Balkinization  

Thursday, December 14, 2006

A First Amendment Right to Hold Classified Documents?

Marty Lederman

With respect to the neo-Pentagon-Papers case that Jack discusses below, Bobby Chesney has helpfully posted links to the relevant legal documents.

But the classified document in question is not among those linked. Indeed, the ACLU thus far has been reluctant even to publicly reveal the subject matter of that document, other than by the possibly telling fact that the ACLU has catalogued its legal papers in the "torture" subdirectory of its word-processing files.

In its motion to quash the subpoena (which is well worth reading -- especially paragraph 5 on page 6, in which the ACLU urges (dares) the government to show the document to the court), the ACLU represents that it has not released or even internally disseminated the document in the seven-plus weeks that it has possessed it.

If the ACLU is disclaiming any intention to "speak" (i.e., to share or publish the document), what is the basis of its First Amendment defense?

There are at least two possibilities:

First, the ACLU states that it "reserves the right" to distribute the document in the future.

Second, the case is a good reminder that the First Amendment protects not only the dissemination of expression or information, but also the receipt of such expression or information. See, e.g., Lamont v. Postmaster; Kleindienst v. Mandel. To be sure, the receipt of speech is protected principally in order to facilitate education and learning, which in turn will presumably enrich future public debate. But a party seeking to defend its First Amendment right to receive or retain expression or information ordinarily need not demonstrate that it ever intends to use the materials in any speech of its own.

Comments:

Seems I recall hearing of some brave souls who faced the McCarthy's witch hunts by standing mute on 1st Amendment grounds. I don't recall that this strategy fared too well.
 

Marty:

Do Lamont and Mandel then fill the necessary gap in Bartnicki/Daily Mail? The protection of Bartnicki/Daily Mail for the publication of truthful, lawfully obtained information on a matter of public concenr applies only if the material published is, in fact, lawfully obtained. But, on your reasoning, do Lamont/Mandel constitutionally limit the ability of government to make that obtaining unlawful (or at least subject it to some constitutional balancing)?
 

Got to give govt credit for ingenuity reversing the collection of evidence under GJ rules to service as a vacuum for all classified evidence. I could see a few Scotus justices veritably yearing to parse that kind of innovation. Of course...there is no right to privacy...as both new Justices carefully developed; it is a blend of two parts of the bill of rights... in their judiciary committee hearings.

The AALS should have an interesting meeting in a few weeks; brochure; the Ellsberg and one other case are highlighted on page one of that announcement, which downloads close to 1MB. This is a timely get together. I hope the proceedings are available by mid January. Some of it is germane to the instant case.
Aside from the mechanics in the subpoena and MTQ interaction in this matter, is the political setting in which there might be committees seeking access to some of the same materials as the 3-pp document in question here. There is commentary elsewhere that various parts of the drafts for the shocks the conscience language figure largely in the sought after and errant 3pp document, though October was somewhat early for that to mature; my sense at the time was it nearly drifted into the new year. Although the signing statement was dated the end of the year, the actual public presentation of the signing statement in a setting addressing multiple other matters was early 2006.
 

This is far more than a First Amendment issue. ACLU is facing felony criminal liability for receiving and probably copying classified documents in violation of 18 USC 793.

The government appears to have identified the illegally obtained documents, gave the ACLU a reasonable chance to return the documents voluntarily and has now convened a criminal grand jury to investigate the violations of 18 USC 793 by ACLU and perhaps others who either released the documents to ACLU or to which ACLU released the documents.

None of us has a First Amendment right to receive, possess or publish classified materials which would relieve us from criminal liability under this statute. Furthermore, media and "public advocacy groups" most certainly do not enjoy a greater First Amendment right than the rest of us average citizens to do so.

The only thing upon which a badly fractured and decidedly more left Supreme Court in NYT v. US could agree is that the government would not be allowed to seek an injunction to bar a newspaper from publishing classified materials under that particular set of facts.

However, a majority of the members of the "Pentagon Papers" Court held or strongly implied that the government could criminally prosecute the NYT if they illegally published the classified report. I see no cause why that reasoning should also not apply to the prosecution of the ACLU for illegally receiving and probably duplicating the classified documents at issue.

In its brief, ACLU is being disingenuous when it claims that the Government's only intent here is to only vacuum up these documents and that the documents only have a tenuous relationship to a criminal investigation by the grand jury. ACLU studiously ignores that it is facing criminal liability under 18 USC 793 and its involved attorneys disbarment if it received or copied these classified documents. The criminal grand jury most certainly has the power to gather all evidence, including these documents, investigating ACLU's criminal liability and/or that of the leakers who illegally supplied these documents.

The use of a grand jury subpoena to obtain all copies of these documents is actually rather clever strategy because it takes this matter out of the fact pattern of the Pentagon Papers case so that today's far less liberal courts can distinguish that questionable decision. It never made any sense to me how a majority of the Pentagon Papers Court held that the NYT could be prosecuted after the fact for publishing classified materials concerning the planning for the war to the enemy but could not be enjoined from performing the illegal act in the first instance before the damage is inflicted to the nation.

Finally, ACLU claims in passing that 18 USC 793 is somehow unconstitutional. Let us see whether ACLU and its involved attorneys want to test that theory while under criminal prosecution.
 

Bart has some odd ideas about freedom of the press. At Unclaimed Territory, Glenn Greenwald criticized certain right-wing bloggers for making comments that could be interpreted as inciting violence against certain people and then publicizing their personal addresses. At the same time, he made clear such activities were protected by the First Amendment and he was not saying that publishing personal addresses should be illegal, only that it was not moral or ethical, and that people should voluntarily refrain from doing so.

Bart was outraged at this threat to press freedom and treated even calls to self-restraint as dangerous. He defended the website that published personal addresses of abortion doctors together with calls to violence and crossed out one doctor's name when he was killed. He made clear that he considered the difference between legally trying to forbid such a site and mere moral condemnation was trivial.

However, when Lancet published its study estimating that 650,000 Iraqis had been killed as a result of our invasion, he made clear that he did not consider that legitimate free expression and called for the authors to be prosecuted for treason.
 

@EnlightenedLayPerson: Por favor, could you provide a link to that exchange on Greenwald's blog? Because I should probably read what he actually wrote before going off on the man over this one. I recall all too well his hyperbole about the Lancet report.
 

Robert Link:

Alas, I can only give you Greenwald's original post condemning the practice, but making clear he considers it legal.
http://glenngreenwald.blogspot.com/2006/07/thug-and-intimidation-tactics-of-far.html

Glenn Greenwald switched to Haloscan for comments some time after this post and all comments in the old format were lost.

(PS, can you teach me how to do linked text?)
 

@ELP: This blog accepts the html anchor tag, like this:

<a href="http://repeal-aumf.com/">my blog</a>

will come out like this:

my blog
 

Thanks.
 

When I first read Bart DePalma's post, my first reaction was 'You can be prosecuted for receiving something you didn't intentionally seek to possess? Gee, come into possession of a classified document and spoof email(or even from a throw away email account created on a public library computer) it to a list of your favorite enemies and let them defend themselves, wouldn't it be just grand to be on the receiving end of something like that?' Of course the coming into possession is the tricky part, unless of course you have appropriate clearance--this could be an unpleasant tool the government could use to target individuals or groups.

After reading the statute, it seems the legislators already had something like the above scenario in mind while drafting--it seems that unknowingly possessing such is not a crime(I hope I'm understanding the construction correctly on this point.[perhaps an odd parallel with the recent decision regarding child pornography being automatically cached by the browser.])

One thing I'm not at all certain of though--Is the Grand Jury entitled to receive the documents under the same statute? To say it another way, can the ACLU by turning over the documents to the Grand Jury become criminally liable under 18 USC 793 for 'transmitt[ing] the same to any person not entitled to receive it' paragraphs (d) or (e), depending on whether they lawfully possess or unauthorized possession respectively. Clarification would be very welcome.

On a practical aside, since the document was emailed(read LEAST secure method of data transfer)--using the subpoena as a vacuum may well miss some spots.
 

Enlightened Layperson:

I am not sure exactly what you find odd about my views...

Do you believe that folks have a First Amendment right to publish top secret information to the enemy? The Courts do not.

Do you believe that folks have the right to publish enemy propaganda during a war? The Courts have repeatedly held that this is treason unbprotected by the First Amendment.

However, do you believe that people do not have the right to publish the publicly known addresses of abortionists?

I'm sorry, but I don't find the answers to any of the questions to be hard.
 

This comment has been removed by a blog administrator.
 

Bart,

As you will recall, Glenn Greenwald was not arguing that publishing addresses of abortionists (or others) was illegal. He made very clear that doing so was protected by the First Amendment. He was only claiming that publishing thinly-veiled calls to violence against individual to an audience likely to act on such calls, together with personal information on how to find such people, was not moral or ethical. You responded with outrage at his lack of respect for freedom of the press and dismissed as trivial his argument that he was calling for voluntary self-restraint, not for legal action.

So, granting that it is legal, do you consider it moral and ethical to publish thinly-disguised calls to violence against named individuals, together with information on how to find them? Or are you arguing that it is impossible to respect freedom of the press while asking it to show some self-restraint?

As for enemy propaganda, I admit to not having had the opportunity to look up your cases. I do know that there have been prosecutions for treason of people who went to a hostile country and broadcast propaganda under the direction of the enemy. Do you have any cases of prosecution for treason for publishing material merely unflattering the United States' conduct in waging war?
 

This comment has been removed by a blog administrator.
 

Waiting in anticipation...
 

ELP asks BD: So, granting that it is legal, do you consider it moral and ethical to publish thinly-disguised calls to violence against named individuals, together with information on how to find them?

And I am probably not the only onlooker interested to read your answer on this one, if only to help establish whether or not you aren't really just a Christian Fundamentalist in Libertarian clothing.
 

Enlightened Layperson said...

So, granting that it is legal, do you consider it moral and ethical to publish thinly-disguised calls to violence against named individuals, together with information on how to find them? Or are you arguing that it is impossible to respect freedom of the press while asking it to show some self-restraint?

I have no trouble outing the identity and location of abortionists to their family, friends and neighbors as a means to bring social pressure upon them.

I do have a serious problem with any calls for violence against anyone, whether veiled or otherwise.

Do you have any cases of prosecution for treason for publishing material merely unflattering the United States' conduct in waging war?

There is a fundamental difference between knowingly publishing unfounded lies like the claim that our soldiers have killed about a half million Iraqi citizens which is identical to enemy propaganda and publishing verified facts which are unflattering to the nation during a war.

Think of enemy propaganda as a slander against the United States which provides aid and comfort to the enemy.
 

Bart: I have no trouble outing the identity and location of abortionists to their family, friends and neighbors as a means to bring social pressure upon them.

I do have a serious problem with any calls for violence against anyone, whether veiled or otherwise.


And I suppose you think your phrasing deftly distinguishes the one from the other? The "social pressure" at issue is exactly and only the threat of violence and even murder of abortionists, thinly veiled. You have no qualms about such. Good to have that out in the open. You consider it moral and ethical to publish the names and addresses of known abortionists on sites which in tone support violence against these people. You consider it acceptable "social pressure" to put law abiding private citizens in fear for their well being and even lives from outlaw fundamental extremists. Definitely good to know that about you. I assume then that you side with these folks on the CAIR/rightwinghowler matter? Are these folks "your kind of Christian"?
 

To return to the subject of Prof. Lederman's post, the Administration has now withdrawn the subpoena and declassified the document. Link.
 

"Bart" DePalma misstates a case once again:

However, a majority of the members of the "Pentagon Papers" Court held or strongly implied that the government could criminally prosecute the NYT if they illegally published the classified report.

I've been through this with "Bart" before. There was no such "majority". They made no such "h[o]ld[ing]". The best that can be said is that a number of justices expressed in dicta that there are circumstances that would sustain a prosecution for publication of secret information.

Here's Justice Stewart, with Justice White joining, as two of "Bart"'s fictional "majority":

This is not to say that Congress and the courts have no role to play. Undoubtedly Congress has the power to enact specific and appropriate criminal laws to protect government property and preserve government secrets. Congress has passed such laws, and several of them are of very colorable relevance to the apparent circumstances of these cases. And if a criminal prosecution is instituted, it will be the responsibility of the courts to decide the applicability of the criminal law under which the charge is brought.

N.Y. Times v. U.S., 403 U.S. 713, 730 (1971), (Black, concurring).

Black makes no conclusion as to whether a prosecution would be appropriate post-publication (and in fact leaves that to "the courts to decide" if and when any such thing happens. And this is dicta, pure and simple, even for what it does say.

Here's White in his own concurrence:

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

Id at 735-37.

He says that under the right set of facts, prosecutions under the laws cited for publication of secrets would not meet with his disapproval. But he also doesn't say that such was the case in this circumstance (and they weren't, as the case had to do with prior restraint and thus any "opinion" on prosecution post-conviction was dicta as well as premature).

Here's Marshall:

If the proposal that Sen. Cotton championed on the floor had been enacted, the publication of the documents involved here would certainly have been a crime. Congress refused, however, to make it a crime. The Government is here asking this Court to remake that decision. This Court has no such power.

Id at 747

Justices Black, Douglas, and Brennan don't even bother to speculate, and instead address only the issue of prior restraint.

The dissents of Harlan, Blackmun, and Burger's dissent are more a plea for more time and consideration than anything. Certainly not an admonishment to the N.Y. Times that they may be verging on criminal activity.

So "Bart's" "majority" is down to at best two justices, and even there, there is doubt.

I pointed this out to "Bart" many moons ago when he first gave out this tripe. He ignored it (except for acknowledging that in fact there was no such "holding" ... back then ... only to call it a "holding" in a different forum once again when he thought no one would be watching).

* * * * *

There is some fun stuff in the case for "Bart" and his "unitary executive" frothings:

The Government's case here is based on premises entirely different from those that guided the Framers of the First Amendment. The Solicitor General has carefully and emphatically stated:

"Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that `no law' does not mean `no law', and I would seek to persuade the Court that is true. . . . [T]here are other parts of the Constitution that grant powers and responsibilities to the Executive, and . . . the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States."

And the Government argues in its brief that in spite of the First Amendment, "[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief."

In other words, we are asked to hold that despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of "national security." The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to "make" a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. See concurring opinion of MR. JUSTICE DOUGLAS, post, at 721-722. To find that the President has "inherent power" to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make "secure." No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.


N.Y. Times v. U.S., 403 U.S. 713, 717-19 (1971), (Black, concurring)

Cheers,
 

"Bart" DePalma said:

It never made any sense to me how a majority of the Pentagon Papers Court held that the NYT could be prosecuted after the fact for publishing classified materials concerning the planning for the war to the enemy but could not be enjoined from performing the illegal act in the first instance before the damage is inflicted to the nation.

"Bart" must not have read the opinion. Because there was no such majority that "held" that (see my post above) ... not to mention the justices that did say that certain laws might be of "very colorable relevance to the apparent circumstances of these cases" (Justices Stewart with White joining) explained quite well why prior restraint was not appropriate (as did the others that ruled to lift the injunction). But "Bart" seems to be a bit slow on the uptake as to the state of the law on prior restraint. Curious for someone who purportedly defends drunks (a well-known bunch of repeat offenders).

Cheers,
 

"Bart" DePalma:

In re: The peer-reviewed Lancet article on Iraqi mortality:

Do you believe that folks have the right to publish enemy propaganda during a war? The Courts have repeatedly held that this is treason unbprotected by the First Amendment.

Cites, please. Thank you in advance. Of course, "treason" is whatever "Bart" says it is, and "enemy propaganda" is whatever "Bart" thinks is such, including peer-reviewed scientific articles, if they even implicitly criticise Der Führ... --- ooops, sorry, the "Deciderator-In-Chief" and his sanguinary policies....

Cheers,
 

Arne: Of course, "treason" is whatever "Bart" says it is...

While I don't think it reflects tremendously well on us to focus too much on Bart in his absence (and on some threads it's really been a tad over the top) your posts are pretty much in direct response to his and you've struck on one of his most annoying traits, illegitimate use of the treason card. It's emotionally provocative, hard to ignore, and yet completely unfounded, none but the most juvenile of commenters would make this charge as frivolously and as frequently as he does. It's a real drag. There ought to be a fairly quick and routine smack-down for it. Suggestions? Something like, "Dissent is patriotic, at least in free countries."

Also, thanks for the great "holding" post.
 

Arne:

I concur with Robert Link in thanking you for the "holding" post, especially the part refuting Yooian theories of the "unitary executive." Apparently the current Administration's ideas are not altogether new.
 

Enlightened Layperson:

I concur with Robert Link in thanking you for the "holding" post, especially the part refuting Yooian theories of the "unitary executive." Apparently the current Administration's ideas are not altogether new.

Just to be clear: The stuff I posted was just a concurrence of Black (with Douglas joining). But, unlike "Bart"'s claimed 'holding' WRT prosecution post-publication, it was not dicta, but part of the rationale that Black used to reach the majority (6-3) decision: The injunction could not stand.

Cheers,
 

Robert Link said...

Bart: I have no trouble outing the identity and location of abortionists to their family, friends and neighbors as a means to bring social pressure upon them. I do have a serious problem with any calls for violence against anyone, whether veiled or otherwise.

And I suppose you think your phrasing deftly distinguishes the one from the other? The "social pressure" at issue is exactly and only the threat of violence and even murder of abortionists, thinly veiled.


I completely disagree. Social pressure by identifying the perpetrators of bad acts to the public has been used by the various civil rights and labor movements for well over a century without calls to murder the perpetrator. Indeed, the purpose of social pressure is to change the target's thinking and behavior by shaming him or her. Killing the target would defeat the entire purpose of social pressure.
 

Bart: I completely disagree.

It is your privilege to disagree, but nonetheless the matter at hand is those of your compatriots in the right-to-be-a-baby-factory camp who consider threats of violence, even murder by bombing, as what you so lamely call "social pressure." That is the issue and you are on record as being quite comfortable siding with folks who do exactly that. Wriggle all you like, on this one you're skewered right through.

On the other hand, no, you don't even have the privilege of disagreeing. To do so would be a lie. The topic was posting of abortionist info on sites with "thinly veiled calls to violence" against same. You "have no problem with that."
 

"Bart" DePalma:

I completely disagree. Social pressure by identifying the perpetrators of bad acts to the public has been used by the various civil rights and labor movements for well over a century without calls to murder the perpetrator. Indeed, the purpose of social pressure is to change the target's thinking and behavior by shaming him or her. Killing the target would defeat the entire purpose of social pressure.

Intimidating the rest might do the trick though, eh? Which may be why we've had a number of abortion-providers (and those just unlucky enough to be in the wrong place at the wrong time) killed. Say, "Bart", can you tell me off the top of your head how many anti-abortion health care workers -- nay, even activists -- have been murdered so far?

Cheers,
 

Bart:

I completely disagree. Social pressure by identifying the perpetrators of bad acts to the public has been used by the various civil rights and labor movements for well over a century without calls to murder the perpetrator. Indeed, the purpose of social pressure is to change the target's thinking and behavior by shaming him or her. Killing the target would defeat the entire purpose of social pressure.

Nonsense! I am sure the people who posted the names of abortionists would be happy to change their thinking and persuade them that abortion was wrong. But their primary purpose was to change behavior, i.e., to stop abortions, and you can't very well perform abortions when you are dead. Likewise, other abortionists on the list, while continuing to think abortion is acceptable, might very well change their behavior and stop performing abortions for fear of being killed.

It's all a matter of whether you believe the ends justify the means.
 

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