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Saturday, June 15, 2013

How Could Surveillance Violate the First Amendment?

Howard asks an interesting question about surveillance and the First Amendment.  In her concurrence last term in United States v. Jones, Justice Sotomayor said: "Awareness that the Government may be watching chills associational and expressive freedoms."  But she didn't provide a citation for this proposition, and the one citation in the rest of the paragraph is to Judge Flaum's concurrence in the Seventh Circuit decision in Cuevas-Perez, which doesn't discuss freedom of expression.  So what might Justice Sotomayor be talking about, and is there any merit to it?

The closest analogy I could come up with are the claims for a reporters' privilege in Branzburg v. Hayes.  There, the press argues that the First Amendment gives it a privilege against testifying in court in certain cases.  There too, the idea seems to be that secrecy and free expression are intertwined, and that people won't talk to the press if they know that the government might later force them to testify about it.  But the court rejected the claims in Branzburg and has shown no sign of reviving them in the more modern era.  And if anything, the reporters' privilege cases seem to have stronger intuitive force than an anti-NSA "chilling effect" claim; so if the reporters cases fail, the NSA claims fail a fortiori.

The other analogy I could come up with are the Seventh Circuit "Red Squad" cases, which deal with a series of First Amendment challenges to the FBI's investigations and surveillance of various left wing groups (including the ACLU, which is leading one of the new NSA lawsuits).  (E.g. here and here.)  While the opinions mostly deal with some interesting questions about equitable remedies, the underlying, successful claims were First Amendment claims.

But the core of the Red Squad claims was retaliation and selective prosecution-- that groups had been picked for burdensome or chilling investigations because of their political views, and perhaps in order to suppress those political views.  By contrast, from what we know of the NSA programs, they do not have this problem.  Whatever their flaws under the statutes and the Fourth Amendment, the collection of data from domestic targets like the ACLU doesn't appear to be targetted (so far as we know); it appears to be indiscriminate.  While being indiscriminate might create problems for the program under other law, it actually insulates it from a Red Squad retaliation claim. 

Laird v. Tatum, a 1972 Supreme Court case dismissing a surveillance lawsuit for lack of standing confronted a similar chilling effect claim; while the Court did not rule on the merits, it appeared to make a similar assumption-- that the First Amendment might regulate selective targetting on the basis of political viewpoint, but not the chilling effect of indiscriminate information gathering.  The Court noted that it had never found a prohibited "chilling effect" to "arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual."

So I am skeptical that the First Amendment is a useful way to challenge for challenging the NSA surveillance programs, at least in the absence of retaliation or selective prosecution.  But the ACLU has a lot of clever lawyers, so it may well be that they will come up with something that I have not.

Posted by Will Baude on June 15, 2013 at 12:03 PM in Constitutional thoughts, First Amendment | Permalink


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Buckley v. Valeo?

Posted by: Scott Dodson | Jun 17, 2013 2:13:20 PM

NAACP v. Alabama is an interesting possibility; ultimately, I find it somewhat hard to tell where the opinion extends, but I think it's a poor fit for a challenge to the NSA programs for several reasons-- compelling disclosure is distinct from gathering information independently; the opinion seems to indicate that requiring disclosure of most kinds of information is not problematic; the opinion relies on the special situation of the NAACP in Alabama.

And, yes, my goal here is to analyze the viability of a First Amendment claim as the courts do or would be likely to understand it.

Posted by: William Baude | Jun 17, 2013 2:54:54 AM

If what the government is doing is illegal, then you don't need a Constitutional issue on top of the illegality. If it is legal, then the chilling result isn't enough to make it unconstitutional. The only issue in these cases has always really been whether the chilling effect was enough to grant standing to determine if the underlying activity is legal. An injury to a constitutionally protected activity sufficient to grant standing is a much lower barrier than an injury sufficient on its own to violate the constitution.

Posted by: Howard Gilbert | Jun 15, 2013 9:51:37 PM

Joe's kids go to school with the President's children. He knows that the Secret Service is always watching, which chills his ability to speak at PTA meetings and his kid's ability to express themselves in class. So does the First Amendment mean that the Secret Service cannot protect the President's family, or is it that the President's kids cannot go to school with other kids.

The Chairman of the FCC goes home at night and just like everyone else he turns on TV. However, the fact that he might be watching may chill the freedom of expression of scriptwriters for a TV drama. After all, he is a regulator. Does the First Amendment mean that members of the FCC cannot watch TV or listen to radio.

I want to post a flyer at the local supermarket, but I am scared because my neighbor Fred the policeman goes to the same supermarket and may see the flyer.

Louie who lives in the apartment next to me is widely regarded as a hit man for the mob. I have good reason to suspect the FBI has a warrant to listen to his communications. This is a problem because he has given me the WAP key to his Linksys wireless internet router. Does the First Amendment give me the right to prohibit the government from tracking Louie, or maybe they just have to me me free broadband.

Posted by: Howard Gilbert | Jun 15, 2013 6:55:02 PM

Individuals have a “right to receive information and ideas, regardless of their social worth.” They also have “right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.” Stanley v Georgia

The First Amendment protects the right “to distribute, the right to receive, the right to read . . . and freedom of inquiry, freedom of thought, and freedom to teach …indeed the freedom of the entire university community...Without those peripheral rights the specific rights would be less secure.” As part of this protection of necessary conditions for speech, “the First Amendment has a penumbra where privacy is protected from governmental intrusion.” Griswald v. Connecticut, 381 U.S. 479, 482-83 (1965)

Laws that cause “ inhibition of freedom of thought, and of action upon thought . . . brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition . . . has an unmistakable tendency to chill that free play of the spirit . . . [and] makes for caution and timidity in [] associations.” Schneider v. Smith, 390 U.S. 17 (1968)

And yes, I know it's technically Fourth Amendment and technically a dissent, but:

The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. (Brandeis dissent in Olmstead.)

Posted by: Anon-of-course | Jun 15, 2013 6:12:56 PM

(Coming back in briefly to say: There is certainly a difference among the questions "Does X cause a chilling effect" and "Does X violate the First Amendment" and "Would the judiciary as currently composed hold that X violates the First Amendment and therefore enjoin X." I was mostly responding to the first of these questions, but am now thinking that the original post was only intended to be about the third or maybe also the second.)

Posted by: Sam | Jun 15, 2013 5:43:23 PM

I am a supporter of the Tea Party, but my right of free speech has been chilled by the disclosure that the IRS may audit me because of that speech. Therefore, I can go to Federal District court and get an injunction prohibiting the IRS from auditing anyone, anywhere, for any reason because only such protection restores my willingness to express my opinions freely.

Posted by: Howard Gilbert | Jun 15, 2013 5:28:08 PM

I thought of NAACP v. Alabama too, but in that case the court order was specifically targeting the NAACP and they had evidence of past instances where disclosing membership led to tangible harms. But still, I don't think it can be right that there's no First Amendment claim arising from a program of widespread surveillance, even if there's not a good case already saying that. Suppose the government decided to in effect expose all private communications (except its own!) by intercepting everyone's communications and publishing them. Everyone's in the same boat -- no one has any communications that are less private than anyone else. But it seems clear to me that that would have a devastating impact on people's rights to speak freely and to freely associate. I'm not sure we pass some sort of qualitative threshold if we imagine the government, instead of publishing the communications, merely reading them.

Posted by: Bruce Boyden | Jun 15, 2013 4:42:36 PM

Forgive me please if I am missing some wisdom in your skepticism, but it seems to me perfectly obvious that awareness of being surveilled does, in many situations, chill associational conduct. And the law recognizes this.

For instance (though statutory, not constitutional, law), employer surveillance of labor organizing activity is well-recognized as having a chilling effect - and is therefore an unfair labor practice under section 8a1 of the NLRA. If people know that the boss is watching who is going into the union organizing meetings, the less-iron-willed people will be less likely to go to the meeting.

In the constitutional realm, see NAACP v Alabama and various cases citing it, all adding up to the basic understanding that surveillance of associational activity will chill it.

The law recognizes this, as it should, because it is a real effect. Many people in this country, rightly, don't blindly trust the surveillers. Many people (quite reasonably, I think) fear that even perfectly lawful speech which rubs some government agent the wrong way will lead that government agent to target them. Saying "yeah but 1960s Alabama was a unique instance of bad government, now we're all past that" is not so reassuring to many of us.

What am I missing that justifies your skepticism? Are you maybe recognizing the truth of what I am saying but merely denying that the same chill will arise if we are ALL surveilled indiscriminately? Perhaps we should talk to some people in North Korea or somewhere about that ...

Posted by: Sam | Jun 15, 2013 4:15:39 PM

I have published an article that treats with this issue at some length: First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech, 86 Ind. L.J. 1 (2011) (also available on SSRN but it seems I cannot post the link here).

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jun 15, 2013 4:01:06 PM

For those interested, I have written a paper exploring this issue on SSRN at papers.ssrn.com/sol3/papers.cfm?abstract_id=1481478

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jun 15, 2013 2:41:47 PM

I don't see a significant Fourth Amendment basis for the lawsuit, either. But I assume the primary aim of the lawsuit is to get discovery, not to win.

Posted by: Orin Kerr | Jun 15, 2013 1:23:47 PM

Yes, take a look at the Seventh Circuit cases and at the DC Circuit decision overruled on other grounds in Laird.

Posted by: William Baude | Jun 15, 2013 12:16:58 PM

Branzburg came up in the conversation that triggered my original post. But the chill there was caused by something that included a possible formal legal consequence--contempt and jail for refusing to comply with the subpoena. So the reporter was arguing that the subpoena, and the threat of sanction the subpoena carried, violated the First Amendment because such a subpoena, and the threat of sanction, would have a chilling effect.

But what about a challenge to an investigation simpliciter, where the argument is that the investigation chills speech so the investigation (not any resulting prosecution, punishment, or other sanction) violates the First Amendment. The Seventh Circuit cases sound a bit closer; I should take a look.

Posted by: Howard Wasserman | Jun 15, 2013 12:14:53 PM

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