The Incentive to Leak Is Right in the Constitution

The ongoing saga of contacts between Russian officials and the Donald Trump campaign assures that the subject of government leaks isn’t going away anytime soon. Although some critics have compared the career bureaucrats suspected of doing the leaking to the “deep state” that has bedeviled reformers in Egypt and Turkey, the First Amendment hasn’t been brought into the conversation.

It should be. As it turns out, there are competing constitutional views about bureaucrats’ engagement with public affairs. A liberal current going back to Supreme Court Justices Thurgood Marshall and William Brennan sees public employees as full public citizens, protected by the First Amendment so long as they are speaking about matters of public concern. A rival conservative current treats government workers as private employees, and allows them to be sanctioned for any speech that comes within the scope of their employment. These two perspectives, locked in a longtime doctrinal struggle, offer starkly different consequences for whether leakers are free-speech heroes or deep-state backbiters.