This Note examines one of the fundamental problems in national security: balancing the value of protecting speech—particularly speech critical of government activities—with the strong security interest in preventing disclosures of information sensitive to state security.

One of the government’s tools in protecting sensitive information is § 793(e) of the Espionage Act, which allows the government to prosecute anyone who transmits sensitive information without authorization or retains it without authorization and without promptly delivering it to the appropriate government actor.  The language of the section is general: it covers any information “relating to the national defense.”  As this Note argues, such language is overly broad and constitutionally unacceptable given First Amendment concerns.  The simple threat of such prosecutions can unduly hamper important public discourse and media activity in a way that contravenes the purpose of the First Amendment.

This Note advocates for a strict-scrutiny evaluation of § 793(e), under which it should not pass constitutional muster unless it is the least-restrictive means possible of achieving legitimate state security interests.  Concluding that § 793(e) cannot pass this test, this Note argues that § 793(e) should be amended and observes that the danger of unrestricted information disclosures is mitigated by other statutory provisions, such as § 794(b) of the Espionage Act and the Atomic Energy Act of 1954, further buttressing the argument for a statutory amendment.