Whistleblower Terry James Albury, a former FBI agent in Minneapolis, will be sentenced for violations of the Espionage Act on Thursday, October 17, at 11:00 am Central Time. The Justice Department charged Albury with retaining and disclosing national defense information without authorization. Albury, who was the only black agent in his field office, maintains that the information he disclosed reflects troubling FBI practices that targeted and intimidated minority communities. While he pleaded guilty, Albury has argued those disclosures were an act of conscience in response to systemic racial biases within the FBI and throughout its investigations.
First Amendment scholars have submitted an amicus brief stressing the public value of Albury’s disclosures. They argue that the public has strong First Amendment interests in informed debate about controversial law enforcement policies and practices. This post presents a supplementary argument of First Amendment interests that the court ought to consider at Albury’s sentencing.
Specifically, there is Eighth Circuit precedent addressing conscientious objectors to the draft that allowed the court to fashion an appropriately individualized sentence that took into account their free exercise of religion. Whistleblowers act out of conscience, in service of different, but no less important, First Amendment interests—the public’s interests in receiving information on matters of significant public concern. Courts should likewise take these constitutional interests into account as mitigating factors at whistleblower sentencing.
The document Albury disclosed is believed to be the FBI’s “Confidential Human Source Policy Guide,” which revealed the controversially wide latitude agents have in conducting surveillance and undercover recruitment of potential informants. The document indicates that agents are allowed to recruit minors, immigrants, and clergy members, among others, and gather sensitive personal information to use as leverage against them in the process. Albury, through his lawyers, has stated that these troubling practices specifically “profiled and intimidated minority communities.”
Passed during World War I, the Espionage Act was traditionally used to prosecute spies who passed classified information to agents of foreign powers. But it has increasingly been used to prosecute government employees who disclose classified information to the press and the public. Sanctions calibrated to punish spies who sought to harm the government are now being applied, without alteration, to whistleblowers who sought to inform their communities of concerning government conduct. The government invokes the Espionage Act in pursuit of lengthy sentences for media disclosures, often the maximum allowable under the law. Most recently, Reality Winner received a five-year sentence for one violation of the Espionage Act, the longest sentence ever imposed for unauthorized release of information to the media. Similarly, Albury’s plea bargain sets out a term of a three to five years for one violation.
Conscientious Objector Sentencing
In the 1970s, a different set of defendants faced maximum five-year sentences for their crimes. Men named Daniels, Charles, Woosley, and McKinney all failed to meet their obligations under the Vietnam draft system, but each legitimately claimed conscientious objector status in connection with their religious or spiritual beliefs. Although the Military Service Act allowed alternative civilian service for conscientious objectors, either the defendants’ beliefs precluded them from accepting this option, or procedural irregularities foreclosed the option, landing them in court. Lower courts gave them the maximum allowable sentence for any draft violation despite their conscientious objection. On appeal, however, courts overturned the maximum sentences in each case, concluding that an appropriately individualized sentence required consideration of the First Amendment interests surrounding the actions in question.
In Woosley’s case, the Eighth Circuit found the maximum sentence “disproportionate to the nature of the crime and the character of the criminal” in that it failed to take into account that the “appellant’s crime was a crime of conscience.” The court insisted that a sentencing judge consider the fact that conscientious objectors are “spurred by deeply held moral, ethical, or religious beliefs.” Sentencing a conscientious objector “without particular reference to the[se] circumstances surrounding the commission of the crime,” the Eighth Circuit concluded, was inconsistent with Supreme Court guidance on individualized sentencing in decisions such as Williams v. Oklahoma and Williams v. New York.
The Eighth Circuit and Sixth Circuit, in similar cases, also looked to the Supreme Court’s acknowledgement in Gillette v. United States (1971) that the interests of conscientious objectors sometimes “override the demands of a secular state” and bring “value . . . to the democratic community at large.” Rather than overturn the conscientious objectors’ convictions, however, the courts reduced their sentences in an attempt to balance these interests. The courts fashioned lower sentences with an understanding that the basic purposes of punishment—deterrence, rehabilitation, and protection of society from further danger—would not be achieved through harsher sentences, and therefore such sentences would be disproportionate. As the court observed in Woosley’s case,“Jehovah’s Witnesses have stood steadfastly by their religious convictions, whatever the potential sentence.”
Whistleblowers share key similarities with conscientious objectors: both object to government conduct and break the law to demonstrate that objection. A conscientious objector refuses to perform a duty—compulsory military service—because of the demands of First Amendment-protected religious beliefs. A whistleblower can also be seen as refusing to perform a duty—confidentiality—because of the overriding value of First Amendment-protected public interest in the disclosed information. The Supreme Court held in Pickering v. Board of Education that the “public interest in having free and unhindered debate on matters of public importance—the core value of the Free Speech Clause of the First Amendment—is so great” that public employees, who are “mostly likely to have informed and definite opinions,” deserve constitutional protection for their speech. In Garcetti v. Ceballos, the Supreme Court reiterated that the public has an interest “in receiving the well-informed views of government employees” and underscored that “First Amendment interests . . . extend beyond the individual speaker,” especially when the speaker reveals government misconduct.
The First Amendment Scholars’ brief makes convincing and important points about the public interest in whistleblower disclosures. The historical precedent of mitigating sentences on the basis of conscientious objectors’ First Amendment interests demonstrates how courts can take other First Amendment interests into account in sentencing whistleblowers. To be sure, there is less unfettered judicial discretion in sentencing now than in the 1970s, even after the Supreme Court declared Federal Sentencing Guidelines could not be mandatory in United States v. Booker. But individualized sentencing has made room for First Amendment interests before, and should do so with the First Amendment interests at stake in Albury’s and other whistleblower cases.