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Jeffrey Simons

Professor McGriff, S. C.

English Composition II

30 July 2018

A Balance Between the First Amendment and National Security

When WikiLeaks released classified documents from the United States government in

2010, the American citizens were split between supporting the First Amendment and advocating

for National Security. While only a small percentage of the released information was actually

damaging and classified correctly, the damage caused reflected on the United States military,

political positions, and prison systems. Regardless of the damage done, the size of this information

leak resulted in very dire consequences for the source, which were later abridged by President

Barrack Obama. Attacks were made on the host wiki site that the documents were uploaded to as

well (Thiessen). This isn’t the first time a leak has happened. Events like the Watergate Scandal

kept journalists knocking at the doors of government agencies to expose suspected corruption in

the government, but those with experience as a member of the government will argue that the value

of secrecy is exceptionally evident. Where then, can we find a balance between the First

Amendment, and the people’s right to know what their representatives are doing, and National

Security, keeping valuable information out of hostile possession? While there are few methods

more effective in preventing corruption in the government, disclosure of secret documents can lead

to a more secretive government and hostile nations and people with an advantage in knowledge

should be addressed with an approach based on current and pending legal rulings and prescriptive

regulations.
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When we look at reactions towards a specific leak of information, we aren’t looking solely

at the reaction given by the people. Such reactions result in a change of government favoring

freedom of expression such as the creation of the Information Security Oversight Office (ISOO)

and the proposal of the yet to be enacted Free Flow of Information Act (FFIA)(Tatum). The ISOO

was established in 1978 shortly after the Watergate Scandal, and would be easily seen as a response

to prevent corruption in the government. The main assignment of the ISOO is to review the

classification procedure practiced by various agencies in the United States government. During

inspections, any information not properly classified can be reclassified and can also be reported to

law enforcement authorities as applicable. Tatum points out that the FFIA was proposed to protect

journalists’ sources who give classified information that benefit the nation as a whole, such as

Deep Throat for the Watergate Scandal. However, we also need to focus on the reaction of the

government. The result of the excessive pursuit of classified information has led to those accused

by ISOO to be tried in secret court cases where records of the trial are sealed (Weitzel). This

prevents the establishment and use of precedence, which makes our legal system inconsistent. It

also hides government corruption from the public while punishing individuals, preventing the

perceived loss of integrity of our government. Another more imposing reaction would be those

revolving around the Germans had they learned of the decryption of their Enigma machine.

Knowledge of this accomplishment would have led to the German Nazis using other means to

encrypt secret messages, forcing Allied Forces to crack the code again. Secrecy is obviously

necessary to prevent avoidable losses, and therefore the decryption was kept from the public to

minimize the chance of the Germans discovering the advantage the Allied Forces held (Lycett).

In effect, the exposure of many classified files, documents, and records goads the United States

government into a more moral approach to politics and encourages officials to stay aligned with
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the public opinion at the cost of revealing to these same officials points of weakness in keeping

knowledge secret in the government despite attempts to give evidence of corruption the same

considerations for secrecy as the classified information that truly benefit the United States

government and military.

It should be obvious what dangers can be made possible when information is leaked to the

American opposition. We were able to use the Enigma Machine against the Nazis in World War

II, and decoding the intercepted messages allowed us to know German plans beyond certainty and

facilitated plans and actions against the Axis powers. We have had over 175 known terrorist

attacks between 2011 and 2016 (Global Terrorism Database), and that doesn’t include the ones

that the government was able to disrupt without public knowledge. If our domestic operations

were leaked to the public, some of the insurgent attacks would have been more successful and

affected, injured, or killed more citizens. The Democratic People’s Republic of Korea (DPRK)

have stolen our contingency plans for reacting to their aggression, and because of that, they have

a perfect understanding of what limits they can approach before they can expect a reaction from

our military forces. Analyses of units, equipment usage plans, and expected opposition will give

DPRK an idea of our capabilities. Certain forms of information can be detrimental to the

government or society from which they are leaked.

Acknowledging that exposing corruption can have both positive and negative

consequences regardless of which side of the argument is favored and that leaks can fuel and arm

aggressors against the nation should be enough to generate at the least some doubt to whether a

leak should happen. For some news stations, journalists, and websites, effects of their action isn’t

enough to dissuade their investigation and disclosure practices. The stereotypical journalist can

always be envisioned claiming that the people have a “right to know” (RTK). RTK was first
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granted by the Administrative Procedure Act, which was replaced by the Freedom of Information

Act. In both cases, there is a list of exceptions that prevents journalists from obtaining information

(Freedom of Information). If the government does not give information freely, the journalist has

to find an alternative to obtain the information they want. Their right to obtain the information

without the government’s help is outlined in the International Covenant on Civil and Political

Rights (ICCPR), which modified the Universal Declaration of Human Rights. Both of these

documents were written by the United Nations (Article 19), and the First Amendment to the

Constitution precedes them for American citizens. In all documents, there are limitations to what

information can be sought and iterated to the public. The Constitution does not grant the right to

seek or receive information from the government. In all documents, the limitations to obtaining

information is outlined: in the ICCPR, limitations are placed when concerning an individual’s civil

standing and when the nation or its operations (military or other) are put in jeopardy, and in the

Constitution, no permission is given at all. The American journalist then looks to the Freedom of

Information Act, which outlines nine rules to exempt information from being available to the

public:

1. Classified information for national defense or foreign policy

2. Internal personnel rules and practices

3. Information that is exempt under other laws

4. Trade secrets and confidential business information

5. Inter-agency or intra-agency memoranda or letters that are protected by legal privileges

6. Personnel and medical files

7. Law enforcement records or information

8. Information concerning bank supervision


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9. Geological and geophysical information

The fabled “right to know” is not a factual right encompassing all information to be given to the

citizens of any nation and should not be used as a means to try to gain information from any

government or civilization without risk of suffering punishments outlined by that government’s

legal system.

What would be a fair method to both address leaks and prevent or at least demonstrate

consequences that would immediately impact those responsible? The Espionage Act of 1917

specifically outlines instances for which a source of leaked information would be punishable

through monetary fines, incarceration, and even death, depending on the severity. Most notable

about the Espionage Act of 1917 is that it does not cover all classified information but provides

consequences based on the effects and affected parties of the information leaked. There are groups

that believe the law violates the First Amendment, but as described above, the First Amendment

does not grant access to information held by the government. This opposition also brings up the

Sedition Act of 1918, which has long been appealed, to demonstrate that the Espionage Act of

1917 violated the First Amendment. However, the Sedition Act provides consequences for

speaking against the nation, whereas the Espionage Act responds to the theft or wrongful and

unlawful distribution of information that could be used against the United States and its various

agencies and departments. Any punishments for contemporary leaks should follow the spirit of

the Espionage Act and judge the leak of information based on the content leaked and the

consequences of the world learning this new knowledge, specifically in how hostilities are armed

and perpetuated, giving amnesty for the sources of information that does not contribute to

hostilities but instead benefits the nation. This is a balance between the freedom of expression

guaranteed in the First Amendment and the Security of the Nation, and should extend to cover not
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only the source of a leak, but also those individuals, groups, and businesses that would perpetuate

the circulation of this information on a mass scale. In cases of foreign reiteration of damaging

information leaks, we should treat them as any nation that conducts propaganda against the United

States and pursue combined operations to disrupt their spread of information, provided the

information is covered by the Espionage Act of 1917.


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Works Cited

Freedom of Information. U. S. Department of the State, 5 July 2018,

https://foia.state.gov/Learn/FOIA.aspx. Accessed 18 July 2018.

Gerstein, Josh. "Preface to 'Should Those Who Leak Government Secrets Be Prosecuted?'."

Espionage and Intelligence, Current Controversies, 2012. Opposing Viewpoints in

Context,

http://link.galegroup.com/apps/doc/EJ3010270170/OVIC?u=lincclin_sjrcc&sid=OVIC&

xid=cf07ad38. Accessed 21 July 2018.

Global Terrorism Database. University of Maryland, June 2017, https://www.start.umd.edu/gtd.

Accessed 18 July 2018.

The Information Security Oversight Office. Information Security Oversight Office. 12 July

2018, https://www.archives.gov/isoo. Accessed 19 July 2018.

Lewis, Charles. "Freedom of the Press Is Threatened." Free Speech, Current Controversies,

Greenhaven Press, 2006. Opposing Viewpoints in Context,

http://link.galegroup.com/apps/doc/EJ3010046250/OVIC?u=lincclin_sjrcc&sid=OVIC&

xid=ca79ca69. Accessed 21 July 2018.

Lycett, Andrew. “Breaking Germany’s Enigma Code.” BBC, 17 Feb 2011,

www.bbc.co.uk/history/worldwars/wwtwo/enigma_01.shtml. Accessed 31 July 2018.

Schoenfeld, Gabriel. "Those Who Disclose National Defense Information Should Be Prosecuted

If the Leak Is Damaging." Espionage and Intelligence, Current Controversies,

Greenhaven Press, 2012. Opposing Viewpoints In Context,


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http://link.galegroup.com/apps/doc/EJ3010270291/OVIC?u=lincclin_sjrcc&sid=OVIC&

xid=0c3f6c2b. Accessed 21 July 2018.

Tatum, Christine. "Journalists are Right to Report Classified Information that is Leaked to

Them." Media Ethics, edited by Julia Bauder, Greenhaven Press, 2009. Current

Controversies. Opposing Viewpoints In Context,

http://link.galegroup.com/apps/doc/EJ3010563211/OVIC?u=lincclin_sjrcc&sid=OVIC&

xid=8a1aec19. Accessed 21 July 2018.

Thiessen, Marc A. “WikiLeaks is an Unprecedented Threat to US National Security”. Hacking

and Hackers, vol. 1, Jan. 2014. Opposing Viewpoints in Context (Gale),

http://go.galegroup.com.db23.linccweb.org/ps/aboutJournal.do?contentModuleId=OVIC

&resultClickType=AboutThisPublication&actionString=DO_DISPLAY_ABOUT_PAG

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sjrcc&inPS=true&rcDocId=GALE%7CEJ3010883219&prodId=OVIC&pubDate=12014

0101. Accessed 9 July 2018.

The United Nations. The International Covenant on Civil and Political Rights. 16 Dec 1966.

The United Nations. Universal Declaration of Human Rights. Ratified 10 Dec 1948.

The United States of America. The Constitution of the United States of America, Ratified 21 June

1788, Last Amended 7 May 1992.

The United States of America. Title I: Espionage. The Sixty-Fifth Congress, Session I, Chapter

30, 15 June 1917, pp. 217-219.

Weitzel, Pete. "Journalists Have a Duty to Fight Government Secrecy." Censorship, Volume

134, 01 Jan. 2007, p.. Current Controversies. Opposing Viewpoints In Context,


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http://link.galegroup.com/apps/doc/EJ3010037254/OVIC?u=lincclin_sjrcc&sid=OVIC&

xid=7b690a6f. Accessed 11 July 2018.

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