 decision in Bartnicki v. Vopper,  which held that when an individual receives information “from a source  who obtained it unlawfully,”  that individual may not be punished for  publicly disseminating the information “absent a need ... of the highest  order.”          The court explained that if the sanctions now attached to the underlying  criminal act “do not provide sufficient deterrence,” then perhaps they  should be “made more severe” — but “it would be quite remarkable to  hold” that an individual can constitutionally be punished merely for  publishing information because the government failed to “deter conduct  by a non-law-abiding third party.”  This is a sound solution.          If we grant the government too much power to punish those who  disseminate information, then we risk too great a sacrifice of public  deliberation; if we grant the government too little power to control  confidentiality at the source, then we risk too great a sacrifice of  secrecy. The answer is thus to reconcile the irreconcilable values of  secrecy and accountability by guaranteeing both a strong authority of the government to prohibit leaks and an expansive right of others to disseminate information to the public.          (The New York Times. Geoffrey R. Stone is a professor of law at the University of  Chicago and the chairman of the board of the American Constitution  Society)