Classified Information Leaks and Free Speech

This article provides a timely response to the recent trend toward “cracking down” on classified information leaks and the absence of sig-nificant scholarship, theory, and doctrine on classified information leaks. The article begins by explaining the President’s vast secret-keeping ca-pacity and the capacity’s manifestation in the classification system. This capacity is particularly manifest in the problems, at least partly intrinsic, of broad executive branch classification discretion and overclassification. The author then describes the major constitutional arguments for defer-ence to political branch decisions to criminalize classified information leaks and publication of the same: such leaks are not speech but conduct; such leaks—even if speech—fall within the political branches’ wide rang-ing power to protect national security; and the judiciary lacks the exper-tise to second-guess such political branch decision making. The author refutes these arguments by explaining that a common thread underlying them is the notion of vast deference to political branch—particularly ex-ecutive branch—determinations regarding what information disclosures constitute national security threats. The author contends that this no-tion’s fatal flaw is that the Constitution’s speech- and transparency-related checks and balances not only do not vanish upon the wielding of a classification stamp, but are of special constitutional importance in this context given the vast secret-keeping capacities of the executive branch. Finally, the author considers the doctrinal implications of the preceding analysis and proposes judicial standards to test the First Amendment va-lidity of prosecutions for classified information leaks.

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