Regarding the question of leaks, on BloombergView Noah Feldman discusses the nature of leaks and gives a useful overview of how SCOTUS has dealt with the question. Noah’s summary of the issue:
From The Healing Of Schiller Park blog.
Love it!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.
From this it appears the conservative thought-pattern is confined to the practices of the private sector – a belief that the rules of the private sector cover all aspects of society.
But this cannot be so. Each sector has its own purposes, concerns, and worries – and its own rules, developed over the centuries, for managing and correcting those worries. Free speech by those closest to the issue in the private sector may result in the release of critical data for a corporation, and it makes sense that this be restricted and punishable. In certain cases, exceptions should be made, but only for those that have far-reaching public impacts, such as pollution releases.
The same in the educational sector, on the other hand, constitutes the testimony of experts on a public issue and should be treated as invaluable input – not a reason to fire an educator. This was the basis of the Pickering case, as Noah explains:
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.”
In general, imposition of foreign sector practices in other sectors will warp and de-optimize the performance of the sector – in other words, the teacher’s letter in Pickering, if considered illegimate, will result in the loss of a valuable input, simply because a private sector rule was applied in the education sector. This is simple common sense.
I continue to move in my opinions away from questioning the general legitimacy of leakers to considering the leaks, and those who generate those leaks, to be potentially legitimate. Certainly, leaks for vulgar personal gain remain illegitimate, as are those which compromise national security – but I distinguish between those which actually do compromise national security, and those that illuminate a war crime or other illegal activity in the government sector.
