Disclosures of government information happen all the time, whether by officials seeking to advance their interests or by whistleblowers exposing misconduct for public benefit. But only one person in our history has ever been sentenced to decades in prison for disclosing truthful information to the press and public: Chelsea Manning.
The government targeted Manning for discriminatory prosecution, using the archaic Espionage Act of 1917. The vagueness of that law enables the government to go after speakers and messages it dislikes — often as it simultaneously leaks information to further its own agenda. For that reason, the ACLU filed a brief yesterday in support of Manning’s military court appeal, explaining why her conviction under the Espionage Act should be overturned as unconstitutional.
Leaks often come from the highest levels, including from CIA directors and the president’s staff. People holding those positions of power have not been prosecuted under the Espionage Act for their disclosures. Many of these leakers seek to influence and even manipulate public opinion by promoting the government’s chosen messages: that drone strikes work, that torture is effective, that the United States is doing everything right. Others pursue their own personal agendas, like Gen. David Petraeus, who shared highly classified information with his biographer.
No leakers were charged with violating the Espionage Act for many decades after it was passed.
But that has changed, dramatically. As we have previously written, the Obama administration has used this World War I-era anti-spying law to go after those whose disclosures run contrary to the government’s preferred narratives. That has resulted in a reality in which a general like Petraeus serves no jail time after sharing top secret information to serve his self-interest, while Manning gets decades in prison.
President Obama recently demonstrated this unfairness when he defended Secretary of State Hillary Clinton’s handling of classified information by telling an interviewer that “there’s classified, and then there’s classified.” That’s exactly the problem: The government’s selective prosecution means that information is likely to be considered really classified when it’s embarrassing to the government or when someone like Manning discloses it.
Manning’s severe punishment is a perfect example of the government picking and choosing who can speak to the press. Even more disturbing is the fact that the law forbade Manning from mounting a defense that took into account the public interest in any of her disclosures. It violates the First Amendment for the government to punish the disclosure of truthful information without any consideration of whether the information was important to public discourse — and leaves the government free to inappropriately crack down on disclosures about its own illegality or misconduct.
The selective prosecution of those who disclose government information is profoundly dangerous to our democracy. Using the Espionage Act to punish government leakers or whistleblowers risks chilling speech on matters of significant public concern, and it gives the government too much power to maintain secrecy about matters that are critical for an informed public to hold its government accountable. The American people lose a vital check on our government when it is free to punish anyone who discloses truthful information that the government doesn’t want us to know.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.