The proposed SHIELD Act 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 or . . . concerning the identity of a classified source or informant” working with the intelligence community of the United States.
Although the Act might be constitutional as applied to a government employee who “leaks” such classified material, it is plainly unconstitutional as applied to other individuals who might publish or otherwise disseminate such information. With respect to such other individuals, the Act violates the First Amendment unless, at the very least, it is expressly limited to situations in which the individual knows that the dissemination of the classified material poses a clear and present danger of grave harm to the nation.
The clear and present danger standard, in varying forms, has been a central element of our First Amendment jurisprudence ever since Justice Oliver Wendell Holmes first enunciated it in his 1919 opinion in Schenk v. United States. In the 90 years since Schenck, the precise meaning of “clear and present danger” has shifted, but the principle that animatesthe standardwas stated eloquently by Justice Louis D. Brandeis in his brilliant 1927 concurring opinion in Whitney v. California:
Those who won our independence by revolution were not cowards. . . . They did not exalt order at the cost of liberty. . . . 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 . . . by showing that there was no emergency justifying it.
With that observation in mind, I will examine two central questions: (1) Doesthe clear and present danger standard apply to unlawful leaks of classified information by public employees? (2) Does the clear and present danger standard apply to the dissemination of classified information derived from those unlawful leaks? These are fundamental First Amendment questions. Before turning to them, though, a bit of historical context is necessary.