Fact Sheet on Political Dissent and
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.
I. Introduction: Panic and Patriotism
II. Suppression of Dissent in U.S.
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
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
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:
mall owners demanded that a man remove a T-shirt reading "Give Peace
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.)
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
A. Legislation Suppressing Political Protest:
& Sedition Acts of 1798:
The Alien Enemies Act allowed government to detain citizens or
subjects of an enemy nation during wartime.4
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.
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
- 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.
Act of 1917 and Sedition Act of 1918:
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.
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.
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."
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
Sedition Act was repealed in 1920; the Espionage Act is still in effect.
Registration Act of 1940 (the Smith Act):
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."
Act prosecutions were brought against U.S. Communist Party leaders
for abstract advocacy of revolution at some future time.
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:
Court did not fully address the First Amendment implications of laws suppressing
political dissent until 1919:
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
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
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
[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
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
Act and other "McCarthy Era" cases:
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
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
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
1957: In three decisions, the Supreme Court limited official repression
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.
v. United States imposed relevancy limits on the wide-ranging inquisitions
of legislative investigating committees.
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
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
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
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
are some categorical exceptions to the First Amendment - for example:
- First defined by the Supreme Court in Roth v. United States;
later modified in Miller v. California.17
pornography - This First Amendment exception was established by the
Supreme Court in New York v. Ferber.18
words" - Announced in Chaplinsky v. New Hampshire19;
like obscenity, its contours remain unclear.
- Defined in Brandenburg v. Ohio (see
of "harm to minors":
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
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
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
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
Court has often said that political speech, which is essential to the
democratic process, enjoys the highest First Amendment protection:
v. Louisiana (1964), the Court said: "speech concerning public affairs
is more than self-expression; it is the essence of self-government."24
New York Times v. Sullivan (1964), the Court said: critique of public
officials is "the central meaning" of the 1st Amendment.25
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
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"
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
it was not constitutionally required to fund a program to
encourage competing lines of political philosophy."29
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
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
Services Corp. v. Velazquez (2001), the Court struck down restrictions
on legal advocacy by government-funded lawyers for the poor.32
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
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
IV. Political Censorship Today: The
War on Terror
A. Pressures to Suppress Dissent
and universities, speech by both students and faculty has been the target
of censorship efforts:
Mexico, schoolteachers were suspended for displaying artwork expressing
opinions about the Iraq War.35
public school student was sent home after refusing to turn a T-shirt
with an image of President Bush and the words "International Terrorist"
Newspaper columnists and cartoonists expressing dissenting views have
been fired or censored.37
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
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
B. Government Surveillance: National Security
Letters (NSLs) and Section 215 of the "USA PATRIOT" Act40
215 of the "PATRIOT Act":
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."
things" includes personal transaction, membership, and other records
- among them, library and bookstore logs.
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
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.
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
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
[F]ear will take the place of freedom in the libraries,
bookstores, and homes of the land."43
Security Letters ("NSLs"):
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
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."
not require even the ex parte (only the government gets to appear)
judicial review of the FISA court.
orders, NSLs prohibit recipients from disclosing the existence or subject
of the letter.
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
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
the amended PATRIOT Act, court proceedings are to be held in secret,
and ex parte, at the request of the government.47
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
the FBI was issuing more than 30,000 NSLs per year.51
challenging §215 Demands and NSLs:
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
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
"[T]he subject matter of the speech at issue
at the center of First Amendment protection. 'Political belief and association
constitute the core of those activities protected by the First Amendment.'"53
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
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
- 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
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.
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
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
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
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
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
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
threats to prosecute reporters under the 1917 Espionage Act:
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
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
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
on protection for whistleblowers:
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
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
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
information about what the government is doing, citizens cannot make intelligent
electoral decisions or engage in meaningful debate about government policy.
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.
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.
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.
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
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.
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.
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
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.
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.
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
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.,
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
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
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
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).
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"
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
Nancy Kranich, "The Impact of the USA PATRIOT Act on Free Expression"
(5/5/03), http://www.fepproject.org/commentaries/patriotact.html (last
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),
Serrin Turner & Stephen Schulhofer, The Secrecy Problem in Terrorism
Trials (Brennan Center for Justice Liberty & National Security