Mailyn Fidler[*]

[Full text of this Article in PDF is available at this link]

Introduction

In October 2018, the federal district court in Minnesota sentenced former Federal Bureau of Investigation (“FBI”) agent Terry James Albury to four years in prison under the Espionage Act for disclosing internal FBI documents to the press.[1] Albury pleaded guilty but contended he was a whistleblower acting in the public interest; he argued he had disclosed systemic racial biases within the FBI and throughout its investigations.[2] At sentencing, Albury’s lawyers argued that his motives mattered: “[C]ontrary to the government’s claims, Mr. Albury’s motivation for his . . . conduct, while not relevant to guilt, is quite relevant at sentencing.”[3] The government, in contrast, contended that Albury’s motive was irrelevant, even at sentencing.[4] The judge seemed to agree implicitly with the government, although her statement of reasons and other sentencing memos in the Albury and other leak cases remain sealed.[5]

Whistleblowers and the public have arguable First Amendment interests in these kinds of public accountability leaks. In whistleblower cases, these interests include both speaker rights and listener rights.[6] In Espionage Act cases, courts have generally found that these interests are irrelevant with respect to guilt as a matter of law.[7] A lack of statutory authorization for such a defense hampers judicial adoption of this reasoning, and independent judicial creation of a First Amendment defense has little support in existing doctrine or common law traditions.  In Albury’s case and in others, the government has argued that the same is true at sentencing.[8] Historical examples, however, show that courts can and have taken such constitutional interests into account at sentencing. Courts did so with rescuers who violated the Fugitive Slave Act, and they did so with absolutist conscientious objectors during the Vietnam War. Each example involves individuals who object to government conduct, have arguable First Amendment interests in the actions they take, and break some aspect of the law to demonstrate their objection.

Considering First Amendment rights during sentencing is incongruous with the typical conception of the role constitutional rights play in the judicial process. Constitutional rights usually serve not to mitigate the exercise of government power but to restrain it altogether. Although much debate (and litigation) occurs about what specific government actions are or are not prohibited by a certain constitutional right, whatever rights one does have against the government are presumptively decisive; a constitutional right does not normally weigh against countervailing considerations but trumps them.[9] In practice, when a court determines that a government action infringes an individual’s constitutional right, it usually circumscribes the government’s exercise of power by granting a prosecuted individual a rights-based defense or by declaring the underlying law unconstitutional. In doing so, the court effectively declares that the Constitution bars the exercise of the power in question. Even where certain procedural constitutional rights are relevant to sentencing—for instance, due process considerations prohibit courts from enhancing sentences based on gender or race—those rights still usually act to prohibit certain government conduct.[10]

However, the examples in this Article show that courts can and have considered substantive constitutional rights, particularly First Amendment rights, as mitigating factors during sentencing. Here, rights do not function as exclusionary constraints on government action by independently settling the question of what the government can and cannot do. Instead, they mitigate the exercise of a permissible use of government power.[11] Where a typical free-speech defense might, for instance, prevent the government from restraining a defendant, here, the relevant First Amendment rights do not prohibit government action but only serve to lessen the severity with which the government can punish the speaker.

Admittedly, this conception of constitutional rights is at odds with their typical function.[12] Used broadly, this conception of rights could lead to an erosion of constitutional protections for individuals. In keeping with this risk, courts have used their discretion to do so rarely and with caution, only in moments of perceived breakdown in the political processes that typically facilitate rights as circumscribers of government conduct.[13]

At its broadest, this Article demonstrates the historical validity of considering First Amendment interests at sentencing; the Constitution does not evaporate with a verdict. This Article also argues that courts should implement sentence mitigation on the basis of First Amendment interests in whistleblower Espionage Act cases. Specifically, this Article argues that the political processes that would otherwise facilitate the use of First Amendment rights in their typical sense with regards to whistleblowers are experiencing breakdown. A rights-based defense may still be the ideal way to approach whistleblowers, but using First Amendment factors as mitigating factors at sentencing is permissible, within judicial discretion, and may prompt a more sustainable systematic approach to government whistleblowers.

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[*] J.D. Yale Law School, 2020. Thanks to John Witt, Eugene Fidell, David Pozen, Heidi Kitrosser, Jameel Jaffer, Carrie DeCell, Gabe Rottman, Jonathan Petkun, and John Nann.

[1] See Charlie Savage & Mitch Smith, Ex-Minneapolis FBI Agent Is Sentenced to 4 Years in Leak Case, N.Y. Times (Oct. 18, 2018), https://www.nytimes.com/2018/10/18/us/politics/terry-albury-fbi-sentencing.html [https://perma.cc/P35S-MY2J].

[2] See id. See also Trevor Timm, Forget Comey and McCabe. Support FBI Whistleblower Terry Albury Instead, Colum. Journalism Rev. (Apr. 17, 2018), https://www.cjr.org/watchdog/terry-albury.php [https://perma.cc/4GJM-553M], for the following excerpt from a statement from his lawyers to the Columbia Journalism Review: “Terry Albury is a good and honorable man. His conduct in this case was an act of conscience. It was driven by his belief that there was no viable alternative to remedy the abuses . . . He recognizes that what he did was unlawful and accepts full responsibility.”

[3] Reply Sentencing Brief at 2, United States v. Albury, No. 0:18-cr-00067-WMW (D. Minn. Oct. 8, 2018).

[4] See infra note 8.

[5] See infra note 76.

[6] See generally Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953 (2018).

[7] See United States. v. Kiriakou, 898 F. Supp. 2d 291 (E.D. Va. 2012); Daniel Ellsberg, Snowden Would Not Get a Fair Trial—and Kerry Is Wrong, Guardian (May 20, 2014), https://www.theguardian.com/commentisfree/2014/may/30/daniel-ellsberg-snowden-fair-trial-kerry-espionage-act [https://perma.cc/SK4W-PMF6].

[8] Government Response to Defense Position with Respect to Sentencing at 2, United States v. Albury, No. 0:18-cr-00067-WMW (D. Minn. Oct. 8, 2018).

[9] In this respect, constitutional rights function as what philosophers call “presumptively decisive reasons,” “exclusionary reasons,” or “normative “requirements” that do not merely weigh against other considerations but, at least typically, settle the question of what should be done. See R. Jay Wallace, The Moral Nexus 26–27 (2019) (on “requirements”); Samuel Scheffler, Relationships and Responsibilities, in Boundaries & Allegiances: Problems of Justice and Responsibility in Liberal Thought 97–100 (2002) (for concept of “presumptively decisive” reasons for action); Joseph Raz, Practical Reasons and Norms (2nd ed. 1990) (for concept of “exclusionary reasons”); Judith Thomson, Realm of Rights (1990) (on the way rights function). Thank you to P. Quinn White for these framing concepts and language. The concept of “hard stops” is also related to the concept of negative rights, in the sense that constitutional rights largely prohibit categories of government action. See, e.g., Bowers v. De Vito, 686 F.2d 616, 618 (7th Cir. 1982) (“the Constitution is a charter of negative liberties”); David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864 (1986).

[10] See infra note 67.

[11] See Raz, supra note 9.

[12] Indeed, philosophers would probably no longer refer to the function of such considerations at sentencing as true rights, but rather reasons for action. Given that law speaks in terms of rights, this paper continues to use the term “rights.”

[13] This breakdown reflects judicial perception, but it is usually informed by some measure of similar public sentiment. The cases examined in this Article demonstrate this mixture.