by Heidi Kitrosser, Professor of Law, University of Minnesota Law School
It is fairly well known by now that the Obama administration has prosecuted more persons for allegedly leaking classified information to journalists than all previous administrations combined. Yet much less attention has been paid to the legal justifications offered for these prosecutions.
Like its predecessors, the Obama administration has consistently maintained in litigation that communications conveying classified information to journalists are “wholly unprotected by the First Amendment.” This argument, which has been largely successful in the handful of prosecutions to reach courts over the years, rests on the notion that speech about government activities – speech that ordinarily would be deeply protected from content-based prosecution under the First Amendment – loses all protection once marked by the classification stamp. That stamp is wielded by the millions of persons with some form of classification authority, authority that stems primarily from presidential executive order.