Snowden Espionage Charges Could Chill Free Speech, MU Law Expert Says

First Amendment expert says sections of Espionage Act law are too broad

August 22nd, 2013

The views and opinions expressed in this “for expert comment” release are based on research and/or opinions of the researcher(s) and/or faculty member(s) and do not reflect the University’s official stance.

COLUMBIA, Mo. ­— This summer, Edward Snowden, a former government employee, leaked information about U.S. intelligence activities including widespread, warrantless surveillance of domestic and foreign telephone and Internet communications. The federal government has charged Snowden with crimes under the Espionage Act, and in recent days, David Miranda, the partner of journalist Glenn Greenwald who received classified documents from Snowden, was detained for hours in a London airport under a similar U.K. law. A University of Missouri law expert says Snowden’s charges, as well as Miranda’s detention under U.K. law, show how governments are using terrorism powers too broadly by potentially misapplying laws. The MU expert believes this could have a significant chilling effect on free speech around the globe.

Christina Wells, the Enoch N. Crowder Professor of Law in the University of Missouri School of Law and a First Amendment expert, recently published an article in Jurist discussing the Snowden affair and its relation to First Amendment rights. She argues that sections of the Espionage Act are too broadly written and allow the government to avoid charges of treason, which come with many obstacles, while still receiving similar effects in the public sphere.

“Such broad criminal provisions that exist within the Espionage Act essentially ignore the deliberate hurdles placed in the way of treason prosecutions,” Wells said. “Why bother prosecuting Snowden with treason when you can label him a ‘traitor’ in the news, charge him under the Espionage Act and throw him in jail for decades simply for communicating information to the public?”

Wells is concerned that if the federal government abuses laws meant to stop terrorists and spies, it could have damaging effects on First Amendment rights.

“The laws give officials nearly unfettered discretion to determine when a release of confidential information may cause damage to U.S. interests,” Wells said. “Thus, officials can retaliate against certain leakers by charging them with crimes while ignoring other leaks. Such one-sided punishments under the Espionage Act undermine the First Amendment’s checking function, which assumes that the strongest restraints on government power come from popular opinion. Secrecy about government activities is especially corrosive to the checking function. The public simply cannot have an opinion on government activities when it is unaware of them.”

Wells does say that the U.S. government can legitimately argue that secrecy is necessary to intelligence operations, but she believes that when the constitutionality of those operations is questionable and involves violating the rights of its own citizens, complete secrecy can weaken the First Amendment as well as other democratic principles.

“None of this means that government employees should have license to freely disclose information that is legitimately kept secret and critical to national security,” Wells said. “But it also recognizes that arbitrary criminal prosecutions of speech can chill public discussion on important political and social issues. We must come to some sort of balance in determining whether and how to punish public employee disclosures of confidential information while still allowing the checking function of the First Amendment to operate.”