Amicus Curiae Brief — McAusland v. United States

No. 92-960 if

upreme Court, U.S

FILED.

MAR 8 1993

RK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

THOMAS D. MCAUSLAND AND CHRISTOPHER M. PAFORT,

Petitioners,

¥

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE INSUPPORT OF

THE PETITION FOR A WRIT OF CERTIORARI

Kate Martin

American Civil Liberties

Union Foundation

122 Maryland Ave., N.E.

Washington, D.C. 20002

(202) 675-2327

Steven R. Shapiro

American Civil Liberties

Union Foundation

132 West 43rd Street

New York,NY 10036

(212) 944-9800

March 1993

Mark H. Lynch*

Covington & Burling

1201 Pennsylvania Avenue, N.W.

Post Office Box 7566

Washington, D.C. 20044

(202) 662-6000

Sheryl Walter

National Security Archive

1755 Mass. Avenue, N.W.

Washington, D.C. 20036

(202) 797-0882

Attomeys for Amici Curiae

* Counsel of Record

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ISSUE PRESENTED

Under the First Amendment, may the government prosecute

private citizens for acquiring and using unclassified government

information, in the absence of a statute that clearly applies to

such information?

(i)

ii

TABLE OF CONTENTS

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Ee eee ee ee ee ee 2

REASONS FOR GRANTING THE WRIT ........... . 4

Il.

THE JUDGMENT BELOW

RAISES AN IMPORTANT

FIRST AMENDMENT ISSUE ................. 6

ONLY CONGRESS CAN DECIDE

WHETHER CRIMINAL PENALTIES

ATTACH TO THE ACQUISITION

AND USE OF GOVERNMENT

INFORMATION, AND NEITHER

SECTION 641 NOR SECTION 1343

WAS INTENDED 70 HAVE THAT

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TABLE OF AUTHORITIES

Cases

Ashton v. Kentucky,

Be Pe SREP cc ickseraceenne basses

Butterworth v. Smith, -

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Carpenter v. United States,

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Department of the Air Force v. Rose,

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Dowling v. United States,

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Gamer v. Louisiana,

pg Me a eee ee ee er

Grayned v. City of Rockford,

ee er er ee

Grosjean v. American Press Co.,

DEF TRE MOMUNOOEE 60.5.446 55546 RRM eee tenes

Kent v. Dulles,

Be WO RUEEOUD x55 0060 ck an sanoteeses

Kolender v. Lawson,

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Page

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Cases (continued) Page

Leathers v. Medlock,

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McNally v. United States,

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Mills v. Alabama,

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NAACP vy. Button,

TE Se, voc bko wk 0 DENA So Oe AN eee eRe 9

Patterson v. Colorado,

ee EES oe kp cad dead aange tea eeeweneee 8

Pell v. Procunier,

ae See SN soo ios vp eee kee eee se ea aee ee 6

United States v. Computer Sciences Corp.,

689 F.2d 1181 (4th Cir. 1982),

cert. denied, 459 U.S. 1105 (1983) ............ eee 1]

United States v. Morison,

844 F.2d 1057 (4th Cir.),

cert. denied, 488 U.S.908 (1988) ............2005- 6,7

United States v. Truong Dinh Hung,

629 F.2d 908 (4th Cir. 1980),

cert. denied, 454 U.S. 1144 (1982) ............000. 1]

Vance v. Universal Amusement Co.,

G65 UB Fee CSS oa etew seis Wax ataoteieteceune 9

Statutes Page

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50 U.S.C.A. App. §§ 5, 16 Pare ere 10

Pub. L. No. 97-200, 96 Stat. 122,

NUNC EE MEDUED onc cvcedessctevnevsens 13,14

Legislative

H.R. Rep. No. 580, 97th Cong., 2d Sess. (1982) ........ 14

Miscellaneous

Writings of James Madison 103 (G. Hunted. 1910) ...... 6

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

No. 92-960

THOMAS D. MCAUSLAND

AND CHRISTOPHER M. PAFORT,

‘ Petitioners,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE IN SUPPORT OF

THE PETITION FOR A WRIT OF CERTIORARI

Amici curiae, the American Civil Liberties Union, the

American Society of Newspaper Editors, the Federation of

American Scientists, the National Newspaper Association,

the National Security Archive, the Newsletter Publishers

Association, Inc., the Newspaper Guild, the Radio-

Television News Directors Association, and the Reporters

Committee for Freedom of the Press, submit this brief in

support of the petition for certiorari. Asset forth more fully

below, this case is of exceptional importance because the

2

decision of the court of appeals (1) imperils the ability

of the press and the public to acquire and use government

information, and (2) represents an unwarranted expansion

of crim:nal statutes by the executive and judicial branches

into an area of First Amendment sensitivity that Congress

never intended to reach.

INTEREST OF AMICI

The American Civil Liberties Union (ACLU) is a

nationwide, non-partisan organization of over 275,000

members, dedicated to the protection of civil rights and

civil liberties. The ACLU has a long history of promoting

individual rights, including rights associated with the First

Amendment. In particular, the ACLU has tried to ensure

that the United States government, whatever party may be

in power, remains open to the people and that government

information, except in the most limited circumstances,

remains available to inform public debate.

The American Society of Newspaper Editors is a

nationwide, professional organization of more than 950

persons who hold positions as directing editors of daily

newspapers throughout the United States.

The Federation of American Scientists is a national

Organization of scientists and engineers concerned with

issues Of science and national security policy. The

Federation’s research and advocacy function is predicated

on the acquisition, analysis and dissemination of govern-

ment information.

3

The National Newspaper Association (NNA) is a

national trade association representing the interests

of weekly and daily newspapers throughout the country.

Founded in 1885 and with almost 5,000 members, NNA

is the oldest and largest national trade association in the

newspaper industry. For more than a century, a major

concern of NNA has been to ensure that political and

commercial information be distributed in an open and

robust manner.

The National Security Archive is a non-profit,

non-partisan foreign policy research institute and library

that collects and publishes declassified and unclassified

government documents. The Archive is dedicated to

promoting freedom of information through broad public

access to and dissemination of government records so that

the information in such documents is widely available for

the effective exercise of individuals’ First Amendment rights

through informed public debate and so that such informa-

tion is preserved as a contemporaneous account of our

nation’s history for the future.

The Newsletter Publishers Association, Inc. represents

700 publishers of approximately 2,200 newsletters and

specialized information services. Many of these newsletters

report on the activities of government agencies and actively

gather information about those agencies.

The Newspaper Guild,a labor organization representing

40,000 employees of newspapers, magazines, and related

enterprises in the United States anc Canada, has long been

active in protecting the First Amendment rights of

journalists and others.

4

The Radio-Television News Directors Association is

the principal professional organization of journalists —

executives, editors, reporters and others — who gather

and disseminate news and other information on radio and

television in the United States.

The Reporters Committee for Freedom of the Press

isa voluntary, unincorporated association of working

reporters and editors dedicated to defending the First

Ameadment and freedom-of-information interests of the

news media and public. The Reporters Committee has

provided representation, legal guidance and research in

virtually every major freedom of the press case litigated

since 1970.

REASONS FOR GRANTING THE WRIT

Petitioners were convicted under the theft of govern-

ment property statute, 18 U.S.C. § 641 (1988), the wire

fraud statute, 18 U.S.C. § 1343 (1988), and related

conspiracy counts, for obtaining unclassified information

concerning certain Department of Defense procurements

in which their employer had an interest. Although

petitioners had no intention of sharing this information

with the public, procurement information can be of genuine

news interest, particularly to the specialized trade press,

and is the sort of information that some of the amici

regularly seek out and publish.

The court below held that sections 641 and 1343 are

applicable here because Federal Acquisition Regulations

(FAR’s), unpublished directives and internal government

policies and practices put petitioners on notice that they

were without authority to acquire or use the information

5

at issue. This theory of liability is inconsistent both with

the First Amendment and the doctrine of separation of

powers. To define the reach of sections 641 and 1343 by

reference to departmental regulations and internal prac-

tices renders them unconstitutionally vague and overbroad.

Furthermore, these statutes do not.on their face apply to

government information, and they certainly do not reflect

aconsidered congressional judgment that control of

government information should be enforced with criminal

sanctions. The decision below therefore represents an

unwarranted judicial usurpation of the legislative process,

a development that is particularly dangerous in the

constitutionally sensitive area of government information.

As a practical matter, the judgment below puts the

press and other members of the public who seek out and

use government information in an impossible position

when deciding what information they may lawfully acquire

and use, because those decisions must turn on a body of

informal directives, policies and practices that can be

ascertained only with great difficulty, if at all. Further-

more, the informality of the standards used to define

criminal liability vests unprecedented discretion in the

hands of government officials. The theory of liability

sustained in this case does not merely chill First

Amendment rights, it paralyzes reporters, editors,

researchers, academics and plain citizens who seek to

learn and communicate about government activity.

6

I. THE JUDGMENT BELOW RAISES AN

IMPORTANT FIRST AMENDMENT ISSUE

This Court has stated that "there is practically universal

agreement that a major purpose of [the First] Amendment

was to protect the free discussion of governmental affairs."

Mills v. Alabama, 384 U.S.214, 218 (1966). Such discussion

would be hollow and ill-informed without the public’s ability

to acquire government information. As James Madison

wrote: "A popular Government, without popular informa-

tion, Or a means of acquiring it, is but a Prologue to a Farce

or a Tragedy; or perhaps both." 9 Writings of James Madison

103 (G. Hunt ed.1910). Indeed, the First Amendment rests

on the presumption that "informed public opinion is the

most potent of all restraints upon misgovernment."

Grosjean v. American Press Co., 297 U.S. 233, 250 (1936).

As the Court has recognized, "[t]he press plays a unique

role as acheck on government abuse.” Leathers v. Medlock,

111 S. Ct. 1438, 1443 (1991). Although the press often acts

as a surrogate for the public in acquiring government

information, see United States v. Morison, 844 F.2d 1057,

1081 (4th Cir.) (Wilkinson, J. concurring), cert. denied,

488 U.S. 908 (1988), members of the public are no less the

beneficiaries of the First Amendment protections than the

press and are no less entitled to invoke these protections.

See Pell v. Procunier, 417 U.S. 817, 833-34 (1974).

As construed by the court below, sections 641 and 1343

clearly "threaten to hinder the press [or any other citizen]

as a watchdog of government activity.” Leathers, 111 S.Ct.

at 1444. As Judge Wilkinson has observed, "[t]here exists

the tendency, even in a constitutional democracy, for gov-

ernment to withhold reports of disquieting developments

7

and to manage news in a fashion most favorable to itself."

Morison, 844 F.2d at 1081 (concurring opinion). Applying

sections 641 and 1343 to government information on the

basis of administrative regulations, directives or practices

places criminal sanctions behind that dangerous tendency.

The court of appeals’ construction of sections 641 and

1343 arguably will criminalize the premature release of

an innocuous public statement by a public official, the

publication of the internal deliberations of a government

body, and even the exposure of government corruption —

as long as the responsible government official (perhaps

the corrupt Official) has not given permission for the

disclosure. Not only the disclosure of such information by

government Officials, but also its receipt by the press or

other members of the public, would be acrime. Yet "the

publication of information relating to alleged government

misconduct [is] speech which has traditionally been

recognized as lying at the core of the First Amendment."

Butterworth v. Smith, 494 U.S. 624, 632 (1990).

The press and other researchers have an important

role in informing the public about the operations of

government. Oftentimes, reporters and others obtain and

publish information that high government officials have

tried to keep secret. In the case of government misconduct

Or corruption, for example, the relevant government

information will not often be provided by those "authorized"

to disclose it. Yet, under the court of appeals’ inter-

pretation of sections 641 and 1343, a reporter who acquired

and used such information, as well as the newspaper that

published it, might be subject to prosecution. On the court

of appeals’ interpretation, the government would be able

to prosecute not only government Officials and defense

8

contractors, but also any citizen who studies and reports

on the operations of government, whenever they acquire

and use information that certain government Officials

direct their subordinates to conceal, for whatever reason,

from the public.

Under the decision below, the only sure way for a

reporter Or other citizen to be confident that use of

government information acquired other than through

official channels is not proscribed by internal directives,

policies or practices is to ask government Officials in

advance of publication. This procedure is impractical

because it gives to those who are the subject of scrutiny

a veto over what information may be used. It is also anti-

thetical to the First Amendment because coercing the press

and public, with the threat of criminal prosecution, to seek

prior approval for publication is a form of prior restraint.

Yet "the main purpose" of the First Amendment was "to

prevent all such previous restraints upon publications as

had been practiced by other governments.” Patterson v.

Colorado, 205 U.S. 454, 462 (1907) (emphasis in original).

As construed by the court of appeals, sections 641

and 1343 are both unconstitutionally vague and overbroad.

To avoid the vice of vagueness, "a penal statute [must]

define the criminal offense with sufficient definiteness

that ordinary people can understand what conduct is pro-

hibited and in a manner that does not encourage arbitrary

and discriminatory enforcement." Kolender v. Lawson, 461

U.S. 352, 357 (1983). In the First Amendment context, a

statute that turns on departmental regulations and practices

cannot meet these requirements. For private citizens,

distinguishing between government information that is

lawful to acquire and use and information that is criminally

9

proscribed must not be made to depend on a compre-

hensive knowledge of the Code of Federal Regulations and

daily review of the Federal Register. The decision below,

however, holds that unpublished agency directives and even

agency practices are sufficient to define the reach of

criminal statutes.

A statute is overbroad when it proscribes the dis-

closure or acquisition of information that is harmless and

protected by the First Amendment as well as information

that might lawfully be regulated because of a compelling

interest in secrecy. See Grayned v. City of Rockford, 408

U.S. 104, 114 (1972). Contract procurement information is

the present focus of government attention, but the govern-

ment has not suggested that the information defendants

acquired represents any limiting principle on _ the

applications of sections 641 and 1343. This Court has

repeatedly warned of "the ... ‘danger of tolerating, in the

area of First Amendment freedoms, the existence of a penal

statute susceptible of sweeping and improper application.’"

Vance v. Universal Amusement Co., 445 U.S. 308, 315 n.12

(1980) (per curiam) (quoting NAACP v. Button, 371 US.

415, 433 (1963)). By extending sections 641 and 1343 to

encompass a vast array of government information, the

executive branch would achieve just such a result.

10

II. ONLY CONGRESS CAN DECIDE WHETHER

CRIMINAL PENALTIES ATTACH TO THE

ACQUISITION AND USE OF GOVERNMENT

INFORMATION, AND NEITHER SECTION

641 NOR SECTION 1343 WAS INTENDED

TO HAVE THAT REACH

Government information is presumptively public

information. That judgment is reflected in the Copyright

Act, 17 U.S.C. § 105 (1988), which denies the government

the protections of copyright, and in the Freedom of

Information Act, 5 U.S.C. §552 (1988), which requires

public disclosure of all agency records, subject to nine

specific exemptions. See Department of the Air Force v.

Rose, 425 U.S. 352, 360-61 (1976). The presumption, of

course, can be overcome, but only Congress has the

authority to make the essentially legislative decision as

to what categories of government information will be the

subject of criminal penalties.'

It is a fundamental principle of due process, separation

of powers and the canons of statutory construction that

courts will not extend any criminal statute to conduct when

it is uncertain whether the legislature intended to reach

that conduct. See McNally v. United States, 483 U.S. 350,

359-60 (1987); Dowling v. United States,473 U .S.207,213-14

(1985). When, as here, the statute affects interests

protected by the First Amendment, this rule has special

force and the legislative intent must be especially clear.

, Congress did not delegate such decisions to the President under

sections 641 and 1343 as it has in other statutes. See, e.g., Trading With

the Enemy Act, 50 U.S.C.A. App. §§ 5, 16 (1988).

11

See Ashton v. Kentucky, 384 U.S. 195, 200-01 (1966); Kent v.

Dulles, 357 U.S. 116, 129-30 (1958).

Justice Harlan explained this point well when he wrote

that government cannot criminalize conduct that is within

the range of First Amendment protection by means of a

"general and all-inclusive ... prohibition.” Gamer v.

Louisiana, 368 U.S. 157, 202 (1961) (concurring opinion).

Instead, the legislature must enact a statute that is

"narrowly drawn to define and punish specific conduct as

constituting a clear and present danger to a substantial

interest of the State.” /d. (quoting Cantwell v. Connecticut,

310 U.S. 296, 311 (1940)). This limitation is justified

“not because control of such activity is beyond the power

of the State, but because sound constitutional principles

demand of the . . . legislature that it focus on the nature

of the otherwise ‘protected’ conduct it is prohibiting,

and that it then make a legislative judgment as to

whether that conduct presents so clear and present a

danger to the welfare of the community that it may

legitimately be criminally proscribed." J/d. at 203

(footnote omitted).

Congress clearly did not make any such considered

judgment when it enacted sections 641 and 1343. "[T]he

legislative history reveals that Congress has never directly

considered the application of § 641 to government

information.” United States v. Truong Dinh Hung, 629 F.2d

908, 923 (4th Cir. 1980) (separate opinion of Winter, J.),

cert. denied, 454 U.S. 1144 (1982). The same is also true

of section 1343. The wire fraud statute is based on its older

sibling, the mail fraud statute, 18 U.S.C. § 1341 (1988). See

12

United States v. Computer Sciences Corp., 689 F.2d 1181,

1188 n.14 (4th Cir. 1982), cert. denied, 459 U.S. 1105 (1983).

That statute, which —like section 641 —was first enacted in

the 19th century, “had its origin in the desire to protect

individual propertyrights" and not government information.

McNally, 483 US. at 359 n.8.

Both section 641 and section 1343 are "general and all-

inclusive” statutes and neither reflects a specific congres-

sional judgment that receipt of government information, as

opposed to tangible government property, "presents so clear

and present a danger to the welfare of the community that

it may legitimately be criminally proscribed." Gamer,

368 U.S. at 203. For the reasons stated by Justice Harlan

in that case, these statutes should not be expanded to an

area where First Amendment interests are at stake.”

The executive branch should not be permitted to expand

the reach of general statutes such as sections 641 and 1343

to government information by mere reference to its own

regulations and internal practices. To allow the executive

branch to determine in its discretion what information falls

within or without these broad statutes usurps the role of

Congress in making the delicate legislative decisions as to

what sorts of government information will be the subject of

criminal penalties.

2 This Court has held that the mail and wire fraud statutes apply to the

conversion of proprietary information belonging to a private employer.

Carpenter v. United States, 484 U.S. 19 (1987). That case is plainly

distinguishable because here government information is at issue. None

of the First Amendment interests implicated here were implicated in

Carpenter .

iia naieieanitaaiananeidiene de teeta |

13

Permitting the government to use sections 641 and 1343

to prosecute the acquisition of government information also

upsets the precise and complex framework that Congress

has constructed with regard to criminal penalties for such

conduct. Congress has approached this issue with great

caution. Putting aside the statutes dealing with information

that is classified for reasons of national security (which is

not involved here) ,Congress has criminalized the disclosure

by government Officials of only certain limited categories

of government information and in most instances has not

extended these statutes to the recipients of the information.

See 18 U.S.C.§ 1902 (1988) (crop reports); 18 U.S.C.§ 1905

(1988) (trade secrets); 18 U.S.C. §§ 1906-1908 (1988) (bank

examination information). Statutes criminalizing the use of

government information by citizens not employed by the

government are rare and are quite specific in the informa-

tion to which they apply. See 18 U.S.C. § 2511(1)(c) (1988)

(information obtained through electronic surveillance);

26 U.S.C. § 7213 (1988) (tax returns). In this case, the

Court is confronted with the remarkable fact that Congress

made the unauthorized use of procurement information a

crime only after appellants engaged in the conduct for which

they were convicted. 41 U.S.C. § 423(a) (1988).?

The care and delicacy with which Congress approaches

the question of criminalizing the use of government informa-

tion by those outside the government is best illustrated by

the Intelligence Identities Protection Act of 1982, Pub. L.

No. 97-200, 96 Stat. 122, 50 U.S.C. § 421 (1988). In that

statute, Congress was dealing with one of the most sensitive

categories of information our government maintains —the

3 Amici take no position on whether that statute is constitutional.

hs

identities of its covert intelligence agents whose very lives

can depend on preserving their secrecy. With respect to

individuals who learn the identities of intelligence agents

through authorized access to classified information, the

statute imposes criminal liability for the intentional and

knowing disclosure of such identities. 50 U.S.C. § 421(a)

and (b) (1988). However, with respect to individuals

Outside the government without authorized access to

Classified information, the statute applies only to those who

disclose the identity of an agent "in the course of a pattern

of activities intended to identify and expose covert agents

and with reason to believe that such activities would impair

or impede the foreign intelligence activities of the United

States.” 50 U.S.C. § 421(c) (1988).

This standard was adopted so that the statute would

apply to those outside the government "only in very limited

circumstances to deter those who make it their business to

ferret out and publish the identities of agents." H.R. Rep.

No. 580, 97th Cong., 2d Sess. 8 (1982), reprinted in 1982

US.C.C.A.N. 172. Congress did not, however, want the

statute to "affect the First Amendment rights of those who

disclose the identities of agents as an integral part of

another enterprise such as news media reporting of

intelligence failures or abuses, academic studies of US.

government policies and programs, or a private organiza-

tion’s enforcement of its internal rules.” /d.

The Intelligence Identities Protection Act demonstrates

that even with respect to the most sensitive types of govern-

ment information, as to which the strongest arguments for

criminal penalties can be made, such penalties attach only

in the most limited of circumstances. These complex

balancing decisions must be left to Congress rather than

permitting the executive branch to decide what government

information is proscribed through its ever-expanding use of

broad statutes such as sections 641 and 1343.

CONCLUSION

For the reasons set forth above, the petition should be

granted.

Kate Martin

American Civil Liberties

Union Foundation

122 Maryland Ave., N.E.

Washington, D.C. 20002

(202) 675-2327

Steven R. Shapiro

American Civil Liberties

Union Foundation

132 West 43rd Street

New York,NY 10036

(212) 944-9800

March 1993

Respectfully submitted,

Mark H. Lynch*

Covington & Burling

1201 Pennsylvania Ave., N.W.

Post Office Box 7566

Washington, D.C. 20044

(202) 662-6000

Sheryl Walter

National Security Archive

1755 Mass. Aveiiue, N.W.

Washington, D.C. 20036

(202) 797-0882

Attomeys for Amici Curiae

* Counsel of Record