Protecting whistleblowers

Andy Sellars is the First Amendment Scholar at the Berkman Center for Internet and Society at Harvard University and a staff attorney with the Digital Media Law Project.

The sentence facing Bradley Manning, following years of detention in inhuman conditions, highlights a difficult truth about American freedom of speech: we have little idea how to handle whistleblowers, and thus have left them unprotected.

The majority of speech protection in the United States is recognized through the First Amendment to the US Constitution. This doctrine, however, has yet to recognize any right of government employees to disclose sensitive information to the public.

Instead, as Geoffrey Stone (Professor of Law at Chicago Law School - the ed.) has observed, our attempts to reconcile the validity of some government secrets with the right of the public to receive information have resulted in a system of dual absolutism. Under current law, the government is given wide latitude to secret away information and to punish severely those who leak, without any second-guessing by the judiciary.

Traditional press as shield

Should information slip through the government's firewall, though, entities outside the government are not restrained from publishing that information except in the most extreme circumstances.

This is, in part, a reflection of the past century of First Amendment litigation by the institutional press. Skilled media lawyers, representing ink-by-the-barrel media clients, fought to ensure that those who lawfully obtain truthful information are not punished for disclosing that information in nearly all circumstances.

Government leakers have not fared so well.

On the few occasions that the Supreme Court examined the punishment of government employees for disclosure of secret information, it has allowed those punishments to stand without any meaningful consideration of the public's interest in receiving that information. What statutory protections exist for government whistleblowing keep disclosure within the government, and thus away from public scrutiny, defeating principles of self-governance.

Dual absolutism

The "aiding the enemy" charge facing Manning, on which the court found insufficient grounds to convict, posed a direct threat to this dual absolutism; such a charge could have equally applied to the press and thus did not appear to respect the press's considerable right to publish true, newsworthy information.

But more deeply, the Manning case shows that dual absolutism itself is failing. It can hardly be argued otherwise, when the government is allowed to respond to Manning's disclosures - based on his valid concerns and causing little appreciable harm to national interests outside shame and embarrassment - with the level of barbarity that it did.

The case has made clear that as long as government is given unfettered discretion to use its powers to prosecute leaks it will inevitably abuse that power. The treatment of Manning is reminiscent of the efforts by the White House Plumbers of the Nixon Administration, who targeted Daniel Ellsberg to the point of illegality following his disclosure of the Pentagon Papers, resulting in a mistrial in the criminal case against him.

Pushing the bounds of lawful prosecution

The Obama administration seems more comfortable pushing the bounds of lawful prosecutorial discretion as far as they will go, with the Department of Justice breaking its own guidelines for surveillance of news organizations in the relentless prosecution of whistleblowers and the journalists who cultivate them.

In a time when the interests of the public were represented by a wealthy and robust journalism industry and most whistleblowers disclosed their information through the mainstream media, this concern of whistleblower abuse was mitigated. Through equal parts litigation and legislation the institutional press was effective in developing protection for sources, such as wide (though not universal) recognition of a journalist-source privilege, and the Privacy Protection Act of 1980, which limited the ability of law enforcement to use reporter work product and notes as a conduit to another's unlawful behavior.

Ecology of information

But as Yochai Benkler has observed, we now live in world where our news comes not from one institution, but an ecology of information, with many organizations each playing a part. Alongside institutional media we have independent news websites dedicated to every step of the newsgathering and dissemination process, from facilitation of public records requests, through expert-opinion blogs maintained by scholars and professionals, to aggregators who harvest this panoply of sources to present a more complete picture.

Democratic self-governance today relies on many sources, and with the interests of the public so distributed it is no longer enough to rely upon the mainstream media's protection of sources as the only safeguard against whistleblower targeting.

The Manning case is not over. There remains an appeal to the Army Court of Criminal Appeals, and then an optional review by the civilian Court of Appeals for the Armed Forces, and the Supreme Court after that.

Extension of First Amendment protection

President Obama could also stop this at any time by granting Manning, Snowden and the many others targeted by his administration pardons or commutations of sentences. Presidential pardons have historically served as the final safeguard for free expression: President Wilson commuted the sentence of filmmaker Robert Goldstein after an Espionage Act conviction; President Harding pardoned socialist Eugene Debs for the same; and President Clinton pardoned Samuel Loring Morison, the first government official convicted for disclosing classified information to the press.

But it is absurdly optimistic to expect or to trust in presidential intervention. The reality of this news ecology calls instead for a more reliable power. It is time for us to critically examine whether, as Mary-Rose Papandrea has argued, we should instead be arguing for an extension of First Amendment protection to the whistleblowers themselves, at least in a qualified manner. There seems to be no other way to safeguard the interests of the public in receiving information that the government would as soon keep hidden.