Fact Sheet on Political Dissent and Censorship

In the wake of the terrorist attacks of September 11, 2001, and of U.S. government efforts to combat terrorism by often secretive or constitutionally dubious means, questions have arisen about the scope of First Amendment protection for political protest and dissent. This Fact Sheet, originally prepared for a November 2006 conference on "Civil Liberties in a Paranoid Society," outlines the history and constitutional status of political protest, and the free-speech implications of today's government surveillance and secrecy. The Fact Sheet hits many of the political and judicial highlights, but necessarily, it cannot present a complete picture of this rich vein in American history and law.

CONTENTS

I. Introduction: Panic and Patriotism

II. Suppression of Dissent in U.S. History
A. Legislation Suppressing Political Protest
B. The Judicial Response

III. The High Status of Political Speech
A. Exceptions to the First Amendment Protection for Freedom of Speech
B. The "Hierarchy" of First Amendment Values
C. Government Funding and "Unconstitutional Conditions"

IV. Political Censorship Today: The War on Terror
A. Pressures to Suppress Dissent
B. Government Surveillance: National Security Letters (NSLs) and Section 215 of the "USA PATRIOT" Act
C. Secrecy and Access to Information

V. Conclusion: Surveillance, Secrecy, Free Speech, and National Security

I. Introduction: Panic and Patriotism

The U.S. has a long history of repressing political dissent in times of perceived danger. As law professor Geoffrey Stone writes: "when we act in the heat of war fever, we may overreact against those who question the need for military action. Fear, anger, and an aroused patriotism can undermine sound judgment."1

Since September 11, in contrast to earlier eras, censorship of dissent has been mostly nongovernmental, or if governmental, indirect. That is, people are not being criminally prosecuted for "seditious" speech. Instead, we have seen self-censorship by major media, universities, museums, public schools, private employers, and private property owners, and sometimes veiled threats by government officials. Examples:

Shopping mall owners demanded that a man remove a T-shirt reading "Give Peace a Chance."2

White House press secretary Ari Fleischer, referring to "Politically Incorrect" TV host Bill Maher's statement that the hijackers were not cowards, but it was cowardly for the U.S. to launch missiles against distant targets, warned: in times like these, "people have to watch what they say and watch what they do."3 (See Part IV below and the accompanying endnotes for other examples.)

Executive action and legislation authorizing surveillance, "free speech zones," and secrecy are some of the indirect ways that the government has suppressed dissent post-9/11. (See Part IV below)

II. Suppression of Dissent in U.S. History

A. Legislation Suppressing Political Protest:

The Alien & Sedition Acts of 1798:

The Alien Enemies Act allowed government to detain citizens or subjects of an enemy nation during wartime.4

The Alien Friends Act empowered government to seize, detain, and deport any noncitizen deemed dangerous to the U.S. during war or peacetime, without any hearing or other due process.

The Sedition Act prohibited "any false, scandalous, and malicious writing" against any branch of the U.S. government, "with the intent to defame [them], or to bring them [into] contempt or disrepute; or to excite against them [the] hatred of the good people of the United States…"

- The Sedition Act was used by the Federalist Party and the administration of President John Adams to censor and jail their political opponents, especially newspaper editors.5

- The Sedition Act expired in 1801; it was widely agreed to have been a political disaster and a violation of the First Amendment.

The Espionage Act of 1917 and Sedition Act of 1918:

The Espionage Act made it a crime, during wartime, to "make or convey false reports or false statements with intent to interfere" with the U.S. military "or to promote the success of its enemies," to "cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty" in the U.S. military, or to "obstruct the recruiting or enlisting service" of the U.S.

The Espionage Act was interpreted broadly by prosecutors and courts. Courts developed the "bad tendency" test, which held that questioning the legality or conduct of a war would have the "tendency" to encourage insubordination in the military and discourage recruitment.

The Sedition Act made it a crime, in wartime:

- "to willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States";

- "to use any language intended to bring the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States into contempt, scorn, contumely or disrepute";

- "to willfully display the flag or any foreign country, or to willfully urge, incite, or advocate any curtailment of production in this country of any thing or things necessary or essential to the prosecution of the war, or to willfully advocate, teach, defend, or suggest the doing of any of the acts enumerated in this section, or by word or act to support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States."

Espionage and Sedition Act prosecutions and war fever during World War I were followed by the Red Scare and the Palmer Raids of 1919 and the early 1920s.

The Sedition Act was repealed in 1920; the Espionage Act is still in effect.

The Alien Registration Act of 1940 (the Smith Act):

The Smith Act required all aliens to register; streamlined deportation procedures, and made it a crime to "advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence."

Smith Act prosecutions were brought against U.S. Communist Party leaders for abstract advocacy of revolution at some future time.

These prosecutions coincided with the Cold War "witchhunt" era in U.S. history, characterized by federal and state legislative committees, such as the House Un-American Activities Committee, investigating "subversive" activities; federal and state loyalty programs; the perjury trial of Alger Hiss and the Espionage Act trial of Julius and Ethel Rosenberg; and private industry blacklisting of people who were thought to have been associated with leftwing political activities.

B. The Judicial Response:

The Supreme Court did not fully address the First Amendment implications of laws suppressing political dissent until 1919:

In Schenk v. United States (1919), writing for the Court, Justice Oliver Wendell Holmes, Jr. affirmed an Espionage Act conviction for conspiracy to obstruct recruiting and enlistment by circulating an antiwar pamphlet to men called for military service; Holmes wrote that the "natural and probable tendency" of the pamphlet was to discourage military service:

"[T]he character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic. … The question in every case is whether the words used are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."6

In Abrams v. United States (1919) only a few months later, Holmes now dissented from the affirmance of Sedition Act convictions for circulating leaflets protesting U.S. intervention in Russia and proclaiming: "there is only one enemy of the workers of the world and that is CAPITALISM." Holmes, joined by Brandeis, wrote:

"[O]nly the present danger of immediate evil or an intent to bring it about … warrants Congress in setting a limit to the expression of opinion. … [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."7

In Gitlow v. New York (1925) and Whitney v. California (1927), the Supreme Court upheld state laws prohibiting advocacy of violent overthrow of the government, emphasizing that the laws only censor advocacy of changes in government by unlawful means.8

Justice Louis Brandeis concurred in Whitney, joined by Holmes, but the concurrence reads more like a dissent:

"[N]o danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, … the remedy to be applied is more speech, not enforced silence."9

The Smith Act and other "McCarthy Era" cases:

In Dennis v. United States (1951), the Supreme Court affirmed Smith Act convictions of Communist Party leaders, using an attenuated application of the "clear and present danger" test:

"[T]he words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited."10

In American Communications Association v. Douds (1950), the Supreme Court upheld a non-Communist oath requirement of federal labor law, which conditioned a union's eligibility for protection of organizing and collective bargaining activities on the signing of the oath by union officers.11

In Communist Party v. Subversive Activities Control Board (1961), the Court upheld the McCarran Internal Security Act of 1950, which required all "communist action" and "communist front" organizations to register with the Attorney General; established the Subversive Activities Control Board to declare organizations "communist action" or "communist front"; barred all members of registered organizations from government employment; and authorized the president, in the event of war or insurrection, to detain anybody who might participate "in acts of espionage or sabotage," with no provision for judicial review or other due process.12

June 17, 1957: In three decisions, the Supreme Court limited official repression of dissent:

Yates v. United States interpreted the Smith Act to prohibit only advocacy of direct revolutionary action, not advocacy of forcible overthrow of government as an abstract principle.

Watkins v. United States imposed relevancy limits on the wide-ranging inquisitions of legislative investigating committees.

Sweezy v. New Hampshire affirmed the right of a professor not to answer questions put by the state attorney general about his lectures, and recognized a First Amendment right to academic freedom.13

The Modern Era:

Brandenburg v. Ohio (1969): The Supreme Court reversed the criminal conviction of a Ku Klux Klan leader who advocated racial violence because his rhetoric stopped short of direct incitement, thus overruling Whitney v. California and embracing the Holmes/Brandeis view of "clear and present danger":

"[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."14

New York Times v. Sullivan (1964): The Court reversed a defamation judgment against a newspaper for publishing a public service ad supporting the civil rights movement and criticizing southern law enforcement officials but containing factual errors. The decision established the "actual malice" standard for defamation claims by public officials; disapproved the 1798 Sedition Act; and announced the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," and may well include "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."15

Texas v. Johnson (1989): The Court struck down a law prohibiting flag desecration because it directly suppressed symbolic political protest.16

III. The High Status of Political Speech

A. Exceptions to the First Amendment Protection for Freedom of Speech

There are some categorical exceptions to the First Amendment - for example:

Obscenity - First defined by the Supreme Court in Roth v. United States; later modified in Miller v. California.17

Child pornography - This First Amendment exception was established by the Supreme Court in New York v. Ferber.18

"Fighting words" - Announced in Chaplinsky v. New Hampshire19; like obscenity, its contours remain unclear.

"Incitement" - Defined in Brandenburg v. Ohio (see above)

The concept of "harm to minors":

In Ginsberg v. New York (1968), the Supreme Court established the concept of "variable obscenity" - that is, laws restricting minors' access to sexual material deemed "harmful to minors" would only be subject to "rational basis" review by courts, instead of "strict scrutiny," the standard that usually governs laws punishing speech because of its content.20

In FCC v. Pacifica Foundation (1978), the Court upheld a federal agency's censorship of constitutionally protected "indecent" speech on the airwaves, in part because of its presumed adverse effect on children.21

But in Reno v. ACLU (1997), the Court struck down Congress's attempt to apply the FCC's "indecency" standard to the Internet, saying that standard was both overbroad (it banned too much speech, for adults as well as minors), and too vague to put Internet speakers on notice of what was prohibited.22

And attempts to restrict minors' access to violent content in art and entertainment have been struck down: Interactive Digital Software Association v. St. Louis (2003) and American Amusement Machine Association v. Kendrick (2001) both invalidated laws restricting minors' access to video games with violent content.23

B. The "Hierarchy" of First Amendment Values

The Supreme Court has often said that political speech, which is essential to the democratic process, enjoys the highest First Amendment protection:

In Garrison v. Louisiana (1964), the Court said: "speech concerning public affairs is more than self-expression; it is the essence of self-government."24

In New York Times v. Sullivan (1964), the Court said: critique of public officials is "the central meaning" of the 1st Amendment.25

Burson v. Freeman (1992) noted: "[T]here is practically universal agreement that a major purpose" of the First Amendment "was to protect the free discussion of governmental affairs."26

Protection for hate speech: In R.A.V. v. City of St. Paul (1992), the Court struck down a law making it a crime to place on public or private property a "symbol, object, appellation, characterization, or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender."27

C. Government Funding and "Unconstitutional Conditions"

In Speiser v. Randall (1958), the Supreme Court struck down a state law denying a veterans' tax exemption to anyone who advocates "the unlawful overthrow of the government," and conditioning eligibility for the exemption on the signing of a loyalty oath. The Court said:

"[T]he appellees are plainly mistaken in their argument that, because a tax exemption is a "privilege" or "bounty," its denial may not infringe speech. … [T]he denial of a tax exemption for engaging in certain speech necessarily will have the effect of coercing the claimants to refrain from the proscribed speech. The denial is 'frankly aimed at the suppression of dangerous ideas.'"28

In Rust v. Sullivan (1991), the Court upheld federal agency rules prohibiting abortion counseling in family planning clinics that receive federal funds. The decision turned on the idea that in this case, the government was funding its own message: "When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, … it was not constitutionally required to fund a program to encourage competing lines of political philosophy."29

In Rosenberger v. Rector & Visitors of Univ. of Virginia (1995), the Court struck down a public university's policy of denying student activity funds to religious groups, finding that this amounted to unconstitutional "viewpoint discrimination"; the Court said that Rust v. Sullivan does not apply when government is funding a public forum, rather than its own speech.30

In National Endowment for the Arts v. Finley (1998), the Court upheld a law requiring a federal arts agency, in awarding grants, to consider "general standards of decency and respect for the diverse beliefs and values of the American public," in part by construing the law as only advisory, not mandatory. But the Court noted:

"If the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, then we would confront a different case."31

In Legal Services Corp. v. Velazquez (2001), the Court struck down restrictions on legal advocacy by government-funded lawyers for the poor.32

In United States v. American Library Association (2003), the Court upheld a law requiring all schools and libraries that receive federal aid for Internet connections to install filters on all computers, despite findings by the court below that Internet filters erroneously block tens of thousands of valuable and legitimate websites.33

In Alliance for Open Society v. U.S. Agency for International Development (2006), a federal district court entered a preliminary injunction against the enforcement of a Bush Administration requirement that organizations receiving federal funds for AIDS prevention have a policy explicitly opposing prostitution.34

IV. Political Censorship Today: The War on Terror

A. Pressures to Suppress Dissent

In colleges and universities, speech by both students and faculty has been the target of censorship efforts:

In New Mexico, schoolteachers were suspended for displaying artwork expressing opinions about the Iraq War.35

A Michigan public school student was sent home after refusing to turn a T-shirt with an image of President Bush and the words "International Terrorist" inside out.36

In the mass media:

Newspaper columnists and cartoonists expressing dissenting views have been fired or censored.37

Limiting demonstrations:

In ACORN v. Philadelphia (2004), a federal district court dismissed an ACLU challenge to a federal and local policy of restricting leafleting and other free speech activity by anti-government protesters. The court said that the plaintiffs lacked "standing" to sue. 38

In New York City, the police rounded up and arrested thousands of protesters during the 2004 Republican Convention. Even though the city may eventually pay damages to those wrongly arrested, the roundups succeeded in muting the protest.39

B. Government Surveillance: National Security Letters (NSLs) and Section 215 of the "USA PATRIOT" Act40

Section 215 of the "PATRIOT Act":

Gives the FBI the power to require the production of "any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution."

"Tangible things" includes personal transaction, membership, and other records - among them, library and bookstore logs.

Section 215 orders require authorization from a secret Foreign Intelligence Surveillance Act ("FISA") court, but only the government gets to appear; there is no opportunity for the holder of the information or the subject of a potential search or seizure to object, and the court usually approves FBI requests.41

Section 215 prohibits anyone from disclosing the existence of a production order, "other than those persons necessary to produce the tangible things under this section." 2006 amendments to the PATRIOT Act clarify that disclosure may also be made to "an attorney to obtain legal advice or assistance with respect to the production of things in response to the order," and that the nondisclosure requirement can be challenged in the FISA court, but only a year after the issuance of the order.

In any challenge to the nondisclosure requirement, if the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the FBI "certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive, unless the judge finds that the certification was made in bad faith."42

Libraries and bookstores are concerned that government investigations into the reading habits and interests of Americans will chill intellectual inquiry on sensitive political topics, and ultimately chill dissent. The American Library Association wrote in a case challenging §215:

"Once the government can demand of a publisher the names of the purchasers of his publications, the free press as we know it disappears. … [F]ear will take the place of freedom in the libraries, bookstores, and homes of the land."43

National Security Letters ("NSLs"):

The law establishing NSLs allows the FBI to demand any "subscriber information" from "a wire or electronic communication service provider," if "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."44

Before the PATRIOT Act, this law only allowed NSLs for information pertaining to "a foreign power or an agent of a foreign power." Section 505 of the PATRIOT Act expanded this to allow the government to target anyone deemed "relevant" to an investigation involving "international terrorism or clandestine intelligence activities."

NSLs do not require even the ex parte (only the government gets to appear) judicial review of the FISA court.

Like §215 orders, NSLs prohibit recipients from disclosing the existence or subject of the letter.

NSLs have been used instead of §215 orders to solicit information from libraries, most likely because they did not require approval from any court and, as a practical matter, were not reviewable by a court even after the fact.45

2006 amendments to the PATRIOT Act provide for a court challenge to an NSL production demand and to the nondisclosure provision. But if the nondisclosure challenge is filed within one year, all the government has to do is certify that disclosure might "endanger the national security ... or interfere with diplomatic relations," and the court must treat that assertion as conclusive. With some technical differences, essentially the same rule applies even if the challenge is brought after a year has passed.46

Under the amended PATRIOT Act, court proceedings are to be held in secret, and ex parte, at the request of the government.47

A 2006 amendment to the statutory provision governing NSLs states that a library that provides Internet access is not considered "a wire or electronic communication service provider" for purposes of the coverage of the NSL law, unless it is also providing an "electronic communication service."48 This suggests that Congress intends the FBI to use §215, rather than the more streamlined NSL procedure, to obtain records of library patrons' communications and reading choices. However, the statutory definition of "electronic communication service" is "any service which provides to users thereof the ability to send or receive wire or electronic communications."49 Since Internet access generally includes "the ability to send or receive wire or electronic communications," Congress' apparent preference for using §215 and not the NSL procedure for libraries may be frustrated.50

By 2005, the FBI was issuing more than 30,000 NSLs per year.51

Litigation challenging §215 Demands and NSLs:

Doe v. Ashcroft (since renamed Doe v. Gonzales) was a First and Fourth Amendment challenge to an NSL by an Internet service provider and the ACLU. The federal district court ruled that:

- 18 U.S.Code §2709, the relevant NSL provision, violates the Fourth Amendment because it authorizes government searches and seizures without any judicial review or other due process safeguards;

- The broad, generalized, and permanent nondisclosure requirement of §2709 violates the First Amendment because it is a content-based "prior restraint" on speech, thus subject to strict scrutiny, and not "narrowly tailored" to achieve the government's objectives. The court said:

"The Government's claim to perpetual secrecy surrounding the FBI's issuance of NSLs, … an authority neither restrained by the FBI's own internal discretion nor reviewable by any form of judicial process, presupposes a category of information, and thus a class of speech, that, for reasons not satisfactorily explained, must forever be kept from public view … In general, as our sunshine laws and judicial doctrine attest, democracy abhors undue secrecy, in recognition that public knowledge secures freedom. Hence, an unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society. Such a claim is especially inimical to democratic values for reasons borne out by painful experience. … [T]he self- preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction. … [A] categorical and uncritical extension of non-disclosure may become the cover for spurious ends that government may then deem too inconvenient, inexpedient, merely embarrassing, or even illicit to ever expose to the light of day. At that point, secrecy's protective shield may serve not as much to secure a safe country as simply to save face."52

Doe v. Gonzales was a First Amendment challenge by Connecticut librarians and the ACLU to a NSL nondisclosure order. The federal district court granted a preliminary injunction against the NSL because the blanket nondisclosure requirement was a content-based prior restraint, not justified on the record before the court by any "compelling state interest." The court said:

"[T]he subject matter of the speech at issue … places it at the center of First Amendment protection. 'Political belief and association constitute the core of those activities protected by the First Amendment.'"53

The U.S. Court of Appeals for the Second Circuit stayed the preliminary injunction issued in Doe v. Gonzales, pending an expedited appeal. Supreme Court Justice Ruth Bader Ginsburg refused to lift the stay, based on deference to "an interim order of a court of appeals" and the caution with which courts should act when invalidating acts of Congress.54

Consolidated appeals of Doe v. Ashcroft and Doe v. Gonzales (2006)55:

- The Court of Appeals vacated the Fourth Amendment ruling in Doe v. Ashcroft because 2006 amendments to the PATRIOT Act provide for judicial review and the right to consult an attorney, thereby "mooting" the Fourth Amendment claims.

- The Court of Appeals vacated the First Amendment ruling in Doe v. Ashcroft and remanded for further consideration in light of the 2006 amendments to PATRIOT Act.

- The Court of Appeals dismissed Doe v. Gonzales as moot after the government finally abandoned its nondisclosure requirement. (By this point, facts about the NSL and the Connecticut library consortium that received it had been widely reported in the press.)

- The Court of Appeals in Gonzales denied the government's request to vacate the district court's preliminary injunction decision (and thereby eliminate any persuasive or precedential value for this decision). The Court explained that "when 'the party seeking relief from the judgment below caused the mootness by voluntary action,'" vacating the original decision is usually not warranted. The Court of Appeals explained:

"To allow a party who steps off the statutory path [for appeal] to employ the secondary remedy of vacatur as a refined form of collateral attack on the judgment would - quite apart from any considerations of fairness to the parties - disturb the orderly operation of the federal judicial system."56

- A concurring opinion by Second Circuit Judge Richard Cardamone in the Gonzales appeal described the nondisclosure order as "a permanent ban on speech" that would be unlikely to survive strict scrutiny under the First Amendment:

"[A] ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens. Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence."57

On June 26, 2006, the ACLU released a copy of the NSL at issue in Doe v. Gonzales, as delivered to Library Connection in Windsor, Connecticut on May 19, 2005. The NSL demanded "any and all subscriber information, billing information and access logs of any person or entity related to" a particular IP address, date, and time.

Proceedings back in the district court in Doe v. Ashcroft (now renamed Doe v. Gonzales): the ACLU argued that 2006 PATRIOT Act amendments do not cure the First Amendment problems with the NSL law and in some respects make them worse. For example, the requirement that a government assertion of need to continue a nondisclosure order, in effect indefinitely, be considered "conclusive" undermines the judicial process and the rule of law by depriving both courts and those challenging NSLs of any opportunity to question the government's assertion.

- The ACLU also argued that the amended PATRIOT Act gives the FBI discretion to decide whether to impose a nondisclosure order or not, thereby creating an essentially unreviewable licensing scheme with unbridled discretion in government officials.

- The ACLU pointed out that the amended PATRIOT Act imposes criminal penalties for violation of a nondisclosure order, and requires all judicial proceedings to be held in secret at the request of the government.

- The ACLU said that the potential for government abuse of the secrecy provisions was demonstrated by the record in both New York and Connecticut cases. For example, the government demanded redaction of information already available in newspapers, of quotations from judicial decisions, and of arguments that contained no sensitive information. The government continued to insist on nondisclosure of the NSL until the PATRIOT Act amendments were passed, thus preventing the ACLU, the Connecticut librarians, and the Internet service provider in the New York case from participating effectively in legislative debates.58

Update: On September 6, 2007, U.S. District Judge Victor Marrero agreed with the ACLU and issued a final ruling that the amended §2709 violates the First Amendment because "it functions as a licensing scheme that does not afford adequate procedural safeguards, and because it is not a sufficiently narrowly tailored restriction on protected speech." On December 15, 2008, the U.S. Court of Appeals for the Second Circuit affirmed most of Judge Marrero's ruling, while modifying it somewhat.58A

C. Secrecy and Access to Information

Deportation proceedings:

In Detroit Free Press v. Ashcroft (2002), the U.S. Court of Appeals for the Sixth Circuit affirmed a preliminary injunction against the government's blanket closure to the public of deportation hearings in "special interest" cases, ruling that a case-by-case determination of the need for secrecy is sufficient to protect the government's interest. The court said:

"Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately in deportation proceedings."59

The court in Detroit Free Press rejected the broad implications of the government's "mosaic" theory, which holds that bits of information that seem innocuous in isolation should be kept secret because when pieced together, they might create "a bigger picture of the Government's anti-terrorism investigation."60

By contrast, in North Jersey Media Group v. Ashcroft (2002), the U.S. Court of Appeals for the Third Circuit reversed an order enjoining the government from denying access to all deportation proceedings designated as "special interest." Applying the Supreme Court's test in Richmond Newspapers v. Virginia for determining when government proceedings should be public,61 the Third Circuit found no First Amendment right of access to deportation proceedings.62

Although agreeing with the Sixth Circuit that the government's "mosaic" theory relies on speculation, the court in North Jersey Media Group said: "[w]e are quite hesitant to conduct a judicial inquiry into the credibility of these security concerns."63

The Freedom of Information Act ("FOIA"):

In ACLU v. U.S. Department of Justice (2004), a federal district court ruled that the U.S. Justice Department properly withheld information about the number of search orders issued under §215 of the PATRIOT Act based on the FOIA's "national security" exemption.64

Government threats to prosecute reporters under the 1917 Espionage Act:

There have been reports that the Bush Administration, "seeking to limit leaks of classified information, has launched initiatives targeting journalists and their possible government sources. The efforts include several FBI probes, a polygraph investigation inside the CIA and a warning from the Justice Department that reporters could be prosecuted under espionage laws."65

United States v. Rosen and Weissman (2006) is a prosecution of pro-Israeli lobbyists for receiving classified information in violation of a portion of the Espionage Act, as amended in 1950, which makes it a crime for an unauthorized recipient of "national defense information" to pass it on, or even keep it to himself.66

A federal district court in Rosen and Weissman rejected First Amendment and due process challenges to the statute. The government argued that this provision can be used against journalists.67

Cutbacks on protection for whistleblowers:

In Garcetti v. Ceballos (2006), the Supreme Court ruled that a public employee who reported to his supervisor that police had falsified an affidavit for a search warrant had no First Amendment protection against retaliation.68

In Edmonds v. Department of Justice (2005), the U.S. Court of Appeals for the D.C. Circuit affirmed a district court dismissal of a First Amendment retaliation claim by a former translator for the FBI who reported security breaches and potential espionage within the agency. The case was dismissed because the government argued that defending it would require revelation of "state secrets."69

Secrecy surrounding detentions and interrogations:

In Hamdi v. Rumsfeld (2004), the Supreme Court rejected the Administration's claim that "enemy combatants" could be held indefinitely without access to lawyers or any sort of procedure for deciding the accuracy of the government's designation.70 Lawyers for prisoners who have no ability themselves to communicate with the public can provide information about conditions of detention and other aspects of government policy.

V. Conclusion: Surveillance, Secrecy, Free Speech, and National Security

Without information about what the government is doing, citizens cannot make intelligent electoral decisions or engage in meaningful debate about government policy.

Government surveillance has a chilling effect on political inquiry and protest because most citizens do not want to be on government watch lists or to be potential targets of prosecution or harassment.

"Anonymous speech" is important to the political process, especially as a protection for those who might be threatened or harassed because of unpopular or dissenting views.71 Surveillance without adequate cause undermines this principle.

The government had substantial intelligence information before September 11 that plans were underway for attacks of this type, but failed to act on it. It is not clear that expanded surveillance or widespread use of NSLs or §215 letters, which are not based on judicial findings of good cause, will do anything to increase our security.

Geoffrey Stone recently warned against uncritical acceptance of government arguments that liberty must be sacrificed in the interests of national security. He pointed out that "those in power may exploit a threat to the nation's security to serve their partisan ends. A time-honored strategy for consolidating power is to inflate the public's fears, inflame its patriotism, and then condemn political opponents as 'disloyal.'"72

Justice Hugo Black, similarly, wrote in 1971: "The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic."73

This Fact Sheet was prepared in December 2006; updated May 2008.

NOTES

1. Geoffrey Stone, Perilous Times: Free Speech in Wartime (2004), p. 74.

2. See National Coalition Against Censorship, "Free Expression After September 11th - An Online Index," www.ncac.org/issues/freeex911.cfm (last visited 8/3/06); ACLU, "Freedom Under Fire: Dissent in Post-9/11 America" (May 2003), p. 7, http://www.aclu.org/FilesPDFs/dissent_report.pdf (last visited 10/5/06).

3. Bill Carter & Felicity Barringer, "In Patriotic Time, Dissent is Muted," NY Times, Sept. 28, 2001.

4. Quotations in this section from the Alien & Sedition Acts of 1798, the Espionage Act of 1917 and Sedition Act of 1918, and the Alien Registration Act of 1940 are from Stone, supra note 1, pp. 29-36, 146-53, 186, 251.

5. Stone, supra note 1, pp. 44-66. Stone observed: "The congressional debates in 1798 reveal how easily a nation can slide from disagreements about policy to accusations of disloyalty. The consequence is not only the suppression of individual dissent but the mutilation of public discourse and government decision making." Id. at 74.

6. Schenk v. United States, 249 U.S. 47, 51-52 (1919).

7. Abrams v. United States, 250 U.S. 616, 627-30 (1919) (Holmes, J., dissenting).

8. Gitlow v. New York, 268 U.S. 652 (1925); Whitney v. California, 274 U.S. 357 (1927).

9. Whitney, 274 U.S. at 377 (Brandeis, J., concurring).

10. Dennis v. United States, 341 U.S. 494, 509 (1951).

11. American Communications Association v. Douds, 339 U.S. 382 (1950).

12. Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961).

13. Yates v. United States, 354 U.S. 298 (1957); Watkins v. United States, 354 U.S. 178 (1957); Sweezy v. New Hampshire, 354 U.S. 234 (1957).

14. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

15. NY Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

16. Texas v. Johnson, 491 U.S. 397 (1989).

17. Roth v. United States, 354 U.S. 476 (1957); Miller v. California, 413 U.S. 15 (1973).

18. New York v. Ferber, 458 U.S. 747 (1982).

19. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

20. Ginsberg v. New York, 390 U.S. 629 (1968).

21. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

22. Reno v. ACLU, 521 U.S. 844 (1997).

23. Interactive Digital Software Association v. St. Louis, 329 F.3d 954 (8th Cir. 2003); American Amusement Machine Association v. Kendrick, 244 F.3d 572 (7th Cir. 2001).

24. Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).

25. NY Times Co. v. Sullivan, 376 U.S at 273.

26. Burson v. Freeman, 504 U.S. 191, 196 (1992).

27. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

28. Speiser v. Randall, 357 U.S. 513, 518-19 (1958) (quoting American Communications Association v. Douds, 339 U.S. at 402).

29. Rust v. Sullivan, 500 U.S. 173, 194 (1991).

30. Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 833 (1995).

31. National Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998).

32. Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001).

33. United States v. American Library Association, 539 U.S. 194 (2003).

34. Alliance for Open Society v. U.S. Agency for International Development, 430 F. Supp.2d 222 (S.D.N.Y. 2006), vacated and remanded, 254 Fed. Appx. 843 (2d Cir. 2007). The injunction was vacated and the case remanded to the district court after the government issued guidelines which, it claimed, would allow the plaintiffs to establish or work with separate affiliates that would not have to obey the anti-prostitution mandate.

35. ACLU, "Freedom Under Fire," p. 14. For other incidents, see id.; also, NCAC, "Free Expression After September 11"; American Association of University Professors, "Responses to September 11, 2001, http://www.aaup.org/publications/Academe/2002/02JF/02jf911.htm (last visited 10/3/06) (noting reports "of professors being disciplined for their responses to the tragedy and of Muslims (or those mistaken for Muslims) being harassed or assaulted on campuses," and of strong critique by City University of New York chancellor and trustees after a New York Post article characterized university teach-in as a "peacefest" run by "blind, stupid, or intellectually dishonest" academics who "looked to the history of capitalism, colonialism, religious conflict, and class divisions for answers about why the terrorists crashed planes into the World Trade Center and the Pentagon on September 11").

36. ACLU, "Freedom Under Fire, p. 15.

37. NCAC, "Free Expression After September 11" (Oregon columnist fired after writing column criticizing President Bush for not being more visible after 9/11 attacks; Condoleeza Rice asks five broadcast networks not to run interviews with Osama bin Laden; "The Boondocks" comic strip pulled from Newsday because it criticized U.S. support of bin Laden during Soviet/Afghanistan war; removed from Dallas Morning News because it featured the character Huey Freeman saying grace at Thanksgiving dinner: "in this time of war against Osama Bin Laden and the oppressive Taliban regime, we are thankful that our leader isn't the spoiled son of a powerful politician from a wealthy oil family who is supported by religious fundamentalists, operates through clandestine organizations, has no respect for the democratic electoral process, bombs innocents and uses war to deny people their civil liberties. Amen.").

38. ACORN v. Philadelphia, 2004 U.S. Dist. LEXIS 8446 (E.D.Pa. 2004). See also ACLU, "Free Speech Under Fire: The ACLU Challenge to 'Protest Zones,'" http://www.aclu.org/freespeech/protest/11419res20030923.html (last visited 10/3/06); James Broward, "Free Speech Zone: The Administration Quarantines Dissent," The American Conservative, Dec. 15, 2003.

39. See Al Baker, "City Settles Some Suits Over Arrests During '04 Convention," NY Times, July 21, 2006; Diane Cardwell, "In Court Papers, a Political Note on '04 Protests," NY Times, July 31, 2006.

40. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism ("USA PATRIOT") Act, Public Law 107-56, 2001 H.R. 3162 (2001).

41. 50 U.S.Code §1861(a)-(c). The law does allow a person receiving a production order to "challenge the legality of that order" after the fact by filing a petition with the secret FISA court, but the grounds for a challenge are narrow. 50 U.S.Code §1861(f). There is no provision for the actual target of the order to challenge it; indeed, under the nondisclosure rules, the target cannot be informed.

42. 50 U.S.Code §1861(d), (f). It remains to be seen whether the mandatory one-year delay, or the requirement that executive branch certifications must be treated as conclusive, will hold up in court. See Free Expression Policy Project, "News: Patriot Act Reforms Are Defeated" (3/17/06, revised 10/5/06), http://www.fepproject.org/news/patriotactmarch2006.html (last visited 10/5/06) ("Suppressing any information or discussion about §215 demands while they are fresh, and therefore still relevant to current events, deprives the public of needed information on government activities and stifles the ability of those who question government policy to counter Administration claims").

43. Brief Amici Curiae of the American Library Association et al. in Doe v. Gonzales (formerly Doe v. Ashcroft), No. 04 Civ 2614 (VM) (S.D.N.Y. Sept. 29, 2006), p. 24 (quoting United States v. Rumely, 345 U.S. 41, 57-58 (1953) (Douglas, J., concurring)).

44. 18 U.S.Code §2709 (NSL statute applying to records held by "wire or electronic communication service provider(s)"). Other statutes authorize NSLs directed at holders of financial records (12 U.S.Code §3414); credit records (15 U.S.Code §1681u); and government employee records (50 U.S.Code §436).

45. In Doe v. Ashcroft, 334 F. Supp.2d 471 (S.D.N.Y 2004), the government argued that a right to judicial review was implied in §2709, but the federal district court found that in practice, no such right existed; that NSLs were inherently coercive, and that in the long history of their use, there was no evidence that one had ever been disobeyed or challenged in court. Id. at 494-502.

46. 18 U.S.Code §3511 (added March 9, 2006, Public Law 109-177). The "national security ... or … diplomatic relations" certification needed to defeat challenges to gag orders before one year has passed must be made by "the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation, or in the case of a request by a department, agency, or instrumentality of the Federal Government other than the Department of Justice, the head or deputy head of such department, agency, or instrumentality." 18 U.S.Code §3511(b)(2). After one year, the certification may be made by any of these officers, or an FBI designee "in a position not lower than Deputy Assistant Director at Bureau Headquarters or a Special Agent in Charge in a Bureau field office designated by the Director." If one of the lesser officers makes the certification, the court does not have to treat it as conclusive. But if it is made by Attorney General, Deputy Attorney General, an Assistant Attorney General, or the FBI Director after one year, it still must be treated by the court as conclusive.

47. 18 U.S.Code §3511(d) requires the court to close hearings and keep filings under seal, to the extent necessary to prevent any "unauthorized" disclosure. Section 3511(e) requires the court, "upon request of the government," to review "ex parte and in camera any government submission "which may include classified information."

48. 18 U.S.Code §2709(f) (added March 9, 2006, Public Law 109-177).

49. 18 U.S.Code §2510(15).

50. See the Brief Amici Curiae of the American Library Association et al. in Doe v. Gonzales (formerly Doe v. Ashcroft), No. 04 Civ 2614 (VM) (S.D.N.Y. Sept. 29, 2006) (on remand from 449 F.3d 415 (2d Cir. 2006)), pp. 8-9 (arguing that §2709 would still apply to "many bookstores and nearly all public and academic libraries").

51. Barton Gellman, "The FBI's Secret Scrutiny; In Hunt for Terrorist, Bureau Examines Records of Ordinary Americans," Washington Post, Nov. 6, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/11/05/AR2005110501366_pdf (last visited 9/8/06).

52. Doe v. Ashcroft, 334 F. Supp.2d 471, 519-52 (S.D.N.Y 2004), vacated on 4th Amendment issue; vacated and remanded on 1st Amendment issue, 449 F.3d 415 (2d Cir. 2006).

53. Doe v. Gonzales, 386 F. Supp.2d 66, 72 (D. Conn. 2005), dismissed as moot, 449 F.3d 415 (2d Cir. 2006) (quoting Landmark Communications v. Virginia, 435 U.S. 829, 838-39 (1978)).

54. Doe v. Gonzales, 126 S.Ct. 1 (2005).

55. Both cases were decided under the name Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006).

56. 449 F.3d at 420-21 (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 24, 26-27 (1994)).

57. 449 F.3d at 422 (Cardamone, J., concurring).

58. Memorandum of Law in Support of Motion for Partial Summary Judgment, ACLU v. Gonzales, No. 04 Civ. 2614 (S.D.N.Y. Sept. 8, 2006).

58A. Doe v. Mukasey, No. 07-4943-cv (2d Cir. Dec. 15, 2008), available at www.aclu.org/pdfs/safefree/doevmukasey_decision.pdf, affirming in part ACLU v. Gonzales, No. 04-2614 (S.D.N.Y. Sept. 6, 2007), p. 101, available at www.aclu.org/pdfs/safefree/nsldecision.pdf.

59. Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002).

60. 303 F.3d at 709.

61. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980).

62. North Jersey Media Group v. Ashcroft, 308 F.3d 198 (3rd Cir. 2002).

63. 308 F.3d at 219.

64. ACLU v. U.S. Department of Justice, 321 F. Supp.2d 24 (D.D.C. 2004).

65. Dan Eggen, "White House Trains Efforts on Media Leaks," Washington Post, March 5, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/03/04/AR2006030400867_pf.html (last visited 8/9/06).

66. 18 U.S.Code §793.

67. United States v. Rosen and Weissman, No. 1:05cr225 (E.D.Va. 2006). See also Eggen, supra note 64; Ronald K.L. Collins, "AIPAC, Espionage Act, and First Amendment" (First Amendment Center), Aug. 25, 2006, http://www.firstamendmentcenter.org/analysis.aspx?id=17318 (last visited 8/25/06); Gabriel Schoenfeld, "All the News That's Fit to Prosecute: Should the DOJ Go After Journalists?" Weekly Standard, July 17, 2006, http://www.weeklystandard.com/Content/Public/Articles/000/000/012/414swmck.asp?pg=1 (last visited 8/9/06).

68. Garcetti v. Ceballos, 126 S.Ct. 1951 (2006).

69. Edmonds v. Department of Justice, 323 F. Supp.2d 65 (D.D.C. 2004), affirmed in an unpublished opinion (D.C. Cir. 2005).

70. Hamdi v. Rumsfeld, 542 U.S. 507, 553 (2004).

71. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960).

72. Stone, supra note 1, p. 74.

73. NY Times v. United States, 403 U.S. 713, 719 (1971) (Black, J., concurring) (the Pentagon Papers case).

Selected Bibliography

American Civil Liberties Union, "Free Speech Under Fire: Dissent in Post-9/11 America" (May 2003), http://www.aclu.org/FilesPDFs/dissent_report.pdf (last visited 10/5/06)

American Civil Liberties Union, "Free Speech Under Fire: The ACLU Challenge to 'Protest Zones'" (9/23/03), http://www.aclu.org/freespeech/protest/11419res20030923.html (last visited 10/5/06)

David Caute, The Great Fear: The Anti-Communist Purge Under Truman and Eisenhower (1978)

David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2003)

Thomas Emerson, The System of Freedom of Expression (1970)

Free Expression Policy Project, "News: Patriot Act Reforms Are Defeated" (3/17/06), http://www.fepproject.org/news/patriotactmarch2006.html

Marjorie Heins, Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth (2001)

Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America (1988)

Nancy Kranich, "The Impact of the USA PATRIOT Act on Free Expression" (5/5/03), http://www.fepproject.org/commentaries/patriotact.html (last visited 10/5/06)

Richard Polenberg, Fighting Faiths: the Abrams Case, the Supreme Court, and Free Speech (1987)

Ellen Schrecker, Many Are the Crimes: McCarthyism in America (1998)

Geoffrey Stone, Perilous Times: Free Speech in Wartime (2004)

Neema Trivedi, "Section 215 of the USA PATRIOT Act and National Security Letters: An Update" (10/05), http://www.fepproject.org/commentaries/patriotact.oct2005.html

Neema Trivedi, "'Patriot Act' Renewal Stalls in Congress" (2/10/06), http://www.fepproject.org/commentaries/patriotactjan2006.html

Serrin Turner & Stephen Schulhofer, The Secrecy Problem in Terrorism Trials (Brennan Center for Justice Liberty & National Security Project 2005)