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Should a whistleblower who leaks classified information to the press be allowed to argue in court that they acted in the public interest?

When Edward Snowden revealed the NSA’s mass surveillance programs in 2013, he triggered a massive, international debate over privacy, national security, and reform.^[1] Yet under current law, Snowden cannot argue in court that his actions benefited the public. The Espionage Act treats motive as irrelevant – meaning the law makes little distinction between a spy and a whistleblower. This post argues that the Espionage Act should permit a narrowly tailored public interest defense for whistleblowers who disclose government malfeasance responsibly.

The political fallout from Snowden’s disclosures illustrates how whistleblowing can function as a corrective mechanism in government, especially when meaningful oversight channels fail and individual insiders feel they have little alternative but to go public. The result has been a decade of public debate over privacy, surveillance, and national security practices that the State never intended to see the light of day. In fact, despite his popularity among much of the public, the Snowden controversy continues to animate the state and intelligence community over a decade later, as illustrated by the bipartisan backlash Director of National Intelligence Tulsi Gabbard received during her confirmation hearing for her past support of Snowden.^[2]

Snowden’s disclosures resulted in numerous reform efforts in Congress and the executive branch, as well as a federal court ruling that deemed certain NSA programs unconstitutional.^[3] Yet, despite triggering immense public discourse (a bedrock principle of the First Amendment) and widespread support for reform, Snowden was charged under the Espionage Act for his crimes. Snowden said he would return to the U.S. to face trial only if he were allowed to assert a public interest defense, which is currently not available under U.S. law.^[4]

The Espionage Act treats motive as irrelevant – it does not distinguish between spies disclosing national defense information with the intent to harm the U.S. or aid a foreign adversary and those disclosing such information to expose government abuses or otherwise serve the public interest. This rigid tool of the State serves a critical purpose in deterring and prosecuting genuine espionage, but is too inflexible to allow genuine whistleblowing to function where the democratic process and oversight fail.

Whistleblowers take on considerable personal costs to expose what they determine is deserving of public scrutiny. They rarely make these decisions lightly. Whistleblowers inherently defy the internal culture and incentives of their organization, which is often one of unwavering camaraderie and self-interest to a fault. In Joe Darby’s case, that meant defying an unspoken culture of looking the other way given abuses among the ranks of his fellow soldiers and friends. In the case of Frank Serpico and other law enforcement whistleblowers, that might mean breaching the “Blue Wall of Silence.” In most contexts, disclosure takes courage and significant sacrifice, as whistleblowers risk potential retaliation, social isolation, monetary costs, personal liberty, imprisonment, or even execution.

The incentive structure in the Intelligence Community is no different. Access to exclusive information and authority, combined with the institutional permanence that survives elections, can create an “above the law” culture that rewards self-preservation and punishes dissent. Camaraderie and a shared mission are important, but not to the extent that they enable and perpetuate a culture of corruption, abuse, and coverups that corrodes the mission and public interest. Internal mechanisms exist in the intelligence community and elsewhere, but those do not work where the chain of command may also be complicit.

But, as many critics note, and some whistleblowers admit, who are they to make these unilateral disclosures? Consistent with the spirit of the First Amendment, the court of public opinion often sorts out who is a hero and who is a traitor, but the law is not so forgiving. As Snowden and many others have argued,^[5] whistleblowers who do so responsibly deserve the opportunity to be vindicated (or condemned) in court via a public interest defense – a genuine opportunity to stand judgment by their peers. Their selfless and arguably selfish decision to disclose something they unilaterally determined to be in the public interest should be put to the test. The hefty costs of unauthorized disclosure inherently weed out many potential whistleblowers and frivolous or trivial claims.

Additionally, there is not much to be gained monetarily from public interest whistleblowing as opposed to genuine espionage. Whistleblowers carefully weigh these costs and still choose to illuminate issues they personally believe the public should know. Thus, those who do act and risk prosecution likely aim to share something of public interest and should have the opportunity to be heard. Public interest is inherently subjective – but so is national security.

First and Fourth Amendment issues have often created strange bedfellows in the courts and Congress because such issues typically fall more on the authoritarian-libertarian political axis than the liberal-conservative. In 2022, Rep. Ro Khanna (D-CA) and Sen. Ron Wyden (D-OR) partnered with Rep. Thomas Massie (R-KY) to reintroduce the Espionage Act Reform Act, which would, among other things, offer greater protection for journalists and add an element of specific intent to harm U.S. national security or assist a foreign government.^[6] However, the bill had an explicit carveout for individuals with security clearances and who had signed non-disclosure agreements – ensuring that government leakers, regardless of intent, would still face the same criminal liability as foreign spies.^[7] Even these modest, press-focused reforms failed to gain traction in Congress.

Although genuine reform is a longshot given little government interest in ceding power to dissenters, different public interest defenses have gained some traction in academia. Northwestern’s own Professor Heidi Kitrosser has proposed a judicial balancing test that would require courts to weigh the public interest in a disclosure against its harms and national security implications, rather than defer blindly to executive claims of harm.^[8]

Harvard Professor Yochai Benkler proposes a similar defense that would apply when “(a) the disclosed actions were reasonably seen as illegal or constituted, systemic error, incompetence, or malfeasance, (b) the disclosure used reasonable means to mitigate harms from the disclosure, and (c) the disclosure is to a channel reasonably aimed at public disclosure.”^[9] The government would then have the burden to prove, by clear and convincing evidence, that the harm from the leaks is “(a) specific, imminent, and substantial, and (b) outweighs reasonably expected benefits from the disclosure.”^[10] Benkler’s framework would presume reasonableness where the disclosure concerns certain subject matters, including human rights violations, significant manipulation of public opinion, secret laws governing national security, and surveillance abuses.^[11] A judge would assess the reasonableness of disclosures made outside of these subject matters, and consider post-leak corrective actions, such as judicial rulings on the exposed practice, congressional or executive responses, and shifts in public opinion.^[12]

Other proposals include a sentence mitigation approach, where at the sentencing of a convicted leaker, courts would consider factors including whether the information was properly classified, the way it was disclosed, what it revealed, what alternatives were available, and the extent to which the disclosure prompted public discourse or reform.^[13]

The best path forward to balance the competing interests of accountability and national security is to adopt the explicit press protections and intent requirements proposed in the Espionage Act Reform Act, incorporate Benkler’s framework and categories of presumptively reasonable disclosures, and expressly require a showing of administrative exhaustion or futility to reinforce whistleblowing as a corrective function of last resort. Democracies require secrecy to protect national security. But they also require safety valves to expose abuse when secrecy shields wrongdoing.

From a social policy perspective, this is not just about whistleblowers – it is about the public’s ability to understand and evaluate the government that acts in its name. This concern is especially important in the deeper echelons of the administrative state, where decisionmakers are less directly accountable to the American public. When government operates in secrecy, the costs of abuses and overreach may be felt most by ordinary citizens least equipped to challenge them. A public interest defense would likely help whistleblowers expose government weaponization and unfair targeting of the State’s political adversaries, as well as other abuses by one administration or the other. A public interest defense for whistleblowers would help rebalance that asymmetry by allowing information about government conduct to reach the public when existing avenues fail, while more appropriately distinguishing whistleblowing from genuine espionage. As a function of last resort, it would preserve necessary secrecy while ensuring that democratic accountability does not depend solely on the government’s willingness to police itself.

A narrowly tailored public interest defense would ensure that when whistleblowers step forward, the law affords them the opportunity to be heard and for a jury to decide whether they acted as traitors or as patriots. Given little incentive for self-reform, it is unlikely that government will voluntarily expose itself to transparency and dissent. Until then, we will have to count on those courageous enough to put their country over the State and themselves.

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[1] See generally James Bamford, The Most Wanted Man in the World, Wired (Aug. 22, 2014) https://www.wired.com/2014/08/edward-snowden/ [https://perma.cc/2MH4-PT8Q].

[2] See Calder McHugh, Tulsi Gabbard’s Edward Snowden problem, Politico (Jan. 30, 2025) https://www.politico.com/newsletters/politico-nightly/2025/01/30/tulsi-gabbards-edward-snowden-problem-00201692 [https://perma.cc/VF65-W6XJ].

[3] Yochai Benkler, A Public Accountability Defense for National Security Leakers and Whistleblowers, 8 HARV. L. & POL’y REV. 281 (Summer 2014); see also ACLU v. Clapper (2d Cir. 2015).

[4] Devan Cole, Edward Snowden says he would like to return to the US if he is guaranteed a fair trial, CNN (Sept. 17, 2019), https://www.cnn.com/2019/09/17/politics/edward-snowden-russia-us-fair-trial [https://perma.cc/J3UE-CRNS].

[5] Jessica Kegu, Edward Snowden wants to come home: “I’m not asking for a pass. What I’m asking for is a fair trial”, CBS News (Sept. 16, 2019, at 9:24AM ET), https://www.cbsnews.com/news/edward-snowden-nsa-cbs-this-morning-interview-today-2019-09-16/; see generally Benkler, supra note 3.

[6] See Press Release, Rep. Ro Khanna, Khanna, Wyden, Massie Introduce Bill to Protect Whistleblowers, Ensure Journalists Aren’t Targeted for Publishing Classified Information (July 27, 2022), https://khanna.house.gov/media/press-releases/release-khanna-wyden-massie-introduce-bill-protect-whistleblowers-ensure [https://perma.cc/AW5G-PZWP]; see also Gabe Rottman, How an Espionage Act reform bill would improve protections for national security reporting, Reporters Committee for Freedom of the Press (March 5, 2020), https://www.rcfp.org/espionage-act-reform/ [https://perma.cc/74HH-Z9W2].

[7] Gabe Rottman, supra note 5.

[8] Heidi Kitrosser & David Schulz, A House Built on Sand: The Constitutional Infirmity of Espionage Act Prosecutions for Leaking to the Press, 19 FIRST AMEND. L. REV. 153, 206-207 (2021).

[9] Benkler, supra note 3, at 306.

[10] Id. at 307.

[11] Id. at 308-09.

[12] Id. at 309-10.

[13] Kitrosser & Schulz, supra note 7, at 208-09.