Public accountability defenses for whistleblowers who reveal national security information to the media or the public have largely failed. Courts have rejected such arguments and Congress has not provided a statutory defense. This Article argues that the appropriate place to consider public accountability factors in whistleblower cases is at sentencing. Courts can take, and have taken, substantive First Amendment rights into consideration at sentencing as mitigating factors. Courts do so rarely and cautiously, usually in moments of perceived breakdown in the political processes that facilitate the more typical role of individual rights as limits on government action. Examining historical sentencing practices in fugitive slave rescue and conscientious objector cases, this Article demonstrates the historical validity of taking substantive constitutional interests into account at sentencing—and that the constitution does not evaporate with a verdict. This Article also argues that a moment of breakdown is occurring with regards to the Espionage Act and use of rights as limitations on government action. Because of this failure, courts should implement sentence mitigation on the basis of First Amendment interests in whistleblower cases, providing an immediate pragmatic solution and potentially prompting a more sustainable long-term approach to government whistleblowers.
Described by some scholars as the “crown jewel of transparency,” the Freedom of Information Act (“FOIA”) allows the public to request records from executive agencies in order to provide insight into government activities and their legal justifications. To balance competing interests in public disclosure and government secrecy, FOIA also contains nine exemptions under which agencies may withhold requested information. However, FOIA’s first exemption, which allows the government to withhold information properly classified by executive order in the interest of national defense or foreign policy, has proven nearly impenetrable. Despite congressional efforts to establish de novo review of withholdings under FOIA, many commentators suspect that courts rubberstamp the government’s Exemption 1 arguments. This Article is the first to test that claim empirically. It systematically classifies agencies’ court submissions by quality and analyzes that quality’s effects on case disposition. In this study, courts upheld the government’s Exemption 1 claims despite substandard submissions 76.2% of the time, and submission quality did not impact case outcome in any statistically significant way. This finding implicates not only the effectiveness of FOIA, but also key pillars of the American legal tradition, such as the presumption of transparency, democratic principles, the legitimacy of the judicial process, and inter-branch checks on executive authority. The Article finally presents a probability reporting requirement as a novel and practically implementable solution that would not only encourage more meaningful judicial review, but would also incentivize the government to consider more carefully what information merits continued classification.
Photo by U.S. Department of State (CC BY-NC 2.0)