William & Mary Law Review


Heidi Kitrosser


This Article revisits the free speech protections that leakers are due in light of recent commentaries and events. Among other things, the Article critiques arguments to the effect that the Obama Administration’s uptick in leak prosecutions does not threaten the system of free speech because plenty of classified information still makes its way into newspapers and the absolute number of leaker prosecutions remains very low. Such positions overlook the slanted impact that prosecutions and investigations are likely to have—and reportedly have had—on the speech marketplace. The Article also explains that even though the increase in prosecutions and other recent developments, including new government surveillance practices, heightens existing strains on the marketplace of ideas, the developments themselves are not the source of those strains. The core source is a legal framework in which the government is assumed to have a wide leeway to prosecute leaks of classified information with only a very minimal burden to show possible national security harm and no obligation to assess the value of the information at stake. This framework, particularly when combined with the classification system’s dramatic overbreadth, leaves the door wide open for contenttargeted prosecutions and slanted chilling effects corresponding to administration-unfriendly views. Recent developments simply highlight and exacerbate these problems. The developments illuminate the need for First Amendment standards that meaningfully define and limit the subsets of classified information whose conveyance the government can prosecute constitutionally. In past work, I have proposed such standards. In this Article—building partly on the facts of recent leak cases and partly on this Article’s own responses to recent commentaries—I elaborate on those standards and their potential applications.