What We Owe Whistleblowers

The legal, political, and technological developments of the past twenty years have rendered us more reliant on whistleblowers even as the developments have made whistleblowing more difficult and more hazardous. To promote informed public debate about national security and to preserve the connection between democratic consent and government policy in this sphere, we should extend legal protection, in some circumstances, to government insiders who responsibly disclose official secrets without authorization. Affording leakers a “public value” defense against prosecution would have benefits beyond those usually cited. It would, among other things, reduce the disincentive to socially beneficial leaks, lend legitimacy to Espionage Act prosecutions, more closely align our legal regime with widely shared intuitions about moral responsibility, and restore the courts to an appropriately central role in protecting the public’s access to an essential channel of information.

Let’s Be Practical

The proliferation of leak cases over the last decade suggests that a case against the press for publishing government secrets may be on the horizon. Before 2009, an unwritten understanding between the government and the press of governmental forbearance and press responsibility provided more effective press protection than the First Amendment. While continued reliance on this understanding would be preferable to a changed law, the scales have tipped toward the suppression of speech in national security reporting, which has shaken that understanding. The current situation is so bad that it is now time to consider reforming the Espionage Act. Reformed legislation should provide a floor that permits First Amendment defenses, the law should act as a backstop if those arguments fail, and it should be as limited and precise as possible so that it does not inadvertently create a dangerous new power to prosecute the press.

Censorship at Sea

In the first months of 1942, the navy exerted tight control over its war correspondents. While allowing them access to ships, it placed so many restrictions on what they could write about that a group of them, led by Robert Casey of the Chicago Daily News, began to complain vociferously. Stanley Johnston of the Chicago Tribune ultimately became the biggest troublemaker. After escaping from the USS Lexington before it sank during the Battle of the Coral Sea, Johnston used the slow journey home not only to write about this experience but also to learn that the navy had received advanced knowledge of the Japanese attack on Midway. His stories on both battles created a major sensation. With the navy convinced that the Tribune had divulged its secret codebreaking operation, the Roosevelt administration even made a failed bid to prosecute it under the Espionage Act.