U.S COURT OF APPEALS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00530R000300500003-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 22, 2016
• Document Release Date: September 4, 2012
• Sequence Number: 3
• Publication Date: October 8, 1987
• Content Type: MISC

Declassified and Approved For Release 2012/09/04: CIA-RDP90-0053OR000300500003-6
I. ~__ ' V M - T
Alew g
UNIT
~
ED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 86-5008
(UI~=I TED_S_T-ATES=OF=AMERI CA
Plaintiff-Appellee,
V.
~SAMUEL_LOI-NG-MOR L-S=ON ,
THE WASHINGTON_.POST.;:CBS, INC.-;
NATIONAL BROADCASTING COMPANY, INC.;
CAPITAL CITIES/ABC, INC.; TIME, INC.;
NEWSWEEK; U.S.NEWS & WORLD REPORT.;
THE WALL STREET JOURNAL; THE NEW YORK
TIMES; THE NEW YORK DAILY NEWS; THE
LOS ANGELES TIMES; THE CHICAGO TRIBUNE;
THE BOSTON GLOBE; THE ATLANTA JOURNAL
AND CONSTITUTION; THE MIAMI HERALD; THE
DALLAS MORNING NEWS! THE UT
Defendant-Appellant
STAR AND TRIBUNE; NNEAPOLIS
OTTAWAY NEWSPAPERS, INC...;
THE ASSOCIATED. PRESS; NATIONAL PUBLIC RADIO;
PULITZER BROADCASTING COMPANY; THE AMERICAN
SOCIETY OF NEWSPAPER EDITORS; THE AMERICAN
NEWSPAPER PUBLISHERS ASSOCIATIONS; THE
AMERICAN BOOKSELLERS ASSOCIATION, INC.;
ASSOCIATED PRESS MANAGING EDITORS; THE
MAGAZINE PUBLISHERS ASSOCIATION; THE
NATIONAL ASSOCIATION OF BROADCASTERS; THE
NEWSPAPER GUILD; THE RADIO-TELEVISION
NEWS DIRECTORS ASSOCIATION; THE REPORTERS
COVQVITTEE FOR FREEDOM OF THE PRESS; THE
SOCIETY OF PROFESSIONAL JOURNALISTS AND
PUBLIC CITIZEN; WASHINGTON LEGAL FOUNDATION;
THE ALLIED EDUCATICH FOUNDATION,
Amici Curiae
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Joseph H. Young, District Judge. (CR-84-
455-Y)
Argued: October 8, 1987
fDec_ d_ed:: Apr_il_1;1-9-8-&
Before RUSSELL, PHILLIPS, and WILKINSON, Circuit Judges.
Declassified and Approved For Release 2012/09/04: CIA-RDP90-0053OR000300500003-6
 Declassified and Approved For Release 2012/09/04: CIA-RDP90-00530R000300500003-6
RUSSELL, Circuit Judge:
The defendant is appealing his conviction under four
counts of an -nziitmen-t f r~'-
v i 1 a t ion-- -f 18=U S-:_C
~t wop-r ov,i=sue o n s~o_f t-h
sp-i o.n ag-e~ c~ t ;-1=8~II_:-S-.-Cl=; ?=~~ 3=f d=)=a_nd~(.~s) .
The violations of the Espionage Act i-nvaly
ed-the unau-fho_riz:ed
~t r_a nsm-i t t a?1 o f c e_r t o i-n-sate 11 i-t a=s_e-c u-r e-d p h oto gx a:p h s--o f;S o ie t
naval_pre.pa.r_a.t.i_o.ns to "one-no- ent:i.tled:t_r ce eve-t?h:em"
(count
1) sand-the--obt_aiin_fng_ofzu hor-ized-possess.i_ of~s-e-crept
iTntell ignce_report and-tfie~
r e taTi-n- - i n o f
9-- t.h.efi _ft-h_o_u~t die l~iwe_r_i n g
[th_em--t-o--"on-e-e-ntitled-t-o=r_'e_c-e~ive"_them (count 3). Counts 2 and
of the indictment charged violation of 4
the theft provisions of 18
U.S.C. ? 641. His defense was essentially that the statutes did
not encompass the conduct charged against him and, if they did,
the statutes were unconstitutional. At trial, he also found
error in certain evidentiary rulings by the district judge. cw.e>
,f i nd th e~ c 1 a i ms--o rox un-founded-and-af fd rmt-he-conv ic-t-i-on.
I.
Summary of the Facts
The defendant was employed at the NavalIntelli
l
gence
Support Center (NISC) at Suitland, Maryland from 1974 unti
t
October, 1984. At the time of the incidents involved in this
prosecution; he was assigned as an amphibious and hospital.ship
and mine warfare analyst in the NISC and as such had been
security clearance of To given a
p Secret-Sensitive Compartmented
Information." His work- place was in what was described as a
"vaulted area," closed to all persons without a Top Secret
3 _
Declassified and Approved For Release 2012/09/04: CIA-RDP90-00530R000300500003-6
 Declassified and Approved For Release 2012/09/04: CIA-RDP90-005308000300500003-6
WILKINSON, Circuit Judge,on_cusr_-ing:
I _ c - a n c u r _ _ in- -J-ud g e-Russ a 1 = 1 s I-be 1 i ev e h i s
analysis of-the relevant statutes, instructions, and evidentiary
rulings is both careful and correct.
Morison's constitutional challenge is specifically
phrased in terms of notice, statutory vagueness, and overbreadth.
Yet much of the argument in this case has been cast in broader
terms. Amici, The Washington Post, et al., warn that this case
will aff.ect., and. perhaps dramatically alter, the way. in which
government officials deal with the press, the way in which the
press gathers and reports the news, and the way in which the
public learns about its government." The news organizations
are necessarily raising their concerns as amici, not as parties.
No member of the press is being searched, subpoenaed, or
excluded, as in a typical right of access case. Morison as a
source would raise newsgathering rights on behalf of press
organizations that are not being, and probably could not be,
prosecuted under the espionage statute.
Perhaps because these press rights of access are not
personal to Morison, we have thus been asked to import a weighty
assortment of First Amendment values into Morison's notice,
vagueness, and overbreadth claims. Although this is more
freight than the Supreme Court has lately allowed these doctrines
to carry, I would assume for purposes of this discussion that
Morison is entitled to raise the serious claims urged by the
Declassified and Approved For Release 2012/09/04: CIA-RDP90-00530R000300500003-6
 Declassified and Approved For Release 2012/09/04: CIA-RDP90-0053OR000300500003-6
press amici. Indeed, I cannot fully express my own view of this
case without addressing these claims, not as unspoken aspects of
a vagueness and overbreadth analysis, but directly and on their
own terms.
Government,
I do not think the First Amendment interests here are
insignificant.. Criminal restraints on the disclosure of
information threaten the ability of the press to scrutinize and
report on government activity. There exists the tendency, even
i
n a constitutional democracy, for government
of disquieting developments and to manage news in a fashionp
most
favorable to itself. Public debate, however, is diminished
without access to unfiltered facts. A .'r
1822: "A Popular
means of acquiring
or, perhaps both,"
without Popular
to withhold re ort
information,
it, is but a Prologue to a Farce
9 Writings of James Madison 103
in knowledge, not
1910). We have placed our faith
and for most, this means reliance
are acquainted
on the press.
or a Tragedy;
(G. Hunt ed.
ignorance,
Americans
with those who make policy, fewer still
participate in making it. For this reason, the press provides
the "means by which the people receive that free flow of
information and ideas essential to effective self-government."
Saxbe v. WdShln ton Post Co., 417 U.S. 843, 863 (1974) (Powell,
J., dissenting);
Declassified and Approved For Release 2012/09/04: CIA-RDP90-0053OR000300500003-6
 Declassified and Approved For Release 2012/09/04: CIA-RDP90-0053OR000300500003-6
Th-e-F-irs-t Amendr~e_n-t= intorest in'informed-popelar-de-b`at'e
does ` no-t-s-rmp_l y v a.n_i s h-a t~t.he-i-.nv:~c a n o R--5 f t he rd t-" na-t=ion a-1
se-curi ty;. " Nat=i-on-a1 -secur i ty~iTs-p_ubl i-c=`s'e'c'u=r-i ty- -not
gove_r_nment secur-ityyfro im n-f-or-med-cr-itici-sm. No decisions are
more serious than those touching on peace and war; none are more
certain to affect every member of society. Elections turn on the
conduct of foreign affairs and strategies-of national defense,
and t -h_e=dange_rs~of seer-et ive~gove_r_nmenth'a-ve beems -I`1>
documented Morison claims he released satellite photographs
revealing construction of the first Soviet nuclear carrier in
order to alert the public to the dimensions of a Soviet naval
buildup. Although this claim is open to serious question, the
undeniable effect of the disclosure was to enhance public
knowledge and interest in the projection of Soviet sea power
such as that revealed in the satellite photos.
The_way i_t vh-ich-those : phot-ogr_aphs--were-relea-sed,