THE CONSTITUTIONALITY OF THE INTELLIGENCE IDENTITIES PROTECTION ACT

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The Constitutionality of the
Intelligence Identities Protection Act
On June 23, 1982, President Reagan signed into law' the Intelligence
Identities Protection Act of 1982 (the Act),2 making criminal the disclosure of
the identities of United States foreign intelligence operatives. Enactment of
this legislation reflects heightened concern within the United States intelli-
gence community over the exposure of foreign agents, which can threaten
agents' personal safety and the effectiveness of intelligence activities. Despite
this compelling interest in safeguarding the vitality of American intelligence
efforts, the Act raises critical first amendment issues regarding the govern-
ment's power to punish the divulgence of national security information.
This Note evaluates the constitutionality of the Act in light of first
amendment principles. After describing the Act's criminal provisions, the
Note analyzes recent Supreme Court decisions in the area of disclosure of
confidential government information and national security information. Ob-
serving that the Court has delineated narrow yet significant areas of virtually
unprotected disclosure, but has set extremely high standards of review in the
areas outside the unprotected sphere, the Note applies these principles to the
Act. The Note concludes that two sections of the Act, if narrowly construed,
avoid constitutional difficulties. The third section, however, cannot be nar-
rowly construed to avoid application to disclosure of properly classified infor-
mation, lawfully obtained from the public domain by persons without autho-
1. Remarks on Signing H.R. 4 Into Law, 18 Weekly Comp. Pres. Doe. 829 (June 23. 1982).
2. Pub. L. No. 97-200, 1982 U.S. Code Cong. & Ad. News (96 Stat.) 122, amending the
National Security Act of 1947 (to be codified at 50 U.S.C. ?? 421-26).
The Act's substantive provisions are as follows:
Sec. 601. (a) Whoever, having or having had authorized access to classified infor-
mation that identifies a covert agent, intentionally discloses any information identifying
such covert agent to any individual not authorized to receive classified information,
knowing that the information disclosed so identifies such covert agent and that the
United States is taking affirmative measures to conceal such covert agent's intelligence
relationship to the United States, shall be fined not more than $50,000 or imprisoned not
more than ten years, or both.
(b) Whoever, as a result of having authorized access to classified information,
learns the identity of a covert agent and intentionally discloses any information identify-
ing such covert agent to any individual not authorized to receive classified information,
knowing that the information disclosed so identifies such covert agent and that the
United States is taking affirmative measures to conceal such covert agent's intelligence
relationship to the United States, shall be fined not more than $25,000 or imprisoned not
more than five years, or both.
(c) Whoever, in the course of a pattern of activities intended to identify and expose
covert agents and with reason to believe that such activities would impair or impede the
foreign intelligence activities of the United States, discloses any information that identi-
fies an individual as a coven agent to any individual not authorized to receive classified
information, knowing that the information disclosed so identifies such individual and
that the United States is taking affirmative measures to conceal such individual's classi-
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728 COLUMBIA LAW REVIEW [Vol. 83:727
rized access to classified information, and consequently violates the first
amendment.
A. Background
In recent years, disclosures of the classified identities of those intelligence
officers, agents, and sources located abroad3 have created mounting concern
within the United States intelligence community. This concern is particularly
directed at the editors of certain books (Dirty Work "1" and "2")* and
periodicals (Counterspy and Covertaction Information Bulletin).' In these
publications, the editors have purported to identify foreign intelligence opera-
tives in order to expose and nullify covert political intervention in the affairs
of other countries.? On at least two occasions, violent attacks on United States
agents have followed public reports of their identities.' Moreover, the Central
Intelligence Agency (CIA) attributes a continuing decrease in the effectiveness
of United States intelligence activities to agent identity disclosures.'
fled intelligence relationship to the United States, shall be fined not more than $15,000
or imprisoned not more than three years, or both.
3. See generally H.R. 4, The Intelligence Identities Protection Act: Hearings before the
Subcomm. on Legislation of the House Permanent Select Comm. on Intelligence, 97th Cong., Ist
Sess. 13-56 (1981) (statements of W. Casey, R. Willard, J. Warner et al.) [hereinafter cited as
House Hearings]; Intelligence Identities Protection Act of 1981-S.391: Hearing before the
Subcomm. on Security and Terrorism of the Senate Comm. on the Judiciary. 97th Cong., 1st
Sess. 26-70 (1981) (statements of W. Casey, J. Stein. F. Hits, and R. Willard) (hereinafter cited as
Senate Hearings].
4. Dirty Work: The CIA in Western Europe (P. Agee & L. Wolf eds. 1978); Dirty Work 2:
The CIA in Africa (E. Ray, W. Schaap, K. Van Meter, & L. Wolf eds. 1979). See S. Rep. No. 201,
97th Cong., 1st Sess. 7-8 (1981) [hereinafter cited as Senate Report].
5. See House Hearings, supra note 3, at I (statement of Rep. Mazzoli).
6. See Agee, Introduction: Where Myths Lead to Murder, in Dirty Work, supra note 4, at
17-20; Proposals to Criminalize Unauthorized Disclosures, Hearings before the Subcomm. on
Legislation of the House Permanent Select Comm. on Intelligence, %th Cong., 2d Sess. 112
(1980) (statement of W. Schaap, editor, CovertAction Information Bulletin) [hereinafter cited as
Proposals]. In response to the passage of the Act, then pending in Congress, the editors of
CovertAction Information Bulletin announced in March 1982 that the periodical would discon-
tinue its practice of disclosing identities until the Act's constitutionality was tested in court. N.Y.
Times, Mar. 13, 1982, at 11, col. 1.
7. In 1975 Richard Welch was identified as CIA Station Chief in Athens by the editors of
Counterspy magazine and was murdered a month later. See Senate Report, supra note 4, at 8. The
editors denied responsibility for his (or any other) murder. See Proposals, supra note 6, at 113. In
1980 an American Embassy official in Jamaica was the target of an assassination attempt two
days after the editors of CovertAction Information Bulletin alleged he was one of a number of
CIA officers stationed at the Embassy and, at a news conference, revealed the names, addresses,
telephone numbers, and automobile information of these officers. Senate Report, supra note 4, at
8; see also H.R. Rep. No. 221, 97th Cong., 1st Sess. 4-5 (1981) [hereinafter cited as House
Report].
8. House Hearings, supra note 3, at 13-14 (statement of W. Casey, Director of the Central
Intelligence Agency). The assertion has been disputed by intelligence observers. See Franck &
Eisen, Balancing National Security and Free Speech, 14 N.Y.U. J. Int'l L. & Pol. 339, 353-54
(1982).
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Existing legal sanctions cannot deter these disclosures.9 Relevant provi-
sions of the espionage statutes,1? which prohibit the communication of infor-
mation relating to the national defense, apparently do not apply to the publi-
cation of such information;'' nor has any court specifically upheld the validity
of a prosecution under the theft-of-government-property statute's where the
"property" is national security information." Thus, no prosecutions have
been attempted. The government has not sought a prior restraint against these
disclosures, probably because such a restraint would be difficult to justify in
the absence of a statute specifically prohibiting the disclosures.14
B. The Intelligence Identities Protection Act of 1982
The Intelligence Identities Protection Act was enacted by the 97th Con-
gress in response to the perceived threat to national security posed by intelli-
gence revelations.'s The Act prohibits disclosures by three classes of individ-
9. The present Department of Justice takes the position that disclosures may be prosecuted
under existing statutes but that certain problems with the scope of the statutes, see infra text
accompanying note 11, and difficulties of proof preclude their effectiveness. House Hearings,
supra note 3, at 28 (statement of R. Willard, Counsel to the Attorney General for Intelligence
Policy).
10. 18 U.S.C. ? 793(d), (e) (1976). The espionage statutes are codified at 18 U.S.C. ?? 793-
798 (1976).
11. See Edgar & Schmidt, The Espionage Statutes and Publication of Defense Information,
73 Colum. L. Rev. 929 (1973).
12. 18 U.S.C. ? 641 (1976).
13. In the two reported national security cases in which this statute was the basis of a
prosecution, the defendant was convicted under the espionage statutes, see supra note 10, as well,
and the courts of appeal declined to review the validity of the ? 641 conviction because of the
concurrent-sentence doctrine. United States v. Truong Dinh Hung, 629 F.2d 908, 922 (4th Cir.
1980), cert. denied, 454 U.S. 1144 (1982); United States v. Boyce, 594 F.2d 1246, 1252 (9th Cir.),
cert. denied, 444 U.S. 855 (1979). The Fourth Circuit suggested. in dictum, that national defense
information is not "government property" within the meaning of ? 641. Truong Dinh Hung, 629
F.2d at 924-29. See generally Nimmer, National Security Secrets v. Free Speech: The Issues Left
Undecided in the Ellsberg Case, 26 Stan. L. Rev. 311, 315-24 (1974).
14. See New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam) (vacating
prior restraint not based on statute prohibiting disclosure). In concurring opinions, two Justices
suggested that they might uphold a prior restraint if there were a statute specifically authorizing
such a proceeding. Id. at 732-34, 740 (White, J., concurring); id. at 746-47 (Marshall, J.,
concurring). Two other Justices, also concurring, suggested a willingness to uphold a prior
restraint if there were at least a statute barring the publication. Id. at 720-22 (Douglas, J.,
concurring); id. at 718-19 (Black, J., concurring).
15. Pub. L. No. 97-200, 1982 U.S. Code Cong. & Ad. News (% Stat.) 122, amending the
National Security Act of 1947 (to be codified at 50 U.S.C. ?? 421-26).
The Act is a direct descendant of several bills that were introduced in the 96th Congress to
criminalize disclosures of intelligence identities. H.R. 5615, 96th Cong., 1st Sess. (1979); S. 2216,
96th Cong., 1st Sess. (1979); S. 2284, 96th Cong., 2d Sess. (1980). The bills died in the crush of
pre-adjournment legislation. N.Y. Times, April 8, 1981, at A14, col. 1. For a history and a
critique of these bills, as to both constitutionality and functionality, see Note. "Naming Names":
Unauthorized Disclosure of Intelligence Agents' Identities, 33 Stan. L. Rev. 693 (1981). The
Stanford Note, in a brief discussion of the first amendment interests at stake, comes to the general
conclusion that a statute prohibiting intelligence identity disclosures could be constitutional, but
argues that prior restraints may be preferable less restrictive means. Id. at 706-09. In contrast, this
Note undertakes an extensive first amendment analysis
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uals, mandating fines and imprisonment penalties1? for the violation of its
provisions.'7 There is no provision for the use of injunctions or other restrain-
ing orders'$ to suppress disclosures.19
1. Disclosure by Government "Insiders. " The Act distinguishes between
persons who have had authorized access40 to classified information (insiders)
and those who have not had such access (outsiders).s' Sections 601(a) and (b)
define the offense as committed by insiders, with a further distinction between
a person who has had access to classified information "that identifies a covert
agent"ss and one who learns a covert identity "as a result of having had access
to classified information" in generals' Persons subject to these sections are
Because of the line of descent of the Act, we House Report, supra note 7, at 10-11; Senate
Report, supra note 4, at 1-5, this Note occasionally cites the legislative history of the 96th
Congress legislation.
16. Section 601(a) imposes a fine of not more than $50,000 or imprisonment for not more
than ten years, or both; ? 601(b), $25,000 and/or five years' imprisonment; ? 601(c), $15,000 and/
or three years. The reason for the declining penalties is the relatively lesser degree of trust required
of defendants in succeeding categories, and the concomitantly lesser breach of the trust. House
Report, supra note 7, at 12; Senate Report, supra note 4, at 18.
17. The other provisions of the Act delineate defenses (f 602), create extraterritorial jurisdic-
tion Q 604), prohibit the implication of authority to withhold information from Congress ($ 605),
and define various terms (? 606).
18. The House rejected an amendment to the Act providing for injunctive relief. 127 Cong.
Rec. H6534 (daily ed. Sept. 23, 1981). Opponents of the amendment cited their fear of such relief
being held unlawful because of the extra constitutional scrutiny applied to prior restraints. Id. at
H6533-34 (statement of Rep. Mazzoli); id. at H6534 (statement of Rep. McClory).
19. The Act may well provide a basis for the imposition of a prior restraint. See supra note
14 and accompanying text. A discussion of the possible basis and limitations of a prior restraint
based on the Act is beyond the scope of this Note.
20. "Authorized" is defined in 1606(2) to mean:
having authority, right, or permission pursuant to the provisions of a statute, Executive
order, directive of the head of any department or agency engaged in foreign intelligence
or counterintelligence activities, order of any United States court, or provisions of any
Rule of the House of Representatives or resolution of the Senate which assigns responsi-
bility within the respective House of Congress for the oversight of intelligence activities.
21. The terms "insider" and "outsider" are borrowed from Comment, First Amendment
Standards for Subsequent Punishment of Dissemination of Confidential Government Informa-
tion, 68 Calif. L. Rev. 83, 84 n.6 (1980).
22. Section 601(a). "Covert agent" is defined in 4 606(4):
(A) an officer or employee of an intelligence agency or a member of the Armed Forces
assigned to duty with an intelligence agency-(i) whose identity as such an officer,
employee, or member is classified information, and (ii) who is serving outside the United
States or has within the last five years served outside the United States; or (B) a United
States citizen whose intelligence relationship to the United States is classified informa-
tion, and-(i) who resides and acts outside the United States as an agent of, or informant
or source of operational assistance to, an intelligence agency, or (ii) who is at the time of
the disclosure acting as an agent of, or informant to, the foreign counterintelligence or
foreign counterterrorism components of the Federal Bureau of Investigation; or (C) an
individual, other than a United States citizen, whose past or present intelligence relation-
ship to the United States is classified information and who is a present or former agent
of, or a present or former informant or source of operational assistance to, an intelli-
gence agency.
Identification must be accurate. See House Report, supra note 7; at 13; Senate Report, supra note
4, at 18.
23. This distinction is not material in the context of this Note. See infra text accompanying
note 117.
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primarily government employees, who, as a rule, have agreed with the govern-
ment not to reveal classified information.24
Both sections prohibit the intentional disclosure2S of "any information
identifying such covert agent" when the disclosure is made "to any individual
not authorized to receive classified information," if the discloser "know[s]
that the information disclosed so identifies such covert agent and that the
United States is taking affirmative measures to conceal such covert agent's
intelligence relationship to the United States." The identity of an agent must
be classified information, but the information disclosed need not be, as long
as it identifies an agent.
2. Disclosure by "Outsiders." Section 601(c) defines the offense with
respect to persons who do not fall within sections 601(a) and (b), i.e., anyone
who has not had "authorized access to classified information." Like sections
601(a) and (b), section 601(c) requires that the discloser intentionally reveal
identifying information, knowing that he is identifying an agent whose iden-
tity the United States is trying to conceal. Unlike sections 601(a) and (b),
however, the section requires that the revelation be made "in the course of a
pattern of activities intended to identify and expose covert agents ... with
reason to believe that such activities would impair or impede the foreign
intelligence activities of the United States." While it remains unsaid, section
601(c) implicitly covers two means of access: (i) lawful access, whether gained
by obtaining access to such information as is in the public domain or by
receiving information from an "insider,"Y? and (ii) unlawful access, gained by
breaking some law in the process.27
11. CONSTITUTIONAL STANDARDS FOR PUNISHING DISCLOSURE OF
NATIONAL SECURITY INFORMATION
The constitutionality of the Intelligence Identities Protection Act under
the first amendment will depend on the protection that that amendment
affords national security speech-the communication of information classi-
fied for national security purposes.4s Applicable Supreme Court precedent
24. House Report, supra note 7, at 6-7. Although many such agreements are formal, in
United States v. Snepp, 444 U.S. 507, 510 (1980), the Supreme Court said that such agreements
may be implied from the position of trust such persons occupy in the government. See infra notes
109-10 and accompanying text.
25. Section 606(3) defines "disclose" to mean "communicate, provide, impart, transmit,
transfer, convey, publish, or otherwise make available." It thus specifically deals with one
problem of using the espionage statutes in this area, the uncertainty whether they cover publi-
cation. See supra note l1 and accompanying text.
26. A further distinction exists between information that exists as an identification (e.g.,
"Deputy Ambassador X is really the CIA Station Chief") and that which exists as an identifica-
tion only after one deduces it (e.g., in source A. "In Togo, only CIA employees are permitted to
wear brown suits"; in source B, "Deputy Ambassador X is the only U.S. government employee in
Togo who wears a brown suit").
27. The law violated must be one that otherwise would have prevented access. See infra note
81 and accompanying text.
28. Sections 601(a) & (b) of the Act contain the element of access to "classified informa-
tion," and ? 601(a)-(c) contain the element of disclosing the identity of a "covert agent," which
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suggests that some national security speech is beyond the scope of the first
amendment while other national security speech does benefit from first
amendment protection. Speech in the former category may be regulated in any
manner that the government finds appropriate. Speech in the latter category is
also regulable, but only in limited circumstances.
A. Unprotected Communication of National Security Information
Certain forms of communication of national security information receive
no first amendment protection. Such communication falls into two categories:
speech by certain government insiders and speech whose content and context
except it from the doctrine of prior restraint. Communication falling within
these categories may be prohibited and punished by statute.
1. Speech by Insiders-The Snepp Principle. The first amendment does
not protect classified information divulged by government employees whose
positions involve such a high degree of trust that a fiduciary duty exists. In
Snepp v. United States,Y? the Supreme Court upheld a standard prepublication
review requirement imposed by agreement on a former CIA employee. That
agreement required the employee to submit for review all material to be
published relating to the CIA, regardless of whether the material was classi-
fied.30 Another part of the agreement, not challenged in the case, prohibited
is defined by 16060) to mean a person whose identity as an agent is "classified information."
Section 606(1) defines classified information as that designated as such "pursuant to the provi-
sions of a statute or Executive order."
It is not obvious on the face of the Act that what is being punished is the disclosure of
classified information, since it in terms refers only to information that "identifies" a covert
agent. This Note assumes that the proper construction of the statute is narrow, so that it does
regulate "national security speech" as here defined. See infra text accompanying notes 121-23 &
131.
Information is classified pursuant to the National Security Act, 50 U.S.C. If 401-406 (1976),
by Executive order. The current order requires that "Top Secret" classification, the highest
grade, be based on a decision by authorized officials that "unauthorized disclosure ... reasona-
bly could be expected to cause exceptionally grave damage to the national security," Exec. Order
No. 12,356, ? 1.l(axl), 47 Fed. Reg. 14,874 (1982). Information may be classified as "secret" if
unauthorized disclosure reasonably could be expected to cause "serious" damage, id. ? 1.1(ax2);
or "confidential," if unauthorized disclosure reasonably could be expected to cause "damage."
id. ? 1.1(a)(3). Doubts are resolved in favor of classification and in favor of the higher level,
pending final determination. Id. ? 1.1(c). The effect of classification is to restrict unauthorized
access to such material. Id. ? 4.1.
29. 444 U.S. 507 (1980) (per curiam).
30. All persons with access to "sensitive compartmented [classifiedl information" must sign
similar secrecy agreements; all persons with access to classified information must sign nondisclo-
sure agreements (without prepublication review). Presidential Directive on Safeguarding National
Security Information, Dep't of Justice release, Mar. 11, 1983. The agreements are worded to
comply with Snepp. See N.Y. Times, Mar. 12, 1983, at Al, col. 3. Besides the CIA, several other
federal agencies specifically require employees to sign similar secrecy agreements. See 22 C.F.R. I
10.735-303(b) (1982) (Department of State); 28 C.F.R. ? 45.735-12(c) (1982) (Department of
Justice); see also statement of Lloyd E. Dean, Federal Bureau of Investigation. April 16, 1980,
statement of Daniel C. Schwartz, National Security Agency, April 16, 1980, and statement of
George A. Zacharias, Defense Intelligence Agency, March 16, 1980, before the Oversight Com-
mittee of the House Permanent Select Committee on Intelligence. See generally the survey of
policies of government agencies in Prepublication Review and Secrecy Requirements Imposed
upon Federal Employees, Hearing before the Subcomm. on Civil and Constitutional Rights of the
House Judiciary Comm., 96th Cong., 2d Sess. 59-73 (1980).
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him from disclosing classified information without authorization." The Court
acknowledged the government's "compelling interest" in protecting both the
secrecy of information important to national security and the appearance of
confidentiality essential to effective intelligence activities.32 Without inquiring
at length into the scope of first amendment protection," the Court found that
the agreement signed by the defendant created a "trust relationship," which
included an "obligation not to publish any information relating to the Agency
without submitting the information for clearance."34 Such an obligation was
found to be a reasonable means of serving the government's interest.35 The
majority, moreover, did not rely on the contractual relationship alone. Speak-
ing more broadly, they indicated that the defendant's status as an employee
and his access to confidential materials might also establish such a "trust
relationship" and concomitant fiduciary duty.se Thus, while in other circum-
stances an employee's speech "might be protected by the First Amendment,"
his fiduciary status precludes such protection."
This holding is narrower than might appear on first impression. While the
employee may be restrained from and punished for publishing any material
relating to intelligence activities unless he complies with the review imposed by
agreement, when he does comply with this review the government may only
prohibit the employee's unauthorized disclosure of properly classified infor-
mation. The prohibition must be limited to properly classified information
because in the case of unclassified or improperly classified information the
government's interest in suppression is not compelling. Authority to classify is
broad, encompassing information whose unauthorized disclosure "could" be
expected to cause damage to the national security;'? thus there is no tenable
argument for suppression of unclassified or improperly classified information
on the ground of potential harm to national security. In Snepp, the govern-
ment apparently recognized the force of this argument, since it did not argue
for so broad a standard.39 Indeed, the Court noted that neither the govern-
31. The CIA reviews submitted material in order to determine whether publication would
compromise classified information or sources. Snepp, 444 U.S. at 511.
32. Id. at 509 n.3.
33. The Court did not advance a particular rationale, but merely stated in a footnote that the
CIA could protect certain government interests by imposing reasonable restrictions on speech
"that in other contexts might be protected by the First Amendment." Id. Thus the Court
essentially assumed a stance of extreme deference: as long as a restriction is a "reasonable means"
of advancing the compelling interest in national security, it is permissible.
34. Id. at 510-11.
35. Id. at 509 n.3. See supra note 33.
36. Id. at 509 n.3, 511 n.6.
37. Id. at 509 n.3.
38. See supra note 28.
39. See Medow, The First Amendment and the Secrecy State: Snepp Y. United States, 130 U.
Pa. L. Rev. 775 (1982); Comment, Snepp Y. United States: The CIA Secrecy Agreement and the
First Amendment, 81 Colum. L. Rev. 662 (1981).
The only circuit court to consider this issue adopted substantially these arguments. Alfred A.
Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975).
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ment nor foreign agencies would be concerned with unclassified or public
domain information: since that information is available elsewhere, the govern-
ment has no interest in ensuring that it not be published.40 The Court drew
from its finding that Snepp "violated his obligation to submit all material for
prepublication review," the conclusion that Snepp "exposed the classified
information with which he had been entrusted to the risk of disclosure. "41
Thus the insider's fiduciary obligation is only to protect classified informa-
tion.
In addition, although Snepp does not so hold, "properly classified" must
be limited to the classification of information relating to activities that are not
themselves illegal. There is a strong first amendment interest in encouraging
insiders who know of such illegal activities to make these activities public.
Insiders may be the only persons who are able to obtain or interpret informa-
tion on these activities, and the government cannot be said to have a legitimate
interest in keeping them secret.42
2. Speech Unprotected Because of Content and Context. Communica-
tion with certain content also may be deemed unprotected. Prior restraints
against expression are ordinarily disfavored; they carry a "heavy presumption
against [their] constitutional validity, "4s a presumption to which subsequent
punishment schemes are not subject. The 1931 case of Near v. Minnesota"
established this doctrine within first amendment law. But at the same time, in
dictum, the Near Court stated that prior restraints are not disfavored in
"exceptional cases."45 Among these are the prevention in wartime of "actual
obstruction to [the government's] recruiting service or the publication of the
sailing dates of transports or the number and location of troops. "4e
Though the Near "troopship" exception applies by its terms only to prior
restraints, the exception logically applies to subsequent punishment schemes
as well. In the hierarchy of speech-regulation methods, prior restraints occupy
the lowest position.47 Thus, if a prior restraint would be allowed in a particu-
40. 444 U.S. at 513 n.8.
41. Id. at 511 (emphasis added).
42. At the very least, such a limitation would be consistent with the first amendment interest
in preventing, through free discussion, official breaches of the public trust. See New York Times
Co. v. Sullivan, 376 U.S. 254, 274-75 (1964); see also Landmark Communications, Inc. v.
Virginia, 435 U.S. 829, 838-39 (1978); Mills v. Alabama, 384 U.S. 214, 219 (1966). See generally
Blasi, The Checking Value in First Amendment Theory, 1977 Am. B. Fnd. Rsch. J. 521. The
current classification order prohibits information from being classified to conceal violations of
law. Exec. order No. 2, 356, 1 1.6(a), 47 Fed. Reg. 14,874 (1982).
For a discussion of the legal limits on activity of intelligence agencies, see infra note 99.
43. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1%3).
44. 283 U.S. 697 (1931).
45. Id. at 716.
46. Id. (footnote omitted). Also included are obscenity, incitement to violence or overthrow
of the government, and fighting words (see also the discussion of fighting words infra note 57 and
accompanying text).
47. The hierarchy is expressed through the technique of burdening prior restraints with a
presumption against validity, see supra text accompanying note 45, which subsequent punish-
ments do not share even though subsequent punishment schemes may themselves be subjected to
rigorous tests of first amendment validity. See Smith v. Daily Mail Publishing Co., 443 U.S. 97,
102 (1979). This distinction is drawn because prior restraints are thought to be more restrictive in
their impact on protected speech than are subsequent punishments. E.g., A. Bickel, The Morality
of Consent 61 (1975) ("A criminal statute chills, prior restraint freezes."); Emerson, The Doc-
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lar situation, a subsequent punishment would, a fortiori, be permissible."
Indeed, the Supreme Court has implicitly adopted this position: in a recent
case it cited the Near exception in passing on a subsequent punishment in the
form of a passport revocation statute.??
The Near "troopship" exceptions define expression that, because of both
its content (i.e., obstruction of recruiting, or disclosure of sailing dates) and
its context (i.e., wartime) may be restrained. The original formulation was
expressed in terms of a category of speech that "no one would question"
could be restrained in advance.50
The more recent case of Haig v. Agees' affirms the viability of the Near
exception,52 and, moreover, expands the range of content and context factors
trine of Prior Restraint, 20 L. & Contemp. Prob. 648, 655-60 (1955). This differential impact may
not always bear out in practice, see Smith, 443 U.S. at 101 ("respondents acknowledge that the
statutory provision for court approval of disclosure actually may have a less oppressive effect on
freedom of the press than a total ban on the publication"); nor is the theory without its critics,
e.g., Litwack, The Doctrine of Prior Restraint, -12 Harv. C.R.-C.L. L. Rev. 519 (1977); Mayton,
Toward a Theory of First Amendment Process: Injunctions of Speech, Subsequent Punishment,
and the Costs of the Prior Restraint Doctrine, 67 Corn. L. Rev. 245 (1982); Murphy, The Prior
Restraint Doctrine in the Supreme Court: A Reevaluation, 51 Notre Dame Law. 898 (1976). See
also infra note 48.
48. The only reason a subsequent punishment might not be permissible would be that the
reasons permitting a particular prior restraint were inapplicable to a subsequent punishment
statute. In general, all restraints on expression have the broad goal of preventing particular
communication; prior restraints and subsequent punishment both aim to accomplish this goal
through deterrence of the expression. Prior restraints accomplish deterrence by judicial or admin-
istrative restraint imposed prior to expression; subsequent punishment schemes, like all penal
statutes, deter by the in terrorem nature of the punishment embodied in the statute. While no
method relying on deterrence can ever be fully effective, prior restraints are deemed more likely to
be effective. Because the greater likelihood of effective enforcement carries a greater threat to the
exercise of first amendment rights, prior restraints are normally more difficult to sustain than are
subsequent punishments. See supra note 47. If a prior restraint is upheld, it is because the court
considers the expression sufficiently dangerous to warrant the risk of deterring protected speech,
such as speech involving risk to national security. United States v. Progressive, Inc., 467 F. Supp.
990 (W.D. Wis.), appeal dismissed, 610 F.2d 819 (7th Cir. 1979). Even in Progressive, though, the
government rested its claim of an overriding interest on its statutory authority under the Atomic
Energy Act, 42 U.S.C. ? 2274 (1976), to punish disclosure of the relevant information. 467 F.
Supp. at 991.
If deterrence is the goal, and the risks are high enough to warrant a prior restraint, the
government should be required to provide some notice to potential speakers that their speech is
disfavored; such notice should be embodied in a statute punishing disclosure. See supra note 14
and accompanying text. Furthermore, since subsequent punishment statutes are more efficient.
cf. Mayton, supra note 47, at 253-54 (lower transaction costs than prior restraints), and more
likely to survive, given the disfavor of prior restraints, deterrence could more easily be accom-
plished by such statutes. There is, then, no reason to reverse or erase the traditional hierarchy in
the national security situation.
49. Haig v. Agee, 453 U.S. 280, 308 (1981). See infra text accompanying notes 51-54.
50. 283 U.S. at 716.
51. 453 U.S. 280 (1981).
52. Agee does alter the character of the Near exception in one important manner. Although
the Near exception was framed in terms of wartime considerations, the Near "troopship"
exceptions are, according to Agee, not limited to wartime. In Agee the Supreme Court stated that
"[h]istory eloquently attests that grave problems of national security and foreign policy are by no
means limited to times of formally declared war." Id. at 303. Indeed, in Agee the Court cited the
"troopship" exceptions in upholding a speech restraint imposed in peacetime, without comment-
ing on this expansive application. Id.
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that define it. Under Agee, the speaker's purpose, knowledge, and conduct
are indicators of what may be termed per se unprotected speech.
In Agee, the United States revoked the passport of former CIA agent
Phillip Agee on the ground that his prior and continuing disclosures of the
identities of intelligence agents posed a threat to national security. The Su-
preme Court held that revocation of the passport was not an unconstitutional
abridgment of Agee's first amendment rights. First, the Court stated that
revocation "rests in part on the content of [Agee's) speech: specifically, his
repeated disclosures of intelligence operations and names of intelligence per-
sonnel"; it then quoted the Near troopship exception language, and con-
cluded, using language that closely echoed that of the Near Court,53 that the
disclosures were "not protected. "s' Implicit in the Court's reliance on Near is
the notion that when speech falls within the literal terms of Near, or very close
to them, there is no need to balance competing interests" in order to deter-
mine whether it is protected. Agee, then, defines a core of expression that is
categorically unprotected, and leaves open the possibility that other analogous
speech may be deemed to fall within this core category.
Because Agee places the disclosure of intelligence identities within the
core of the Near exception, it is important for the purposes of this Note to
define the limits of the Agee holding. The mere fact that speech discloses"
intelligence identities does not mean that the speech is unprotected. Unlike the
old "fighting words" category, the content of the speech is not determinative
of the issue.57
First, the purpose of the speech in question is also relevant in determining
whether or not the speech falls within the core. In declaring Agee's disclosures
"clearly not protected," the Court said, "among other things, [the disclo-
sures] have the declared purpose of obstructing intelligence operations and the
recruiting of intelligence personnel."S? The relevance of the purpose factor is
not immediately apparent, but may be read as an indicator of the likelihood of
the occurrence of the feared effect-in this case the obstruction of intelligence
activities."
53. "Agee's disclosures, among other things, have the declared purpose of obstructing
intelligence operations and the recruiting of intelligence personnel." Id. at 308-09.
54. Id. Note that the speech restraint in Agee was the functional equivalent of a subsequent
punishment scheme. For the implications of this, see supra text accompanying notes 47-49.
55. To determine the efficacy of a prior restraint on expression not subject to the Near
exceptions (and otherwise not unprotected), the court must "determine whether . . . 'the gravity
of the "evil," discounted by its improbability, justifies such invasion of free speech as is necessary
to avoid the danger."' Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 562 (1976) (quoting United
States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950) (L. Hand, J.)).
56. Note that the Court referred to Agee's repeated disclosures. 453 U.S. at 284.
57. The "fighting words" category was brought into first amendment law in Chaplinsky v.
New Hampshire, 315 U.S. 568 (1942), and focused solely on the content of the expression. That
narrow approach, however, is obsolescent; the Court's approach now has some contextual
elements. L. Tribe, American Constitutional Law 617-23 (1978); see Cohen v. California, 403
U.S. 15 (1971).
58. 453 U.S. at 308-09 (emphasis added).
59. In this context, purpose does not serve the usual function of a mens rea, which is to
provide a moral component of the punished activity, compare, e.g., J. Hall, General Principles of
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In addition, the breadth of the Agee holding is limited by Agee's status as
an intelligence "insider." In cases involving the disclosure of confidential
information, the Court generally distinguishes between persons with autho-
rized access to the confidential information (insiders)80 and persons without
such access (outsiders).?r In Agee this distinction makes sense because the
"insider" element, like the purpose factor, increases the likelihood that the
obstruction will occur. Insiders are more likely to possess the requisite inten-
tion to obstruct; their knowledge of the intelligence area decreases the chance
that they would disclose harmful information recklessly or negligently. Also,
insiders are more likely to know what information would be most harmful.62
Agee's insider status, however, was not in itself crucial. His status was impor-
tant because it provided him with knowledge regarding the significance of the
disclosed information. Thus, an outsider's possession of the same knowledge
would be an equally good correlative of the likelihood that obstruction would
occur. This use of Agee's insider status distinguishes Haig v. Agee from
Snepp, where the insider status was itself crucial.63
Finally, one must examine the relevance of Agee's conduct to the deci-
sion. In earlier cases,84 the Court refused to uphold passport revocations
predicated on the holders' purported danger to the national security, when the
only manifestations of this danger were speech, beliefs, or association. By
Criminal Law 133-41 (2d ed. 1960). This is clear from the way in which the court considered
purpose in deciding the first amendment issue: in its inquiry the focus was on the effect of the
expression the government sought to suppress rather than on the moral culpability of the actor.
Agee conceded that his activities "were causing or were likely to cause serious damage to the
national security" for the purpose of challenging the facial validity of the revocation regulation.
453 U.S. at 287 & nn.10 & 11. The Secretary of State had made the determination of "serious
damage." Since the Court held that "the Government's interpretation of the terms 'serious
damage' and 'national security' shows proper regard for constitutional rights and is precisely in
accord with our holdings on the subject," id. at 309 n.61, the Court must have assumed that
"serious damage" is here equivalent to the "actual obstruction" referred to in Near. See supra
note 46 and accompanying text. It therefore held that "when there is a 'substantial likelihood' of
'serious damage' to national security," as there was here, the government may act against a
passport holder. Id. at 309 (emphasis added).
Of course, purpose alone is insufficient to cause the obstruction; it must be coupled with
speech capable of causing obstruction in order to be the object of sanctions.
60. See supra text accompanying notes 29-42.
61. See infra text accompanying notes 71-90.
62. But this knowledge may not be as great as the employer's: the agency may have a broader
understanding of what could cause harm, because it has access to more information. See Snepp v.
United States, 444 U.S. 507, 512 (1980).
63. The Court did not rely on the Stepp principle in deciding Agee, even though Agee
acknowledged that the disclosures violated his secrecy agreement; it noted instead that measures
to enforce the agreement would be useless outside the United States. Agee, 453 U.S. at 308 n.60.
Generally speaking, enforcement of an insider's fiduciary obligation would be limited to an
injunction for specific performance of his contract obligations, if any contract exists, or the
imposition of a constructive trust to remedy breach of his fiduciary obligations. See Medow,
supra note 39, at 788 (summary of possible enforcement procedures). (Tort remedies may also be
available. See Note, Breach of Confidence: An Emerging Tort, 82 Colum. L. Rev. 1426 (1982).)
Furthermore, punishing an insider would require a statute authorizing punishment. Thus, the
Court cited Agee's purpose and conduct in addition to his insider status. Moreover, the passport
revocation order did not refer explicitly to his status. 453 U.S. at 286.
64. Aptheker v. Secretary of State, 378 U.S. 500 (1964); Kent v. Dulles, 357 U.S. 1 16 (1958).
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contrast, the revocation of Agee's passport was predicated on his entire
campaign to fight the CIA, of which "[b]eliefs and speech [were] only part. "65
The balance of the campaign consisted of conduct. Thus, the government
alleged, and Agee conceded for the purposes of the litigation, that the cam-
paign as a_ whole was causing or was likely to cause serious damage to national
security.?? Furthermore, the government never alleged that Agee's speech
alone was damaging, nor did it base the passport revocation on this speech
alone. Rather, the government referred to Agee's activities in foreign coun-
tries carried out with the intention to disrupt intelligence operations and his
intention to continue these activities. The Court recognized the significance of
Agee's conduct by holding that the passport revocation was a permissible
burden on Agee's freedom to travel, and stating that restricting his travel,
"although perhaps not certain to prevent all of Agee's harmful activities, is
the only avenue open to the Government to limit these activities."67 Restrict-
ing his travel could have virtually no effect on Agee's ability to disclose
intelligence identities.
The Court's focus on Agee's conduct may be explained in one of two
ways. Conduct may be necessary to show the likelihood of obstruction of
intelligence operations. Or conduct could be evidence of an intention to
obstruct (which, as is shown above, is itself a correlative of the likelihood of
obstruction). At any rate, conduct is, according to Agee, an indicator of per se
unprotected speech.
Assuming that conduct is a relevant consideration, the question becomes
what conduct is relevant. Agee is not clear on this issue; the Court did not
identify which of the activities comprising Agee's "campaign" were endanger-
ing the national security. The Court's description of the "campaign" con-
sisted solely of the facts conceded for litigation." These facts include the
recruitment and training of collaborators; repeated and public disclosures of
the identities of CIA agents, employees, and sources; Agee's violation of his
secrecy agreement with the CIA; prejudice to the United States; and violence
following disclosures." From this it is unclear whether the conduct consists of
all these factors, some of them, or some of them only in conjunction with each
other. The Court is clear only on the point that the campaign must pose a
serious danger to national security.
In sum, Agee outlines a set of indicators of per se unprotected national
security speech: purpose, insider knowledge, and conduct. When some combi-
nation of these indicators is present there is no need to balance interests. Agee
does not, however, make clear what combination of these indicators is neces-
65. Aga, 453 U.S. at 305.
66. See supra note 59.
67. 453 U.S. at 308.
68. Id at 306 & n.58.
69. Id. at 283-86 & nn.1-8.
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sary. Agee clearly holds only that the combination of all three factors is
sufficient to find disclosures per se unprotected.70
B. Punishing Protected Disclosures of Confidential Information
National security speech is a specific type of disclosure of confidential
information.71 When this type of disclosure is made by an insider or when the
content and context of the disclosure except it from the doctrine of prior
restraint, the disclosure receives no first amendment protection. When a
disclosure does not fall into these unprotected categories, some test must be
employed to evaluate the permissible scope of regulation of the disclosure.
The test logically applicable to this problem is the constitutional analysis that
has been developed to deal with the general problem of punishing disclosures
of confidential information. The Supreme Court has articulated a balancing
approach to the review of statutes punishing such disclosures by persons who
either do not have authorized access to the disclosed information or who are
not immediately privy to it.72
1. Lawful Access by Third Parties to Confidential Information. The
Supreme Court held in Landmark Communications v. Virginia13 that a statute
70. Agee must be reconciled with the analysis in New York Times Co. v. United States, 403
U.S. 713 (1971), the only Supreme Court case to pass on the constitutionality of a prior restraint
sought on national security grounds. The Court held unconstitutional a restraint on the publi-
cation of a classified document (the "Pentagon Papers"). The test used to review the restraint was
a definitional one, reflecting the principles implicit in the Near exception: "(O)nly governmental
allegation and proof that publication will inevitably, directly, and immediately cause the occur-
rence of an event kindred to imperiling the safety of a transport already at sea can support even
the issuance of an interim restraining order." Id. at 726-27 (Brennan, J., concurring). "tDlisclo-
sure ... [must] surely result in direct, immediate, and irreparable damage to our Nation or its
people." Id. at 730 (Stewart, J., concurring). The opinions of Justices Brennan and Stewart,
being the narrowest of the five concurrences to the per curiam holding, must be considered the
holding of the case.
The Agee Court did not mention New York Times when it applied Near to Agee's disclo-
sures. It might be argued that the Court should have explicitly tested the disclosures under the
definitional test instead of focusing on whether factors were present that indicated the likelihood
that speech would cause obstruction of intelligence activities. The implication of such an argu-
ment is that, because New York Times requires actual proof of the likelihood of significant harm,
Agee cuts back on the scope of the applicability of New York Times. See Agee, 453 U.S. at 321
n.10 (Brennan, J., dissenting).
The analysis outlined in this Note, however, renders this argument unnecessary. The doctri-
nal significance of Agee's applying Near while failing to attach significance to New York Times
lies in its explicit recognition that speech falling within the Near exception is unprotected for all
purposes. These factors, showing likelihood of harm, obviate the need to prove harm. This per se
rule can coexist with New York limes: if Agee factors are not present, the speech is not per se
unprotected, but that is not the end of the analysis. The nature of the speech regulation deter-
mines the course of analysis. In the prior restraint area, the New York Timer test would then be
applied, requiring proof of harm. Agee neither expressly nor implicitly obviates the necessity for
such proof when per se factors are absent. See also infra text accompanying notes 92.94 for a
discussion of the relevance of New York Timer to she subsequent punishment of national security
speech.
71. For a definition of national security speech, see supra text accompanying note 28.
72. As outlined above, see supra notes 29-42 and accompanying text, when national security
disclosures are made by insiders the speech is unprotected.
73. 435 U.S. 829 (1978).
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that imposes criminal sanctions on disclosure of information regarding confi-
dential judicial proceedings unconstitutionally abridges first amendment
rights. In Landmark, the Court overturned a newspaper's conviction for
divulging accurate information. Although the state had a legitimate interest in
the confidentiality of these proceedings such that it might lawfully inhibit
access to them, once a speaker had lawfully obtained information pertaining
to these proceedings the state's interest was outweighed by the encroachment
on freedom of expression.
The Court reached this result by balancing the interests of the state and
the speaker. It held that in this context a court cannot defer to a legislative
judgment, but must "make its own inquiry into the imminence and magnitude
of the danger said to flow from the particular utterance and then ... balance
the character of the evil, as well as its likelihood, against the need for free and
unfettered expression. 1114 In this balancing process, rights of expression are
given great weight: the standard used to balance is that " `the substantive evil
must be extremely serious and the degree of imminence extremely high before
utterances can be punished.' ... `The danger must ... immediately im-
peril., "7s
In addition, the Court stated that "[tjhe possibility that other measures
will serve the State's interests should also be weighed."76 That is, the govern-
ment must employ a less restrictive means of controlling dissemination. 77
Thus, it must, if feasible, control access to information by making it confiden-
tial, and must punish the breach of confidentiality by persons with authorized
access; furthermore, it must control unauthorized access by "internal proce-
dures. "7? The less-restrictive-means requirement permits the government to
restrict initial access to confidential information to those immediately autho-
rized to receive it, but prohibits the government from punishing disclosure by
a third party who obtains the information.79
The information disclosed must, however, be lawfully acquired.80 This
limitation serves to ensure that the government, by its laws, controls access,
74. Id. at 843.
75. Id. at 845. Justice Stewart's concurrence included the formulation, "government may
not prohibit or punish the publication of . . . information once it falls into the hands of the press,
unless the need for secrecy is mainfestly overwhelming." Id. at 849 (footnote omitted).
76. Id. at 843.
77. See also Smith v. Daily Mail Publishing Co., 443 U.S. 97, 105 (1979).
78. Landmark Communications, 435 U.S. at 845 & n.13. Although this "internal proce-
dures" requirement could be read to authorize the use of prior restraints on those insiders with
authorized access, see Comment, supra note 21. at 88; cf. Snepp v. United States, 444 U.S. 507
(1980) (prepublication review procedure pursuant to valid secrecy agreement), the heavy disfavor
of prior restraints, see supra notes 43-48 and accompanying text, means that a system of
internally imposed controls on leakage would be much preferred. Cf. Nebraska Press Ass'n v.
Stuart, 427 U.S. 539, 563-65 (1976) (invalidating judicially imposed prior restraint on publication
of certain information pertaining to trial: judge can control dissemination of information by
measures short of prior restraint); id. at 601 n.27 (Brennan, J., concurring) (court has power to
control release of information by court personnel).
79. For a critique of this distinction, see Comment, supra note 21.
80. Cf. Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979) ("[Ilf a newspaper
lawfully obtains truthful information about a matter of public significance then state officials
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and relinquishes control where the reach of its law ends. Moreover, while a
significant connection must exist between the law violated and the prevention
of access to confidential information in order to punish disclosure of unlaw-
fully acquired information," the law need not be directed specifically at
access. The government's less restrictive means of preventing disclosure
should include all its lawful powers. For example, if confidential documents
were kept on file in a locked room, and a person broke into the room
unlawfully, looked at the information, and disclosed it, punishment would be
warranted. The less restrictive means chosen by the government in this case is
to lock a room, so if breaking open a locked door is unlawful, access is
unlawful, even if the law is not directed specifically at preventing access to
confidential information.'2
2. Information in the Public Domain. Once information escapes into the
public domain, the government effectively loses control over its dissemina-
tion. Regulation of the information can logically only be based on an interest
other than preventing the public from gaining access to the information. Thus
the state should not be able to restrain or penalize the dissemination of
may not constitutionally punish publication of the information, absent a need to further a state
interest of the highest order."). This limitation seems to qualify a very broad statement made in
the Court's opinion in Houchins v. KQED, Inc.. 438 U.S. 1, 10 (1978): "The government cannot
restrain communication of whatever information the media acquire-and which they elect to
reveal."
8I . For example, if a person drove through a red light on the way to gather information from
a public library, it could hardly be said that access was unlawful.
82. Another definitional problem is whether initial unlawful access colors subsequent distri-
bution of the information, so that a person could not disclose information obtained lawfully from
a third person who had obtained it unlawfully. A variation of this question is whether unlawful
disclosure by A to B is at the same time unlawful access by B from A. The problem could be
solved by treating the information as akin to stolen property, so that its receipt would be unlawful
in certain circumstances. such as where B knew A had had unlawful access. For a discussion of the
problems such a concept raises, see generally Dennis, Leaked Information as Property: Vulnera-
bility of the Press to Criminal Prosecution. 20 St. Louis U.L.J. 610 (1976). Cf. Nimmer, supra
note 13, at 315-24 (use of 18 U.S.C. ? 641 (1976), the theft-of-government-property statute, to
punish removal of classified information by persons with authorized access, is unconstitutional).
More generally, it could be argued that since disclosure of lawfully obtained information is
allowed partially because it reflects a failure of the government adequately to restrict access, see
supra text accompanying note 80, and since access to unlawfully obtained information does not
reflect such a failure, the subsequent access is not "lawful" or at least not accorded the same
treatment as lawfully acquired information.
Where initial disclosure by A is a violation of an insider's fiduciary obligation. B's liability
might be predicated on the theory that B participated in A's breach. It would have to be
determined whether B's action completed the breach (since A's breach makes confidentiality
nonexistent, it is unlikely that one could find B to have completed any such breach), and whether
B knew his action was a breach of trust. See G. G. Bogert & G. T. Bogert, The Law of Trusts and
Trustees ? 901 (rev. 2d ed. 1982).
Section 602(b) of the Act limits the reach of a prosecution for aiding and abetting, misprision
of felony, or conspiracy. It requires that the "pattern" and "reason to believe" elements be
satisfied as to a person prosecuted for these offenses. The legislative intent was to protect persons
who receive disclosures made in violation of the Act. House Report, supra note 7, at 18; Senate
Report, supra note 4, at 23. This provision does not fully answer the question, since conceivably a
person could unlawfully obtain information and disclose it to a second person without violating
the Act, and the second person could then disclose in arguable violation of the Act.
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information obtained from sources available to the public, whether the infor-
mation was affirmatively placed in the public domain83 or not,84 where the
only asserted state interest is in maintaining the confidentiality of informa-
tion.
But while the Supreme Court has never upheld a restriction on "disclo-
sure" of public domain information, its language has been more circumspect
when considering information that has come into the public domain despite or
without the government's intervention than when the initial disclosure has
come about by affirmative government action. In Cox Broadcasting Corp. v.
Cohn,65 for example, the Court held unconstitutional a statute punishing the
disclosure of a rape victim's name where the name had been obtained from
official court records. The state asserted an interest in protecting the victim's
privacy. The Court did not engage in an explicit balancing process; rather it
appeared to advance an estoppel argument. It stated that "the interests in
privacy fade when the information involved already appears on the public
record," and went on to say that "[b]y placing the information in the public
domain ... the State must be presumed to have concluded that the public
interest was thereby being served. . . . If there are privacy interests to be
protected .... the States must respond by means which avoid public docu-
mentation or other exposure of private information."" By comparison, in
Smith v. Daily Mail Publishing Co.," the Court employed a typical balancing-
of-interests approach to strike down a statute prohibiting the publication of
the identity of a juvenile participant in a court proceeding. In Smith, a
newspaper obtained the identity of an accused juvenile offender by monitor-
ing the police band frequency (a lawful activity) and questioning witnesses and
a prosecutor. At least some of the information (the witness-provided portion)
thus could be said to have reached the public domain without affirmative state
action. The Court in fact stated that the way in which the information escaped
"is not controlling" because "[a] free press cannot be made to rely solely
83. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (statute prohibiting publication or
other disclosure of rape victim's name held invalid as applied to name obtained by reporter from
indictments open to public scrutiny; information was obtained lawfully). Cf. Oklahoma Publish-
ing Co. v. District Court, 430 U.S. 308 (1977) (invalidating pretrial order that prohibited publi-
cation of name of juvenile offender obtained at hearing that by law had to be closed but at which
press was present and neither parties nor judge objected; information was obtained lawfully).
84. Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) (statute prohibiting publication
of name of offender held invalid; newspaper reporter obtained name by monitoring police radio
and questioning witnesses).
85. 420 U.S. 469 (1975).
86. Id. at 494-95, 496. The Court further stated:
Public records by their very nature are of interest to those concerned with the adminis-
tration of government, and a public benefit is performed by the reporting of the true
contents of the records by the media. The freedom of the press to publish that informa-
tion appears to us to be of critical importance to our type of government in which the
citizenry is the final judge of the proper conduct of public business.
Id. at 495. Compare the implied consent rationale in United States v. Heine, 151 F.2d 813 (2d Cir.
1945) (L. Hand, J.), cert. denied, 328 U.S. 833 (1946), referred to infra notes 102-04 and
accompanying text.
87. 443 U.S. 97 (1979).
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upon the sufferance of government to supply it with information. "88 Never-
theless, the Court balanced the state's interest in protecting juvenile anonym-
ity against the first amendment interest, rather than applying the estoppel
argument of Cox Broadcasting. The Court decided that the state's interest was
insufficient, noting that to be valid the statute must be "necessary"89 to
further the "highest form of state interest." 90
The differing approaches of Cox Broadcasting and Smith may be read as,
an indication that in extraordinary circumstances the state may prevent the
dissemination of public domain information. Considering the rationale under-
lying the cases, one can assume that if the state does not willingly make the
information public, if the dissemination did not occur because the state failed
to employ properly its less restrictive means, and if the initial disclosure was
both minimal and containable, the interests of the state arguably outweigh
those of the speaker.
C. Is the Analysis of National Security Speech Different?
Thus, although the Supreme Court has never directly addressed the ques-
tion of the constitutionality of a statute punishing the disclosure of national
security information," there is an existing body of law that can be applied to
statutes generally punishing disclosure of confidential information. Statutes
punishing disclosure of national security information are a fortiori subject to
this analysis, unless some reason compels a different treatment of national
security speech. The relevant cases support a unified approach.
1. The New York Times Standard. While there is no body of case law
dealing with the punishment of national security speech, the Supreme Court
has set forth a standard for prior restraints in this area. In New York Times
Co. v. United States,9' the Court held that the first amendment prohibits a
restriction on publication of classified national security information unless
direct, immediate, and irreparable damage to the nation will inevitably fol-
low.93 The fact of classification, without more, is insufficient to prove such
damage.
Although New York limes is a prior restraint case, the standard it sets
forth logically should inform the selection of a standard applicable to the
punishment of disclosure of national security information by outsiders. When
the government controls access to information by classification, it sets up a
mechanism whose effect is to prevent information from reaching the public-
the same effect that a prior restraint has. With respect to those members of the
88. Id. at 103-04.
89. Id. at 104.
90. Id. at 102.
91. This is assuming that espionage statutes, which the Court has reviewed, see, e.g., Gorin
v. United States, 312 U.S. 19 (1941) (vagueness challenge defeated), do not cover the disclosures,
see supra text accompanying notes 10-16.
92. 403 U.S. 713 (1971).
93. See supra note 70.
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public who obtain information despite the control, punishment for the disclo-
sure of the information is analogous to punishment for ignoring a prior
restraint.
This is not to say that the classification system is vulnerable to attack as a
classic prior restraint. The system does not operate of its own force to prevent
disclosure by outsiders. Rather, it operates by regulating disclosure to outsid-
ers by agencies entrusted with sensitive information. Such disclosure is itself
subject to the Snepp test, which validates the restraint. Thus the government
may employ the system as a less restrictive means of keeping the information
secret. There is a fundamental distinction, however, between regulating the
national security speech of insiders through this less restrictive means, and
regulating the speech of outsiders by the same means. Restricting public access
clearly affects the speech interests of insiders, but not the speech interest of
outsiders. It is thus not a classic prior restraint. Yet it partakes of the essential
attributes of a prior restraint, i.e., the prevention in advance of the dissemina-
tion of information. If one acknowledges that the system has this effect
without impinging on a speaker's interests, the logical implication is that the
prior restraint analysis-The New York Times test-should apply to the
punishment of a speaker when punishment is predicated on the application of
that system to the speaker. The speaker cannot, however, challenge the opera-
tion of the system before it operates on his speech interests.
The substantive level of stringency embodied in the New York rimes
standard is substantially the same as that embodied in the Landmark standard
for the punishment of the disclosure of confidential information. Both stand-
ards require a high degree of potential for immediate and extraordinary harm
resulting from the disclosure." Thus, the Landmark standard for the punish-
ment of the disclosure of confidential information should also be applied to
the punishment of the disclosure of national security information.
a. Application to Lawfully Obtained National Security Information. The
Landmark balancing test requires a judge to speculate on the likelihood that
significant harm will result from disclosure. In the case of the disclosure of
national security information, requiring a court to speculate in this manner
seems both an inordinate burden on the judge and an inaccurate method with
which to test a statute's legitimacy. The validity of claims of harm to national
security is inherently difficult to assess. A judge is unlikely to have experience
in weighing the specialized factors involved in the decision." Moreover, infor-
mation necessary to make an accurate decision will likely be classified and
94. See supra text accompanying notes 74 & 75.
95. For example, the judge in United States v. Progressive, Inc.. 467 F. Supp. 990 (W.D.
Wis.), appeal dismissed, 610 F.2d 819 (7th Cir.1979), was asked to examine an article containing
information on the operation of the hydrogen bomb and compare it with extremely technical
information in the public domain in order to decide whether publication would "increase thermo-
nuclear proliferation" and harm the national security. The court, while acknowledging that to
write the article one needed sufficient expertise, considered itself up to the task of comparing the
information.
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thus unavailable to a judge." In subsequent punishment cases, however, this
problem can be effectively remedied by requiring proof that significant harm
was actually caused by disclosure.97 Mere proof of classification is not suffi-
cient proof of significant harm, as New York Times held."
The significant harm demonstrated must, however, affect a legitimate
government interest. Absent such a requirement the government would be
able to punish individuals for disclosures that revealed illegal government
activity."
b. Application to Unlawfully Obtained National Security Information.
Where a statute punishes the disclosure of unlawfully obtained classified
information, the government's interest should prevail and the statute be held
constitutional. The less restrictive means of preventing disclosure of confiden-
tial information is through internal procedures designed to prevent informa-
tion from escaping.100 To allow disclosure after unlawful access nullifies the
%. Cf. the Classified Information Procedures Act, 18 U.S.C. App. (Supp. V 1981), which
was enacted to deal with the problems that arise when criminal prosecutions require the govern-
ment or defendant to disclose classified information in order to present a satisfactory case
("graymail" tactics). The Act provides for hearings to determine whether and how such informa-
tion shall be disclosed.
97. One commentator has stated:
Taken together, [Cox Broadcasting v. Cohn. Smith Y. Daily Mail Publishing Co.,
Landmark Communications v. Virginia, Nebraska Press Assn Y. Stuart, and New York
Times Co. v. United States) leave little doubt that, except in cases involving imminent
national military catastrophe, the Court will not permit previous restraints upon, or
subsequent punishment for, publication in a mass medium of accurate information that
the publisher has lawfully acquired.
Cox, The Supreme Court, 1979 Term-Foreword: Freedom of Expression in the Burger Court, 94
Harv. L. Rev. 1, 17 (1980). Cox's limitation to "mass medium" seems unnecessarily cautious: the
public interest can be served just as adequately by disclosure to individuals in a position to exert
political influence as by dissemination to the public in general.
98. Since information may be classified by agents of the Executive, and may be classified
upon a decision that "damage" may result, see supra note 28, the classification standard itself is
insufficient proof of harm under the New York Times standard. See Comment, supra note 39, at
690 n.185.
99. The activities of the government in the intelligence area are limited by Executive order
pursuant to 50 U.S.C. $ 401 (1976) (congressional declaration of purpose to provide comprehen-
sive national security program). Exec. Order No. 12,333, 46 Fed. Reg. 59,941 (1981). In addition
to circumscribing the authority of the various agencies affected. the order provides that the
conduct of intelligence activities is to be carried out "consistent with the Constitution and
applicable law and respectful of the principles upon which the United States was founded." Id. 4
2.1; see also id. 4 2.8 ("Nothing in this Order shall be construed to authorize any activity in
violation of the Constitution or statutes of the United States.").
Instances of reporting on the abuses of authority by the agencies with authority to classify are
well known. See generally T. Powers, The Man Who Kept the Secrets 271-308 (1979). These
reports clearly advance the first amendment checking interest, see supra note 42.
100. See supra notes 77-79 and accompanying text. A variety of such means are open to the
government and are now being employed: These include physical barriers such as locked doors
and windows; punishment of employees for failing to lock up documents; and compartmentaliza-
tion of knowledge. T. Powers, supra note 99, at 66. Employees who have access to classified
information may be subject to polygraph examinations. Presidential Directive on Safeguarding
National Security Information, supra note 30. Some agencies construct elaborate systems to guard
against disclosure and impose administrative sanctions on employees who violate the rules. See,
e.g., 32 C.F.R. $ 159.141 (1982) (Department of Defense) (sanctions for knowing, willful,
unauthorized disclosure range from "warning notice" to "removal or discharge").
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government's less restrictive means of controlling information availability.
Thus, in contrast with the lawful-access situation, conditioning the right to
disclose information gained unlawfully upon subsequent proof of significant
harm would inadequately serve the government's interest in preventing such
harm by restricting initial public access. Therefore, the public's interest in free
expression extends only to the boundaries imposed by an otherwise valid law;
if there is a sufficient connection between the law violated and the govern-
ment's right to control access to classified information, disclosure may be
punished.
2. Public Domain National Security Information. As indicated above,
the state is generally not able to punish the dissemination of confidential
information already in the public domain.101 Once information escapes into
the public domain, the government effectively loses control over it and can no
longer assert an interest in preventing public access.
Courts have divided over the question of the scope of first amendment
protection for public domain national security information. The Second Cir-
cuit held in United States v. Heine104 that the espionage statutes cannot be
construed to permit punishment of the dissemination of information gathered
from "sources that were lawfully accessible to anyone who was willing to take
the pains to find, sift and collate it."103 The decision was not expressly based
on the first amendment, but constitutional considerations entered into it: "so
drastic a repression of the free exchange of information it is wise carefully to
scrutinize, lest extravagant and absurd consequences result."104 In Alfred A.
Knopf, Inc. v. Colby,105 where the court focused specifically on first amend-
ment concerns, the Fourth Circuit indicated in dictum that it was in agreement
with this position. The court stated that while insiders may not republish
classified information in the public domain,10' outsiders may.107
A district court reached a contrary conclusion in United States v. Pro-
gressive, Inc.106 and imposed a preliminary injunction based on the Atomic
101. See supra notes 83-89 and accompanying text.
102. 151 F.2d 813 (2d Cir. 1945) (L. Hand, J.), cert. denied, 328 U.S. 833 (1946).
103. Id. at 815. Heine's rationale was a theory of implied consent by the military services:
"The services must be trusted to determine what information may be broadcast without prejudice
to the 'national defense,' and their consent to its dissemination is as much evidenced by what they
do not seek to suppress, as by what they utter." Id. at 816. Compare the rationale used by the
Supreme Court in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), discussed supra note 86
and accompanying text.
104. 151 F.2d at 815.
105. 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975).
106. Id. at 1370.
107. Id. (dictum).
108. 467 F. Supp. 990 (W.D. Wis.), appeal dismissed, 610 F.2d 819 (7th Cir. 1979). Cf. also
Gros v. United States, 138 F.2d 261 (9th Cir. 1943) (upholding espionage conviction, challenged
on other grounds, for dissemination of defense information apparently gleaned from newspaper
clippings); United States v. Enger, 472 F. Supp. 490 (D.N.J. 1978) (not an essential element of an
offense, such that it must be alleged in indictment under espionage statutes, 18 U.S.C. ?? 793 &
794 (1976), that information be of a secret, nonpublic nature).
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Energy Act109 against publication of classified information on the hydrogen
bomb that had been gathered by a magazine reporter from both inadvertently
declassified data and information in public sources. The court reasoned that a
prior restraint was valid, by analogy to the Near exceptions, because even
though some information was in the public domain, it took a certain amount
of expertise to draw correct conclusions. Thus publication would, on the one
hand, allow other nations more quickly to develop the bomb, while, on the
other, would not significantly advance the public interest.10
The position set forth in Heine and Knopf is the more persuasive. The
concerns that underlie the prohibition on the punishment of outsiders for the
dissemination of confidential information in the public domain apply with
even more force in the case of public domain national security information.
Smith and Cox Broadcasting were based on the argument that once informa-
tion is in the public domain the government no longer has a legitimate interest
in regulating dissemination. This reasoning is particularly applicable to na-
tional security information. Intelligence agencies have become so numerous
and so sophisticated that any disclosure of confidential information is likely to
be detected and exploited immediately."' Moreover, the first persons to ob-
tain disclosed information are likely to be precisely those from whom the
government is most interested in keeping the information. Thus, after even
minimal initial disclosure, the government's legitimate interest' 12 in regulating
dissemination declines precipitously. From the government's point of view,
little can be gained from inhibiting additional dissemination.
Furthermore, in cases where the government affirmatively or negligently
places the information in the public domain,"3 it may be argued that the
government has failed to employ its less restrictive means of maintaining
confidentiality. 114 In the national security area, the government possesses
109. The relevant portions are 42 U.S.C. if 2274 & 2280 (1976), which, respectively, prohibit
disclosure of certain data and authorize the enjoining of such disclosures.
110. Information in the article was published elsewhere while appeal was pending, where-
upon the government withdrew its request for an injunction, and The Progressive published its
material. For a history of the case, see Comment, A Journalist's View of The Progressive Case, 41
Ohio St. L.J. 1165, 1166-74 (1980).
111. See L.F. Prouty, The Secret Team 293-94 (1973).
112. The government might assert an interest in preventing the wider domestic public from
obtaining information so that it might conceal illegal activities or prevent public policy discussion
when secrecy is not necessary to maintain national security, cf. M. Halperin & D. Hoffman. Top
Secret 31 (1977) (secrecy of covert operations of questionable legality and/or public support); this
would clearly not constitute a legitimate interest. See Hill. Defamation and Privacy Under the
First Amendment, 76 Colum. L. Rev. 1205, 1295 (1976). Nor is it now a legitimate ground for
classification. Exec. order No. 12,356, $ 1.6(a), 47 Fed. Reg. 14,874 (1982).
113. Outside observers blame CIA carelessness for the fact that intelligence identity informa-
tion may be obtained by those without authorized access to it. N.Y. Times. Feb. 6, 1981, at A10,
col. 6. But the CIA argues that since the information is publicly available. and since ex-employees
are willing to help others find it. internal procedures instituted now would be worthless. See
House Hearings, supra note 3. at 24 (statement of CIA Director William Casey).
114. Cf. New York Times Co. v. United States, 403 U.S. 713. 728-29 (1971) (Stewart, J.,
concurring) ("The responsibility must be where the power is. If the Constitution gives the
Executive a large degree of unshared power in the conduct of foreign affairs and the maintenance
of our national defense, then under the Constitution the Executive must have the largely unshared
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special powers designed to allow it to control the dissemination of informa-
tion.113 When the government fails to employ these powers effectively, and the
information is disclosed, it should be estopped from punishing further dissem-
ination of the information by outsiders.116
Different kinds of disclosures warrant different levels of first amendment
protection. The Act itself is divided into two conceptual categories: disclo-
sures by intelligence insiders and disclosures by the public at large.
A. Sections 601(a) and (b): Punishment of "Insiders"
Sections 601(a) and (b) are nearly identical, and differ from (c), in that
both define the offense with respect to persons who have had "authorized
access to classified information"-insiders. Because such persons have a rela-
tionship of trust with the government, their release of classified information-
whether or not actually obtained during the course of authorized access-is
unprotected by the first amendment. Thus, while sections 601(a) and (b)
distinguish between insiders who have had access to classified information
identifying a covert agent, and insiders who learn the identity as a result of
having had general access to classified information, the distinction is immate-
rial to the scope of protection accorded expression. A statute may constitu-
tionally punish any insider who divulges any properly classified informa-
tion.117
Construed narrowly,tte the Act operates within these bounds. Section
606(1) defines "classified information" to mean material "designated [as
such] ... pursuant to the provisions of a statute or Executive order." On its
face, this does not require that the information be properly classified. Im-
proper classification, however, is simply that which is not authorized by the
duty to determine and preserve the degree of internal security necessary to exercise that power
successfully." (footnote omitted)).
115. Based on its foreign affairs power, the Executive branch of the government has special
authority to regulate national security information. See New York Times Co. v. United States,
403 U.S. 713, 727-28 (1971) (Stewart, J., concurring); Chicago & S. Air Lines v. Waterman
Corp., 333 U.S. 103, 111(1948); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320
(1936). See also Haig v. Agee, 453 U.S. 280, 307 (1981) (national security is the most compelling
governmental interest, and measures to protect secrecy of intelligence operations plainly serve this
interest).
116. Another argument, which would apply with equal force to non-national security infor-
mation, is that if information is in the public domain, anyone repeating it has no notice that it is
confidential. It would be manifestly unfair to burden the public with finding out whether
information is confidential before repeating it. The unfairness is diminished if the repeater has
actual knowledge that it is confidential.
117. "Properly classified" is here used as a term of art, the meaning of which is discussed
supra text accompanying notes 39-41.
118. Narrow construction is required because if a limiting construction can be placed on a
statute so as to remove its unconstitutional aspects, it will not be held invalid on its face.
Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
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pertinent Executive order,119 and if "pursuant to" is read to mean "as autho-
rized by," the statute would require that the identity revealed be properly
classified.140 Furthermore, section 602(a) sets up as a defense that the govern-
ment has "publicly acknowledged or revealed" the identity of an agent, so
that if an identity is effectively declassified by official disclosure an insider
may "disclose" it.
Neither section requires in terms that the actual information disclosed be
classified, but only that it identify a covert agent, whose identity by defini-
tions' is classified.lu A broad reading that mandated punishment for disclo-
sure of unclassified information would arguably infringe protected expres-
sion. It makes more sense to characterize the section as punishing the
disclosure of the classified identity itself. The connection between the infor-
mation disclosed and the identity must therefore be narrowly confined. The
Act does this by requiring that the individual know that the information
identifies a covert agent. Furthermore, the legislative history indicates that the
Act requires that the connection be direct and specific.14' Thus, the insider is
being punished for the effective disclosure of classified information learned
through inside access. To this extent sections 601(a) and (b) are constitutional,
since such expression is unprotected by the first amendment.
B. Section 601(c): Punishment of "Outsiders"
Section 601(c) differs from (a) and (b) in that it applies to individuals who
do not have authorized access to classified information-outsiders.1l4
1. Regulation of Per Se Unprotected Speech. If section 601(c) can be said
to regulate per se unprotected speech, it is constitutional. Haig v. Agee held
that three factors indicate such speech: purpose, insider status or equivalent
knowledge, and conduct.143
119. Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1367 (4th Cir.), cert. denied, 421 U.S.
992 (1975). The Knopf holding was based on the exemption from disclosure requirements of the
Freedom of Information Act, 5 U.S.C. 1552(bxl) (1976). which applies to any information that
is "in fact properly classified."
120. Legislative history supports this reading, albeit not unambiguously. The House Report,
supra note 7, at 13, 20, 21, states that the identity disclosed must be "properly classified." The
Senate Report, supra note 7, at 19, 24, 25, while otherwise tracking the House Report closely,
leaves out the word "properly." On the other hand, it does not anywhere state that proper
classification is not required. The dangers of reading too much into legislative silence militate
against interpreting the Senate Report to support either interpretation. The Conference Report,
H.R. Rep. No. 580, 97th Cong., 2d Sess. (1982). is of no help, but it does caution that "[t]he
Committee of Conference expects the executive branch to exercise the utmost care in making
classification decisions in this area," id. at 12, a tenor comporting with the interpretation above.
121. See supra note 22.
122. See House Report, supra note 7, at 13; Senate Report, supra note 4, at 19.
123. See House Report, supra note 7, at 13 (connection must be "direct, immediate, and
obvious"); Senate Report, supra note 4. at 19 (connection must be "direct, and the information
must point at a particular individual"). For instance, if the phone number, address. or automo-
bile license number of a CIA station chief is not classified, but is disclosed so as to identify the
chief, that is an offense. See House Report, supra note 7, at 13; Senate Report, supra note 4, at
19.
124. See supra text accompanying notes 26 & 27.
125. See supra text accompanying notes 56-70.
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Presumably, an insider is subject to section 601(c), since by its terms it
includes "any person." But since insiders can be prosecuted under sections
601(a) and (b), which require fewer elements of proof and impose harsher
sanctions, and since the legislative intent of section 601(c) was clearly to reach
outsiders," it could be interpreted to exclude insiders from its coverage. In
any case, section 601(c) does not require insider knowledge. Agee's insider
position allowed him to acquire important knowledge about the significance
of the information he was disclosing beyond the mere fact that it was classi-
fied. Section 601(c) does not require that the discloser have such knowledge,
only that he know "that the information disclosed ... identifies" a covert
agent "and that the United States is taking affirmative measures to conceal
such individual's classified intelligence relationship."
Furthermore, section 601(c) does not contain the requisite purpose ele-
ment. Agee's "disclosures ... ha[d] the declared purpose of obstructing
intelligence operations. "127 Section 601(c) requires only that disclosures be
made with "reason to believe that [his] activities would impair or impede the
foreign intelligence activities of the United States."148
Arguably, section 601(c) does incorporate the third factor set forth in
Haig v. Agee-conduct constituting a "campaign to fight the United States
CIA."140 The section specifically requires a "pattern of activities intended to
identify and expose covert agents." This phrase, since it is broadly drawn,
certainly describes Agee's conduct in a general sense, but it fails to define the
essential characteristics of the "campaign," which involved repeated public
exposures of identities intended to destroy CIA effectiveness by driving the
agents out of foreign countries. Other activities, which can be distinguished
from Agee on their facts, would fall within the "pattern" phrase-for exam-
ple, a series of investigative articles in a newspaper that exposes illegal CIA
infiltration of foreign governments. The legislative history, however, evinces
an intent to exclude these kinds of activities, which are viewed as serving the
public interest.10 The statute can therefore be construed as requiring the
highly specific conduct described in Agee.
126. The House Report, supra note 7, at 7, states that the "third ... class of individuals
affected by the bill are those who ... never have held the position-of trust which typifies members
of the first and second class." The Senate Report, supra note 4, at 12, states that the "third ...
class of individuals ... are those who .... have never had authorized access to classified
information with its accompanying duty of care."
127. Haig v. Agee, 453 U.S. 280, 309 (1981).
128. The legislative history of the Act clearly evinces a congressional purpose to attach a
"reason to believe" standard rather than an "intent" standard, to the element of harm to
intelligence activities, and to distinguish this from the intent to identify and expose agents that is
attached to the "pattern" element. See Conference Report, supra note 120, at 7, 10. Whether to
require "intent" to harm intelligence or "reason to believe" was the subject of extensive debate in
Congress. See 128 Cong. Rec. S2352-58 (daily ed. Mar. 18, 1982); id. at S2281-95 (daily ed. Mar.
17, 1982); id. at S2118-36 (daily ed. Mar. 16, 1982); id. at S2070-85 (daily ed. Mar. 15, 1982); id.
at 51230-40 (daily ed. Mar. 1, 1982); id. at 51164-83 (daily ed. Feb. 25, 1982); 127 Cong. Rec.
H6504-40 (daily ed. Sept. 23, 1982). (The House version of the Act as reported from Committee,
and the Senate version in the 1981 Congress as reported from Committee, both had an "intent"
standard. See Conference Report, supra note 120, at 6.)
129. Haig v. Agee, 453 U.S. at 283.
130. Conference Report, supra note 120, at 8-10.
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Thus, at best, section 601(c) incorporates only one of the three factors
outlined in Agee. The section's coverage extends beyond the ambit of the per
se unprotected speech defined in Agee. Consequently, analysis of its constitu-
tionality must proceed with a balancing approach based on the assumption
that prohibited disclosures are protected.
2. Punishment where Information Obtained Unlawfully. Where classi-
fied information is obtained unlawfully, a statute may, under the Landmark
balancing test, constitutionally punish its disclosure. Section 601(c) is, by its
terms, applicable to cases involving the disclosure of unlawfully obtained
information. The section does not, however, explicitly require that the infor-
mation disclosed be classified. Rather, like sections 601(a) and (b), it punishes
the disclosure of "any information that identifies an individual as a covert
agent," so long as the speaker knows he is thus revealing a classified identity.
If, however, the information actually disclosed was obtained unlawfully, and
the revelation of a classified identity is both knowing and significantly con-
nected to the information obtained,"' the individual is effectively disclosing
classified information unlawfully obtained. So construed, section 601(c) is
constitutional. 132
3. Punishment where Information Obtained Lawfully. Section 601(c)
also punishes the disclosure of lawfully obtained information. A statute can-
not constitutionally punish disclosure of classified information obtained law-
fully by an outsider without proof that significant harm-i.e., direct, immedi-
ate, and irreparable damage-to national security resulted from disclosure.
The mere fact that the identity revealed is classified is insufficient. This,
however, is all that section 601(c) requires; no proof of subsequent harm to
national security is necessary under the section.' Section 601(c) could, how-
ever, be constitutionally applied if the element of classification were construed
to require proof that the identity was in fact "properly classified," meaning
that its disclosure would necessarily result in significant harm.'
Section 601(c) also fails to require explicitly that the information dis-
closed pertain to activities within the legal authority of the agency involved.
Disclosures pertaining to illegal activities are protected by the first amend-
131. See supra note 123.
132. There is no legislative intent to support a contrary construction. Furthermore, since the
broader legislative purpose was to prevent disclosure of intelligence identities, such a construction
is not inconsistent with the purpose. Thus there is no obstacle to the narrowing construction. See,
e.g., United States v. Thirty-Seven photographs, 402 U.S. 363 (1971). Compare infra notes 139-
42 and accompanying text.
133. Nor can it be argued that Haig Y. Agee held that disclosure of intelligence identities
must necessarily cause significant harm, since Ago was decided on a stipulated concession of
resultant harm. See supra note 59 and accompanying text.
134. See supra note 120.
Given the current classification standards, which require at most that harm "could" result,
see'supra note 28, no disclosure would necessarily cause significant harm, so that no disclosure
would be constitutionally punishable.
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752 COLUMBIA LAW RE VIEW [Vol. 83:727
ment.t'? Thus, if the section is to survive constitutional scrutiny, it must be
construed to exclude such disclosures.
4. Public Domain Information. Where the information obtained law-
fully is in the public domain, a statute may not constitutionally punish its
"disclosure." Section 601(c) does not require that the identity revealed be
obtained from classified sources. The only qualification made is the section
602(a) defense that the United States has "publicly acknowledged or re-
vealed" the identity at issue; the legislative history makes clear, however, that
this defense does not apply where the United States has merely placed infor-
mation in the public domain from which an identity may be deduced. Rather,
it applies only where the United States has either specifically acknowledged an
identity or made information public that leads directly to an identity. t'? Thus,
on its face, section 601(c) punishes the disclosure of the identity of a covert
agent when that identity is deduced entirely from sources in the public do-
main. Such an application is constitutionally prohibited.
A statute may not validly regulate unprotected activities if it does so by
unnecessarily broad means that thereby affect protected activities.137 "mhe
First Amendment needs breathing space," and therefore requires that statutes
affecting rights of free expression "must be narrowly drawn and represent a
considered legislative judgment that a particular mode of expression has to
give way to other compelling needs of society."139
Unlike sections 601(a) and (b), section 601(c) cannot be given a narrowing
construction to avoid this constitutional infirmity. Such a construction is
ordinarily preferable to a finding of facial invalidity.'39 A court may not,
135. See supra text accompanying note 99. The narrowing construction is permissible, since
there is no legislative history evidencing an inconsistent intent; indeed, the legislative history
evidences a congressional intent to allow exposure of intelligence agents where intent was to
expose illegal or controversial activities, Conference Report, supra note 120, at 10, and is
consistent with the broad purpose of preventing harm to intelligence operations through disclo-
sures. See supra note 132.
136. House Report, supra note 7, at 17-18; Senate Report. supra note 4. at 23. The House
Report, at 18, further states, "An identification is not [subject to the defensel if it can be made
only after an effort to seek out and compare, cross-reference, and collate information from
several publications or sources." The Senate Report, at 23, uses nearly identical language. The
aim of this language apparently is to exclude specifically from the defense those people who
identify agents using the methods described by Agee, supra note 6, and in Marks, How to Spot a
Spook, in Dirty Work, supra note 6, at 25, 31-35. These articles, written by ex-CIA employees,
detail how classified intelligence identities may be deduced from public documents such as the
State Department Biographic Register and the United States Foreign Service List. They also
recommend using general common sense, e.g., "The Agency operative is taught early on in
training that loud background sounds interfere with bugging. You can be pretty sure that the CIA
man in the Embassy is the one who leaves his radio on all the time." Id. at 31. See also Intelligence
Identities Protection Act, S. 2215, Hearing before the Senate Committee on the Judiciary, 96th
Cong., 1st Sess. 42-45 (1980) (testimony of Deputy CIA Director F. Carlucci).
137. E.g., NAACP v. Alabama, 377 U.S. 288 (1964).
138. Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973).
139. Arnett v. Kennedy, 416 U.S. 134, 162 (1974); United States v. Thirty-Seven Photo-
graphs, 402 U.S 363, 369 (1971). Where a state statute is measured against federal constitutional
standards, only the state courts have jurisdiction to construe it authoritatively, Wainwright v.
Stone, 414 U.S. 21, 22-23 (1973), but federal courts may decide whether the statute as so
construed violates the Constitution. New York v. Ferber, 102 S. Ct. 3348, 3360 (1982).
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19831 INTELLIGENCE IDENTITIES ACT
however, construe a statute so as to avoid facial invalidity where such a
construction is contrary to the legislative purpose.10 To do so would consti-
tute an invasion of Congress's lawmaking function. Thus, where a limiting
construction would require that a court import into the statute elements or
qualifications that Congress clearly intended not to include, the construction
is impermissible."' The legislative history of section 601(c) clearly manifests
an intention to include within its scope those disclosures based on public
domain sources.'4' To construe the section so as to exclude such disclosures
would thus be improper.
As the subject of an arguably overbroad statute moves from pure speech
to conduct, its overbreadth must be more substantial to be fatal. "' Section
601(c) does not regulate conduct, however, even though it requires proof of a
"pattern of activities." The conduct element is defined in terms of an intent to
"identify and expose covert agents." Identification and exposure are ulti-
mately expressive actions; thus even to the extent it regulates conduct section
601(c) does so only as an incident to its regulation of speech by disclosure of
identities. Finally, even if it does regulate conduct its overbroad applications
are not an insubstantial portion of its prospective applications, given the
magnitude of public domain information pertaining to the identity of covert
agents.'" Under these principles, section 601(c) is manifestly overbroad.
Anxiety over the effect of disclosures of intelligence identities on national
security and the inability of current law to deal with this problem has led to
the enactment of the Intelligence Identities Protection Act. While the Act
validly punishes some kinds of disclosures, it also prohibits disclosures that
cannot constitutionally be forbidden.
First, if they are to survive constitutional attack, sections 601(a) and (b)
must be narrowly construed to apply only to intelligence identities that have
been properly classified. Second, section 601(c) must be narrowly construed to
140. Blount v. Rizzi, 400 U.S. 410, 419 (1971); United States v. Robel, 389 U.S. 258, 267
(1967); see United States v. Reese, 92 U.S. 214, 221 (1875).
141. Blount v. Rizzi, 400 U.S. 410 (1971) (refusing to construe statute so as to incorporate
constitutionally required procedures where legislative history showed congressional intent not to
include such procedures); compare United States v. Thirty-Seven Photographs, 402 U.S. 363,
368-73 (1971) (distinguishing Blount where legislative history supports saving construction).
142. In its discussion of the "pattern of activities" requirement, the Conference Report
states, "This pattern of activities must involve much more than merely restating that which is in
the public domain.... Those who republish previous disclosures ... would all stand beyond the
reach of the law if they did not engage in (the requisite) pattern of activities ...." Conference
Report, supra note 120, at 8-9. There was much testimony before Congress as to the constitution-
ality of such disclosures. See, e.g., House Hearings, supra note 3, at 29-30 (statement of R.
Willard, Counsel to the Attorney General for Intelligence Policy); id. at 71-72 (statement of J.
Berman & M. Halperin); id. at 104 (statement of F. Abrams); Proposals, supra note 6, at 29-32
(statement of R. Keoch, Assoc. Deputy Att'y Gen.); id. at 45-49, 56, 58 (statement of F.
Abrams); id. at 76 (statement of J. Berman).
143. Broadrickv. Oklahoma, 413 U.S. 601. 611-12 (1973).
144. See supra note 136.
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754 COLUMBIA LA W REVIEW
apply only to unlawfully obtained information and certain lawfully obtained
information. Because such a narrow construction would be improper, how-
ever, section 601(c) is overbroad and therefore unconstitutional.
Concern about our national security must be tempered with a sense of the
limits we voluntarily impose on our ability to authorize the creation of official
secrets. The power to create secrets and the duty of keeping them are reposed
in the Executive's intelligence agencies. Congress may not enact a law that
unfairly burdens the populace with the duty of safekeeping while preserving
the power in the government.
Susan D. Charkes
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