In the near future a federal court will decide whether the prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) for allegedly mishandling classified information can proceed, or whether it must be dismissed on First Amendment grounds.
It will be a fateful decision either way.
If the prosecution is permitted to proceed, it would reflect an unprecedented determination that private individuals who are not engaged in espionage can be punished for receiving and transmitting national defense information. Such a finding would instantly transform many national security reporters, researchers and others into potential criminals.
If the case is dismissed, it would imply a bold affirmation of First Amendment values against the encroachment of a Justice Department that keeps testing its ever-expanding boundaries.
In their latest pleading (pdf), the defendants called the attention of Judge T.S. Ellis, III, to a new decision of the U.S. Supreme Court which they said supports their argument for dismissal of the AIPAC case.
The Supreme Court decision last week, in a case called Garcetti v. Ceballos, held that when a government employee makes a statement as part of his official duties, he does not enjoy First Amendment protections against retaliation by his employer. The decision was widely viewed as a defeat for whistleblower rights.
But attorneys for the former AIPAC defendants pointed to the sharp distinction made by the Supreme Court between the speech of a government official, which the Court said is not protected by the First Amendment, and the speech of a member of the public, who still possesses First Amendment rights.
“Ceballos confirms the defendants’ argument that while it may be proper to sanction a government employee for certain types of speech, the First Amendment does not allow the government to punish subsequent oral transmissions by non-government individuals” like those in the AIPAC case, the defense attorneys wrote.
“The Motion to Dismiss should be granted.”
See “Defendants’ Notice of Supreme Court Decision Relevant to Defendants’ Joint Motion to Dismiss the Superseding Indictment,” filed June 2, 2006 in USA v. Rosen, Weissman.
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