Posted by Eugene Volokh:
Deep Inside the Second Circuit's First Amendment "National Security Letter"
Opinion
http://volokh.com/archives/archive_2008_12_14-2008_12_20.shtml#1229385049
rests what strikes me as the heart of the substantive First Amendment
analysis -- and it's a nugget that merits more discussion than it's
likely to get.
First, some background (which I guess means I'm burying the nugget,
too). The [1]the opinion involves a federal statute that lets the
government issue special subpoenas (called "National Security
Letters") while prohibiting the recipient -- usually a phone company
or an Internet Service Provider -- from disclosing the existence of
the NSL.
This is one of the issues I discussed in my [2]Crime-Facilitating
Speech, 57 Stan. L. Rev. 1095 (2005). Publicizing the existence of
this sort of government surveillance can seriously interfere with the
investigation, for instance by informing criminals and terrorists that
they're under suspicion and that certain phones, bank accounts, or
tactics are no longer safe to use.
But such publicity can also substantially inform public debate about
government action and possible government abuse. Concrete and timely
examples of alleged abuse -- whether or not the alleged abuse rises to
the level of illegality or unconstitutionality -- may be necessary to
persuade the public or opinion leaders to press for changes in
government policies: A general complaint that some unspecified abuse
is happening somewhere will naturally leave most listeners skeptical.
And even if the revelation of the surveillance is only delayed for
some months or years, rather than being prohibited forever, such a
delay may make it much harder to get timely political action,
especially since people tend to be much less interested in alleged
abuses years ago than in alleged abuses that are happening right now.
So should the speech be protected because it's valuable to public
debate, despite the potential harm to law enforcement or even national
security? Or should law enforcement and national security prevail
despite the potential harm to informed public debate on the merits of
the surveillance tactics? That's the tough question that the
Crime-Facilitating Speech article tries to deal with, as to this
question and as to others, and that the Second Circuit was asked to
confront.
Now at first the Second Circuit's decision seems like a victory for
free speech maximalists, because the court holds both reads the
statute narrowly and concludes that even in its narrowed version it is
procedurally flawed. As [3]our first post on the subject said, the
court held that,
[We] rule that [the relevant provisions] are unconstitutional to
the extent that [1] they impose a nondisclosure requirement without
placing on the Government the burden of initiating judicial review
of that requirement, and [2] rule that subsections 3511(b)(2) and
(b)(3) are unconstitutional to the extent that, upon such review, a
governmental official�s certification that disclosure may endanger
the national security of the United States or interfere with
diplomatic relations is treated as conclusive.
So there have to be extra procedures: A means for the recipient to
demand that the Government quickly ask a court to review the NSL, and
independent review by the court of the Government's arguments. This
[4]early story likewise focuses on the procedure, and understandably
so, since that's what the bulk of the court's opinion discusses.
But what about the substance? May the government indeed order you not
to, for instance, go to the newspapers to complain -- with details --
that you're being dragooned into turning over information that you
believe the government shouldn't be able to demand? Here's the court's
answer, on pp. 46-47 of the 55-page opinion:
A demonstration of a reasonable likelihood of potential harm,
related to international terrorism or clandestine intelligence
activities, will virtually always outweigh the First Amendment
interest in speaking about such a limited and particularized
occurrence as the receipt of an NSL and will suffice to maintain
the secrecy of the fact of such receipt.
What's more, this strikes me as the extent of the substantive First
Amendment analysis on this point (except for a brief mention on p. 37
that "no governmental interest is more compelling than the security of
the Nation"). The passage I just quoted has no footnotes and no
citations attached to it.
To be sure, many people might conclude that such a passage needs no
citations, and that of course the First Amendment is virtually always
trumped by "reasonable likelihood of potential harm, related to
international terrorism or clandestine intelligence activities." But
that's not entirely clear, it seems to me. Even in wartime, the First
Amendment protects some speech that may indeed jeopardize national
security (see, for instance, the [5]wartime election hypothetical).
Likewise, whether the government may punish speakers who publish
classified information that is leaked to them (as opposed to people
who breached secrecy agreements that they voluntarily entered into as
a condition of government employment) is at least a difficult
question, though a [6]recent district court case (U.S. v. Rosen)
answered the question "yes," at least in some circumstances.
Nor is it clear that the free speech interest is much less because the
statement is about "limited and particularized occurrence as the
receipt of an NSL" -- general arguments about government power and
alleged government abuses often rest on specific "limited and
particularized" facts, such as the fact that the government has tried
to coerce a particular entity to reveal a particular item of
information. Even the opinion acknowledges, on p. 36, that the factual
information "is relevant to intended criticism of a governmental
activity," and thus has substantial First Amendment value. There's
thus some reason to think that the circuit's "will virtually always
outweigh the First Amendment interest" statement would apply to other
constitutionally valuable speech as well.
So I think there's a good deal more that needs to be discussed here,
and that I hope that future courts will indeed discuss it, whether
while applying the procedures that the Second Circuit mandates
(especially if those procedures can be applied informatively in a
published opinion), while considering the matter in other circuits, or
while reviewing the Second Circuit's decision (if the Supreme Court
agrees to hear the case). And in the meantime, we should be conscious
about the Second Circuit's substantive conclusion -- one that
authorizes a pretty significant speech restriction -- and not just its
procedural conclusion.
References
1.
http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA3LTQ5NDMtY3Zfb3BuLnBkZg==/07-4943-cv_opn.pdf
2. http://www.law.ucla.edu/volokh/facilitating.pdf
3. http://volokh.com/archives/archive_2008_12_14-2008_12_20.shtml#1229361852
4. http://blog.wired.com/27bstroke6/2008/12/court-narrowing.html
5. http://www.law.ucla.edu/volokh/scrutiny.htm#IIA
6. http://www.volokh.com/posts/1155241888.shtml
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