Secrecy and imminent threat

According to US law, “top secret” means “information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security” (1, sic). The Espionage Act, going back to Justice Holmes, and subsequently interpreted by the courts, rebuffs First Amendment arguments through the “imminent threat” standard (previously the “clear and present danger” test) — resonant with the famous analogy that the value of “freedom of speech” does not protect the man who yells “fire!” in a crowded theater.

Yet, reportedly, in recent cases of the Espionage Act, the prosecution has successfully argued that both the actual and expected value of leaked information to the American public are not relevant considerations. [2] By analogy, it does not matter whether the man shouting “fire” in the theater thought he saw a fire (e.g., a hallucination), and it does not matter if a reasonable person in that position would also have seen a fire (e.g., a mass delusion, or hologram). It does not even matter if there was a fire. Evidently, it only matters that yelling “fire” is not the thing to do in theaters.

[1] https://fas.org/irp/ops/ci/franklin0805.pdf
[2] http://nymag.com/…/intel…/2017/12/who-is-reality-winner.html

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