First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Thursday, July 25, 2013

The NSA surveillance program's threats to the First Amendment

Yesterday, the House voted 217-205 not to stop the NSA's Internet surveillance program that collects vast amounts of phone and email communications from millions of Americans.  The program has many folks worried about threats to privacy rights and the Fourth Amendment.  But, the program threatens First Amendment rights, too.  Here's how:

(1)   No more anonymous speech

The First Amendment protects America's rich tradition of anonymous speech.  Benjamin Franklin and Thomas Jefferson used pseudonyms.  Alexander Hamilton, James Madison and John Jay wrote the Federalist Papers, which advocated the ratification of the Constitution itself, under fictitious names.  

It is often because of an overbearing government that individuals rightly choose to keep their identities veiled.

But, that choice is removed when the Government asserts the authority to gather everything transmitted over the Internet.  Imagine if the Redcoats could find Junius, a still unidentified but highly influential, pamphleteer whose treasonous columns were widely reprinted in pre-Revolutionary War newspapers. 

So long as we all keep using phones, email and social media -- and we will -- our speech is not truly anonymous, at least not from the eyes and ears of the NSA. 

(2)   Chilling speech and the receipt of speech

I put the words "al Qaeda" in a previous post.  And I just used those words again.  I am probably on a list somewhere now, and so are you for reading this.  Don't bother leaving.  I'm sure it's too late.

Reports show that some people already are more careful about what they say and how they use the Internet because of the NSA program.  That means speech is being chilled, and when speech is chilled it also is not being heard or read.  Chilled speech is bad for the First Amendment because it is bad for a society that prides itself on open dialogue.

The law in this area is less than ideal.  The Supreme Court recognizes the dangers of chilled speech, but a closely-divided (5-4) decision from 1972, Laird v. Tatum, held that an Army surveillance system designed to control civilian protests did not violate the First Amendment.  In the 21st Century, the Ninth Circuit held that a class action could proceed against the Government for warrantless wiretapping, while the Sixth Circuit held that plaintiffs in a similar case could not proceed. 

(3)   Threats to a free and independent press

I'm going to lump a few government overreaches together for this part.  First, reporters undoubtedly are caught up in the NSA dragnet.  But, we also know now that the Department of Justice was spying on Associated Press and Fox News reporters, getting their emails and phone records and who knows what else. 

A democracy depends on an independent press serving as a watchdog on government.  It is one thing for agencies to operate in secret (we know that has to happen to get certain things done), but secretly spying on the press is another story.  If the Government is spying on the press -- even as part of a broader program -- it is compromising the independence and freedom of the press to gather and report on a host of important matters, particularly the functioning of the Government itself.

(4)   Infringing on the right of association
In 1958, the Supreme Court rejected Alabama's effort to get the membership rolls for the NAACP, establishing a right to association rooted in the First Amendment:  "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the ... freedom of speech."

Today, the NSA could figure out the NAACP's membership rolls by accessing listervs, phone records, emails or whatever else might be available as part of its surveillance program.  And here's the really scary part: the NAACP would never know. 

At least Alabama's strong arm tactics were transparent.

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