Criminal Justice Education by Lisa Storm

Criminal Law Hot Topics

The First Amendment and Bradley Manning: a Modern-Day Balancing Act

Bradley Manning, a 25-year-old former intelligence analyst, has captured the attention of the world by pleading guilty to ten charges involving the illegal possession and distribution of classified material.  His criminal acts?  Exposing hundreds of thousands of Iraq and Afghanistan battlefield reports, classified records, State Department diplomatic cables, and battlefield video clips to WikiLeaks, who then exposed them to the world, embarrassing the United States and its Allies.  For the record, WikiLeaks has never confirmed or denied Manning's participation in this matter.  Read about Manning's guilty pleas here:

Is WikiLeaks' exposure of classified information criminal? 

The First Amendment complicates the criminal prosecution of WikiLeaks for simply publishing information provided by an informant.  Without evidence that WikiLeaks participated or assisted the government informant, a prosecution of WikiLeaks is a prosecution for speech, which requires a compelling government interest and a narrowly tailored statute to exempt it from the First Amendment's protection.  In this case, a statute [MY1] does not exist, as government property cannot be copyrighted, trademarked, or patented, so there was no intellectual property infringement.  The lack of a criminal statute in this area brings in another constitutional element; the Constitution does not permit the enactment of ex post facto or retroactive criminal statutes. 

Is the prosecution of Manning constitutional? 

It is easier to rationalize the prosecution of Manning under the First Amendment, because of the compelling government interest in protecting those involved in national defense.  Also, it is criminal to confiscate and distribute classified government material, alleviating the ex post facto issue.  The prosecution of Manning for aiding the enemy (the charges to which he pleaded not guilty) will continue in a general court-martial proceeding in June.  If Manning is found guilty, he could spend the rest of his life in prison. 

Should the First Amendment protect Manning's conduct?

Manning stated that his intent in releasing the classified information was to expose the ugly side of war and promote military reform.  Although government speech has traditionally been accorded the highest form of protection from censorship, the safety risk posed by the publication of classified information weighs heavily against the public's right to know.  In a related First Amendment issue, reporters covering Manning's court martial proceedings have expressed frustration with the lack of access to court records.  Read about the reporters' actions here:


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