1.4 Sedition and national security exceptions

Sedition laws and national security exceptions have long challenged press freedom in the U.S. From the Sedition Act of 1798 to modern surveillance laws, governments have sought to restrict speech deemed threatening to state authority or security.

Courts have grappled with defining the line between protected political speech and dangerous sedition. While the First Amendment offers broad protections, national security concerns have been used to justify restricting access to classified information and prosecuting leakers and whistleblowers.

Sedition definition and history

• Sedition refers to speech or conduct that incites rebellion against the authority of a state or monarch
• Throughout history, governments have sought to punish seditious speech and activities to maintain power and suppress dissent
• The line between seditious speech and protected political speech has been a contentious issue in the United States since its founding

Seditious speech vs protected speech

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• Seditious speech is that which advocates for the overthrow of the government or resistance to lawful authority
• Protected speech includes criticism of the government, political dissent, and advocacy for change through legal means
• The First Amendment protects a wide range of political speech, but does not protect speech that incites imminent lawless action (Brandenburg v. Ohio, 1969)
• Courts have struggled to define the boundary between seditious speech and protected speech, leading to landmark cases throughout U.S. history

Sedition Act of 1798

• Passed by the Federalist-controlled Congress, the act made it a crime to publish "false, scandalous, and malicious writing" against the government
• The act was used to prosecute and imprison several prominent Republican newspaper editors and politicians
• The act expired in 1801 and was widely criticized as an attempt to stifle political opposition and press freedom
• The controversy over the Sedition Act helped shape early American debates about the scope of First Amendment protections

World War I era sedition laws

• The Espionage Act of 1917 and the Sedition Act of 1918 criminalized interfering with the draft, criticizing the government, or promoting the success of U.S. enemies
• Over 2,000 people were prosecuted under these laws for anti-war speech and activities
• The Supreme Court upheld several convictions under these laws, establishing the "clear and present danger" test for restricting speech (Schenck v. United States, 1919)
• Many of these convictions were later viewed as violations of First Amendment rights and the laws were repealed or amended

National security exceptions

• While the First Amendment broadly protects freedom of speech and press, the government has claimed exceptions for national security reasons
• These exceptions have been used to justify restricting access to classified information, preventing publication of sensitive material, and prosecuting leakers and whistleblowers
• The scope and legitimacy of these exceptions have been contested in several landmark cases throughout U.S. history

Classified information and state secrets

• The government classifies certain information related to national security, such as military plans, intelligence sources, and diplomatic communications
• Unauthorized disclosure of classified information is a federal crime under the Espionage Act and other statutes
• The government has also invoked the "state secrets privilege" to block disclosure of sensitive information in court proceedings
• Critics argue that overclassification and abuse of the state secrets privilege can shield government misconduct from public scrutiny

Prior restraint and national security

• Prior restraint refers to government censorship of speech before publication, which is presumptively unconstitutional under the First Amendment
• However, the government has sought prior restraint in some cases involving national security information
• In the Pentagon Papers case (1971), the Supreme Court rejected the government's attempt to block publication of a classified history of U.S. involvement in Vietnam
• The Court held that the government bears a heavy burden to justify prior restraint, even in matters of national security

Espionage Act of 1917

• The act criminalized obtaining, copying, or transmitting national defense information with intent or reason to believe it could be used to harm the U.S. or aid a foreign nation
• The act has been used to prosecute government employees who leak classified information to the press
• Critics argue that the act's broad language and selective enforcement can chill legitimate national security reporting and whistleblowing
• Efforts to reform the act to protect journalists and whistleblowers have been unsuccessful

Pentagon Papers case (1971)

• The New York Times and Washington Post obtained a classified Pentagon study on U.S. involvement in Vietnam and began publishing excerpts
• The Nixon administration sought to enjoin further publication, claiming it would cause "irreparable injury" to national security
• In a 6-3 decision, the Supreme Court held that the government had not met its heavy burden to justify prior restraint
• The decision was a landmark victory for press freedom and set a high bar for government censorship in the name of national security

Balancing press freedom and national security

• The tension between press freedom and national security has been a recurring theme throughout U.S. history
• Journalists play a vital role in informing the public about government actions and policies, including in matters of war and national security
• However, the government has a legitimate interest in protecting sensitive information that could harm national security if disclosed
• Striking the right balance between these competing interests is an ongoing challenge for policymakers, courts, and journalists

Sedition in wartime vs peacetime

• Historically, the government has been more aggressive in prosecuting sedition and restricting press freedom during wartime
• The Sedition Act of 1798 was passed in the midst of an undeclared naval war with France, and the Espionage and Sedition Acts of World War I targeted anti-war speech
• In peacetime, courts have generally been more protective of First Amendment rights and skeptical of government claims of national security necessity
• However, even in peacetime, the government has sometimes invoked national security to justify secrecy and limit press scrutiny

Journalistic duty to inform public

• Journalists have a professional and ethical duty to inform the public about matters of public concern, including government actions and policies
• This duty is especially important in matters of war, foreign policy, and national security, where government secrecy can shield abuse and misconduct
• Journalists often rely on leaks and whistleblowers to obtain information about classified programs and decisions
• However, journalists must also exercise responsibility in handling sensitive information and consider potential harms to national security

Government interest in protecting secrets

• The government has a legitimate interest in protecting sensitive information that could harm national security if disclosed
• This includes information about military plans, intelligence sources and methods, and diplomatic negotiations
• Unauthorized disclosures can put lives at risk, compromise intelligence gathering, and undermine foreign policy objectives
• However, critics argue that the government sometimes invokes national security to hide embarrassing or unlawful conduct from public scrutiny

Landmark sedition and national security cases

• Several landmark Supreme Court cases have shaped the legal landscape of sedition and national security exceptions to press freedom
• These cases have grappled with the scope of First Amendment protections, the limits of government secrecy, and the role of the courts in balancing competing interests
• The outcomes of these cases have had significant implications for journalists, whistleblowers, and the public's right to know

Schenck v. United States (1919)

• During World War I, Charles Schenck was convicted under the Espionage Act for distributing flyers opposing the draft
• In a unanimous decision, the Supreme Court upheld Schenck's conviction and articulated the "clear and present danger" test for restricting speech
• The Court held that the government could restrict speech that posed a clear and present danger of bringing about "substantive evils" that Congress had a right to prevent
• The Schenck decision was later criticized as overly deferential to government claims of national security necessity and was effectively overruled by Brandenburg v. Ohio (1969)

Near v. Minnesota (1931)

• A Minnesota law allowed courts to enjoin publication of "malicious, scandalous, and defamatory" newspapers as public nuisances
• The Saturday Press, a scandal sheet that attacked local officials, was enjoined from further publication under the law
• In a 5-4 decision, the Supreme Court struck down the Minnesota law as an unconstitutional prior restraint on press freedom
• The Court held that prior restraints are presumptively unconstitutional, with limited exceptions for "exceptional cases" such as wartime censorship or obscenity

New York Times Co. v. United States (1971)

• Also known as the Pentagon Papers case, this decision rejected the Nixon administration's attempt to block publication of a classified history of U.S. involvement in Vietnam
• The government claimed that publication would cause "irreparable injury" to national security, but the Court held that it had not met the heavy burden to justify prior restraint
• The decision was a landmark victory for press freedom and set a high bar for government censorship in the name of national security
• However, the Court's per curiam opinion left open the possibility of post-publication criminal prosecutions for publishing classified information

United States v. Progressive (1979)

• The Progressive magazine obtained technical information about the hydrogen bomb and sought to publish an article about it
• The government sued to enjoin publication, claiming it would reveal "restricted data" that could accelerate nuclear proliferation
• A federal district court granted the injunction, marking the first time a court had imposed a prior restraint on publication in the name of national security
• The case was rendered moot when another publication printed similar information, but it raised troubling questions about the scope of the Atomic Energy Act and government secrecy

Sedition and national security today

• The tensions between press freedom and national security have taken on new dimensions in the 21st century
• The rise of digital media and the global reach of the internet have made it easier to obtain and disseminate sensitive information
• The government has new surveillance and investigative powers under the USA PATRIOT Act and other post-9/11 laws
• Whistleblowers and journalists who report on national security issues face new legal and technological threats

USA PATRIOT Act of 2001

• Passed in the wake of the 9/11 attacks, the act expanded the government's surveillance and investigative powers in the name of preventing terrorism
• The act authorized roving wiretaps, "sneak and peek" searches, and easier access to personal records held by third parties
• Critics argue that the act's broad and vague language infringes on civil liberties and chills freedom of speech and association
• Portions of the act have been challenged in court, with mixed results, and some provisions have been amended or allowed to expire

Sedition in the digital age

• The internet and social media have created new opportunities for spreading information and ideas, but also for inciting violence and undermining government authority
• The government has struggled to combat online extremism and disinformation while respecting free speech principles
• Some have called for stricter regulation of social media platforms and criminal penalties for online sedition
• However, civil liberties advocates warn that such measures could chill legitimate online speech and activism

Whistleblowers and national security journalism

• Whistleblowers play a crucial role in exposing government waste, fraud, and abuse, including in matters of national security
• However, whistleblowers who disclose classified information face severe criminal penalties under the Espionage Act and other laws
• Journalists who report on national security issues based on classified leaks also face legal risks, including subpoenas to testify about their sources
• High-profile cases involving whistleblowers like Edward Snowden and Chelsea Manning have sparked debates about the balance between secrecy and accountability in national security matters

Ongoing debates and controversies

• The proper scope of sedition laws and national security exceptions to press freedom remains contested
• Some argue that existing laws are necessary to protect national security and prevent violence, while others view them as overbroad and prone to abuse
• There are ongoing debates about the role of leaks and whistleblowers in promoting government transparency and accountability
• The rise of digital surveillance and the spread of "fake news" and foreign disinformation have added new complexities to these issues
• Striking the right balance between press freedom and national security in the modern age will require ongoing vigilance, debate, and legal innovation