SCOTUS Leak Investigation and the First Amendment

by Michael C. Dorf

Much of the public discussion of the inconclusive Marshal's Report of the investigation into last year's leak of the draft opinion in Dobbs has focused on a question that raises doubts about its thoroughness and fairness: why were the Justices not subject to the same requirements--such as signing affidavits--as law clerks and other Court personnel?

Marshal Gail A. Curley, who headed the investigation, stated in response to this question that she "spoke with each of the Justices, several on multiple occasions" and "followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits."

Maybe that's all there is to it, but given the status of the Marshal relative to the Justices versus her status relative to other Court personnel, it's also possible that she was predisposed not to push too hard to find leads that might implicate a Justice. 

I don't have much to add to this line of inquiry. Hence, I'll focus today's essay on leaks as such. Although the Court's statement introducing the Marshal's Report describes the Dobbs leak as "a grave assault on the judicial process," the Court's precedents regarding unauthorized disclosure of information suggest a more ambivalent position.

In New York Times v. United States, the Court rejected the government's contention that the NY Times and Washington Post could be enjoined from publishing the Pentagon Papers, which Daniel Ellsberg had leaked. The ruling rested on the proposition that the core of the First Amendment is a very strong presumption against the permissibility of prior restraints on the press. The Court did not hold that Ellsberg had a constitutional right to leak classified information. Hence, Ellsberg faced espionage and other charges. The prosecution against him was ultimately dismissed for government misconduct but not because Ellsberg's leak was constitutionally protected.

The Court extended the logic of Pentagon Papers thirty years later in Bartnicki v. Vopper. There, an unknown person had unlawfully intercepted and recorded a conversation, which was later played on the radio. The Court held that even though someone broke the law to obtain information, where the party who disseminates the material acquired it lawfully, that party did not play a role in obtaining the information, and the material is on a matter of public interest, the First Amendment bars liability for the public dissemination. Bartnicki extends Pentagon Papers because it bars retrospective liability, not merely prior restraints.

The Court's response to the leak of the Dobbs draft is consistent with Pentagon Papers and Bartnicki. There was no attempt to impose liability or sanctions on Politico for publishing the leaked draft but that did not preclude the Marshal from investigating the leak. Had the source been discovered and it turned out to be someone who worked at the Court, that person could have faced discipline, including dismissal, without offending the First Amendment. Indeed, even criminal charges would have been consistent with the First Amendment. The Marshal's Report cites various federal statutes that might have been used as the basis for such charges.

So, there's nothing to see here, right? The Court's investigation failed but at least it was conducted in a manner consistent with its own First Amendment case law. That's basically right, except that the case law itself is worth pondering.

Suppose Cathy the Catburglar comes to Paul's Pawnshop in New York City with a diamond ring valued at $10,000. "Wow, that's a beautiful ring," Paul says to Cathy. "Where'd you get it?"

"Duh. I stole it. I'm a cat burglar. It's right in my name."

"Right," says Paul. "But where did you steal it from?"

"I'd rather not say," Cathy replies, "but don't worry. I didn't steal it around here. Let's just say that an heiress in California will find that her hand feels a little lighter than it used to."

"Gotcha," Paul replies. "I'll give you six grand for the ring." They haggle and eventually settle on a price of $7500.

Paul has committed a federal crime of receiving goods valued at over $5,000 that he knows to be stolen and that crossed state lines. He has also committed third-degree possession of stolen property under New York law. The fact that Paul didn't steal the ring himself or play a role in Cathy's crime does not shield Paul in any way.

And for good reason. By criminalizing the knowing receipt of stolen property, the law reduces the incentive for people to steal in the first place. Deterring people like Paul from receiving stolen property makes it harder to fence stolen property, which in turn decreases the value of stolen property, which in turn alters the cost-benefit calculation of thieves.

That same logic could be applied to purloined information as well. If news outlets could be punished for disseminating material unlawfully obtained, that would reduce the incentive for people like Ellsberg and whoever made the recording in Bartnicki to engage in their illegal activity. And yet, the Court's cases say that the disseminators of the information cannot be sanctioned, even when they know that the person who delivered the information acted criminally. Why the difference?

Bartnicki itself provides the answer: often there will be a public interest in the information. And although that was not the primary basis for the result in Pentagon Papers, there too there was a very strong public interest in the underlying information--which revealed that the government had long known that the Vietnam War was going much more badly for the U.S. and South Vietnam than their public pronouncements acknowledged. By contrast with the public interest in the dissemination of information on matters of public concern, there is no discernible public interest in the sale of stolen property.

To be sure, there is also a constitutional text applicable to information but not to stolen goods. However, that fact only goes so far. Even in Pentagon Papers, three Justices dissented, so the result there was hardly an obvious entailment of the constitutional text. And even if one thinks that the result in Pentagon Papers should have been foreordained by the original understanding with respect to prior restraints, that argument does not apply to Bartnicki, which did not involve a prior restraint. In short, the First Amendment's text and history did not by themselves require the Pentagon Papers/Bartnicki doctrine; the Court adopted the rules it did because of a normatively laden account of the role of free speech and free press in a democratic society.

I happen to agree with the normative judgment that underwrites Pentagon Papers and Bartnicki, but the more important point here is that the Justices--so long as they adhere to the current doctrine--accept the normative judgment that there is often a strong public interest in accessing information that someone broke the law to reveal. And that judgment complicates the Court's claim that the Dobbs leak was an "extraordinary betrayal." It was that, but that's not all that it was.

Daniel Ellsberg was a whistleblower. That alone wouldn't have protected him from criminal liability, but it does mean he wasn't simply a villain in the way that Cathy the Catburglar is.

Because we don't know the identity or motive of whoever leaked the Dobbs opinion, it's impossible to say whether that person counts as a whistleblower. My inclination is to say they are not, regardless. Although the Dobbs opinion was terrible, in my view, releasing it early didn't reveal anything to the public that wasn't going to become known soon enough. That said, it is possible to imagine circumstances in which the leaker of a SCOTUS opinion could be engaged in whistle blowing. And in any event, the public-interest standard of Bartnicki does not depend on whether the revelation of the information amounts to whistle blowing.

Despite the Court's strong rhetoric condemning the Dobbs leak and leaker, legal doctrine the Court hasn't repudiated (and shouldn't repudiate) reveals a more nuanced view of leaking. That doctrine leaves in place an incentive structure that will eventually lead to more leaks. Without condoning any particular leak, I would say the doctrine gets the balance about right, as applied to the Court no less than to the Pentagon or the people whose conversation was unlawfully intercepted and recorded in Bartnicki.