Espionage Act prosecution of Jack Teixeira may shipwreck on the First Amendment
No proof of direct, immediate, irreparable harm has surfaced
21-year-old National Guard airman, Jack Teixeira, has been charged with retaining and sharing national defense information in violation of the Espionage Act, 18 U.S.C. 793 (d) and (e).
I have advice to the government before proceeding. Be careful what you wish for. You might get it!
The United States does not have an Official Secrets Act like the United Kingdom. Disclosing classified information, without more, is not a crime. The United States has a First Amendment whereas the United Kingdom has yet to adopt a constitution.
The United States Supreme Court in New York Times v. United States (1971), denied the government’s attempt to enjoin publication by The New York Times and The Washington Post of the 47-volume classified Pentagon Papers revealing chronic government deceit over the Vietnam War. Justice Potter Stewart declared that “direct, immediate, and irreparable harm” to the national security was required to justify such an injunction under the First Amendment.
The Teixeira prosecution is not on all fours with New York Times. The latter was a civil case whereas Teixeira’s is criminal. Further, in New York Times, no federal statute authorized an injunction whereas Teixeira’s prosecution is anchored to a congressional enactment.
But the statute itself is a problem. It does not require the government to prove the national defense information retained or shared caused or threatened direct, immediate, or irreparable injury to the United States. The prohibition only requires that the defendant had “reason to believe [the information] could be used to the injury of the United States or to the advantage of any foreign nation,” even if in fact the disclosed information proved harmless.
That is an extremely low threshold. It is possible an innocuous piece jigsaw puzzle piece might by a fluke assist an omniscient foreign nation knowing all the remaining puzzle. Flukes are possible, even if very rare. Under the Espionage Act, even the possibility of a fluke makes a publication criminal. That remoteness should not satisfy the First Amendment based on New York Times and the refusal of Congress to enact an Official Secrets Act.
What harm has been caused by Teixeira’s sharing of classified information on a group-chat Discord server? No other nation has stopped talking to the United States. Russia’s war against Ukraine continues as before. No military plans or objectives have changed. No casualties have resulted. Teixeira is a lesson in the obvious, i.e., in the Digital Age, keeping secrets is problematic. But Edward Snowden, Julian Assange, and Chelsea Manning told us that in spades a decade or more ago. Teixeira is nothing new under the sun.
Daniel Ellsberg’s aborted Espionage Act prosecution tied to the publication of the Pentagon Papers short-circuited a constitutional challenge to the prohibition. It probably would have succeeded because even the government’s lawyer in New York Times, Erwin Griswold, later conceded the publication was innocuous. The Supreme Court has never definitively tested the Act against the First Amendment when the harm to national security is highly speculative or theoretical, as is the case with Teixeira.
Prosecuting the immature youth under the Espionage Act risks a Supreme Court decision holding the prohibition unconstitutional, a ruling that would collaterally benefit Snowden and Assange. Does the government wish to take that risk with so little at stake for national security? My view is that the government will move heaven and earth to negotiate a plea bargain to foreclose a constitutional challenge.