National Security and the First Amendment: When Can Rights Be Limited?

national security and the First Amendment

There’s been tension between the First Amendment and U.S. national security as long as there’s been a First Amendment.

National security is most simply defined as involving protection of the nation and its citizens from harm.

The First Amendment was ratified in 1791, two years after the new Constitution imposed a duty on the federal government to “provide for the common defense and general welfare of the United States.”

That broad charge to “provide for the common defense” has been used to protect the nation from spies but also to justify punishing people for what they wrote or said about the nation and its policies. It’s been used to prosecute those who plotted terrorist attacks but also to threaten whistleblowers aiming to disclose government misconduct or crimes.

And it’s been the reason behind a range of government actions that some have seen as improper or as unconstitutional restrictions on First Amendment freedoms, including warrantless undercover surveillance, threats against journalists reporting on secret government actions, and obtaining the phone and internet search records of U.S. citizens.

Americans greatly value their core freedoms of religion, speech, the press, assembly and petition. Still, when danger to national security is present, “The First Amendment is not a suicide pact,” to paraphrase a sentiment expressed through history by figures from Thomas Jefferson to Supreme Court Justice William O. Douglas.

Julian Assange: Current case of First Amendment and national security tension

The ongoing battle between U.S. prosecutors and Wikileaks founder Julian Assange illustrates the tension around personal freedoms and national security.

WikiLeaks’ website describes the organization as “a multinational media organization and associated library,” founded in 2006. It “specializes in the analysis and publication of large datasets of censored or otherwise restricted official materials involving war, spying and corruption.”

In 2019, Assange was charged with violating the federal Espionage Act. The government says he helped a U.S. Army intelligence officer illegally obtain as many as 700,000 documents from a confidential government database. Some of that information was published in various newspapers and then posted in 2010 on WikiLeaks. The Espionage Act forbids accessing U.S. government secret information without authorization and delivering or publishing it with the intent to harm national security.

Assange initially eluded prosecution by living inside Ecuador’s embassy in London for seven years. In 2019, he left the embassy, was arrested and has been jailed since then by authorities in England. A British court ruled in March 2024 that Assange cannot be extradited to the United States until there is a guarantee he will not face the death penalty.

Protestors marking five years since the arrest of Wikileaks founder Julian Assange demonstrate outside Belmarsh Prison in London on April 14, 2024.

Protestors marking five years since the arrest of Wikileaks founder Julian Assange demonstrate outside Belmarsh Prison in London on April 14, 2024.

The U.S. government and Assange's critics – including some First Amendment advocates – see Assange as a political activist who obtained and published U.S. government secrets to harm the country.

Assange, his supporters and many journalists and scholars say he didn’t violate the Espionage Act because he had no intent to harm the United States. He simply received the documents and believed that the disclosures were made for the public good, necessary to expose a history of government misconduct and illegal acts.

There is a major First Amendment case, Bartnicki v. Vopper (2001), that might help Assange’s defense.

In that case, the U.S. Supreme Court said the First Amendment protects the disclosure of illegally intercepted communications by a person who did not participate in the illegal interception. Justice John Paul Stevens wrote that, “[A] stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." That may speak to Assange’s stated intention that disclosure of the secrets was beneficial to the American public. This defense will not protect Assange if it can be proven that he had a hand in accessing the underlying documents by either recruiting someone else to do it or providing them with financial or technical support.

TikTok fights to survive in the United States

TikTok and its Chinese owner ByteDance are fighting a new American law that will ban the popular video app in the United States unless it is sold to an approved buyer. TikTok says the law unfairly identifies the app as a national security threat, violates the First Amendment, and is an unprecedented attack on the free speech rights of TikTok users. Critics say the app allows the Chinese government to amass data from app users, which could later be a danger to millions of Americans.

RELATED: Everything to know about the TikTok law and the First Amendment

Security and freedoms in tension from the nation’s founding

The tussle between national security issues and First Amendment rights began just seven years after the First Amendment was ratified, when Congress approved the 1798 Sedition Act.

The law provided for the jailing of journalists critical of Congress or President John Adams amid fear of war with France. While some journalists were imprisoned for a time under the act, public outcry resulted in the law being allowed to expire in 1801.

Civil War

Later, President Abraham Lincoln took steps during the Civil War (1861-65) to use “national security” to justify jailing some reporters and editors and threatening others who opposed Union policies.

World War I and World War II

It hasn't always been the press or government “leakers” whose First Amendment freedoms have run up against claims of doing harm to national security.

America’s entry into World War I in 1917 prompted President Woodrow Wilson to call for a new Sedition Act. Congress passed this and an Espionage Act. The acts said it was a crime for anyone to “cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty (in the U.S. military).”

More than 2,000 people were prosecuted, some simply for possessing books describing the war as “wrong,” distributing anti-war or antidraft leaflets, or for speeches criticizing the government’s wartime actions.

Historically, the nation’s independent courts have stood between the public and government attempts to override personal freedoms in the name of national security.

But First Amendment scholar Harry Kalven, writing in 1988, said that court free speech decisions during World War I, World War II, and later conflicts, show that “while the nation is at war, serious, abrasive criticism (of government) … is beyond constitutional protection.”

Specifically in a series of decisions in 1919 (Schenck v. United States and Abrams v. United States) and 1925 (Gitlow v. New York), the court looked at whether the speech presented a “clear and present danger” to national security and also looked at whether the speech had a “bad tendency.” Both standards favored the government when prosecuting speakers, especially during wartime, and resulted in stifling anti-war speakers and other dissenters. Fueled again by national security concerns when war loomed, Congress passed the Smith Act, which made it illegal to advocate the violent overthrow of the government or to organize or belong to any group or society supporting that idea.

War on communism

In the 1950s, public hysteria over communism was fueled by national figures like Sen. Joseph McCarthy, R-Wis., citing national security to justify congressional investigations and “blacklisting” people suspected of sympathy to communist ideals and the Soviet Union. The clear and present danger standard aided McCarthy’s efforts and resulted in significant self-censorship by would-be government critics.

Sen. Joseph McCarthy points to a map headed "Communist party organization U.S.A.-Feb. 9, 1950," during a 1954 testimony in Washington, D.C.

Sen. Joseph McCarthy points to a map headed "Communist party organization U.S.A.-Feb. 9, 1950," during a 1954 testimony in Washington, D.C.

By 1957, as the McCarthy era ended, more than 140 people had been arrested for violations of the Smith Act. But two Supreme Court opinions in 1957 and 1958 essentially gutted the act, holding that the teaching of abstract ideas was not the same as advocating a conspiracy, and that Congress had failed to provide for due process in its Smith-based investigations.

Finally, in a major 1969 decision pushing back on those who used national security to prosecute dissenters, the court ruled in Brandenburg v. Ohio that states cannot punish the advocacy of unlawful conduct unless it is intended to incite “imminent lawless action.”

Vietnam War

One of the nation’s biggest national security conflicts involved the Pentagon Papers in 1971. The New York Times published a confidential government report of how the United States became involved in and conducted the Vietnam War. The report was leaked to the newspaper by former government analyst Daniel Ellsberg, in the belief that the government had misled the public about the reasons for and extent of U.S. actions leading up to and during the war.

President Richard M. Nixon’s Justice Department sought to prevent publication of the report, citing national security reasons, but the Supreme Court held that it had failed to show a necessary element: “Direct, immediate and irreparable harm to the nation or its people.”

The Pentagon Papers case demonstrates that general and/or potential threats to national security are not sufficient to justify a prior restraint on speech. The answer instead is to allow publication to go forward and impose punishment for violations of specific criminal laws.

Indeed, as Justice Byron White noted in a dissenting opinion, the news media might be held criminally liable after publishing, for obtaining and possessing classified documents. Charges against Ellsberg were dropped due to government misconduct during its investigation.

War on Terror

In reaction to 9/11, some said America was “too open” a society. In 2002, the Bush administration rolled back 25-year-old guidelines on FBI surveillance. Agents were authorized to track political, social and religious groups without having to show suspected criminal activity. Critics said such broad surveillance by a government agency would effectively “chill” the right of assembly.

In 2019, an Inspector General’s report found the FBI had been lax in enforcing its rules involving data collection under the Foreign Intelligence Surveillance Act. In 2021, the FBI announced new rules and training for agents involved in such work. But in 2024, when Congress voted to extend FISA, the Electronic Frontier Foundation warned of expanded abilities to compel communications companies to secretly turn over records of individual accounts. Again, citing “national security” in the fight against terrorism provided the political punch for FISA's renewal.

Threats are real: What’s the proper balance with freedom?

President Barack Obama in 2013 described the historical tension between national security and First Amendment freedoms.

“As commander in chief, I believe we must keep information secret that protects our operations and our people,” he said. “But a free press also is essential for our democracy. I’m troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.”

It should be noted that Obama used the 1917 Espionage Act to prosecute more people for leaking sensitive information to the public than all previous administrations combined. To be sure, threats to national security are real. In just the past few years, members of the U.S. military or intelligence services have been convicted of selling government secrets to foreign governments.

In 2018, Reality Winner, a former U.S. Air Force employee, pleaded guilty and was sentenced to prison for leaking a top-secret government report on Russian hacking to The Intercept, whose mission is to “Investigate powerful individuals and institutions to expose corruption and injustice. We see journalism as an instrument of civic action."

Winner said she gave the report to The Intercept because she believed the public was not being told the truth about Russian government attempts to hack into software related to voting in Florida.

“Winner’s purposeful violation put our nation’s security at risk,” U. S. Attorney Bobby L. Christine said, noting she revealed sources and methods of intelligence gathering, causing “exceptionally grave damage to U.S. national security.”

The difficulty for the nation is finding the proper balance between First Amendment rights and threats to the safety of the nation. Too much emphasis on “national security” can deprive the U.S. of a free press holding the government accountable and restrict the rights to speak freely and to openly associate with others who may hold a “minority view.”

But too little attention to national security can encourage those who would harm the nation and its people by disclosing military secrets and allow violent groups to flourish and operate freely.

The nation’s laws and courts have varied greatly on how to balance those two views. In 1971, in an early court ruling on the Pentagon Papers case, U.S. District Judge Murray Gurfein took note of the conflict, saying, “The security of the nation is not at the ramparts alone. Security also lies in the value of our free institutions.”

Gene Policinski is a senior fellow for the First Amendment at Freedom Forum. He can be reached at [email protected].

This article is based in part on the author’s chapter, "First Amendment Considerations on National Security Issues: From Zenger to Snowden,” published in “Whistleblowers, Leaks and the Media” (2014) by the American Bar Association.

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