Law

The Incentive to Leak Is Right in the Constitution

At least that's the traditional liberal view of the law.

We're all ears.

Source: Three Lions/Getty Images

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.

The touchstone of the liberal take on employee speech is a 1968 case, Pickering v. Board of Education. A schoolteacher had been dismissed for writing a letter to the editor of the local newspaper that criticized the school board’s budget (too much athletics, not enough learning). Justice Marshall insisted “unequivocally” that teachers cannot “constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work.” To underscore the point, Marshall cited the judicial decisions of the 1950s and ’60s that rejected loyalty oaths as conditions of employment.

Most important, Marshall wrote that because teachers were “the members of a community most likely to have informed and definite opinions” about the schools, “it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.”

To be sure, the teacher in the Pickering case hadn’t leaked confidential information. And Marshall acknowledged that the government has interests “as an employer” that needed to be weighed against the teacher’s First Amendment rights. Nevertheless, the case stands for the principle that removing government officials from public discourse in the area of their expertise makes no sense in a democracy.

The conservative backlash against the Pickering ruling started in 1983, when the court held in a 5-4 decision that an employee’s workplace protest against the running of the New Orleans District Attorney’s Office didn’t count as a matter of public concern.

The doctrine took a much bigger step in the conservative direction in another 5-4 case, Garcetti v. Ceballos, decided in 2006. A deputy district attorney in Los Angeles had written an internal memo charging that the police had lied under oath to get a warrant in a key case. The memo got him disciplined. Yet remarkably, the conservative majority of the court held that the memo wasn’t protected speech, even though it clearly touched on a matter of great public concern, namely police misconduct.

Instead, the court issued a new doctrine: “When public employees make statements pursuant their official duties, the employees are not speaking as citizens for First Amendment purposes.”

This view fits nicely into the criticism that bureaucrats who seek to expose potential wrongdoing by members of the Trump administration are violating the norms of good government, and acting as sentinels of the nefarious deep state. Under the holding of the Garcetti case, the political appointees who run government offices are closely analogous to bosses in private companies. They can sanction their employees for anything they say that’s intimately connected to the course of their employment.

The Garcetti ruling arguably covers leaks of unclassified information that was acquired by employees in the course of their employment. Citing the Pickering case, leakers could argue that they were speaking as public citizens. But if they were speaking about information acquired in the course of their official duties, the Garcetti precedent may be the one that matters.

So where does the law stand today? Most recently, in 2014, the justices showed some sympathy for the Pickering precedent in a case where a state employee was fired after testifying in court about a no-show employee at a state community college. Justice Sonia Sotomayor wrote for a unanimous court that “sworn testimony in judicial proceedings is a quintessential example of speech as a citizen.”

That decision, Lane v. Franks, was certainly correct. But it wasn’t a big win for the liberal vision of government employee speech, because it might be limited narrowly to testimony. Justice Clarence Thomas concurred to say that police officers who testify regularly in the course of their employment might not be covered by the decision.

So the justices are still, and will probably remain, divided on how to think about career employees’ right to speak about things they learned on the job. The steady drip of leaks about Russia will probably confirm both sides in their views.

The upshot, however, is that while leaks of classified information remain unlawful and potentially dangerous, we shouldn’t be too quick to assume that all leaks are evidence of a deep state that is fighting elected officials. There’s a strong, liberal First Amendment tradition that denies the idea that employees owe an absolute duty of loyalty to their elected bosses. They also owe a duty to the public -- and the First Amendment protects them in the exercise of it.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Noah Feldman at nfeldman7@bloomberg.net

    To contact the editor responsible for this story:
    Stacey Shick at sshick@bloomberg.net

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