Whistleblowing, National Security, and Constitutional Protections: A Doctrinal Analysis of Government Secrecy and the First Amendment

Keerthi Chalamalasetty

Edited by Marissa Ambat, Kira Small, Mac Kang, and Roohie Sheikh

I. Introduction 

When a government official leaks classified information, is it a courageous stand for transparency or a reckless betrayal of national trust? This question has captured significant attention in recent years as whistleblowers have increasingly revealed sensitive government secrets to the public. These disclosures have ignited legal and political debates over the balance between government transparency and national security. While these leaks uncover government wrongdoing and promote transparency, they raise the critical question of whether these acts are national security breaches and sacrifice government secrecy. This challenge forces one to grapple with whether such disclosures are essential to upholding democratic values or if they undermine the integrity of state security. Beyond the ethical and security concerns, a deeper constitutional question emerges: is whistleblowing protected under the First Amendment? As freedom of speech is the cornerstone of upholding the democratic values of the nation, the debate about whistleblowing intensifies when considering the public’s right to know and the confidentiality of sensitive matters of national security. 

Whistleblowing describes the unauthorized disclosure of classified information, often to expose misconduct or corruption. Whistleblowers mainly claim their actions are justified as a commitment to public interest and transparency [1]. Whistleblowing raises serious questions about the legitimacy of such breaches and the challenge of maintaining a proper balance between government secrecy and the constitutionally protected right to freedom of speech. The First Amendment guarantees that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” [2]. The right to free expression and disclosure without the fear of government retaliation is crucial to First Amendment protections. However, this right is not set in stone as it is weighed against the need for national security and the protection of classified information. As such, the tension between an individual’s right to free speech and the need for national security raises a key question: should the boundaries of secrecy and transparency be redefined? 

II. Historical Context: The Evolution of Whistleblowing and National Security 

Once seen as a patriotic duty, whistleblowing in the United States has evolved into a legally fraught act, with its consequences oscillating between protection and prosecution depending on national priorities. The history of whistleblower legislation can be traced back to the American Revolutionary War. In one particular instance, ten American sailors and marines who reported unlawful behavior by a powerful man in the Continental Navy sought protection for their statements. On February 19, 1777, these men signed a petition to the Continental Congress listing their grievances with their commander. In their petition, these men wrote extensively about the ineffectiveness of Commodore Esek Hopkins during wartime. After spreading these claims about Hopkins’ inefficiency, he was quickly suspended on January 2, 1778, and consequently filed a criminal libel suit in Rhode Island against the men who accused him of being inefficient. Richard Marven and Samuel Shaw, two Rhode Island residents among the ten petitioners, were arrested. In response, these men sought help from the Continental Congress, and a law was subsequently passed protecting these men and potential future whistleblowers [3]. 

The resolution that was approved on July 30, 1778, mandated that people who were in service for the United States had an obligation to “give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge” [4]. This marked the beginning of legal protections for whistleblowing and highlighted the importance of its role in American society. While the Revolutionary-era protections established the duty to report corruption, the Civil War era expanded whistleblowing into a tool for legal action against fraud. With limited resources to combat fraud, the federal government outsourced enforcement to private citizens, offering monetary rewards under the False Claims Act of 1863. This marked a pivot shift: whistleblowing was no longer just a duty, but served as a financial incentive [5]. The protections from the Revolutionary era emphasized the necessity of people under the service of the United States to report potential misconduct or fraud, the role of whistleblowers in the Civil War era evolved into a more active role as individuals were now able to file suits against certain entities they suspect are potentially defrauding the government. If it was proven in court that the entity was defrauding the government, the whistleblower was awarded half of the damages as a result [6]. 

However, during the era of the First World War, this dynamic shifted dramatically with the passage of the Espionage Act of 1917. Before this, whistleblowing was seen as a method of protecting and strengthening the federal government. The Espionage Act of 1917, passed shortly after the United States declared war on Germany, defined espionage and the boundaries of free speech during wartime [7]. The purpose of the Espionage Act was to prevent the dissemination of information intended to interfere with the United States’ war effort. Shortly after the passage of the act, Congress passed the Sedition Act of 1918 outlining the punishments for spreading speech advocating against the United States’ involvement in the war [8]. Section 1 of the Espionage Act demonstrates how the definition of whistleblowing shifted from a positive view during the Revolutionary War and the American Civil War to a more pejorative action during the First World War. Section 1 made clear that “obtaining information respecting the national defense with intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information, concerning any vessel, aircraft, work of defence, navy yard, naval station, submarine base, coaling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, or other place connected with the national defence, owned or constructed, or in progress of construction by the United States or under the control or the United States” [9], illustrating the shift in perspective on the act of whistleblowing. This legal language proclaims that obtaining information regarding national defense with the intent of aiding foreign nations or harming the United States is a criminal offense. The Espionage Act of 1917 reframed whistleblowing as a national security threat. While earlier laws protected disclosures that exposed corruption, this act criminalized leaks surrounding government information, equating them to espionage. It explicitly outlawed obtaining or sharing national defense details “to the injury of the United States”---language that would later be used to prosecute modern whistleblowers. As the application of the law has broadened, the shift marks a pivotal moment in the legal evolution of whistleblowing as it has transitioned from being seen as a patriotic act to a potential national security threat. Whistleblowing, once seen as obligatory and patriotic, was now characterized as subversive and offensive. 

In addition to redefining whistleblowing, the Espionage Act of 1917 directly curtailed free speech, particularly targeting those who expressed anti-war sentiments during the First World War. The Supreme Court upheld the constitutionality of the Espionage Act in Schenck v. United States, ruling that the anti-war demonstrators who circulated anti-draft literature were not protected from arrest under the First Amendment. This was exemplified by Socialists Charles Schenck and Elizabeth Baer distributing leaflets protesting the draft as they believed it violated the Thirteenth Amendment’s prohibition against involuntary servitude. Schenck and Baer were convicted of violating the Espionage Act of 1917 by attempting to obstruct military recruitment during wartime. Schenck appealed and argued that their conviction under the Espionage Act violated the First Amendment’s right to free speech. The Supreme Court ruled that the Espionage Act was not in contention with the First Amendment and was an appropriate exercise of Congress’s wartime authority [10]. An important development from this court case was the origination of the “clear and present danger test,” where in the majority opinion, Justice Oliver Wendell Holmes stated that the printed or the spoken word should not be subject to restraint or punishment unless its expressions formulate “a clear and present danger” in bringing about substantial evil.

The conditions of the test involve a two-step process; first, the speech must impose a threat that a substantive evil will follow, and second, the threat must be real and imminent [11]. Following a similar pattern, in the case Abrams v. United States, the court furthered the notion of the Espionage Act by upholding the convictions of immigrants who publicly criticized the United States’ involvement in the Bolshevik revolution [12]. This case surrounds the United States’ involvement in a military operation against Germany on Russian soil shortly after the Russian Revolution. The defendants in this case were Russian immigrants who called for a strike to undermine the United States’ war effort and were convicted for throwing leaflets out of a New York City window that denounced sending American troops to Russia and advocated for ceasing the production of weapons that were used in Russia. Following the precedent set in Schenck v. United States, the Court claimed that the spread of propaganda intervened with the war effort and met the standard for the clear and present danger test [13]. However, in his dissent,  Justice Oliver Wendell Holmes argued that the two leaflets did not meet this test, and the protections on speech should not be curtailed unless there resides a present danger of immediate evil. This decision showcases the stark evolution of the usage and interpretation of whistleblowing legislation from the dawn of the country’s creation to its first major war on an international scale. The expansion of the Espionage Act’s influence solidified its role in curtailing free speech during wartime and set a precedent for future legal interpretations. Over time, these decisions contributed to a broader pattern of prosecuting individuals who acted in opposition to the government. 

On the precipice of the Second World War, the court reaffirmed its rulings by broadening the interpretation of the Espionage Act. In Gorin v. United States, the court unanimously upheld the convictions of men who received stolen information about Japanese-Americans and Japanese Nationals from a Naval Intelligence employee. These men contested their convictions, arguing that the Espionage Act’s definition of “national defense” was overly vague and unclear. However, the court held that their actions demonstrated the intent to harm the United States and benefit a foreign adversary [14]. Since Gorin v. United States, there has been a shift from focusing on leaking classified government information to focusing on the public and the press. Later, this expanded to scrutiny on espionage activities including private individuals and groups, further tightening national security measures in an increasingly globalized world. 

III. Whistleblowing in the Modern World: Analyzing Case Studies from Ellsberg to Snowden 

The understanding and application of whistleblowing has consistently changed from the first legislation protecting its practice to the establishment of the Espionage Act, which curbed speech deemed harmful to national security during times of crisis. To further examine this evolution, this article will present several case studies, analyze the whistleblowing in each scenario, and delve into concerns about free speech and national security. High-profile cases like Daniel Ellsberg’s release of the Pentagon Papers and Edward Snowden’s exposure of NSA surveillance programs illustrate the nuanced tension between protecting government secrets and the necessity of public accountability. In the modern era, whistleblowers have ignited legal and political debates about the boundaries of free speech, the role of national security, and the ethical responsibility of individuals to disclose sensitive information that can challenge the role of the status quo. The ever-evolving landscape of technology forces society to confront the information question: to what extent should civilians be allowed to expose governmental actions that may undermine democratic values?

Case Study #1: Daniel Ellsberg

Daniel Ellsberg, a former American military analyst and researcher, famously leaked the Pentagon Papers in 1971, which detailed the history of the United States' intervention in Indochina from World War II until the end of the 1960s [15]. As an analyst for the U.S. Secretary of Defense, Robert McNamara, Ellsberg believed that the war in Vietnam was unwinnable. In collaboration with Anthony Russo, Ellsberg covertly copied the 7,000-page report on United States involvement in Vietnam and supplied it to the New York Times and the Washington Post [16]. The consequences of publishing these classified documents sparked a legal and political firestorm about how to balance the importance of government secrecy and the freedom of the press. The Nixon Administration pursued legal action to prevent those papers' publication, citing national security concerns. However, the landmark Supreme Court case, New York Times Co. v. United States, ruled in favor of the free press and led to the eventual publication of the papers [17]. By issuing its ruling, the court’s reasoning rested on the fact that the federal government did not overcome the “heavy presumption against” the press to justify prior restraint, which refers to the act of censoring or restricting the material before it first appears publicly. The court found that the usage of vague and ambiguous terms like “security” should not “abrogate the fundamental law embodied in the First Amendment” [18]. This decision not only led to the publication of the Pentagon Papers, but highlighted Ellsberg’s act of whistleblowing as a pivotal moment in American history, fueling broader debates surrounding government transparency, freedom of press, and the balance between national security and the public’s right to know. 

Case Study #2: Mark Felt 

Mark Felt, who served as the associate director of the Federal Bureau of Investigation (FBI) from the early 1970s to 2005, was later revealed to be the anonymous information known as “Deep Throat” at the heart of the Watergate Scandal during the Nixon administration[19]. Nearly three decades after the incident, Felt revealed his involvement in the Watergate Scandal by admitting that he was the one who revealed crucial information to Washington Post reporters Carl Bernstein and Bob Woodward. As second in command at the FBI, Felt understood that Nixon was involved in the Watergate Scandal and slowly began leaking information to Woodward [20]. Though much of his identity was not discovered until later, Felt’s leaks were significant in unraveling the Watergate cover-up and bringing to light the illegal activities surrounding the break-in at the Democratic National Committee headquarters. Felt’s leaks led to the resignation of President Nixon in 1974. This case raised critical questions about the courage to expose government wrongdoings, weighing the importance of protecting national secrets against the moral imperative to preserve democracy in the face of corrupt practices. 

Case Study #3: Edward Snowden 

Edward Snowden, an American intelligence contractor and whistleblower, revealed that programs in the National Security Agency had been gathering information secretly, hidden from the public’s eye [21]. As a result of releasing highly sensitive information, Edward Snowden was charged with Espionage and theft of government property. This case illustrated a host of issues: the secret power of the government, the emergence of whistleblowing in a digital age, and the ongoing tension between government transparency and national security [22]. Some viewed Snowden as a hero who exposed government overreach, while others argue that his leaks endangered national security by disclosing sensitive information. The Snowden leaks have become a pivotal moment in the modern landscape of whistleblowing debates, reshaping global surveillance practices and intensifying the ongoing discourse surrounding the balance between government authority and individual privacy rights. 

Case Study #4: Julian Assange 

Julian Assange, an Australian computer programmer and the founder of WikiLeaks, is one of the most controversial figures in the modern whistleblowing landscape. Assange’s website, WikiLeaks, gained global attention in 2010 when it posted close to half a million documents obtained by U.S. Army intelligence analyst Chelsea Manning relating to the U.S. wars in Iraq and Afghanistan. These documents exposed sensitive information about military tactics, civilian casualties, and operational mistakes. Additionally, WikiLeaks published 250,000 confidential United States diplomatic cables dating from 2007-2010 and covering a wide range of topics that encompassed U.S. efforts to politically and economically isolate Iran. These included engaging in covert negotiations with foreign governments, and conducting several assessments of world leaders. These leaks sent shockwaves through governments worldwide, especially in the United States, striking a debate about the freedom of press, the value of transparency, and the merits of government secrecy [23]. Assange’s actions were praised by supporters who argued that the public had the right to know whether the government's actions were in line with its stated values. Critics argued that leaking sensitive government information endangered lives and diplomatic relations. This case raised the fundamental questions of the limits of free speech and free press, as well as how to maintain government secrecy with the advent of technology. Assange’s legal actions, including seeking asylum in the Ecuadorian embassy in London to avoid extradition to the United States, have only deepened this controversy and continually shaped public perception about the role of whistleblowers.  

In these cases, the commonality lies in the whistleblower’s willingness to expose government secrets in the name of greater transparency. Each of these cases has sparked significant legal and political debates about the balance between national security and individual rights, especially in regards to the right to free speech and free press. It is important to note the consequences faced by the whistleblowers for their actions depict a range of legal repercussions—from prosecution to exile from public life—highlighting the complexity and contentious nature of whistleblowing in the modern context. Additionally, the evolution of technology and the readily availability of information online illustrate the complex dynamics of governance in the age of information. Overall, these cases present a shifting dynamic between secrecy, transparency, and the ethical dilemma of disclosing information, which offers valuable insights into the role of whistleblowing in the balance between national security and freedom of speech. 

IV. Assessing the Tension Between National Security and the First Amendment  

The tension between safeguarding national security and upholding First Amendment rights represent a long-standing challenge within constitutional law. On one hand, national security is necessary to maintain a nation's safety and stability from domestic or foreign threats like terrorism, espionage, or cyberattacks. On the other hand, the First Amendment guarantees freedom of speech, which is foundational to democratic principles in the United States. This tension between ensuring national security and preserving individual rights requires a nuanced analysis of potential risks and benefits of preserving one over another in certain circumstances. Additionally, the challenge arises in establishing principles that balance national security and freedom of speech effectively. A primary concern in resolving this tension is to ensure that these security practices do not infringe upon the rights of individuals. Of particular concern is unchecked surveillance programs and full governmental secrecy, which harm democratic societies as transparency and accountability are vital, and governments are tasked with maintaining security while also promoting the welfare of their civilians. In this context, whistleblowing may serve as a mechanism to hold governments accountable and promote public debate on significant issues. Free speech, on the other hand, is the quintessential value and norm in a democracy. In the context of whistleblowing, governments might evaluate free speech alongside national security measures to determine whether the disclosure of information may pose a risk to national security in certain circumstances. The relationship between national security and freedom of speech involves evolving legal and constitutional considerations. Governments may enact measures to protect classified information, during times of conflict, while external legal frameworks might exist to safeguard individuals who disclose information about government wrongdoing. The balancing of national security and free speech is an ongoing area of legal inquiry and the agential bodies continually evaluate when national security interests justify limiting free speech. On the whole, the relationship between national security and free speech remains a dynamic area of legal inquiry, with the constant aim for maintaining an equilibrium that respects both the need for security and the fundamental rights enshrined in the Constitution. 

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[1] Whistleblower | Definition, Laws, Protection, & Facts | Britannica, (2025), https://www.britannica.com/topic/whistleblower.

[2] First Amendment - Constitution of the United States, Constitution Annotated, https://constitution.congress.gov/constitution/amendment-1/.

[3] US Whistleblowers First Got Government Protection in 1777, HISTORY (2019), https://www.history.com/news/whistleblowers-law-founding-fathers.

[4] See [3]

[5] See [3]

[6] See [3]

[7] Digital History, https://www.digitalhistory.uh.edu/disp_textbook.cfm?smtid=3&psid=3904.

[8] Espionage Act of 1917 and Sedition Act of 1918 (1917-1918) | Constitution Center, National Constitution Center – constitutioncenter.org, https://constitutioncenter.org/the-constitution/historic-document-library/detail/espionage-act-of-1917-and-sedition-act-of-1918-1917-1918.

[9] See [7]

[10] Schenck v. United States, Oyez, https://www.oyez.org/cases/1900-1940/249us47. 

[11] Clear and Present Danger, LII / Legal Information Institute, https://www.law.cornell.edu/wex/clear_and_present_danger.

[12] The Espionage Act’s constitutional legacy | Constitution Center, National Constitution Center – constitutioncenter.org, https://constitutioncenter.org/blog/the-espionage-acts-constitutional-legacy.

[13] Abrams v. United States, Oyez, https://www.oyez.org/cases/1900-1940/250us616. 

[14] See [12]

[15] Daniel Ellsberg | Biography, Pentagon Papers, & Facts | Britannica, (2025), https://www.britannica.com/biography/Daniel-Ellsberg.

[16] Daniel Ellsberg and the Pentagon Papers | Crime, Corruption, and Cover-Ups | Explore | Drawing Justice: The Art of Courtroom Illustration | Exhibitions at the Library of Congress | Library of Congress, Library of Congress, Washington, D.C. 20540 USA, https://www.loc.gov/exhibitions/drawing-justice-courtroom-illustrations/about-this-exhibition/crime-corruption-and-cover-ups/daniel-ellsberg-and-the-pentagon-papers/.

[17] Nixon and the Pentagon Papers | Miller Center, (2016), https://millercenter.org/the-presidency/educational-resources/first-domino-nixon-and-the-pentagon-papers.

[18] New York Times Company v. United States, Oyez, https://www.oyez.org/cases/1970/1873.

[19] Mark Felt | Biography, Facts, Role in Watergate Scandal | Britannica, (2025), https://www.britannica.com/biography/Mark-Felt.

[20] How ‘Deep Throat’ Took Down Nixon From Inside the FBI, <span style="font-variant:small-caps;">HISTORY</span> (2024), https://www.history.com/news/watergate-deep-throat-fbi-informant-nixon.

[21] Edward Snowden | Education, Biography, Russia, &#38; Facts | Britannica, (2025), https://www.britannica.com/biography/Edward-Snowden.

[22] See [21]

[23] Julian Assange | Early Life and Creation of WikiLeaks & Early WikiLeaks activity and legal issues| Britannica, (2025),  https://www.britannica.com/biography/Julian-Assange