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

The Obama Administration has initiated six prosecutions of government employees for leaking classified information. This is double the number of prosecutions brought by all previous administrations combined. The rise in prosecutions, coupled with other developments – most notably a series of disclosures from the website wikileaks – has brought a renewed focus to the first amendment status of classified information and those who disseminate it. Most of the attention and concern, however, has centered on the protections due non-governmental third parties who publish information that is leaked to them. When their attention turns to leakers, commentators most often argue or assume that leakers can be prosecuted with little or no constitutional difficulty, given their special positions of trust with respect to classified information. This Article challenges that conventional view. It argues that government insiders who leak classified information merit robust, albeit certainly not unlimited, constitutional protections from prosecution. It also explains that the government should have greater constitutional leeway to punish leakers through administrative sanctions tied to leakers’ insider status – for example, through dismissal from employment or security clearance removal – than through criminal penalties. The Article defends these points on grounds of constitutional text, structure, and principle in their own right and as applied to the realities of the classification system. It also analyzes judicial doctrine, explaining that while aspects of it bode poorly for leaker protections from prosecution, the overall doctrinal picture is far less bleak for leakers than is often assumed