by Jeffrey Rosen
June 23, 2013
When it comes to surveillance and national-security leaks, what’s protected by the Constitution, what isn’t–and what’s changing?
Our modern debates over speech and security date back to the Espionage Act of 1917, the law now being invoked to threaten leak prosecutions. Woodrow Wilson called for the law to suppress criticism of World War I. The Supreme Court upheld the conviction of several antiwar critics under the act, including that of the socialist leader Eugene V. Debs. But in a series of influential dissenting opinions, Justices Oliver Wendell Holmes Jr. and Louis Brandeis held a different view. “Opinions that we loathe” should not be suppressed, Holmes wrote in dissent in the 1919 Abrams case, “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
In 1969, the Supreme Court finally adopted the Holmes and Brandeis view that speech can be banned only when it’s intended–and likely–to produce imminent lawless action. Since then, the court has applied that principle to protect the free-speech rights of a dizzying variety of unpopular speakers, including, in the past few years, manufacturers of violent video games, purveyors of antigay hate speech at military funerals, manufacturers of fetish videos depicting crushed animals and, most famously, in Citizens United, corporate expenditures in political campaigns.