# Amicus Curiae Brief — McAusland v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1747%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 1003

## Text

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?

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TABLE OF CONTENTS

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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,

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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,

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Grosjean v. American Press Co.,

DEF TRE MOMUNOOEE 60.5.446 55546 RRM eee tenes

Kent v. Dulles,

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Kolender v. Lawson,

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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,
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1747%3A5. Public record. Not legal advice.