Hacking away at the First Amendment

If this report is accurate, then this ruling by Judge T.S. Ellis, III of the U.S. District Court of Eastern Virginia, is a significant reduction of freedom of speech and press in the U.S.

In a momentous expansion of the government's authority to regulate public disclosure of national security information, a federal court ruled that even private citizens who do not hold security clearances can be prosecuted for unauthorized receipt and disclosure of classified information.

Judge Ellis himself seems uneasy with the outcome.

In the end, it must be said that this is a hard case, and not solely because the parties' positions and arguments are both substantial and complex. It is also a hard case because it requires an evaluation of whether Congress has violated our Constitution's most sacred values, enshrined in the First and the Fifth Amendment, when it passed legislation in furtherance of our nation's security. The conclusion here is that the balance struck by § 793 between these competing interests is constitutionally permissible because (1) it limits the breadth of the term "related to the national defense" to matters closely held by the government for the legitimate reason that their disclosure could threaten our collective security; and (2) it imposes rigorous scienter requirements as a condition for finding criminal liability.

The conclusion that the statute is constitutionally permissible does not reflect a judgment about whether Congress could strike a more appropriate balance between these competing interests, or whether a more carefully drawn statute could better serve both the national security and the value of public debate. Indeed, the basic terms and structure of this statute have remained largely unchanged since the administration of William Howard Taft. The intervening years have witnessed dramatic changes in the position of the United States in world affairs and the nature of threats to our national security. The increasing importance of the United States in world affairs has caused a significant increase in the size and complexity of the United States' military and foreign policy establishments, and in the importance of our nation's foreign policy decision making. Finally,... mankind has made great technological advances affecting not only the nature and potential devastation of modern warfare, but also the very nature of information and communication. These changes should suggest to even the most casual observer that the time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that they reflect both these changes, and contemporary views about the appropriate balance between our nation's security and our citizens' ability to engage in public debate about the United States' conduct in the society of nations [emphasis added and citations omitted].

[Via Dave Farber's IP list]