Moral Outrage
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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.

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.

[Excerpt of article by Geoffrey R. Stone, chairman of the board of the American Constitution Society, writing in The New York Times]

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