## Facts

- Steven J. Rosen and Keith Weissman were senior employees of a lobbying organization focused on U.S. Middle East policy.
- Neither defendant held a security clearance during the relevant period.
- The government alleged defendants cultivated relationships with U.S. officials who had access to classified or sensitive information.
- The government alleged defendants obtained “information relating to the national defense” (NDI) from those officials and willfully communicated it to persons not authorized to receive it, including journalists, other analysts, and foreign-government officials.
- A superseding indictment charged:
  - Conspiracy to transmit NDI to persons not entitled to receive it under 18 U.S.C. § 793(g).
  - As to Rosen, aiding and abetting the transmission of NDI under 18 U.S.C. §§ 793(d) and 2.
- Defendants moved to dismiss, arguing the Espionage Act provisions were vague as applied, violated the First Amendment (as applied and facially), should be limited to tangible items, and (as to Rosen) failed to state an offense on Count III.

## Issues

1. Whether 18 U.S.C. § 793(d), (e), and (g) are unconstitutionally vague as applied to private, nongovernment recipients and transmitters of leaked information.
2. Whether applying § 793 to lobbyists’ receipt and transmission of NDI violates the First Amendment rights of speech and petition.
3. Whether § 793 is facially overbroad under the First Amendment.
4. Whether § 793 should be construed to reach only the transmission of tangible items, excluding oral communication of information.
5. Whether Count III (aiding and abetting a § 793(d) offense) was legally sufficient.

## Decision

- The court denied the motions to dismiss based on vagueness and First Amendment grounds, while adopting narrowing constructions of key statutory terms.
- The court rejected the argument that § 793 is limited to tangible items and held the statute covers oral transmission of NDI.
- The court rejected the facial overbreadth challenge at the motion-to-dismiss stage.
- The court denied Rosen’s motion to dismiss Count III, holding the indictment sufficiently alleged the elements of aiding and abetting a § 793(d) violation.

## Legal Principles

- “Information relating to the national defense” under § 793 requires proof that the information was (1) closely held by the government and (2) of a type whose disclosure could potentially harm the United States or be useful to a foreign nation.
- § 793(d) and (e) require heightened mens rea: the defendant must act willfully and with knowledge or reason to know both that the information is NDI and that disclosure could injure the United States or advantage a foreign nation.
- “Not entitled to receive” may be construed to mean persons lacking lawful authorization to receive the information.
- The First Amendment does not provide categorical immunity for willful disclosure of closely held, potentially harmful NDI; the government may constitutionally prohibit such disclosures when the statute is confined by a demanding scienter requirement.
- Facial overbreadth relief requires showing a substantial number of unconstitutional applications relative to the statute’s legitimate sweep; speculative press-related applications were insufficient where the statute was limited to closely held, potentially harmful NDI and willful disclosure.
- The term “information” in § 793 supports liability for intangible and oral disclosures; limiting the statute to tangible items is inconsistent with the text.

## Conclusion

The court permitted Espionage Act charges against nongovernment lobbyists to proceed, holding that § 793 can reach willful oral or other disclosures of closely held, potentially harmful national-defense information to unauthorized persons, and that narrowing constructions of NDI and scienter defeat the defendants’ vagueness and First Amendment challenges at the pleading stage.


United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006)