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Jacqueline Reardon, Espionage Law - First Amendment, 13
Suffolk Transnat'l L.J. 455 (1989)

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ESPIONAGE LAW - FIRST AMENDMENT - Applying the
Espionage Statutes to Press Leaks, United States v. Mori-
son, 844 F.2d 1057 (4th Cir. 1988).

Congress enacted the Espionage Act of 1917 ("Act") to se-

cure secrecy in matters of national defense.' Sections 793(d)
and (e) of the Act provide criminal sanctions for the transmit-
tal of any information relating to United States national de-
fense to any person not entitled to receive such information.2
Traditionally, individuals prosecuted under the Espionage Act
have leaked United States classified government information
to another foreign government.3 In United States v. Morison, 4

1. Espionage Act of 1917, Pub. L. No. 65-24, 40 Stat. 217 (1917) (codified at 18
U.S.C. §§ 791-799 (1982)).
2. 18 U.S.C. § 793(d) and (e) (1982). The statute reads in pertinent part:
(d) Whoever, lawfully having possession of, access to, control over, or being
entrusted with any document, writing, code book, signal book, sketch, photo-
graph, photographic negative, blueprint, plan, map, model instrument, appli-
ance, or note relating to the national defense, or information relating to the
national defense which information the possessor has reason to believe could
be used to the injury of the United States or to the advantage of any foreign
nation, willfully [sic] communicates, delivers, transmits, or causes to be com-
municated, delivered, or transmitted or attempts to communicate, deliver,
transmit or cause to be communicated, delivered or transmitted the same to
any person not entitled to receive it, or willfully [sicl retains the same and fails
to deliver it on demand to the officer or employee of the United States entitled
to receive it; or
(e) Whoever having unauthorized possession of, access to, or control over
any document, writing, code book, signal book, sketch, photograph, photo-
graphic negative, blueprint, plan, map, model, instrument, appliance, or note
relating to the national defense, or information relating to the national de-
fense, which information the possessor has reason to believe could be used to
the injury of the United States or to the advantage of any foreign nation, will-
fully [sic) communicates, delivers, transmits or causes to be communicated,
delivered, or transmitted, or attempts to communicate, deliver, transmit or
causes to be communicated, delivered, or transmitted the same to any person
not entitled to receive it, or willfully [sic] retains the same and fails to deliver
it to the officer or employee of the United States ... shall be fined not more
than $10,000 or imprisoned not more than 10 years or both.
Id.
3. Note, The Constitutionalityof Section 793 of the Espionage Act and its Appli-
cation to Press Leaks, [hereinafter Constitutionality of EspionageAct] 33 WAYNE L.
REV. 205, 208 (1986) (government used Act to stop spread of defense secrets to
foreign governments). The most memorable Espionage Act prosecution was the
trial of Julius and Ethel Rosenberg for delivering atomic bomb secrets to Russia in
1950. Id. at 208. See also Note, Plugging the Leak.* The Case for a Legislative
Resolution of the Conflict Between the Demands of Secrecy and the Need for an
456 SUFFOLK TRANSNATIONAL LAW JOURNAL [Vol. 13:455

the United States Court of Appeals for the Fourth Circuit

considered whether the Espionage Act prohibited transmit-
ting government documents to a foreign press.' In this case of
first impression, the court determined that the Espionage Act
was not unconstitutionally vague or overbroad and, therefore,
held that the transmittal of United States
6
documents to a for-
eign press was prohibited by the Act.
The defendant Morison was an employee of the Naval In-
telligence Support Center ("NISC") from 1974 to 1984. 7
Morison worked in a vaulted area, open only to persons with
top secret security clearance. 8 As part of his security clear-
ance, Morison signed a non-disclosure agreement.9 While em-
ployed at NISC, the defendant began off-duty employment
with Jane's Defence Weekly, ("Jane's") an English publica-
tion.1 ° The Navy approved Morison's work for Jane's, pro-
vided that Morison would not supply Jane's with classified

Open Government, 71 VA. L. REV. 801, 806 (1985) [hereinafter Plugging the Leak]
(listing other cases involving Espionage Act). One important such case was
Abrams v. United States, 250 U.S. 616 (1919), which involved distribution of cir-
culars intending to provoke resistance to the United States. Note, Plugging the
Leak, 71 VA. L. REV. 801, 806, n.21.
4. 844 F.2d 1057 (4th Cir. 1988).
5. d.
6. Id. at 1073.
7. Id. at 1060. Morison's assignment was analysis of amphibious and hospital
ship mine warfare. Id.
8. 844 F.2d 1057, 1060.
9. Id. In the Non-Disclosure Agreement, the defendant acknowledged that he
had received
a security indoctrination concerning the nature and protection of Sensitive
Compartmented Information, including the procedure to be followed in ascer-
taining whether other persons to whom [he] contemplates disclosing this in-
formation have been approved for access to it and [he understood] these
procedures... [that he had been] advised that direct or indirect unauthorized
disclosure, unathorized retention, or negligent handling of Sensitive Compart-
mented Information by [him] could cause irreparable injury to the United
States or be used to advantage by a foreign nation... [that he understood he
was] obliged by law and regulation not to disclose any classified information in
an unauthorized fashion... [that he had been] advised that any unauthorized
disclosure of Sensitive Compartmented Information by [him] may constitute
violations of United States criminal laws, including the provisions of Section
793, 794, 798, and 952, Title 18, United States Code...
Id. at 1060.
10. Id.
1989] ESPIONAGE STATUTES

information. '
When Morison became dissatisfied with his employment
with the Navy, he began to pursue full time employment with
Jane's. 2 To enhance his full-time employment prospects,
Morison provided the editor of Jane's with information on a
recent explosion at the Severomorsk Soviet Naval Base.' 3
Shortly after, NISC received satellite photographs of a Soviet
aircraft carrier under construction in a Black Sea naval ship-
yard.4 Morison stole the photographs and sent them to
Jane's Defence Weekly.' 5 Jane's published the photographs
and made them available to other news agencies.' 6 Following
the publication of the pictures in the Washington Post, Navy
officials investigated Morison and subsequently arrested and
charged him with violating Sections 793(d) and (e) of the Es-
pionage Act.' 7
Morison was tried before the United States District Court

11. Id.
12. 844 F.2d 1057, 1060. The defendant's off-duty work for Jane's had become
a subject of controversy between him and the Navy. Id. Consequently, the defend-
ant wanted to leave the Navy, and secure full-time employment with Jane's. Id.
The defendant began a correspondence with Derek Wood, the editor of Jane's, in
an effort to obtain a job. Id. at 1061.
13. Id. When Wood was in Washington, he met with the defendant, and
brought up the subject of the explosions. 844 F.2d 1057, 1061. Wood said he was
interested in receiving more information on the explosion, and the defendant said
he could provide Wood with information. Id. When Wood returned to London, he
received from the defendant three typed pages of material on Severomorsk. Id.
Later, Wood received from the defendant information on other explosions as well.
Id.
14. Id. The pictures, which showed a carrier under construction in a Black Sea
naval shipyard, were to be analyzed so a determination could be made as to the
capabilities of the carrier. 844 F.2d 1057, 1061. The pictures were stamped "se-
cret" and also had a warning notice imprinted on their borders. Id. Morison cut
these words off, and sent them to Wood. Id.
15. Id. Morison received $300.00 for furnishing Wood with information during
this period. Id. n.2.
16. 844 F.2d 1057, 1061.
17. Id. at 1061-1063. When Morison was first interrogated, he denied stealing
the photographs, and claimed he had no knowledge of the thefts. Id. at 1061.
Later, Morison named two employees whom he thought should be questioned
about the theft. Id. at 1062. While the investigation was ongoing, Morison bragged
to Wood that the photographs could not be traced to him. Id. at 1061 n.3. But
when Morison's fingerprint was found on the pictures, and the analysis of his type-
writer ribbon showed numerous letters sent to Wood, he was arrested on October 1,
1984. 844 F.2d 1057, 1062.
458 SUFFOLK TRANSNA TIONAL LAW JOURNAL [Vol. 13:455

for the District of Maryland, which denied his motion for a

directed verdict. 8 The jury convicted Morison of violating
Sections 793(d) and (e) of the Espionage Act. 9 The defendant
appealed, asserting that the Espionage Act did not apply to an
individual who gives information to the press.2" The United
States Court of Appeals for the Fourth Circuit affirmed, hold-
ing that Sections 793(d) and (e) could be applied to individu-
als leaking information to the press.2 '
The 1917 version of the Espionage Act, enacted two days
after President Wilson announced the severance of diplomatic
ties with Germany, prohibited those with "lawful or unlaw-
ful" possession of defense documents from communicating the
contents of the documents or retaining them in the face of
demand for their return.22 There was little direct discussion

18. United States v. Morison, 604 F. Supp. 655, 665 (D. Md. 1985).
19. Id. at 665. At the trial, Morison, relying on the legislative history, asserted
that 793(d) and (e) should only be applied to classic espionage cases. Id. at 659.
The court stated, however, that congressional intent could not be determined from
the legislative history. Id. The trial court noted that had Congress wanted to limit
the statute's application to disclosure to foreign agents, such limiting words could
have been employed in the statute. Id. at 1060. The court then rejected Morison's
vagueness argument, finding that none of the phrases were unconstituionally
vague. United States v. Morison, 604 F. Supp 655, 661-662 (D. Md. 1985).
20. 844 F.2d 1057, 1063. See supra note 3 (Espionage Act previously used to
stop spread of classified information to foreign governments).
21. 844 F. 2d 1057, 1063.
22. See Espionage Act of 1917, Pub. L. No. 65-24, 40 Stat. 217 (1917) (Act
protects secret documents). In 1917, 793(d) and (e) were embodied in the single
section (d). Id. The language of the 1917 version was basically the same as that of
18 U.S.C. § 793. Id. Section l(d) provided:
[W]hoever, lawfully or unlawfully having possession of, access to, control
over, or being intrusted with any document, writing, code book, signal book,
sketch, photograph, photographic negative, blue print, plan, map, model, in-
strument, appliance, or note relating to the national defense, willfully [sic]
communicates or transmits or attempts to communicate or transmit the same
to any person not lawfully entitled to receive it, or willfully [sic] retains the
same and fails to deliver it on demand to the officer or employee of the United
States entitled to receive it...
Id. See supra note 2 (text of Espionage Act as of 1989).
The Act was amended in 1950, as part of the Internal Security Act of 1950, and
the present subsections 793(d) and (e) were created. Internal Security Act of 1950,
Pub. L. No. 81-831, 64 Stat. 987 (1950). When l(d) was split into two provisions,
treatment of the retention offense depended on whether possession of the material
was lawful or unauthorized. Id. at 1003. In addition, the Internal Security Act
made section (e) applicable to non-government employees. Id. Congress also added
to the list of materials classified information relating to the "national defense
1989] ESPIONAGE STA TUTES

of the impact of the Espionage Act on the exercise of free

speech or freedom of the press in the legislative record directly
relating to Sections 793(d) and (e). 23 Instead, debate focused
on the vagueness in the phrase "any person not entitled to
receive."" One faction claimed that other statutes and regula-
tions clarified who could properly receive documents, while
another argued that there existed no regulations which were
sufficient to save the Act from fatal ambiguity.25 Over one

which. . .the possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation," and criminalized causing
or attempting to cause a transmission. Id.
23. See H. REP. No. 507, 65th Cong., 2d Sess., 1 (1917) (legislative record is
practically silent on any congressional intent in enacting § 793(d) and (e)). See also
Constitutionalityof Espionage Act, supra note 3, at 212 (saying that legislative his-
tory is unclear); Edgar and Schmidt, The Espionage Statutes and Publication of
Defense Information, 73 COLUM. L. REV. 929, 1006 (1973) [hereinafter Espionage
Statute] (debate of l(d) is almost non-existent).
Edgar and Schmidt also observed that although the legislative history surround-
ing the 1950 amendments was equally sparse-mainly because sections 793(d) and
(e) were tucked away under a larger act dealing with the threat of communism-
the climate in which they were enacted may be enlightening as to the scope of the
statute: suspicion of communism abounded, and the government wanted to do all
it could to protect its people from this purported threat. Id. at 1022.
24. See Espionage Statutes, supra note 23, at 1007-08 (1973) (enumerating as-
pects of the debate).
25. See H.R. 291, 65th Cong., 1st Sess. § 4 (1917) (debate of phrase "entitled to
receive."). Some senators agreed that who was "not entitled to receive" could be
determined by looking at different statutes, while others believed that there was no
statute which stated who was entitled to receive, and thus the phrase was ambigu-
ous. See 54 CONG. REC. 3584 (1917) (comments of Senators Overman and Cum-
mings) (discussion of who could be prosecuted under the statute). When the bill
was reintroduced in the next session of the Senate, during the debates the phrase
"entitled to receive" was struck from sections l(a) and (b), but kept in section l(d).
See 54 CONG. REC. 3635 (1917). Whether the narrowing of l(a) and (b) was in-
tended to be applied to l(d) is unclear, because there was no debate of l(d) during
this session. See Espionage Statutes, supra note 23, at 994 (1973) (no explanation
for shift appears in reports or debates).
There was also an elimination of a section of the Act which would have given the
President the power to characterize information he saw fit as defense related. Id. at
1008. The proposed characterization section, along with section l(d), was to oper-
ate according to a classification scheme backed by criminal sanctions. Id. at 1009.
The President would make an order, designating any information in the files of the
government as being related to the national defense. Id. at 1009. Then, section l(d)
would come into effect, and only authorized persons would be "entitled to receive."
Id. Retention of section l(d) following elimination of the proposed censorship pro-
vision has thus led to an inherent vagueness in the Act, because it is not clear
whether the executive order was to be the sole means by which those who are "not
entitled to receive" were to be determined. Espionage Statutes, supra note 23, at
1009 (1973).
460 SUFFOLK TRANSNATIONAL LAW JOURNAL [Vol. 13:455

million people joined the debate, including thousands of jour-6

2
nalists who signed a petition against the Bill's enactment.
Such protests are heard today in charges that the statute is
vague and overbroad.'
A statute is overbroad if it restricts conduct related to the
first amendment.2 8 The overbreadth doctrine has not been
recognized outside the limited context of the first amendment
and, therefore, has been applied sparingly.29 The application
of overbreadth scrutiny is further limited by the distinction
drawn between statutes which regulate pure speech and stat-
utes which regulate conduct falling within the first amend-
ment.3" In cases where conduct is being regulated, the
overbreadth of a statute must not only be real, but substantial
as well. 3 '
In deciding overbreadth challenges to the regulation of con-
duct related to news media, courts have often had to balance
the value of unrestricted newsgathering against other public
interests.32 In the area of national security, the judiciary tends
to balance the competing ends in a light more favorable to the
political branches of government.33 Thus, courts have held
that government restrictions that would otherwise be imper-
missible may be sustained where national security and foreign

26. See Espionage Statutes, supra note 23, at 1013 (1973) (Senate bombarded
with newspaper inspired protests).
27. See Connally v. General Const. Co., 269 U.S. 385, 391 (1926) (vagueness
doctrine rooted in due process principles and directed at lack of sufficient clarity
and precision in statute).
28. See Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973) (statutes restricting
first amendment must be narrowly drawn).
29. See New York v. Ferber, 458 U.S. 747, 769 (1982) ("overbreadth scrutiny is
strong medicine and should be applied with hesitation"); see also Dombrowski v.
Pfister, 380 U.S. 479, 491 (1965) (overbreadth scrutiny should not be utilized when
limiting construction could save regulation from its constitutional defects).
30. See Broadrick v. Oklahoma, 413 U.S. 601, 614 (1973) (overbreadth scrutiny
less rigid in conduct cases).
31. See id. at 615. To be substantially overbroad a case must involve conduct
plus speech. See New York v. Ferber, 458 U.S. 747, 771 (1982) (statute is over-
board if its enforcement in varied situations continually hampers free speech).
32. See Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 558 (1980) (access
to judicial proceedings); Branzburg v. Hayes, 408 U.S. 665, 692 (1971) (disclosure
of press sources to grand jury).
33. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (government's in-
terest strong in protecting national security, so deference should be shown).
19891 ESPIONAGE STATUTES

policy are implicated.34

Courts deciding cases in the context of classic espionage,
involving transmission of national security secrets to agents of
foreign governments, have held that Sections 793(d) and (e)
were not vague or overbroad.35 However, criticism regarding 36
the constitutionality of Sections 793(d) and (e) abounds.
Not until Morison, has a court been presented with the task of
applying Sections 793(d) and (e) of the Espionage Act to clas-
37
sified information leaks to the press.

34. See Chicago and Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S.
103, 111(1948) (courts should not review and nullify actions of Executive taken on
information properly held as secret).
35. See Gorin v. United States, 312 U.S. 19, 27-28 (1941) (delimiting words in
statute ensure proper convictions). The United States Supreme Court determined
that the statute was not unconstitutionally vague and defined national defense as a
"generic concept of broad connotations, referring to the military and naval estab-
lishments and the related activities of national preparedness." Id. at 28. The Court
further stated that there are certain words in the Act (e.g., wilfully) which insure
that a scienter requirement be met. Id. at 27-28. Following Gorin, other courts
have also found the language in 793(d) and (e) to be constitutional. See United
States v. Troung Dinh Hung, 629 F.2d 908, 919 (4th Cir. 1980) (possible over-
breadth cured by limiting jury instruction saying that "wilfuUy" meant that de-
fendant acted in bad faith). The Troung Dinh Hung court defined bad faith as
"design to mislead or deceive another... not prompted by an honest mistake as to
one's duties, but prompted by some personal or underhanded motive." Id. See
United States v. Dedeyan, 584 F.2d 36, 39 (4th Cir. 1978) (statute constitutional
because section 793(f) contains scienter requirement of knowledge).
36. See Plugging the Leak, supra note 3, at 807 (subsections 793(d) and (e) are
both underinclusive and overbroad). The subsections are underinclusive because
they only apply to information that affects national defense. Id. at 808. Yet these
same subsections are overbroad, because they punish anyone who reveals the docu-
ments, even if the individual had no criminal intent. Id. at 807. Furthermore, sec-
tions 793(d) and (e) do not protect all types of secrets that affect national security.
Id. at 809. The phrase in the statute that says it deals with documents "relating to
the national defense" excludes nonmilitary government secrets that nonetheless are
vital to the United States foreign affairs. Id.; see also Espionage Statutes, supra note
23, at 1031 (act is flawed). Edgar and Schmidt cite several problems with the lan-
guage of the statute: "publication" may or may not be a communication within the
meaning of Sections 793(d) and (e); the word "wilfully" is not a potent culpability
requirement; there is no clear meaning as to what is protected "information" under
the sections; and it is not certain what "not entitled to receive it" means. Id. at
1031-32.
37. See 844 F.2d 1057; see also Constitutionalityof Espionage Act, supra note 3,
at 208 (press leaks are a new threat to national security). Although there is a need
for examination of the constitutionality of Sections 793(d) and (e), the policy of
protecting national defense is valid. Id. at 214. When classified information ap-
pears in the press, it is read not only by American citizens but by foreign govern-
ments and terrorist organizations as well. Id. Publication of classified information
462 SUFFOLK TRANSNATIONAL LAW JOURNAL [Vol. 13:455

In United States v. Morison,3 s the Court of Appeals for the

Fourth Circuit determined that Sections 793(d) and (e) can
constitutionally be applied to individuals who leak classified
information to the press. 9 The Morison court first held that
the statute need not be narrowly confined to prohibit only
classic spying and espionage activity." Reasoning that the
statutory language of the two sections was not strictly limited
to spies or to an agent of a foreign government, the court con-
cluded that leaks of classified information to any unauthorized
person, including the press, violated the clear terms of the
statute. 4 Recognizing that an examination of the legislative
history is only required where the terms of a statute are un-
clear, 42 the court nevertheless observed that the legislative
history indicated that the use of the term "unauthorized" to
persons who receive classified information was never limited
43
to "spies."
The court rejected Morison's claim that the terms "relating
to the national defense" and "wilfully" were vague.4 The ma-
jority, relying on its decision in United States v. Dedeyan,
held that the term "relating to the national defense" was not
"vague in the 'constitutional sense." 46 They also rejected the

jeoprdizes relations with foreign nations because it shows that the United States is
unable to protect secret information. Id. The Supreme Court cursorily dealt with
the issue of classified information leaks to the press in New York Times Co. v.
United States, 403 U.S. 713, 714 (1970) (per curiam). Id. at 209. In New York
Times both the Times and the Washington Post acquired the Pentagon Papers,
which was a classified study of the United States relationship with Indochina. Con-
stitutionality of Espionage Act, supra note 3, at 208. The Supreme Court did not
deal with the criminal issues in the case, but rather only decided the issue of
whether the injunction against the New York Times and the Washington Post
should be vacated. Id. at 210. The Court stated that the injunction against the New
York Times should have been vacated because courts cannot disregard the concept
of freedom of the press. New York Times Co. v. United States, 403 U.S. 713, 719
(1970) (per curiam) (Black, J., concurring).
38. 844 F.2d 1057.
39. Id. at 1060.
40. Id. at 1070.
41. Id. at 1063.
2
42. Id. at 1064 (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.1 (1987)).
43. 844 F.2d 1057, 1064.
44. Id. at 1072.
45. United States v. Dedeyan, 584 F.2d 36 (4th Cir. 1978).
46. 844 F.2d 1057, 1071. In Dedeyan, the court stated that the phrase has a well
19891 ESPIONAGE STATUTES

defendant's attempt to distinguish his case from Dedeyan by

saying that he was not prosecuted under subsection (f)(2)
which contains a scienter requirement.47 The court responded
by stating that the "wilful" scienter requirement of (f)(2) ap-
plied to Sections 793(d) and (e) and adequately clarified the
meaning of "wilfully." 48 Finally, according to the court, be-
cause the trial judge defined "national defense" and
"wilfully," any uncertainty as to the application of the statute
to Morison was cured.4 9

understood connotation. See United States v. Dedeyan, 584 F.2d 36, 39 (4th Cir.
1978) (citing Gorin v. United States, 312 U.S. 19, 28 (1941)). In Gorin, the court
defined "national defense" as a "generic concept of broad connotations, referring
to the military and naval establishments and the related activities of national
preparedness." Gorin v. United States, 312 U.S. 19, 28 (1941). Gorin, however,
has met with criticism on grounds that the Court's definition is inadequate. See
Plugging the Leak, supra note 3, at 809 (stating Gorin definition excludes nonmili-
tary government secrets that nonetheless are vital to country's affairs).
47. 844 F.2d 1057, 1071.
48. Id. The word "wilfully," however, suggests merely the requirement of
knowing or reckless engagement in the act of disclosure, as opposed to harboring a
purpose to harm the United States' interest. See Espionage Statutes, supra note 23,
at 1001; Plugging the Leak, supra note 3, at 805 ("wilfulness" standard, instead of
specific intent to harm United States, too vague). For example, people who leak
information, not intending to harm the United States but seeking to promote de-
bate, could be charged under the Espionage Act. Id.
49. 844 F.2d 1057, 1071. The court defined "national defense" in its jury in-
struction as follows:
And that term, the term national defense, includes all matters that directly or
may reasonably be connected with the defense of the United States against any
of its enemies. It refers to the military and naval establishments and the re-
lated activities of national preparedness. To prove that the documents or the
photographs relate to national defense there are two things that the govern-
ment must prove. First, it must prove that the disclosure of the photographs
would be potentially damaging to the United States or might be useful to an
enemy of the United States. Secondly, the government must prove that the
documents or the photographs are closely held in that [they]... have not been
made public and are not available to the general public.
Id. at 1071-72.
In instructing the jury on the meaning of "wilfully" the court said:
[a]ll four of these counts as I have refered to them in my description of them
to you used the word wilfully. An act is done wilfully if it is done voluntarily
and intentionally and with the specific intent to do something that the law for-
bids. That is to say, with a badpurpose either to disobey or to disregardthe law.
With respect to the offenses that are charged in the indictment, specific intent
must be proved beyond a reasonable doubt before a defendant can be con-
victed. Specific intent, as that term suggests, requires more than a general
intent to engage in a certain conduct. To establish specific intent the govern-
ment must prove that the defendant knowingly did an act which the law for-
464 SUFFOLK TRANSNA TIONAL LAW JOURNAL [Vol. 13:455

In response to the defendant's argument that the phrase

"entitled to receive" was vague because the statute did not
signal who may receive classified material, the court deter-
mined that the government's classification system clarified any
omission in the statute. 50 The court noted that under the clas-
sification system, any unauthorized disclosure that could be
expected to cause serious damage to the national security was
included."1 Finally, the court held that the statute was not
overbroad.5" The court said that any overbreadth in the term
"national defense" was narrowed by the district court in its
instructions that national defense was confined to matters
under the statute which "directly or may reasonably
53
be con-
nected with the defense of the United States."

bids. It is the government's burden to present affirmative evidence of the

existence of the required unlawful intent. Again, in determining whether or
not the intent existed, you may look at all the facts and the circumstances
involved in the case.
Id. at 1071.
The defendant tried to argue that the terms "potentially damaging" and
"wilfully" were vague. Id. at 1072. The court said that since the defendant's coun-
sel posed the issue to the jury as "potentially damaging," he could not later com-
plain, because the trial judge adopted the phrase. Id. The court also said that the
term "wilfully" was correctly applied by the trial judge, pursuant to Hartzel v.
United States, 322 U.S. 680 (1944). 844 F.2d 1057, 1072. In Hartzel, the Supreme
Court held that "wilfully" must mean deliberately and with a specific purpose to
do the acts proscribed by Congress. Hartzel v. United States, 322 U.S. 680, 686
(1944). The trial judge in Morison defined "wilfully" as "a bad purpose either to
disobey or to disregard the law," which brings it in line with the Hartzel standard.
844 F.2d 1057, 1071.
50. 844 F.2d 1057, 1074. The government classification system is found at § 18
U.S.C. App. 1. Id. A court may look to the classification system to flesh out the
meaning of phrases such as those in question here. Id. But see Plugging The Leak,
supra note 3, at 808 (government has a faulty classification system). The govern-
ment's system of classifying information does not clearly indicate who is or is not
entitled to receive information. Id. Therefore, just who is entitled to receive infor-
mation cannot be answered. Id. Thus, the argument goes, the provisions do not
hold anyone criminally accountable. Id. At the same time, the entitlement lan-
guage is vague, and so ineffective. Id.; see also Espionage Statutes. supra note 23, at
1001 (no applicable executive order refers to the term "not entitled to receive").
51. 844 F.2d 1057, 1075 (quoting United States v. Jolliff, 548 F. Supp. 229, 230
(D. Md. 1981). In the court's opinion, the regulation was known to the defendant
and he had agreed in writing to abide by it. Id. at 1074; see supra notes 8 and 9 and
accompanying text (defendant worked in vaulted area, where access limited; thus
defendant knew what "not authorized to receive it" meant).
52. 844 F.2d 1057, 1076.
53. Id. at 1076. The judge further instructed that the disclosure "would be po-
tentially damaging to the United States or might be useful to an enemy of the
1989] ESPIONAGE STATUTES

United States v. Morison 54 interpreted Sections 793(d) and

(e) to penalize not only classic spying, but instances where a
government employee gives United States government infor-
mation to the press." The court thus recognized the legiti-
mate need to keep sensitive information confidential.56 In
weighing competing policy concerns, however, the court ig-
nored a compelling interest in the freedom of the press, and
the public's right to know." The fourth circuit resolved the
conflict in favor of the secrecy necessary to protect national
defense by holding that the constitutional deficiencies in the
statute could be cured by a limiting jury instruction.58 The
statute nevertheless restrains free speech because it appears on
its face to criminalize the act of leaking to the press informa-
tion not specifically "relating to the national defense." 59
Although the court correctly upheld the statute as being

United States" and had been "closely held" by the government and was "not avail-
able to the general public." Id.
54. Id.
55. Id. at 1065.
56. 844 F.2d 1057, 1060. See Constitutionality of Espionage Act, supra note 3,
at 205 (much publicity in recent months concerning threat to national security, via
press leaks).
57. 844 F.2d 1057, 1068. The Morison court stated no first amendment rights
were implicated in this case merely because the defendant gave the classified infor-
mation to a member of the press. Id. (citing Branzburg v. Hayes, 408 U.S. 665, 681
(1972)). In Branzburg, a newspaper reporter was asked to reveal the identity of his
sources, who had committed criminal offenses. Id. at 1068. The Supreme Court
ordered the defendant to reveal his source, saying that the first amendment does
not confer a license on reporters or their sources to violate criminal laws. Id. The
court reasoned that the circumstances in Morison, being less extreme than those in
Branzburg, did not justify Morison's invocation of the first amendment's protec-
tion. Id. at 1069-70.
A concurring opinion viewed the first amendment issue as more compelling than
did the majority. 844 F.2d 1057, 1081 (Wilkinson, J., concurring). Judge Wilkin-
son observed the need for a delicate balance between the public's right to know and
the security of sensitive government operations. Id. at 1082. However, the justice
stated that Morison's invocation of first amendment free press protection was not
strong enough, because there was no attempt to prosecute the press for either the
receipt or publication of classified material. Id. at 1085. Thus, this was not a case
of prior restraints. Id.
58. Id. at 1076.
59. 844 F.2d 1057, 1086 (Phillips, J., concurring) (instructions must flesh out
meaning of national defense to justify application of Act to "leakers"). "Without
such a limitation on the statute's apparent reach, leaks of information, which,
though undoubtedly 'related to defense' in some marginal way, threaten only em-
barrassment to the official guardians of government 'defense' secrets, could lead to
466 SUFFOLK TRANSNATIONAL LAW JOURNAL [Vol. 13:455

neither vague nor overbroad as applied to Morison due to the

limiting instruction, the language of the statute remains vague
and overbroad. 6° Morison thus improperly allocated legisla-
tive prerogative to the district courts to determine the scope of
national defense classification and entitlement to classified in-
formation. 61 The statute should be overhauled to correct its
inherent vagueness and overbreadth.62
United States v. Morison 63 is the first case to hold that an
individual may be convicted under the Espionage Act for giv-
ing United States government documents to a foreign press.'
Although Sections 793(d) and (e) of the Act protect compel-
ling interests in national security, the dubious language of the
statute should be removed.65 Congress should clarify to
whom and to what kinds of information the statute applies.
Otherwise, there is a risk that courts will perpetuate the stat-
ute's inherent overbreadth by rendering improper

criminal convictions." Id.; see also supra note 35 (discussing ambiguities in lan-
guage of the Act).
60. 844 F.2d 1057, 1076. Although previous cases have affirmed convictions
under the statute, many have admitted that language in the statute is vague or
overbroad. See United States v. Dedeyan, 584 F.2d 36, 40 (4th Cir. 1978) (by limit-
ing charge any problem of overbreadth was cured); United States v. Truong Dinh
Hung, 629 F.2d 908, 919 (4th Cir. 1980) (instruction cured problem of over-
breadth). The Truong Dinh Hung court here also noted another possible ambiguity
in that 793(e) punishes only those who have unauthorized possession of national
defense information. Id. at n. 10; United States v. Morison, 604 F. Supp. 644, 661
(D. Md. 1985) (holding possible overbreadth cured by limiting jury instruction).
61. Interview with Wayne R. Chykirda, Enforcement Agent State of Connecti-
cut, in Connecticut (November 11, 1988).
62. 844 F.2d 1057, 1086 (Phillips, J., concurring). The phrase "relating to the
national defense" is constitutionally overbroad and vague, and only a limiting jury
instruction saves the statute. Id. Without a limitation, leaks which are only embar-
rassing to the United States could result in a criminal conviction. Id. The jury
appropriately convicted Morison, but a legislative change is nevertheless war-
ranted. Id. See also Espionage Statutes, supra note 23, at 1000 (without limiting
jury instruction, any communication of defense material or information to unau-
thorized persons is criminal offense). It would follow then, that any public speech
in this country since World War II has been a criminal activity. EspionageStatutes,
supra note 23, at 1000.
63. 844 F. 2d 1057.
64. Id. at 1080.
65. Id. at 1086 (Phillips, J., concurring); see supra note 36 and accompanying
text (discussing need to change language of Act).
1989] ESPIONAGE STATUTES

instructions.66
Jacqueline Reardon

66. See supra note 50 and accompanying text (discussing risk of unconstitu-
tional prosecution under § 793(d) and (e)).