Creighton Law Review
Much attention has been paid of late to unauthorized disseminations of classified information. A grand jury proceeding has been initiated to investigate the leak and publication of information about the National Security Agency's warrantless electronic surveillance program. And in a case currently pending in the Eastern District of Virginia, the U.S. government for the first time is prosecuting private citizens for exchanging classified information in the course of concededly non-espionage activities - specifically, political lobbying. These events illuminate the underdeveloped and deeply under-theorized state of the law on classified information leaks and publications. The central chasm in existing theory and doctrine on the topic - apart from how little of it exists - is that it fails adequately to integrate the separation of powers and free speech issues that the topic raises. This Article integrates these two sets of issues, considering both the free speech values at stake and the discretion and capacity constitutionally accorded the political branches to protect national security information. This Article concludes that the national security related powers of the political branches - particularly the executive branch's vast secret-keeping capacity - do not diminish the free speech protections that should apply in the realm of classified information. To the contrary, these powers make speech and transparency related checks particularly crucial in this realm.
Dale Carpenter, The Antipaternalism Principle in the First Amendment, 37 Creighton L. Rev. 579 (2004), available at http://scholarship.law.umn.edu/faculty_articles/175.