National Law Journal: Espionage or Free Speech?

Articles / October 26, 2009

Washington, D.C., partners David Rivkin and Bruce Brown co-authored an article, "Espionage or Free Speech?," which was published in the October 26, 2009, edition of the National Law Journal.

The article focuses on the failed four-year pursuit, under the Espionage Act, of two former American Israel Public Affairs Committee lobbyists for disclosing classified information. Federal prosecutors recently abandoned their prosecution, noting the "additional intent requirements" imposed by Senior U.S. District Judge T.S. Ellis III. According to the authors, "Ellis ruled as he did in an effort to ensure that the highly unusual prosecution did not run afoul of the First Amendment. Espionage cases with serious free speech concerns do not come around that frequently, but when they do, they test, in a way that few cases ever do, our commitment to maintaining an open society."

The collapse of the prosecution "makes clear that we must urgently reform the 1917 Espionage Act, both to bring it up to date with a modern understanding of the First Amendment and to minimize the prospects of costly and unsuccessful indictments in the future . . . the vagueness that now surrounds the law is harmful to free speech and national security interests alike," state Rivkin and Brown.

The authors continue: "The continuing uncertainty about the boundary between the Espionage Act and the First Amendment is reflected in Ellis' holding that the prosecution would have to show not only that [the defendants'] activities were 'potentially harmful' to the United States but, crucially, that they also 'knew' this fact. On one level, this first-of-its-kind ruling indicates that the Espionage Act might be constitutionally applied to private U.S. citizens, so long as some higher state-of-mind requirement is satisfied. However, the fact that the government abandoned a four-year, multimillion-dollar prosecution because it could not accept Ellis' view of what this requirement entailed shows that the Espionage Act remains mired in uncertainty."

Rivkin and Brown conclude: "It's well past time for Congress to define the Espionage Act's application to defendants . . . in this case (or journalists or academics in the next) who are neither 'spies' nor sworn to keep government secrets. The judiciary . . . was forced to rewrite a 1917 statute from the bench. This is not how such important policy decisions should be made."