IN THE UNITED STATES ARMY
COURT OF CRIMINAL APPEALS
U N I T E D

S T A T E S,
Appellee

BRIEF OF AMICUS CURIAE AMERICAN
CIVIL LIBERTIES UNION IN
SUPPORT OF APPELLANT

v.
Docket No. ARMY 20130739
Private First Class (E-3)
CHELSEA E. MANNING
United States Army,
Appellant

Tried at Fort Meade, Maryland,
on 23 February, 15-16 March,
24-26 April, 6-8, 25 June, 1619 July, 28-30 August, 2, 12,
and 17-18 October, 7-8, and 27
November-2, 5-7, and 10-11
December 2012, 8-9 and 16
January, 26 February-1, 8
March, 10 April, 7-8 and 21
May, 3-5, 10-12, 17-18 and 2528 June, 1-2, 8-10, 15, 18-19,
25-26, and 28 July-2, 5-9, 1214, 16, and 19-21 August 2013,
before a general court-martial
appointed by Commander, United
States Army Military District
of Washington, Colonel Denise
Lind, Military Judge,
presiding.

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES ARMY
COURT OF CRIMINAL APPEALS

 Table of Contents
Table of Cases, Statutes, and Other Authorities.............. iii
INTEREST OF AMICUS CURIAE...................................... 1
INTRODUCTION................................................... 1
ARGUMENT....................................................... 3
I. The Espionage Act, when applied to government
whistleblowers and leakers, is unconstitutionally vague and
allows for the discriminatory punishment of disfavored
speakers. .................................................... 5
II.
The Espionage Act as applied by the military judge
violates the First Amendment. ............................... 17
CONCLUSION ................................................... 25

ii

 Table of Cases, Statutes, and Other Authorities
Cases
Supreme Court of the United States
Ashcroft v. ACLU, 542 U.S. 656 (2004).......................... 4
Bartnicki v. Vopper, 532 U.S. 514 (2001)................... 4, 18
City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988). 7
Connick v. Myers, 461 U.S. 138 (1983)......................... 22
Garcetti v. Ceballos, 547 U.S. 410 (2006)................. 22, 24
Gentile v. State Bar of Nev., 501 U.S. 1030 (1991)....... 3, 6, 7
Gorin v. United States, 312 U.S. 19 (1941).................... 20
Grayned v. City of Rockford, 408 U.S. 104 (1972)............... 7
Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978) ..5, 16,
21
Lane v. Franks, 134 S. Ct. 2369 (2014).................... 22, 24
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)............ 3
New York Times Co. v. United States, 403 U.S. 713 (1971) ..4, 13,
19
Pickering v. Board of Education, 391 U.S. 563 (1968).......... 22
Reno v. ACLU, 521 U.S. 844 (1997).......................... 4, 23
United States v. Kozminski, 487 U.S. 931 (1988)................ 8
United States v. Stevens, 559 U.S. 460 (2010)............. 18, 19
Vill. of Hoffman Estates v. Flipside, 455 U.S. 489 (1982)...... 7
Court of Appeals for the Armed Forces
United States v. Diaz, 69 M.J. 127 (C.A.A.F. 2010)............ 24
United States v. McGuinness, 35 M.J. 149 (C.M.A. 1992)........ 24

iii

 Federal Courts
Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010)..... 16, 21
United States v. Heine, 151 F.2d 813 (2d Cir. 1945)........... 20
United States v. Morison, 844 F.2d 1057 (4th Cir. 1988) ...8, 18,
20, 22
United States v. Rosen, 445 F.Supp.2d 602 (E.D. Va. 2006). 19, 20
Statutes
18 U.S.C. § 793.................................. 2, 6, 8, 21, 22
18 U.S.C. §§ 792 et seq........................................ 3
Other Authorities
David E. Pozen, The Leaky Leviathan: Why the Government Condemns
and Condones Unlawful Disclosures of Information, 127 Harv. L.
Rev. 512 (2013) .............................................. 9
David E. Sanger & Mark Landler, Obama’s Latest View on Secrecy
Overlooks Past Prosecution of Leaks, N.Y. Times, Apr. 12, 2016
............................................................ 12
Erwin N. Griswold, Op-Ed, Secrets Not Worth Keeping: The Courts
and Classified Information, Wash. Post, Feb. 15, 1989 ....... 12
Espionage Act and the Legal and Constitutional Issues Raised by
WikiLeaks: Hearing Before the H. Comm. on the Judiciary, 111th
Cong. 48 (2010) .............................................. 9
Executive Grant of Clemency (Jan. 20, 2001),
https://fas.org/sgp/news/2001/01/pardon.pdf .................. 6
Factual Basis, United States v. Petraeus, No. 3:15-CR-47
(W.D.N.C. filed Mar. 3, 2015) ............................... 14
Geoffrey R. Stone, Free Speech and National Security, 84 Ind.
L.J. 939 (2009) ......................................... 23, 24
Harold Edgar & Benno C. Schmidt, Jr., The Espionage Statutes and
Publication of Defense Information, 73 Colum. L. Rev. 929
(1973) .................................................. 19, 20
Heidi Kitrosser, Classified Information Leaks and Free Speech,
2008 U. Ill. L. Rev. 881 (2008) ............................. 23
iv

 Letter from Sen. Daniel Patrick Moynihan to the President (Sept.
29, 1998), https://fas.org/sgp/news/2001/04/moynihan.html .... 6
Martin Linsky, Impact: How The Press Affects Federal
Policymaking (1986) .......................................... 9
National Commission on Terrorist Attacks Upon the United States,
Public Hearing (May 22, 2003),
http://fas.org/irp/congress/2003_hr/911Com20030522.html#dys . 11
Radley Balko, Government Secrecy Undermines Government’s Ability
to Keep Secrets, Huffington Post, June 27, 2013 ............. 12
Raymond Bonner, News Organizations Ask White House to Veto
Secrecy Measure, N.Y. Times, Nov. 1, 2000 ................... 10
Senate Select Committee on Intelligence Study of the CIA’s
Detention and Interrogation Program, Findings and Conclusions
(2014) ...................................................... 15
Special Subcomm. on Gov’t Info., Report of the Special
Subcommittee on Government Information, H.R. Rep. No. 85-1884
(1958) ...................................................... 12
Stansfield Turner, Secrecy and Democracy: The CIA in Transition
(1985) ...................................................... 10
Statement of Pres. Clinton, 146 Cong. Rec. H11852 (Nov. 2000). 10
Tom Wicker, Leak On, O Ship of State, N.Y. Times, Jan. 26, 1982
............................................................ 10
Too Many Secrets: Overclassification as a Barrier to Critical
Information Sharing: Hearing Before the Subcomm. on Nat’l Sec.,
Emerging Threats, and Int’l Relations of the H. Comm. on Gov't
Reform, 108th Cong. 82 (2004) ............................... 11
U.S. Department of Defense Inspector General, Release of
Department of Defense Information to the Media (Draft) (2013),
http://pogoarchives.org/m/ns/pogo_document_2013_ig.pdf ...... 15

v

 INTEREST OF AMICUS CURIAE
The American Civil Liberties Union (“ACLU”) is a
nationwide, nonprofit, nonpartisan organization with
approximately 500,000 members dedicated to the principles of
liberty and equality embodied in the Constitution and our
nation’s civil rights laws. Founded in 1920, the ACLU has
vigorously defended the First Amendment for nearly a century in
state and federal courts across the country. It has also been at
the forefront of efforts to ensure robust protections for
whistleblowers and the public’s right of access to information.
The ACLU has served as direct counsel and amicus curiae in
numerous First Amendment cases. See, e.g., Reno v. ACLU, 521
U.S. 844 (1997); Ashcroft v. ACLU, 542 U.S. 656 (2004); Walker
v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct.
2239 (2015); Elonis v. United States, 135 S. Ct. 2001 (2015).
Accordingly, the proper resolution of this case is a matter of
substantial interest to the ACLU and its members.
INTRODUCTION
It is a pervasive feature of our democracy that government
and military officials at all levels regularly disclose what may
broadly be considered “information relating to the national
defense.” They do so in pursuit of various agendas. Some
disclose information to further the government’s preferred
messages, some to pursue private agendas, and some to inform the
1

 public of information critical to democratic accountability.
Until Private First Class (“PFC”) Manning was convicted before a
general court-martial of six counts of violating the Espionage
Act, 18 U.S.C. § 793(e), however, no person in the history of
this nation had been sentenced to decades in prison for the
crime of disclosing truthful information to the public and
press.
The conviction and sentence of PFC Manning under the
Espionage Act must be overturned for two reasons. First, the
Espionage Act is unconstitutionally vague, because it provides
the government a tool that the First Amendment forbids: a
criminal statute that allows the government to subject speakers
and messages it dislikes to discriminatory prosecution. Second,
even if the Act were not unconstitutional in all its
applications, the military judge’s application of the Act to PFC
Manning violated the First Amendment because the military judge
did not permit PFC Manning to assert any defense that would
allow the court to evaluate the value to public discourse of any
of the information she disclosed. The military judge therefore
failed to weigh the public interest in the disclosures against
the government interest in preventing them, as required by the

2

 First Amendment.1 For these reasons, PFC Manning’s conviction for
violating the Espionage Act should be vacated.
ARGUMENT
The Espionage Act, 18 U.S.C. §§ 792 et seq., (the “Act”),
as applied by the military judge in PFC Manning’s case, violates
the First Amendment and the Fifth Amendment to the U.S.
Constitution.
It is well established that “speech critical of the
exercise of the State’s power lies at the very center of the
First Amendment.” Gentile v. State Bar of Nev., 501 U.S. 1030,
1034 (1991). The Supreme Court has long recognized “the
principle that debate on public issues should be uninhibited,
robust, and wide-open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government
and public officials.” New York Times Co. v. Sullivan, 376 U.S.
254, 270 (1964). Laws restricting the ability to disclose
“truthful information of public concern” “implicate[] the core
purposes of the First Amendment.” Bartnicki v. Vopper, 532 U.S.
1

Specifically, the military judge ruled that evidence of PFC
Manning’s motive (including, necessarily, any motive based on
the value to public discourse of the information disclosed) was
not relevant to the applicable mens rea standard, see App. Ex.
470, and that evidence of actual damage or harm caused by the
disclosure of information was irrelevant to the merits of the
case, see App. Ex. 470; App. Ex. 221. Evidence of the latter, in
particular, would have allowed the military judge to assess
whether the government interest in preventing disclosure was
carefully constrained to comport with constitutional limits on
government regulation of speech. See infra.
3

 514, 533–34 (2001). Accordingly, laws regulating speech on the
basis of its content are presumptively invalid, and the
government must narrowly tailor any restrictions it imposes in
the service of a compelling interest. See Ashcroft v. ACLU, 542
U.S. 656, 660, 670 (2004).
This general speech-protective framework applies even when
the interest invoked is that of national security. See New York
Times Co. v. United States, 403 U.S. 713 (1971). Especially when
speech is restricted by the threat of criminal sanction, the
government must narrowly draw its prohibitions to avoid the
chill on lawful speech that may result from overbroad or vague
laws. See Reno v. ACLU, 521 U.S. 844, 871–72 (1997) (“The
severity of criminal sanctions may well cause speakers to remain
silent rather than communicate even arguably unlawful words,
ideas, and images. . . . As a practical matter, this increased
deterrent effect, coupled with the ‘risk of discriminatory
enforcement’ of vague regulations, poses greater First Amendment
concerns than those implicated by [a] civil regulation
. . . .”).
The Espionage Act is unconstitutionally vague when applied
to government whistleblowers and leakers because it allows for
discriminatory enforcement against only disfavored speakers and
provides no fair notice of which disclosures of information will
be punished or not. But even if the Act were not vague in all
4

 its applications, its application in PFC Manning’s case was
unconstitutional, because the military judge did not consider
the public interest in the disclosures against the government’s
interest in concealment, as required in cases implicating core
First Amendment rights. See Landmark Commc’ns, Inc. v. Virginia,
435 U.S. 829, 838 (1978).
Without judicial consideration of whether the disclosure of
information is of critical public concern, the government is
free to use the Espionage Act, aided by a regime of secrecy and
over-classification, to restrict the flow of information that is
embarrassing to it or that exposes unlawful government acts.
Such an outcome would subvert the principles of robust and open
debate and government accountability that are protected by the
First Amendment, and would leave the American people with only
one source of information in the arenas of national security and
foreign affairs: what the government wants the public to know.
I.

The Espionage Act, when applied to government
whistleblowers and leakers, is unconstitutionally vague and
allows for the discriminatory punishment of disfavored
speakers.
The Constitution forbids the government from using vague

criminal laws to punish speakers it dislikes or suppress
disfavored messages. Yet applying the Espionage Act to
government whistleblowers or leakers creates precisely this
forbidden result by including within its sweep a prohibition on

5

 a pervasive activity: the sharing of information broadly defined
as “relating to the national defense” (“national defense
information” or “NDI”) with the public or press. See 18 U.S.C.
§ 793(e).2 Against a backdrop of routine leaking for a variety of
motives, this application of the Act furnishes the government
with a tool for the selective prosecution that the Constitution
forbids. When applied to government leakers, the Espionage Act’s
vague prohibitions permit unfettered prosecutorial discretion
and provide no fair notice as to which leaks of information will
be punished. The unprecedented sentence imposed on PFC Manning,
particularly when compared with the government’s treatment of
favored speakers, demonstrates the danger and unfairness of
providing the government with a vague tool for punishing
speakers and messages that are “critical of those who enforce
the law.” Gentile, 501 U.S. at 1051.3

2

The Espionage Act is therefore a content-based regulation of
speech. See infra Part II.
3

Until a decade ago, Samuel Loring Morison was the only American
to have been convicted and sentenced under the Espionage Act for
providing information to the press. “What is remarkable is not
the crime,” wrote Sen. Daniel Patrick Moynihan in a 1998 letter
to the President about the Morison case, “but that he is the
only one convicted of an activity which has become a routine
aspect of government life: leaking information to the press in
order to bring pressure to bear on a policy question.” Letter
from Sen. Daniel Patrick Moynihan to the President (Sept. 29,
1998), https://fas.org/sgp/news/2001/04/moynihan.html. President
Bill Clinton pardoned Morison in 2001. See Executive Grant of
Clemency (Jan. 20, 2001),
https://fas.org/sgp/news/2001/01/pardon.pdf.
6

 The First Amendment stands as a bulwark against laws that
“give[] a government official or agency substantial power to
discriminate based on the content or viewpoint of speech by
suppressing disfavored speech or disliked speakers.” City of
Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 759 (1988).
This concern, coupled with the possibility of chilling lawful
speech, means that vagueness review of statutes is particularly
searching in the First Amendment context. See, e.g., Grayned v.
City of Rockford, 408 U.S. 104, 109 (1972) (“[W]here a vague
statute abuts upon sensitive areas of basic First Amendment
freedoms, it operates to inhibit the exercise of those
freedoms.” (internal quotation marks and alterations omitted));
Vill. of Hoffman Estates v. Flipside, 455 U.S. 489, 499
(1982)(noting “the clarity that the Constitution demands of a
law” is heightened when a law “threatens to inhibit the exercise
of constitutionally protected rights” including “free speech”).
The prohibition against vague regulations of speech is
“based in part on the need to eliminate the impermissible risk
of discriminatory enforcement.” Gentile, 501 U.S. at 1051. The
Supreme Court has instructed that courts must be vigilant in
evaluating whether a law “is so imprecise that discriminatory
enforcement is a real possibility,” because “history shows that
speech is suppressed when either the speaker or the message is
critical of those who enforce the law.” Id. The danger of
7

 discriminatory enforcement is particularly acute when a criminal
law sweeps routine activity within its prohibitions. Statutory
language that extends to a broad range of everyday conduct
impermissibly “delegate[s] to prosecutors and juries the
inherently legislative task” of determining the contours of a
crime and the boundaries between favored and disfavored
activities. United States v. Kozminski, 487 U.S. 931, 949
(1988). As applied to government leakers to the public or press,
the Espionage Act produces this result.
The provision of the Espionage Act under which PFC Manning
was prosecuted, Section 793(e), forbids any person with
“unauthorized possession of, access to, or control over . . .
information relating to the national defense” to “willfully
communicate[], deliver[], transmit[] . . . the same to any
person not entitled to receive it.” 18 U.S.C. § 793(e).4 While
classification is not dispositive of whether information is NDI
within the meaning of the Act, it has been considered relevant.
See, e.g., United States v. Morison, 844 F.2d 1057, 1073–75 (4th
Cir. 1988).

4

The Act further requires the government to prove that the
defendant “ha[d] reason to believe [the information] could be
used to the injury of the United States or to the advantage of
any foreign nation.” 18 U.S.C. § 793(e). Section 793(d) of the
Act applies similar dissemination prohibitions to any person
“lawfully having possession of, access to, control over . . .
information relating to the national defense.” 18 U.S.C.
§ 793(d).
8

 Government and military officials at all levels routinely
disclose what may broadly be considered “national defense
information” in pursuit of various agendas. According to a
Senate Intelligence Committee study, there were “147 disclosures
of classified information that made their way into the Nation's
eight leading newspapers in one 6-month period alone” —none of
which “resulted in legal proceedings.” See Espionage Act and the
Legal and Constitutional Issues Raised by WikiLeaks: Hearing
Before the H. Comm. on the Judiciary, 111th Cong. 48 (2010)
(testimony of Gabriel Schoenfeld). Empirical evidence confirms
that government leaking is pervasive: ”[I]n a survey of current
and former senior government officials conducted by the Harvard
Kennedy School's Institute of Politics in the mid-1980s, fortytwo percent of respondents indicated that they had, at least
once, ‘fe[lt] it appropriate to leak information to the press.’”
David E. Pozen, The Leaky Leviathan: Why the Government Condemns
and Condones Unlawful Disclosures of Information, 127 Harv. L.
Rev. 512, 528 (2013) (quoting Martin Linsky, Impact: How The
Press Affects Federal Policymaking 238 (1986)). As one former
Director of Central Intelligence has explained:
[T]he White House staff tends to leak when doing so may
help the President politically. The Pentagon leaks,
primarily to sell its programs to the Congress and the
public. The State Department leaks when it is being forced
into a policy move that its people dislike. The CIA leaks
when some of its people want to influence policy but know
that's a role they’re not allowed to play openly.
9

 Stansfield Turner, Secrecy and Democracy: The CIA in Transition
149 (1985).
The Espionage Act did nothing to modify this aspect of
American democracy. Routine disclosures of information to the
press predate its enactment, and leaking has continued to be
utilized by every administration since the Act’s passage. See
generally Tom Wicker, Leak On, O Ship of State, N.Y. Times, Jan.
26, 1982, http://www.nytimes.com/1982/01/26/opinion/in-thenation-leak-on-o-ship-of-state.html (summarizing tradition and
taxonomy of government leaks). The passage of classified
information from government and military officials to the press
is such a critical and accepted part of our democratic system
that President Bill Clinton vetoed a 2000 bill that would have
criminalized the practice, reasoning that “[a]lthough well
intentioned, that provision is overbroad and may unnecessarily
chill legitimate activities that are at the heart of a
democracy.” 146 Cong. Rec. H11852 (Nov. 2000) (statement of
Pres. Clinton); see also Raymond Bonner, News Organizations Ask
White House to Veto Secrecy Measure, N.Y. Times, Nov. 1, 2000,
http://www.nytimes.com/2000/11/01/us/news-organizations-askwhite-house-to-veto-secrecy-measure.html (reporting on letter
from news organization chief executives that observed that “the
'leak' is an important instrument of communication that is

10

 employed on a routine basis by officials at every level of
government”).
Meanwhile, the problem of over-classification ensures that
documents are regularly classified without justification.
Executive officials have estimated that the public release of
somewhere between fifty percent and ninety percent of classified
documents would not pose a legitimate danger.5 Former CIA
Director Porter Goss told the 9/11 Commission, “[W]e
overclassify very badly. There’s a lot of gratuitous
classification going on, and there are a variety of reasons for
them.” National Commission on Terrorist Attacks Upon the United
States, Public Hearing (May 22, 2003) (testimony of Porter
Goss),
http://fas.org/irp/congress/2003_hr/911Com20030522.html#dys.
President Obama acknowledged this reality in his recent defense
of former Secretary of State Hillary Clinton’s handling of NDI,
noting that “there’s classified, and then there’s classified.”
David E. Sanger & Mark Landler, Obama’s Latest View on Secrecy
5

See Too Many Secrets: Overclassification as a Barrier to
Critical Information Sharing: Hearing Before the Subcomm. on
Nat’l Sec., Emerging Threats, and Int’l Relations of the H.
Comm. on Gov't Reform, 108th Cong. 82 (2004) (testimony of Carol
A. Haave, Deputy Under Sec’y of Def., Counterintelligence and
Sec.) (estimating fifty percent); Comm’n on Protecting and
Reducing Gov’t Secrecy, Report of the Commission on Protecting
and Reducing Government Secrecy, S. Doc. No. 105-2, at 36 (1997)
(quoting Rodney B. McDaniel, Executive Secretary of the National
Security Council under President Reagan) (estimating ninety
percent).
11

 Overlooks Past Prosecution of Leaks, N.Y. Times, Apr. 12, 2016,
at A14.
Not only is the classification stamp frequently misapplied,
it is actively used to hide misconduct and waste. Former
Solicitor General Erwin Griswold, who led the government’s fight
for secrecy in the Pentagon Papers case, admitted decades after
the Papers were released that “[i]t quickly becomes apparent to
any person who has considerable experience with classified
material” that “the principal concern of the classifiers is not
with national security, but rather with governmental
embarrassment of one sort or another.” Erwin N. Griswold, Op-Ed,
Secrets Not Worth Keeping: The Courts and Classified
Information, Wash. Post, Feb. 15, 1989, at A25. In the 1950s,
after the government had been allocated funds for military cargo
planes, it classified pictures showing that the aircraft had in
fact been “converted to plush passenger planes.” Special
Subcomm. on Gov’t Info., Report of the Special Subcommittee on
Government Information, H.R. Rep. No. 85-1884, at 4 (1958). In
describing his review of documents classified during the Vietnam
War, then-Senator John Kerry stated that “more often than not”
documents were classified “to hide negative political
information, not secrets.” See Radley Balko, Government Secrecy
Undermines Government’s Ability to Keep Secrets, Huffington
Post, June 27, 2013,
12

 http://www.huffingtonpost.com/2013/06/27/government-secrecysecrets_n_3512665.html.6
The combination of routine leaking and the lack of
connection between the classification stamp and legitimate
danger to national security renders the application of the
Espionage Act to government leakers to the public or press
impermissibly vague. Prosecution of government leakers under the
Act turns neither on the public importance of the information
disclosed nor on any danger to national security, but rather on
whether the government favors a particular speaker or message.
Under this scheme, favored speakers and speech hewing to the
government’s preferred messages are exempt from the Espionage
Act, while disfavored leakers are barred even from exposing
illegality. See infra Part II (discussing the lack of any
available defense for the public interest in any disclosures). A
few examples illustrate this perverse and constitutionally
impermissible outcome:

6

Against this backdrop of harmful over-classification, routine
leaking serves an essential role in our democracy. Justice
Stewart observed, in his concurrence in the
Pentagon Papers case, that “[i]n the absence of the governmental
checks and balances present in other areas of our national life,
the only effective restraint upon executive policy and power in
the areas of national defense and international affairs may lie
in an enlightened citizenry—in an informed and critical public
opinion which alone can here protect the values of democratic
government.” New York Times Co. v. United States, 403 U.S. at
728 (Stewart, J., concurring).
13

 General David Petraeus disclosed NDI that was far more
sensitive than anything PFC Manning disclosed, including
“classified information regarding the identities of covert
officers, war strategy, intelligence capabilities and
mechanisms, diplomatic discussions, quotes and deliberative
discussions from high-level National Security Council meetings,
and [General Petraeus's] discussions with the President of the
United States of America.” General Petraeus disclosed this
"highly classified" and "code word" information purely for selfinterested reasons, without any public-serving motivation. He
also lied about these actions to the FBI. Yet General Petraeus,
a favored speaker, was permitted to plead guilty to a
misdemeanor and will serve no jail time. See Factual Basis,
United States v. Petraeus, No. 3:15-CR-47, at ¶¶ 17, 22-24
(W.D.N.C. filed Mar. 3, 2015).
Former CIA Director and Secretary of Defense Leon Panetta
disclosed NDI that was far more sensitive than anything PFC
Manning disclosed. A draft report prepared by the Defense
Department Inspector General’s office found that Panetta
revealed Department of Defense information classified at the Top
Secret level, as well as Secret information protected by
Alternative Compensatory Control Measures, to “a Hollywood
executive” working on a film glorifying the CIA’s role in
locating Osama bin Laden. See U.S. Department of Defense
14

 Inspector General, Release of Department of Defense Information
to the Media (Draft), at 12-13 (2013),
http://pogoarchives.org/m/ns/pogo_document_2013_ig.pdf. Panetta
faces no Espionage Act charges.
The Senate Select Committee on Intelligence Study of the
CIA’s Detention and Interrogation Program (“SSCI Report”) found
that “[t]he CIA’s Office of Public Affairs and senior CIA
officials coordinated to share classified information on the
CIA’s Detention and Interrogation Program to select members of
the media to counter public criticism, shape public opinion, and
avoid potential congressional action to restrict the CIA’s
detention and interrogation authorities and budget. These
disclosures occurred when the program was a classified covert
action program.” SSCI Report, Findings and Conclusions, at 8
(2014). A CIA official who urged the leaking of “examples of CIA
‘detainee exploitation success’” during this period even noted
that these favored leaks might be “‘undercutting our complaint
against those leakers’” that the government disfavored. Id. at
405–06. Ultimately, no one was ever prosecuted for transmitting
highly-classified NDI to the media to promote the government’s
favored message on CIA torture.
The discriminatory prosecution and severe sentencing of PFC
Manning for speech critical of the government stands as a stark

15

 illustration of the danger produced by the application of the
Espionage Act to government whistleblowers or leakers.
But even if this court disagrees that the Act is impermissibly
vague when applied to government leakers, the application of the
Act in PFC Manning’s case was unconstitutional. The military
judge had a duty to ensure that the Act as applied was narrowly
tailored, specifically by balancing the government’s interest in
preventing disclosure against any public interest in the
information or speech, as other courts have done to avoid
constitutional problems created by criminal prohibitions on
speech. See Landmark Commc’ns, 435 U.S. at 838-39 (holding that
a statute criminalizing the disclosure of confidential judicial
proceedings could not be applied against a newspaper for
publishing an article containing “accurate factual information”
that “clearly served those interests in public scrutiny and
discussion of governmental affairs which the First Amendment was
adopted to protect”); Ostergren v. Cuccinelli, 615 F.3d 263,
276-87 (4th Cir. 2010) (determining that a law prohibiting the
publication of social security numbers was not “narrowly
tailored” as applied in a particular case after considering
whether the information was “a matter of public significance”
and whether the state’s interest was “of the highest order”). As
discussed further in Part II, infra, a consideration of the
value of the speech to public discourse is a critical limitation
16

 to ensure any application of the Espionage Act to a government
leaker is narrowly tailored to protect First Amendment rights.
Without such tailoring in individual cases, government
leakers, including those who disclose information of overriding
public interest that caused no harm to national security, must
guess at their peril as to whether they will be punished under
the Espionage Act. The combination of over-classification and
the threat of severe punishment threaten to chill the informed
discussion of foreign and military affairs that is essential to
our democracy. Only favored speakers and those who promote the
government’s preferred messages can assume they are free to
speak, while whistleblowers face severe punishment regardless of
the value of their speech to public discourse.
II.

The Espionage Act as applied by the military judge violates
the First Amendment.
The First Amendment requires narrowly delineating the

categories of speech or communication that the government may
restrict. While the government undoubtedly has a compelling
interest in preventing disclosure of certain narrowly-drawn
categories of defense and national security information, the
Espionage Act is impermissibly overbroad if read to prohibit the
disclosure of all information “relating to the national defense”
without any regard to the public interest in the information. In
particular, certain categories of truthful information are

17

 presumptively of such strong public concern that their
disclosure can almost never be constitutionally prohibited,
including information revealing government illegality or
misconduct.
On its face, the Espionage Act is a content-based
restriction on the communication of “information relating to the
national defense” that triggers First Amendment scrutiny. See
United States v. Stevens, 559 U.S. 460, 468 (2010). The Act’s
prohibition on the communication or dissemination of information
constitutes a regulation of speech within the meaning of the
First Amendment. See Bartnicki, 532 U.S. at 527 (noting that a
prohibition on the disclosure of information is a speech
restriction, because “if the acts of disclosing and publishing
information do not constitute speech, it is hard to imagine what
does fall within that category” (internal quotation marks and
alteration omitted)).7

7

Even in United States v. Morison, where the court upheld a
conviction under Section 793(e) against a First Amendment
challenge, two of the panel judges wrote concurring opinions
recognizing that the Espionage Act regulates protected speech.
See 844 F.2d at 1081 (Wilkinson, J., concurring) (“I do not
think the First Amendment interests here are insignificant.
Criminal restraints on the disclosure of information threaten
the ability of the press to scrutinize and report on government
activity.”); id. at 1085 (Phillips, J., concurring) (agreeing
with Judge Wilkinson’s “differing view” from the majority
opinion that “the first amendment issues raised . . . are real
and substantial”). The court in United States v. Rosen, which
permitted an Espionage Act prosecution to go forward with
limiting constructions of various terms against two lobbyists
18

 Moreover, the information which the government seeks to
restrict, namely, that “relating to the national defense,”
encompasses not only protected speech, but high-value speech
about the government that is at the core of the First
Amendment’s concerns. See supra Part I. On its face,
“information relating to the national defense” potentially
covers a wide variety of subjects including not only military
affairs but general defense policies, economic capacity,
civilian defense readiness, and other matters of critical public
concern.8 See Harold Edgar & Benno C. Schmidt, Jr., The Espionage
Statutes and Publication of Defense Information, 73 Colum. L.
Rev. 929, 974 (1973) (noting “no limits on the range of the term
‘relating to the national defense’” and that the legislative
history demonstrates it is “without principled limitations”);
see also New York Times v. United States, 403 U.S. at 728
(Stewart, J., concurring) (recognizing that even in the realm of
who received classified information, nonetheless acknowledged
that the defendants’ information-sharing activities “implicate
the core values the First Amendment was designed to protect”
because “collection and discussion of information about the
conduct of government by defendants and others in the body
politic is indispensable to the healthy functioning of a
representative government”). See 445 F.Supp.2d 602, 633 (E.D.
Va. 2006). Amicus does not suggest that the limiting
constructions imposed in Morison and Rosen are sufficient to
resolve the First Amendment and vagueness problems with the Act.
8

It is clear that “information relating to the national defense”
is not limited to those narrow categories of speech that are
outside the ambit of First Amendment protection. See Stevens,
559 U.S. at 468-72.
19

 national defense, a critical and informed public is essential
for democratic accountability).
Faced with constitutional concerns raised by the Act’s
scope, courts have imposed various limiting constructions,
including heightened mens rea requirements for certain sections
of the Act, Gorin v. United States, 312 U.S. 19, 28-29 (1941);
United States v. Rosen, 445 F.Supp.2d 602, 639-42 (E.D. Va.
2006), the requirement that the information be closely held by
the government, United States v. Heine, 151 F.2d 813, 815-16 (2d
Cir. 1945), and that disclosure “be potentially damaging to the
United States or . . . useful to an enemy of the United States,”
Morison, 844 F.2d at 1076. But these court-imposed limitations
are not sufficient to restrict the Act’s reach in cases where
the government interest in secrecy is low, especially as
compared with the public value of the disclosure.9 Even Judge
Phillips’ concurring opinion in Morison expressed skepticism
about whether the requirement of “potential” damage or
usefulness to an enemy adopted in that case was constitutionally
sufficient, given that the scope of “national defense”
information “still sweeps extremely broadly.” See 844 F.2d at
1086 (Phillips, J., concurring) (“One may wonder whether any

9

See, e.g., Edgar & Schmidt, supra, at 986 (noting that even
“judicial gloss” has not cabined the term’s “tendency to
encompass nearly all facets of policy-making related to
potential use of armed forces”).
20

 information shown to be related somehow to national defense
could fail to have at least some such ‘potential.’”).
In fact, the Act cannot satisfy the strictures of the First
Amendment without consideration of the public interest in
disclosure of particular information, which must then be weighed
against the government’s interest to determine if the
restriction on speech is narrowly tailored. See Landmark
Commc’ns, 435 U.S. at 838-39; Ostergren, 615 F.3d at 276-77,
285-87 (assessing a speech restriction’s narrow tailoring by
considering if the information at issue was “a matter of public
significance” and whether the state’s interest was “of the
highest order” before concluding that criminal sanctions were
not justified). While the government undoubtedly has an interest
in restricting the disclosure of certain information pertaining
to national security, the Act’s prohibitions are not narrowly
tailored. As discussed above, the scope of “information relating
to the national defense” which the government can restrict is
extraordinarily broad. Not only does it cover matters of public
concern, it is not even limited to those instances where the
government interest in secrecy is high. For example, there is no
requirement that information that has been disclosed have caused
actual harm to the United States, see 18 U.S.C. § 793(e), thus
countenancing punishment even where the disclosure of
information was of critical public concern and where no harm
21

 actually resulted.10 And to the extent classification is
considered relevant to determining what is information “relating
to the national defense” within the meaning of the Act, the
problem of over-classification additionally demonstrates the
Act’s lack of tailoring. See supra Part I.
Even under the more deferential standard for restrictions
on government employees’ speech stated in Pickering v. Board of
Education, an employee would be entitled to a consideration of
the public interest in the information disclosed. As the Supreme
Court stated, a balancing test evaluating the reasonableness of
the speech restriction must weigh “the interests of the
[individual], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees.” 391 U.S. 563, 568 (1968).11 Thus, even a

10

The military judge in fact ruled that evidence of actual harm
or damage, or lack thereof, from PFC Manning’s disclosures was
not relevant. See App. Ex. 470; App. Ex. 221. Both the Morison
construction of “national defense” information, which requires
that it be “potentially” damaging, see 844 F.2d at 1076, and the
requisite mens rea for Section 793(e), which requires that the
leaker had “reason to believe” the information “could be used to
the injury of the United States or to the advantage of any
foreign nation,” see 18 U.S.C. § 793(e), do not specifically
require showing actual harm.
11

The balancing test applies when an employee speaks “as a
citizen upon matters of public concern,” Connick v. Myers, 461
U.S. 138, 147 (1983), and not pursuant to official duties. See
Garcetti v. Ceballos, 547 U.S. 410, 420-24 (2006). In Lane v.
Franks, the Supreme Court reiterated that the scope of
22

 law imposing only civil sanctions on a public employee would
still entitle the employee to a determination of whether her
speech was on a matter of public concern. And when a law imposes
the threat of criminal penalties on speech, it must be held to
even more stringent standards of narrow tailoring, to ensure it
does not unduly chill lawful speech. See Reno, 521 U.S. at 872
(recognizing that the “severity of criminal sanctions” creates
an “increased deterrent effect” that “poses greater First
Amendment concerns than those implicated by [a] civil
regulation”). The Espionage Act, which carries with it the risk
of severe criminal penalties, must therefore be applied with at
least the minimum requirement of some consideration of the
public interest in the information disclosed.12

permissible regulation does not turn on whether the employee is
speaking based on information acquired through her government
position, as would be the case with many government leakers, and
that Pickering protections still apply. See 134 S. Ct. 2369,
2379-81 (2014).
12

Amicus does not address here to what extent a government
employee must show a motive to speak on a matter of public
concern or whether an objective test of the value of the
information to public discourse applies; what is critical is
that the Espionage Act, when applied with no consideration of
the public interest in the speech, does not satisfy First
Amendment requirements. See, e.g., Heidi Kitrosser, Classified
Information Leaks and Free Speech, 2008 U. Ill. L. Rev. 881, 928
(2008) (proposing that “the government must show that the
[leaking] employee lacked a substantial basis to believe that
the public interest in disclosure outweighed any national
security harms”); Geoffrey R. Stone, Free Speech and National
Security, 84 Ind. L.J. 939, 961 (2009) (proposing that “the
First Amendment would protect a public employee who reveals
23

 Furthermore, there are certain categories of information
that are of such great public concern that will almost always
trump the government interest in preventing disclosure: these
include disclosures about government illegality or misconduct.
See Geoffrey R. Stone, Free Speech and National Security, 84
Ind. L.J. 939, 957 (2009) (arguing that “the disclosure of
unwise or even unlawful government programs or activities” “is
extremely important to public debate”). As the Supreme Court
recognized in Lane v. Franks, a government employee’s testimony
about “corruption in a public program and misuse of state funds
. . . obviously involves a matter of significant public
concern.” 134 S. Ct. 2369, 2380 (2014); see also Garcetti v.
Ceballos, 547 U.S. 410, 425 (2006) (“Exposing governmental
inefficiency and misconduct is a matter of considerable
significance.”). Yet as the Act was applied in PFC Manning’s
case, the military judge had no opportunity even to assess
whether any of the disclosures fit into these categories or were
otherwise of public concern, thereby failing to satisfy the
requirements of the First Amendment.

classified information if the value to public discourse
outweighs the harm to national security”). Although United
States v. Diaz, 69 M.J. 127 (C.A.A.F. 2010), determined that
motive evidence could be excluded in consideration of charges
under Section 793(e), that court did not consider First
Amendment concerns, nor did the court in United States v.
McGuinness, 35 M.J. 149 (C.M.A. 1992).
24

 CONCLUSION
For the foregoing reasons, PFC Manning’s conviction for
violating the Espionage Act should be vacated.
Dated: 18 May 2016
Respectfully submitted,
/s/
/s/
/s/
Esha Bhandari
Dror Ladin
Ben Wizner
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
T: (212) 549-2500
F: (212) 549-2654
bwizner@aclu.org
ebhandari@aclu.org
dladin@aclu.org
Counsel for amicus curiae

25

 Certificate of Service
I certify that a copy of the foregoing was
sent via electronic mail to J. David
Hammond, CPT, JA, counsel for Appellant, on
18 May 2016, who will serve a copy of the
foregoing on counsel for Appellee the United
States on the same date via hand delivery.

/s/
Esha Bhandari
Counsel for amicus curiae