The Case of Edward Snowden: Should Government Insiders have First Amendment Rights?

During the summer of 2013 American computer professional Edward Snowden leaked top-secret NSA information to various news outlets. These documents revealed global surveillance programs set up by the government—a revelation that sparked debate across the country on mass surveillance, information privacy, and government secrecy. Snowden was charged by the U.S Department of Justice with two counts of violating the Espionage Act and theft of government property. He currently resides in an undisclosed location in Russia after having his American passport revoked. (Biography of Edward Snowden) 

Government overreach, especially regarding private communication surveillance, is arguably unconstitutional. As such, information relying such dangers should become known to the public unless the government can convincingly argue otherwise. Free speech theorist Alexander Meiklejohn observed that the communication of information is essential in a democracy saying, “The welfare of the community requires that those who decide issues shall understand them” (Tedford 250).

Many agree Snowden shouldn’t be persecuted for the content of the released information, but rather for the methods used in obtaining that information. Snowden, having worked in various private companies such as Dell and Booz Allen Hamilton, was privy to inside national security information. Thus, Snowden wasn’t revealing information that the public could have readily accessed. Precedent from Branzburg v Hayes (1972) states: “the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally” (250). Because of this, the public and the press have to depend on legislation in order to access government documents and activity. One such legislation, the Freedom of Information Act, provides improved access to government records—yet, there are nine broad exceptions that each presidential administration can interpret with varying levels of freedom and rigor.

It seems then that as it stands now “leak prosecutions," as in the case of Snowden, is not protected under the First Amendment. This brings up an abundance of problems including the risk of government overreach, the loss of first amendment rights for employees, and the deprivation of important information from the public. A publication in the Boston Review Law Journal responds to this phenomenon saying, “Commentators have slowly began to recognize that if leaks play an important role in our society, we should protect not only the media outlets that published the leaked information, but also the leakers themselves” (Papandrea 452).

The Supreme Court has never decided whether government insiders have First Amendment rights to disclose national security information, and it has generally been assumed otherwise. A big argument that the First Amendment offers no protections to insiders who disclose national security is that the First Amendment does not protect those “entrusted” with information. First, the Supreme Court has not yet decided whether government insiders have First Amendment protections or not. They have held that certain types of speech—child pornography, incitement, true threats, etc.—are not protected speech. But the court has not ruled on this specific issue, and lower courts have had mixed feelings about this. As such, “speech” is still a broad term and should apply to government insiders. While legislation, as that of the Espionage Act, might place such speech in an unprotected category, the use of such legislation in itself should be questioned. The information released by Snowden affected the American public at large—the Espionage Act primarily only punishes speech related to "national defense." It should be cautiously used especially when speech relating to national defense directly effects the daily lives of the general public. 

The argument isn’t that all speech by government insiders are protected under the First Amendment; but rather, that those deemed as “whistleblowers” have the right to a fair trial with their actions and speech subject to “constitutional scrutiny with due consideration given to the value of the speech and the resulting harm” (513). As such, if Snowden does re-enter the United States he should not incur rash punishments or immediate public criticism—his constitutional rights should be carefully scrutinized and deliberated. With that, we can recognize that national security employees may have some First Amendment Rights and we can keep check on government overreach.