In his provocative guest post (which should, if nothing else, provide that much more of a reason to check out tomorrow’s Just Security launch event), Gabe Schoenfeld asks whether “the First Amendment truly provide[s] members of the press a license to behave in a manner that is functionally identical to the behavior of spies?” Of course it doesn’t. The First Amendment does not protect spies–or those who engage in the same activity as spies, i.e., stealing national security secrets from the U.S. government with the intent to harm the United States and/or benefit a foreign power. But Gabe assumes a can opener when he conflates what classical espionage is with what the Espionage Act of 1917 actually prohibits.  As I’ve testified before in rather nauseating detail, because the Espionage Act includes no specific intent requirement, the statute (unhelpfully) draws no distinction between three different activities by three different classes of actors: classic espionage; leaking; and the retention or redistribution of national defense information by non-government actors.

This ambiguity is why Schmidt and Edgar famously described it as a loaded weapon in their canonical 1973 Columbia Law Review article–not because Congress in 1917 made a conscious choice to equate these three acts, but because it passed a notoriously sloppy statute that could theoretically be used by the government not just to prosecute reporters who publish national security secrets, but those members of the public who “retain” such information–e.g., in the cache of their hard drives. Gabe seems to believe that the fact that particular activity is prohibited by the Espionage Act necessarily makes it “espionage”? But does really Gabe think that all of us who read the New York Times are spies, too? If not, how are we different from those who receive national security information from government employees and wrongfully retain it and/or pass it along to third-parties? Drawing that line is the exact problem here–and a big part of why the government has historically been so reluctant to prosecute non-government employees under the Espionage Act. (There’s been exactly one such case–brought by the Bush Administration in 2005 against two AIPAC lobbyists. And largely for–you guessed it–First Amendment reasons, that prosecution collapsed.) So before even getting to what the First Amendment protects, it’s vital to understand the material differences between these three “offenses,” and why we shouldn’t bandy about the term “espionage,” which usually connotes more than just the dissemination of national security secrets as such.

For what it’s worth, I actually think the real First Amendment question at the heart of this dispute–whether the First Amendment does ever protect the dissemination of national security secrets–is inordinately difficult, and avoiding it is has a lot to do with why the Supreme Court has historically refused to demarcate the boundary between “journalists” and the rest of us. My own view, for however little it’s worth, is that the First Amendment does not confer an absolute right to publish national security information, but rather a qualified one–perhaps analogous to the “balancing” factors the Supreme Court articulated in Pickering v. Board of Ed. Under Pickering, the question is whether “the public interest in the . . . speech outweighed the government’s interest in maintaining the confidentiality of governmental information and in promoting the efficiency of internal operations.” Like all balancing tests, there’s a lot that’s problematic about such a subjective approach. But I think it gets at the right issues… (Unhelpfully for present purposes, Pickering was overruled by the Supreme Court in 2006, with as-yet-underappreciated consequences in the national security sphere.)

At a more basic level, as Justice Potter Stewart argued in an influential 1974 speech at Yale Law School, “So far as the Constitution goes, the autonomous press may publish what it knows, and may seek to learn what it can.” But, Stewart continued,

this autonomy cuts both ways. The press is free to do battle against secrecy and deception in government. But the press cannot expect from the Constitution any guarantee that it will succeed. There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. The public’s interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect.

If one agrees with Justice Stewart (as I largely do), then the question becomes one about competing views of the public interest. Gabe may well believe that protecting national security secrets is the paramount public interest in this field. I respectfully beg to differ. After all, without national security leaks, we might never have found out about Abu Ghraib, waterboarding, black sites, extraordinary rendition, the warrantless wiretapping program, the government’s expansive interpretation of section 215, PRISM, and…. I dare say, this would’ve been an incredibly quiet summer in a world in which, per Gabe, we treated national security journalists like spies.

Would we really have been better off?