Mr. Trump captured the spirit of our times when he observed in December that, “In the first term, everyone was fighting me,” but “in this term, everybody wants to be my friend.” Certainly, some of the nation’s most powerful media institutions seem to have concluded that it is simply not in their commercial interests to inconvenience the president, even if sparing him inconvenience means abandoning their own First Amendment rights.

As I write in the essay, the settlements that media organizations are entering into with Trump weaken the liberties on which the media organizations depend. They will shape the way that judges and the public think about press freedom and its limits. And each settlement also increases the pressure on other media organizations to settle their own disputes with Trump or find other ways of ingratiating themselves with him. Soon, I fear, “it may be unusual and even more perilous for a news organization to protest when it is accused by the president of reportorial recklessness, however outlandish the charge might be.”

Please read the whole essay here.

IMAGE: President Donald J Trump speaks with reporters and signs executive orders in the Oval Office at the White House on Thursday, Jan 23, 2025 in Washington, DC. (Photo by Jabin Botsford/The Washington Post via Getty Images)

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Americans tend to associate restrictions on access to foreign media with other governments, not their own. There’s some justification for this. The Soviet Union and China both jammed shortwave transmissions after the Second World War to prevent their citizens from accessing ideas they viewed as subversive. Many rights-abusing regimes engage in similar practices today. After it invaded Ukraine in 2022, Russia blocked access to Facebook, Twitter, and many foreign news outlets. Iran blocks its citizens from accessing a broad array of foreign websites and media sources. So does Saudi Arabia. Autocratic regimes often try to consolidate their own power by restricting their citizens’ access to information and ideas from abroad.

But, as the Knight Institute (which I direct) explained in a brief filed earlier this year, the U.S. government has sometimes imposed these kinds of restrictions, too. When Congress passed the Trading with the Enemy Act in 1917, it gave the president the power to prohibit Americans from purchasing books, films, and periodicals from enemy nations. Over time, the law and its successors were used to bar Americans from receiving books and other expressive materials from, among other places, Vietnam, North Korea, and China. The Treasury Department once ordered postal authorities to seize hundreds of Cuban publications destined for American readers—an order it rescinded only after The Nation and others filed a First Amendment challenge.

A parallel set of restrictions that barred Communists and anarchists from entering the United States similarly became a tool for the broad suppression of disfavored ideas and viewpoints. When Congress enacted these provisions in 1952, President Harry Truman opposed them, describing them as “thought control” and “inconsistent with our democratic ideals.” Congress overrode his veto, but history proved him right. The restrictions were used to exclude a vast array of respected political and cultural figures, including writers like Gabriel Garcia Marquez, Pablo Neruda, Czesław Miłosz, and Doris Lessing, as well as Nino Pasti, a former NATO commander who was banned after he criticized the Reagan administration’s effort to locate nuclear missiles in Europe.

The fundamentally illiberal character of all of these restrictions eventually became impossible for Congress to ignore. The restrictions impoverished public discourse in the United States, undermined the government’s ability to champion free speech abroad, and made the United States seem petty, fearful, and hypocritical at a moment when it was trying to make a case for the superiority of open societies. Congress eventually repealed the immigration provisions that had been used as tools of censorship during the Cold War. In 1988, it passed a law, known as the Berman Amendment, to make clear that the president’s authority to restrict trade with the enemy did not extend to restricting the import or export of expressive materials. It expanded that law in 1994 to protect Americans’ right “to educate themselves about the world by communicating with peoples of other countries.”

The TikTok ban is an unwelcome throwback to an era in which the government exercised far-reaching control over Americans’ access to information and ideas from abroad. Many of the legislators who voted for the ban acknowledged forthrightly that the law was intended to limit Americans from accessing viewpoints with which they, the legislators, disagreed. (Some of these statements are collected at pp. 19-23 of the Knight Institute’s brief.) And while the Justice Department now says the ban is necessary because China might access TikTok’s databases of information about American users, it’s difficult to take the argument seriously when even the Office of the Director of National Intelligence has observed that China can readily access the same kinds of information in other ways, and when Congress could address data-collection concerns more effectively with a privacy law that limited what TikTok and other platforms can collect.

New technology presents new challenges, and perhaps in some contexts these challenges will require Americans to reconsider hard-won freedoms that are, for all of the United States’ profound problems, still the envy of much of the world. But before we permit the government to reinstate long-discredited forms of censorship, we should at least require it to demonstrate that its professed interests—protecting privacy, most significantly—couldn’t be achieved in some other way. The Biden administration hasn’t established that the TikTok ban is actually necessary to achieving any legitimate government interest. Under settled First Amendment standards, that should be the end of the matter.

IMAGE: Participants hold up signs in support of TikTok at a news conference outside the U.S. Capitol Building on March 12, 2024 in Washington, (Photo by Anna Moneymaker/Getty Images)

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For Assange, the deal ends what the New York Times describes as a “long and bitter standoff with the United States.” Assange has been held in severe conditions at Belmarsh for more than five years; before that he was effectively imprisoned for seven years at the Ecuadorian Embassy in London, where he’d sought refuge amid fears – justified, as it turned out – that the United States intended to seek his extradition. I visited Assange at the Embassy in 2014 and saw firsthand the conditions in which he was living: He was confined to a small conference room and intimately supervised by armed guards; a speaker on the windowsill was blasting white noise meant to frustrate surveillance; and the Embassy itself was surrounded by trenchcoated men biding their time in unmarked cars, presumably representatives of a cross-section of the world’s intelligence agencies. It was clear to me then that Assange had already paid a heavy price for publishing government secrets. Almost a decade later, he and his supporters will be deeply relieved if his tribulations are coming to an end.

The Biden administration will be thrilled to close this case, too. It was the Trump administration, remember, that filed the indictment; while the Obama administration had considered charging Assange under the Espionage Act, it ultimately demurred because of concerns about the implications for press freedom. Those concerns were well-founded. It’s largely forgotten that, at the time the Obama administration was considering indicting Assange, some prominent legislators were pressuring it to indict major newspapers as well for printing some of the same secrets that WikiLeaks had published.

It’s doubtful that Biden administration officials, many of them holdovers from the Obama administration, were ever very enthusiastic about the case. But having inherited the file, they actively pursued Assange’s extradition for three years, and so the case now belongs to them as much as it does to the Trump administration. Press freedom and human rights groups – including the Knight Institute – repeatedly criticized the administration for pursuing the case, arguing that the prosecution of Assange for publishing government secrets was impossible to reconcile with the administration’s stated commitment to press freedom. When the administration announced new rules limiting the use of subpoenas against the press, the announcement was complicated by its continuing pursuit of Assange. The administration will surely be relieved to step beyond such an obvious contradiction.

But this doesn’t mean the plea deal is a big win for press freedom. It’s true that the deal averts the possibility of a judicial ruling endorsing the government’s broadest statutory and constitutional arguments – in particular, the argument that the solicitation and publication of government secrets is both prohibited by the Espionage Act and unprotected by the First Amendment. That kind of ruling would have been a true catastrophe for national security journalism, whether or not Assange himself is properly considered a journalist, as I explained in expert testimony submitted to the U.K. magistrate’s court.

At the same time, the logic of the deal is that Assange will have served five years in prison for activities that journalists engage in every day, and that we absolutely need them to engage in. In this respect the case establishes a terrible precedent, even if it’s not one the courts have fully endorsed. (It’s worth asking why the Justice Department required Assange to plead guilty to an Espionage Act charge, rather than to a charge under the Computer Fraud and Abuse Act, which would have raised far fewer press freedom concerns.) Assange and Biden are closing a chapter, certainly. But the case will have a legacy for press freedom, and for the public’s right to know. As I told Reuters, the case will cast a long shadow over the most important kinds of journalism, not just in the United States but around the world.

IMAGE: Freedom of the Press news headline on a copy of the U.S. Constitution. (Photo via Getty Images) 

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Against this background, it is disconcerting, at least, to see the U.S. government threatening to ban TikTok, an app used by more than 150 million Americans. Fortunately, the United States has something that many other countries don’t: strong constitutional protections for free speech that extend to the right to access social media as well as the right to receive information from abroad. Those protections don’t necessarily mean the government won’t ultimately be able to ban TikTok. But if it’s going to shut down a major social media platform, it will have to come up with better reasons than it’s offered so far. 

In an article published by the New York Times this morning, I explain why this is so—and why it is an important feature of our system, not a bug, that the government can’t interfere with Americans’ access to social media without carrying a heavy justificatory burden. As I argue: 

The First Amendment has so far played only a bit part in the debate about banning TikTok. This may change. If the U.S. government actually tries to shut down this major communications platform, the First Amendment will certainly have something to say about it.

Perhaps the reason First Amendment rights haven’t received more attention in this debate already is that TikTok is a subsidiary of ByteDance, a Chinese corporation that doesn’t have constitutional free speech rights to assert. But setting aside the question of TikTok’s own rights, the platform’s users include more than 150 million Americans, as TikTok’s chief executive testified at a contentious congressional hearing on Thursday. TikTok’s American users are indisputably exercising First Amendment rights when they post and consume content on the platform.

Read the rest of the article here. 

IMAGE: TikTok CEO Shou Zi Chew testifies before the House Energy and Commerce Committee in the Rayburn House Office Building on Capitol Hill on March 23, 2023 in Washington, DC.

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As we and our colleagues have written here before, the prepublication review system originated in a set of contractual obligations imposed on a small number of public servants with access to the nation’s most sensitive secrets. But what was once a narrow regime has grown into a byzantine network of regulations and policies that restrict the speech of millions of people.

We owe this system in large part to the Supreme Court’s 1980 decision in Snepp, which affirmed the imposition of a constructive trust over the proceeds of a book that a former CIA officer had published without first submitting it for review—an act the agency characterized as a breach of fiduciary duty even though it conceded that the book did not contain classified information. The intelligence agencies interpreted Snepp as a green light for a dramatic expansion of their prepublication review regimes, and lower courts have interpreted it to mean that the agencies’ prepublication review regimes are not subject to the stringent First Amendment review that would ordinarily be applied to prior restraints.

It’s amazing to us that the intelligence agencies have been able to squeeze so much juice from Snepp’s meager fruit. The narrow question the Supreme Court addressed in Snepp was whether the agency was justified in imposing a constructive trust. In addressing this question, the Court mentioned the First Amendment only twice, including once in the Court’s summary of decisions below. The only First Amendment analysis appears in a footnote, and it consists mainly of the bare conclusion that prepublication review is “reasonabl[e]” in light of the government’s “vital interest” in protecting “both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.” The Court did not address what materials agencies may constitutionally require former employees to submit for review, on what bases an agency may constitutionally withhold permission to publish, or how quickly agency review must be completed.

That Snepp is the foundation of the modern prepublication review system is, again, simply amazing. But it is especially so because of the highly irregular way in which the case was decided.

Here is that procedural history: The district court enjoined Snepp from further violating his secrecy agreement and imposed a constructive trust on his book-proceeds, as the government requested. On appeal, the Fourth Circuit upheld the injunction but rejected the trust, reasoning that Snepp hadn’t published classified information and that accordingly the agency was entitled to recover only actual damages. The government was satisfied with this result, but Snepp petitioned the Supreme Court to hear the case, in part maintaining that his contract was an unenforceable prior restraint. After Snepp filed his petition, the government filed a conditional cross-petition, asking the Court to grant its petition if the Court granted Snepp’s.

And at this point, the case took a bizarre turn. The Court simply decided the case on the basis of the petition and conditional cross-petition, without inviting briefing on the merits and without hearing oral argument. The Court’s per curiam opinion was issued over a lengthy dissent from Justice Stevens, who complained not just about the Court’s broader reasoning but about its dismissive treatment of First Amendment issues that warranted more serious consideration.

This unusual procedural history perhaps goes some way in explaining why Snepp’s First Amendment footnote is so difficult to square with the Court’s First Amendment jurisprudence. The Snepp opinion doesn’t discuss the constitutional presumption that prior restraints are unenforceable. It doesn’t attempt to reconcile its reasoning with the rule that any system of prior restraint must include “narrow, objective, and definite standards to guide the licensing authority” (from Shuttlesworth v. City of Birmingham), and must include “procedural safeguards designed to obviate the dangers of a censorship system” (from Freedman v. Maryland). It doesn’t discuss the interest of former public servants in speaking about the operations of government, or the interest of the public in hearing that speech (interests the Court highlighted in cases like United States v. National Treasury Employees Union). Snepp’s terse First Amendment footnote seems essentially oblivious to fundamental First Amendment principles.

The result, forty years later, is that intelligence agencies’ prepublication review regimes look nothing like the licensing schemes the Court has permitted in other contexts. The prepublication review regimes lack narrow, objective, and definite substantive standards to guide government officials and cabin their discretion when reviewing materials. They also lack narrow, objective, and definite standards as to what former employees must submit for review—essentially requiring the submission of virtually anything former employees write about the government or national security, regardless of whether they rely on information they learned in the course of their employment. Finally, the regimes also lack the procedural safeguards required to mitigate the risk of illegitimate censorship—including perhaps most critically any firm timeline for government review, meaning the government can take months or more to review authors’ work and leave authors with no recourse other than expensive as-applied lawsuits. The prepublication review system, as Jack Goldsmith and Oona Hathaway have observed, is “racked with pathologies.”

Writing in dissent in Snepp, Justice Stevens remarked that the majority “seem[ed] unaware” that its cursory First Amendment analysis had potentially “fashioned” a “drastic new remedy” to “enforce a species of prior restraint on a citizen’s right to criticize his government.” 444 U.S. at 526 (Stevens, J., dissenting). He was right. The Court now has the opportunity to consider the First Amendment interests implicated by prepublication review for, truly, the first time. It should take it.

The post Supreme Court Should Address Prior Restraints on Former Gov’t Employees appeared first on Just Security.

* * *

The last time I attended a Harvard Law Review banquet was in the year 2000, the year after I graduated from law school. It was a very different time. America was invincible. History had ended. “Law and economics” occupied the cultural space that Taylor Swift occupies now. The internet, which was still new, was going to democratize knowledge, end censorship, supercharge social justice movements, and topple repressive regimes. We thought the days of despots and strongmen were numbered. The arc of the moral universe was bending toward justice.

Needless to say, the September 2001 terrorist attacks were unimaginable to us. So was pretty much everything that came after. Nobody would have believed, in the year 2000, that we were on the threshold of two decades of war, that the 21st century might belong to authoritarians, and that human rights and democracy would prove to be as brittle as they’ve proven to be. Looking back now, it seems almost as if 9/11 cast us out of one universe and into another.

I’m tempted to say that “9/11 changed everything.” Maybe it did change everything. Still, to say it changed everything gives an aura of inevitability to all that happened afterwards. Of course, nothing was inevitable. Our political leaders and institutions could have responded in many different ways. As a society, we could have made other choices. It wasn’t inevitable that we’d go to war in Iraq, or even in Afghanistan. It wasn’t preordained that we’d jettison the human rights principles we’d previously championed.

How did we make the decisions we did? Our society, perhaps more than any other, puts faith in a well-informed public, unfettered political debate, and a free press. These features of our system are a large part of what we mean by the phrase “self-government.” We’ve enacted laws, built institutions, and cultivated norms meant to safeguard these features. Preeminent among these is the First Amendment.

What I’d like to talk about this evening is whether the First Amendment served us well over these last two decades, and whether we should feel confident it will serve us well in this new age, the age of social media, surveillance, and ascendant authoritarianism.

* * *

I wonder what comes to mind for all of you, when I say “the First Amendment.” When I graduated from law school, I associated the First Amendment with tolerance, the pursuit of truth, democratic vitality, and social justice. The First Amendment, as I thought of it, allowed the newspapers to print the Pentagon Papers, protected artists who’d been called to testify before the House Un-American Activities Committee, and empowered the NAACP to withhold its membership lists from southern states that were trying to intimidate racial justice activists.

That the First Amendment protected speech of all kinds was a feature, not a bug. The reality of social progress was proof that the First Amendment was doing the work we needed it to do.

I doubt many of you think about the First Amendment now in the way I did then. Even my own views have become more complicated. The First Amendment flashpoints of the past few years have been very different from the ones that were front of mind twenty years ago. When I invoke the First Amendment now, perhaps what comes to mind is not the Jehovah’s Witnesses who don’t want their kids to have to recite the pledge of allegiance, or the anonymous pamphleteer who wants to oppose a new school tax—but vaccine skeptics who undermined public health policies during a worldwide pandemic, or neo-Nazis who rioted in Charlottesville, or cable news hosts who inveigh against immigrants and racial minorities. Maybe the notion of a “marketplace of ideas” sounds naïve to some of you, or even fraudulent.

And as to social progress, well, whatever your politics, it would be difficult to look back on the past few years, or even the past few weeks, and feel entirely confident about our collective capacity to understand one another, negotiate differences, learn from mistakes, figure things out, do better.

The project that led me to the ACLU twenty years ago didn’t, on its face, have much to do with the First Amendment. This was just six or eight weeks after the 9/11 attacks. I’d been out of law school for a little while—I’d clerked for two years and then I’d joined a law firm in New York City. There was still smoke rising from the site where the twin towers had been, and ash in the air, and hundreds of missing-person posters affixed to walls and lampposts on every street-corner.

The Bush administration’s immediate response to 9/11 was to round up the usual suspects. The INS—the immigration service—carried out raids in immigrant communities around the city—in Coney Island, Bay Ridge, and Jackson Heights—arresting immigrants whom the FBI said were connected somehow to the terrorist attacks. Ultimately the INS detained more than a thousand men. They were South or Central Asian, African, and Arab; cab drivers, bodega workers, gas station attendants, hospital orderlies. Most of them were undocumented, like half a million other people in the city. What distinguished them is that they were Muslim, or had been mistaken for Muslim, which is something that happened quite frequently.

I started working with the ACLU as a volunteer. We’d go out to the detention centers in New Jersey and try to figure out who was being held there. The special-interest detainees—that’s what the government called them—were being held without charge, and they’d had no contact at all with their families or lawyers. The Attorney General was intimating on national television that they were somehow responsible for the attacks. The FBI was saying it could detain them indefinitely. Many of the men were terrified they were going to spend the rest of their lives in American prisons.

We advocated for them with the wardens and the FBI, and we connected them with lawyers who could help them file habeas petitions. If you’re very lucky, you’ll have the chance at some point in your professional lives to use your skills in similar ways—for me, it was eye-opening and also incredibly rewarding. But I wish we could have done more. Lower courts were reluctant to second-guess the FBI’s decision to hold the men without charge. The DC Circuit upheld the Justice Department’s refusal to release a list of the men who’d been arrested. Two appeals courts split on the question of whether the men’s deportation hearings should be open to the public. Many of the men languished in detention for months, a few of them for more than a year. Eventually all of them were quietly deported, none of them charged with anything having to do with terrorism, most of them charged with no crime at all.

That episode turned out to be a harbinger. The arbitrary and discriminatory nature of the arrests, the government’s calculated effort to avoid judicial review, the indifference of the courts—all of these themes would surface again. And so, especially, would questions about the control of information—questions about which stories could be told publicly, which information the government had an obligation to share with the press and public, and which government proceedings the press and public had a right to observe. It turned out that these questions, all of which implicate the First Amendment in one way or another, were at the center of what the Bush administration called the “war on terror.”

* * *

In the two decades after 9/11, that shape-shifting war against an ever-evolving enemy generated an immense amount of litigation in American courts. A great deal of it pitted national security interests against free speech.

Some of this litigation was quite literally about the right to speak. One set of cases I litigated at the ACLU involved gag orders—non-disclosure orders—imposed by the FBI on people served with national security subpoenas. The question was whether the First Amendment protected their right to tell others—including lawyers, courts, and members of Congress—that the FBI had demanded information from them.

But other cases engaged other aspects of the First Amendment. A slew of cases raised the question whether the First Amendment limits government surveillance that chills the freedoms of speech and association. There was also an avalanche of litigation over access to information. There was the question whether the First Amendment afforded the public a right to observe military tribunals at Guantanamo Bay. There was the question whether the public had a right of access to the evidence that prisoners filed in connection with habeas petitions, including, in particular, to videos documenting abuse and torture. There was, as I already mentioned, the question whether the public had a right of access to deportation proceedings.

Looking back now, one thing that’s striking to me is how many of these national security cases turned on what the government could learn about ordinary citizens, or what ordinary citizens could learn about the government. Questions about the control of information—about speech, secrecy, selective disclosure, and surveillance—turned out to be central.

But I suppose it shouldn’t really be surprising that the war on terror raised so many of these questions. After all, war has always been a crucible for free speech. It’s in large part through national security cases that the First Amendment has been given life. It was in a case involving an Espionage Act prosecution after the first World War that Justice Holmes conjured the marketplace of ideas, a metaphor that continues, for better or worse, to shape the way we think about free speech today. It was in another Espionage Act case, a few years later, that Justice Brandeis wrote that “the fitting remedy for evil counsels is good ones”—that the remedy for bad speech is more speech—a principle that provides the starting point for today’s debate about misinformation. And it’s the Pentagon Papers case, more than any other, that still delineates the outer boundaries of press freedom in this country. Clashes between the demands of national security and the demands of self-government have forged the First Amendment as we think of it today.

Did this war-forged First Amendment serve us well in relation to the war on terror?

Yes and no. There was no serious effort by government, even in the days immediately after 9/11, to directly censor the press. There was no wave of prosecutions for pure political speech, as there was during, for example, the First World War. The American free speech landscape over the past two decades has looked nothing like, say, the Russian free speech landscape now, with media organizations shut down, reporters arrested, hundreds of protesters thrown in prison, and ordinary citizens subject to prosecution for having the temerity to discredit the war effort.

But it’s also true that the First Amendment failed us in significant ways. In one important case, the Supreme Court held that the First Amendment wouldn’t bar the government from prosecuting human rights lawyers who worked with designated terrorist groups. The case marked a major retreat from precedent and cast a chill over the activities of human rights, humanitarian, and media organizations, all of which engage with blacklisted groups for entirely legitimate reasons.

The First Amendment also provided little protection against government surveillance that implicated the freedoms of speech and association. The Supreme Court acknowledged that unregulated surveillance could deter people from exercising First Amendment rights—from attending political protests, for example, or participating in political debate. But this deterrent effect, in the Supreme Court’s view, didn’t amount to an injury for purposes of Article III. This is what the Court said, 5-4, in Amnesty v. Clapper, a case I argued before the Court ten years ago, and unsurprisingly it’s what lower courts have said since. When the National Security Agency tracked Americans’ communications, monitored their movements, and cast a massive dragnet over their international phone calls and emails, the First Amendment was essentially a bystander.

And consider the right of access. In the last year of the Bush administration, a district court in DC dismissed in two sentences the argument that the First Amendment afforded the public a right of access to military hearings in which former CIA captives testified about their torture at the hands of CIA interrogators. In that case, as in many others, the courts allowed the executive branch to use the mere invocation of national security to justify withholding information the public needed to know, including information about the most profound human rights abuses.

And, finally, what about press freedom? Again, the government didn’t try to directly censor the press—this is one important respect in which the First Amendment served us well. Still, successive administrations imposed new restrictions on the right of government employees to share information with reporters. They also went to extraordinary lengths to learn the identities of reporters’ sources, and prosecuted many whistleblowers for sharing classified information with the press and public. The courts didn’t view the First Amendment as an obstacle to any of that.

In the Pentagon Papers case, Justice Stewart observed that the checks and balances that operate elsewhere don’t operate in the spheres of national defense and international affairs. In these spheres, the power of the president is vast as well as unregulated. The only effective restraint on presidential power, Justice Stewart wrote, lies in “an enlightened citizenry—in an informed and critical public opinion which alone can [] protect the values of democratic government.”

But this is where the First Amendment failed us. The government withheld information we needed to know. Whistleblowers were deterred by the threat of draconian penalties. Public debate about the most consequential questions was impoverished and distorted by secrecy and selective disclosure. Often, what we knew about government policy was what the government wanted us to know, and no more. Narrative authority—the power to describe the world, to stipulate the facts—was taken away from the press and the public, and given over to the executive.

* * *

I said the First Amendment failed us, but what I really mean, of course, is that the courts failed us. The courts failed to enforce First Amendment rights that had already been recognized, and failed to consider the possibility that changing conditions required core First Amendment rights to be given life in new ways.

The courts’ failure in this respect transcends the national security context. In recent decades, the courts have allowed the First Amendment freedoms most vital to self-government to become hollowed out. Even as they’ve extended new First Amendment protection to campaign donors, data-miners, and commercial advertisers, they’ve allowed the rights of protesters, journalists, and whistleblowers to wither. The First Amendment is increasingly serving private interests rather than democratic ones. It’s becoming alienated from the values it was meant to serve—including truth-seeking, official accountability, and, most of all, self-government.

And yet the rights neglected or abandoned by the courts are both more necessary and more vulnerable than they’ve ever been. Authoritarianism is ascendant all over the world. Repressive regimes are becoming more repressive. Democracies are becoming less democratic. Autocrats have become bolder and no longer hesitate to reach across borders. Using German spyware, the Ethiopian government monitored a political opponent living in Maryland. The Russian president ordered the poisoning of dissidents in London. The Saudi Crown Prince had a Washington Post journalist murdered in an embassy in Istanbul.

The ascendancy of authoritarianism abroad would pose a real threat to our freedoms even if authoritarianism had no constituency here at home. But it does have a constituency here, as we’ve seen. Our last president adopted many of the tactics of authoritarians the world over, and in many quarters he was celebrated for it.

Now Trump is gone, but authoritarian and demagogic impulses aren’t. Around the country, state legislatures have enacted bills intended to control public discourse, shrink the space available for dissent, and centralize narrative power in the hands of government officials. There are bills that restrict how public-school teachers can talk about race, gender, and sexuality; bills that prohibit boycotts of Israel, or of fossil fuel companies. Over the past five years, almost 40 states have enacted new legislation restricting protest rights, imposing extreme penalties for protest-related offenses, or reducing penalties for violence directed at protesters.

New communications technologies pose other risks to First Amendment values. A case we’re litigating at the Knight Institute involves a Trump-era rule that requires millions of foreign citizens who apply for US visas to register their social media handles with the State Department. The registration requirement facilitates the government’s ongoing surveillance of visa holders after they enter the United States. What should the First Amendment have to say about surveillance of this kind—surveillance many of us might ordinarily associate with repressive regimes, rather than open societies?

And what should the First Amendment have to say about the far-reaching influence that a small number of technology companies now have over public discourse online? “The very purpose of the First Amendment,” Justice Robert Jackson wrote, “is to foreclose the government from assuming a guardianship of the public mind.” But should the First Amendment be indifferent to the accumulation of narrative power in the hands of private actors? And, perhaps more pressing, should the First Amendment be hostile to government efforts to limit this power?

Earlier I said the First Amendment is becoming alienated from the values it was meant to serve. Even if you agree with me, you might wonder what exactly it would require, at a doctrinal level, to reverse this trend. I mean, it’s all well and good to say that the First Amendment should serve self-government, but self-government is an abstract concept; it’s not going to decide specific cases. Still, reminding ourselves of the values the First Amendment was meant to serve might at least help us approach conversations about the First Amendment in a different way.

In everyday conversation, we tend to talk about the First Amendment as if it were something fixed, something we’ve inherited. First Amendment advocates often say they’re “defending” the First Amendment, or “protecting” the First Amendment—phrases that suggest, again, that the First Amendment is something stable—something that’s already been won and that now needs only to be preserved. But if we want the First Amendment to serve democratic interests rather than private ones—if we want it be a check on power, rather than a tool of it—then First Amendment doctrine has to be attentive to new forms of power, and new ways in which power is being exercised. It needs to be attentive to evolving technology, new business models, and changing social practices.

I asked you, earlier, what comes to mind for all of you when I invoke “the First Amendment.” Let me leave you with one modest suggestion: At this moment, when our democracy seems fragile, and the First Amendment isn’t doing the work we need it to do, it would be better for all of us to think of the First Amendment not just as something to be defended but as something to be built, not just as something to be protected but as something to be reclaimed, or even reimagined.

Thanks again to all of you, and enjoy the rest of your evening.

IMAGE: Gannett House, 1511 Massachusetts Avenue, home of Harvard Law Review, among others. Photo credit: Rachel Cobcroft/Flickr (Creative Commons).

The post Reclaim the First Amendment — Harvard Law Review Address appeared first on Just Security.

The full video of the event is published below.

Speakers:

Elisa Massimino, Former President and CEO of Human Rights First

Anthony D. Romero, Executive Director of the American Civil Liberties Union

Kenneth Roth, Executive Director of Human Rights Watch

Linda Sarsour, Co-chair of the 2017 and the 2019 Women’s March and Former Executive Director of the Arab American Association of New York

Moderator:

Jameel Jaffer, Executive Director of Knight First Amendment Institute and Executive Editor of Just Security

Readers may also be interested in Jameel Jaffer’s essay — “In the ‘War on Terror,’ What Did Rights Organizations Get Wrong?” — which was published as part of a Symposium in the lead up to the 20th anniversary of September 11.

The post Video: Roads Not Taken – Reflections on the 9/11 Anniversary appeared first on Just Security.

With the 20th anniversary of the September 2001 attacks approaching, and images of the United States’ withdrawal from Afghanistan dominating the news, many Americans are reflecting on these past two decades – on the 9/11 attacks themselves and their thousands of victims; on the ways in which our government responded to the attacks, and on the many lives affected or cut short by those responses; and on the disfiguration of our communities, society, and world by years of terrorism, counterterrorism, and war. In conversations over the next days and weeks, U.S. human rights organizations will draw attention to the human and democratic costs of some of the U.S. government’s post-9/11 policies. They’ll ask once again whether these policies serve (or served) our interests, and whether these policies are (or were) consistent with our law and values. This is exactly what human rights organizations should do, of course. 

But this moment also provides an opportunity to look inward – a chance for human rights organizations to reassess the decisions they made, and the work they did, over the past two decades. This kind of institutional introspection might be difficult for a number of reasons. But asking– individually, organizationally, and as a human rights community – what we might have done differently, and what we got wrong, might help us understand how we need to change, and how we can be more effective in the future. This kind of critical self-reflection makes sense even if one believes, as I do, that American human rights organizations were extraordinarily fortunate to have the leaders they did, and that these organizations did a lot of work over the past two decades that was principled, tactically savvy, and effective. 

* * *

I’ve been doing some of this kind of reflection myself. One of the human rights issues I spent a lot of time working on when I was at the ACLU had to do with interrogation policy. We filed lawsuits that compelled the government to release hundreds of documents relating to the maltreatment of men held in U.S. custody, and later we represented some of those men in lawsuits against the officials who had authorized their abuse and torture. Like our counterparts at other human rights organizations, we were also active participants in public debate about this issue. I’ve been thinking about one of the arguments we adopted as a frame for our efforts – an argument I’ve always associated with Senator John McCain. 

Senator McCain was a particularly committed opponent of the Bush administration’s torture policies because of his experience as a prisoner of war in Vietnam. In the Senate and the press, he argued again and again that torturing prisoners was simply beneath the United States – that it was fundamentally inconsistent with American values. “Bob, could I just say – it’s not about them; it’s about us,” McCain said to Bob Schieffer on Face the Nation in 2014, after the Senate Intelligence Committee released the executive summary of its report on the CIA’s torture program. “It’s about us, what we were, what we are and what we – and what we should be.” 

We adopted this frame at the ACLU, too. It seemed to resonate with people across the political spectrum. It had the effect of taking the focus off the prisoners who had been tortured, all of whom were dark-skinned foreigners with strange names and adherents of a religion unfamiliar to most Americans, and some of whom had been accused of terrible crimes, and it put the focus instead on American traditions and values – or on purported American traditions and values, some might say. It wasn’t a human rights argument, strictly speaking. At bottom it was an argument that one didn’t need to view the prisoners as entitled to human rights, or even as fully human, in order to conclude that the United States shouldn’t torture them. 

I think human rights organizations were right to adopt this argument, especially because other arguments rarely seemed to convince anyone who wasn’t convinced already. Now I wonder, though, whether the emphasis we gave to this argument had costs we didn’t recognize at the time. 

The debate about torture unfolded differently in the United States than it did in some other democracies. In other democratic countries, the debate centered around the experiences of specific people. In Canada, for example, a government commission led by a former Justice of the Supreme Court investigated the case of Maher Arar, a Canadian citizen whom the United States “rendered” to Syria, where he was tortured for a year and imprisoned in a cell he likened to a grave. At the conclusion of the commission’s inquiry, Arar received an apology from the Canadian prime minister as well as substantial compensation. Arar’s story became common knowledge in Canada, as did the story of Omar Khadr, a Canadian citizen who was 15 years old when he was detained by the United States in Afghanistan and then imprisoned and tortured at Guantanamo. The Supreme Court of Canada held that Canadian interrogators violated Khadr’s rights when they interrogated him in American custody. 

In other democracies, too, men who suffered torture at the hands of American interrogators – or at the hands of their proxies – became something like household names. The “Tipton Three,” three British citizens who were held at Guantanamo, became a cause célèbre in the United Kingdom. The story of Binyam Mohamed, whom the United States rendered to Morocco for torture and then imprisoned without charge at Guantanamo for five years, also became well known in the United Kingdom, in part because the High Court of Justice considered an aspect of his case. Ahmed Agiza and Muhammad al-Zery, Egyptian nationals whom the United States rendered to Egypt, became a focus of public and press attention in Sweden, where the two had sought asylum before falling into the hands of the CIA. Khaled el-Masri, a German national whom the United States imprisoned and tortured in Afghanistan after mistaking him for someone else, received similar attention in Germany, in part because the European Court of Human Rights took up his case.

The debate in the United States, by contrast, seemed to be about everything except the experiences of specific victims. It was about statutory terms, constitutional provisions, farfetched hypotheticals, and competing accounts of our national character. The stories of specific people did sometimes seep in at the margins, but I doubt there are very many Americans, even today, who could name a person who was imprisoned in a CIA black site, or tortured at Guantanamo, or rendered by the United States to Syria or Morocco or Egypt – let alone tell his story. 

It would be overstating things, I know, to attribute this entirely, or even principally, to human rights organizations’ adoption of McCain’s argument. The influence of human rights organizations is limited. Also, not every human rights organization gave a lot of emphasis to McCain’s argument, and even the organizations that adopted it wholeheartedly made other arguments as well. Even as we employed McCain’s argument, we tried very hard to tell the prisoners’ stories in court, in Congress, in the press. 

If Americans are unfamiliar with the stories of men who were tortured, it’s probably less because human rights organizations didn’t tell these stories than because the government took great efforts to suppress them – denying visas to former prisoners who wanted to meet with audiences in the United States, censoring transcripts of judicial proceedings, and declaring the prisoners’ memories of their torture to be classified, for example. Another contributing factor—perhaps the decisive one—was that courts and other accountability institutions in other democracies played their appointed roles, whereas their counterparts in the United States too often served as helpmeets to the “war on terror.” 

Still, I can’t help but wonder whether human rights organizations’ insistence that the torture debate was “not about them,” – that is, not about the men whose human rights had been violated – might also have contributed to the distinctive way the torture debate unfolded in the United States. Every time we foregrounded McCain’s argument, after all, we substituted a debate about abstractions for a debate about prisoners’ specific experiences. Would we have felt comfortable doing this in any other context, if we were addressing any other human rights violation? Again, I don’t actually think it was a mistake for us to adopt the argument, in the circumstances. But is it possible that our decision to adopt it did something more than just bracket prisoners’ human rights – that it might have, even if only in a small way, contributed to their dehumanization as well? 

* * *

The question of how some human rights organizations talked about torture is just one of many questions that could be asked about the decisions that human rights organizations made in the months and years after 9/11. Over the past two decades, these organizations made countless decisions about which issues to focus on, which cases to take on, how to allocate resources, whom to collaborate with, which arguments to deploy, whether and how to engage with government officials, and how to frame complex issues for the public. Some of those decisions involved questions of tactics – like the question of how to talk about torture – but others involved much larger questions of strategy, values, or purpose. 

In his new book, Reign of Terror, Spencer Ackerman writes about the war on terror’s “grotesque subtext” – the perception that nonwhites, and Muslims in particular, are “marauders from hostile foreign civilizations.” One question that might be asked of human rights advocates is whether we adequately addressed, or even fully appreciated, this subtext. I suppose another question that might be asked is what it would have meant to appreciate or address it. Perhaps we would have spent less energy debating the finer points of the Foreign Intelligence Surveillance Act and Common Article 3, and more energy talking about the prejudices that connected the government’s national security policies to one another? Or perhaps we should have relied more heavily on political and moral arguments, and less heavily on legal ones? 

Others have questioned  the role that human rights organizations may have played in “sanitizing” the war on terror. In the New York Review of Books, Samuel Moyn writes that human rights organizations made the war on terror marginally less brutal, but that making it less brutal also helped legitimate it. Jack Goldsmith has said essentially the same thing, albeit with satisfaction rather than dismay. Chase Madar made a related argument when he reviewed my book about the drone program, criticizing human rights organizations for failing to recognize that “the real function of the laws of armed conflict is not to restrain lethal force but to optimize its application.” Were we wrong to focus on wartime abuses rather than on war itself? Were there ways in which our efforts to protect human rights served to entrench the war on terror, and even make it more possible for the U.S. government to extend it? 

To acknowledge these (and other) critiques is not necessarily to agree with them. But it would be worthwhile for us to engage with them, and for us to ask, more broadly, whether, over the past 20 years, human rights advocates did what they came to do. For human rights organizations, effectiveness has many dimensions, including bearing witness, giving voice to victims, exposing abuses, preventing abuses, countering official narratives, creating a historical record, building coalitions, changing the law, and influencing government policy. Still, we wanted to be effective. Were we as effective as we could have been?

This Thursday, September 9, I’ll be moderating a conversation about some of these questions with four prominent human rights leaders – Elisa Massimino, who led Human Rights First between 2008 and 2018; Anthony Romero, who has led the ACLU since 2001; Ken Roth, who has led Human Rights Watch since 1993; and Linda Sarsour, former director of the Arab American Association of New York, and co-chair of the 2017 and 2019 Women’s March. Please join us. You can RSVP here.

The post In the “War on Terror,” What Did Rights Organizations Get Wrong? appeared first on Just Security.

But the world is different now. Among the intelligence community elite, there seems to be a new recognition that excessive secrecy can be costly—and not just to democracy but to national security. In part because of the intelligence community’s experience since the Snowden disclosures, there’s also a new confidence in the ability of the government, and of the courts, to provide more transparency about the government’s activities without compromising sources and methods.

When we and our colleagues at the ACLU, the Knight Institute, and Yale’s media clinic argued in a cert petition last month that the FISC was wrong to reject a First Amendment right of access, we were joined by Ted Olson, who served as Solicitor General to President George W. Bush and defended the Patriot Act before the Foreign Intelligence Surveillance Court of Review (FISCR). Equally telling, among the many amici filing briefs in support of the petition today are other high-ranking national security figures, including James Clapper, the former director of national intelligence (DNI); John Brennan, the former CIA director; and Bob Litt, the former general counsel to the DNI. Anyone who followed the Snowden disclosures, and the government’s response to them, knows these names well.

The former officials’ brief is worth reading. It argues, as our cert petition does, that the FISC and FISCR were wrong to conclude that they lacked jurisdiction to consider right-of-access motions, and that the FISC was wrong to conclude, on the merits, that no such right of access is protected by the First Amendment. On this latter issue, the brief says:

[I]t is difficult to overstate the “significant positive role” that a qualified presumption of access would play in the functioning of the FISC and among the Intelligence Community and the public. Particularly in a context like this one—where serious national security concerns abound and protecting access to intelligence sources, methods, and targets is paramount—the trust and confidence of the public and the assurance of strong and credible oversight are critical. That trust is maintained by a presumption of access to the important judicial opinions of the courts responsible for reviewing and adjudicating the government’s compliance with the statutory and constitutional frameworks that govern intelligence collection.

The former officials also argue that excessive secrecy creates the circumstances in which unauthorized leaks become more likely and more dangerous. They write:

[T]he FISC appears to start from the premise that recognizing a qualified right of access will undermine secrecy in ways that necessarily harm the Nation’s foreign intelligence efforts. That reflects a short-sighted, unrealistic view of the world. Too much secrecy itself can set back intelligence operations. . . .  And excessive secrecy risks the type of unauthorized disclosures that have framed public debate about government surveillance efforts for much of the past decade. The public demands assurances that surveillance activities done in its name are subject to proper oversight and buttressed by sound applications of the law; if there is no legal means for obtaining such assurances, history has shown that unauthorized disclosures may fill the information vacuum.

Perhaps these arguments will strike some readers as obvious or even banal. But these arguments are dramatically different from the ones that routinely appeared in government briefs just a few years ago—and from the ones that the Bush, Obama, and Trump administrations have made before the FISC and FISCR. It is a significant thing that people like Clapper, Brennan, and Litt are not just endorsing these arguments but advancing them in front of the Supreme Court. (Notably, another signatory to the same brief is Don Verrilli, who served as Solicitor General under President Barack Obama and in that capacity represented the government in Amnesty v. Clapper. The Supreme Court’s decision in that case, which had the effect of insulating controversial surveillance practices from review on the merits, was one of the things that Edward Snowden cited in explaining his decision to share classified documents with the Guardian and the Washington Post.)

Other amicus briefs being filed today further underscore the breadth of the new consensus about transparency and national security surveillance. One brief comes from the Brennan Center (sometimes associated with the civil libertarian left) and Americans for Prosperity Foundation (usually associated with the libertarian right). Another, by the Reporters Committee for Freedom of the Press, has been signed by nearly three dozen major news organizations. And a brief by Microsoft explains why public access to the FISC’s opinions is vital to the company’s millions of users and to its global business.

Another especially notable brief comes from former magistrate judges, including James Orenstein (Eastern District of New York), and draws from those judges’ experience addressing novel and consequential surveillance issues.

Collectively, the amicus briefs being filed today are a testament to a dramatically changed political landscape. Civil libertarian arguments that were dismissed a decade ago are now broadly accepted, even at the highest levels of the intelligence community. The consensus is limited, of course, and it bears emphasis that people who agree that a qualified First Amendment right of access attaches to judicial opinions may disagree fundamentally about how the courts should give effect to that right when deciding whether and how to disclose any specific opinion. Still, what a difference a decade makes.

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What Was Already Known 

Many of the details of the plot against Khashoggi came to light in the days immediately after the murder. Khashoggi had once been close to the Saudi ruling family but had fallen out of favor after writing articles criticizing the regime for, among other things, its refusal to tolerate dissent. After he went into exile in 2017, the regime monitored his activities closely—including with surveillance software installed clandestinely on other Saudi dissidents’ phones. In late 2018, senior Saudi officials—including the ambassador to the United States, the brother to the Crown Prince—lured Khashoggi to the Saudi consulate in Istanbul, telling him they would provide him with a certificate he needed to marry his fiancée, a Turkish citizen. When he arrived, he was met by a fifteen-member special operations team that included a forensic doctor equipped with a bone saw. He was drugged, strangled to death, and dismembered—all of this captured on audio tape by Turkish intelligence.

After first claiming that Khashoggi had left the embassy safely and of his own volition, Saudi officials—aided by President Donald Trump—laid the blame for the killing on rogue agents. But this story was totally implausible. The operation was meticulously planned and relied on resources that only the senior-most Saudi officials would have been able to supply. The Crown Prince’s covert-operations advisor, Saud al-Qahtani, met with the special operations team in advance of their mission. Many of the members of the team had previously worked closely with the Crown Prince. The CIA reportedly concluded just weeks after the killing that the Crown Prince could not have been unaware of the plot, and that he may well have authorized it personally. After an exhaustive investigation, Agnès Callamard, the United Nations special rapporteur for extrajudicial killing, reached essentially the same conclusion. Every expert she consulted found it “inconceivable that an operation of this scale could be implemented without the Crown Prince” being aware of it.

What Should Happen Now

Now we can read in black and white how the U.S. intelligence community—not just the CIA—reached this conclusion, too. The unclassified report does not add significant new facts to the public record.  But by putting the U.S. intelligence community firmly behind the conclusion that the Crown Prince likely authorized the plot, it should force a reckoning. It is a reckoning in which the Biden administration, Congress, and American business and civic leaders all have a role to play.

First, the Biden administration should disclose other key documents relating to Khashoggi’s murder. It should publish other intelligence reports about the case, including a report that was written by the CIA just a few weeks after the killing was carried out. (The Open Society Justice Initiative has sued for release of these documents.) It should also disclose whether U.S. intelligence agencies knew that the Saudi regime was planning to abduct or kill Khashoggi, and, if so, whether they made any effort to warn him of the threat, as U.S. law would have required them to do. (Our organizations sued for the release of these documents, and CPJ argued the case before the D.C. Circuit earlier this year.) If necessary, the documents could be redacted to protect sources and methods, but the intelligence agencies should not be permitted to rely on vague allusions to national security interests to withhold these documents categorically, given the singular brutality of this crime and its implications for press freedom. This is an instance in which the public interest in disclosure should be given decisive weight.

Second, the administration should ban the Crown Prince from the United States under laws including the Global Magnitsky Act, which authorizes the president to deny entry to, and block the assets of, foreign nationals determined to be “responsible for extrajudicial killings, torture, or other gross violations of internationally recognizes human rights.” (The Treasury Department sanctioned 17 Saudi nationals under the Act in connection with Khashoggi’s murder, and the State Department sanctioned most of these people, too, but the Crown Prince was conspicuously omitted from the lists.) Targeted sanctions would ensure that the Crown Prince pays a personal price—which is important not simply as a matter of accountability but as a deterrent to other authoritarian leaders who might be tempted to try to eliminate their critics in the same way. (Just after this article was published, the State Department announced that it would impose visa restrictions on 76 Saudi nationals “believed to have been engaged in threatening dissidents overseas, including but not limited to the Khashoggi killing,” but it declined to sanction the Crown Prince.)

Third, given the personal responsibility of the Crown Prince for the crime, the administration should extend and expand the freeze it has already instituted on arms sales to Saudi Arabia. It must send an unequivocal message that the United States will not supply weapons to military and security services whose leadership persecutes journalists and activists.

Fourth, Congress should hold hearings to consider what legal reforms are necessary to ensure that American courts can hold accountable those who persecute U.S.-based journalists and human rights activists. It should also consider what reforms are necessary to ensure that American courts can hold accountable the companies that supply persecutors with surveillance technology. A day before Khashoggi’s fateful visit to the Saudi consulate in Istanbul, Citizen Lab at the University of Toronto reported “with a high degree of confidence” that Saudi agents had used spyware supplied by an Israeli company, NSO Group, to infect the phone of Omar Abdulaziz, a Saudi dissident based in Canada who had been in regular contact with Khashoggi. The effect was to allow Saudi agents to control the phone’s cameras and microphones. Spyware manufacturers should be held responsible when their products are designed to be used, or foreseeably used, in these ways.

Finally, American civic and business leaders must do their part. In the weeks after Khashoggi’s murder, many American business leaders withdrew from “Davos in the Desert,” the Saudi regime’s signature annual conference. Most of those who stayed away in the weeks after the killing, however, returned to the conference this year. Indeed, the roster of American guests at this year’s event included not only some of the biggest names in finance but a prominent CNN journalist as well. The release of the intelligence report should prompt some soul-searching on the part of these and other business and civic leaders tempted to engage with the Saudi Arabia, and with the Crown Prince, as if the Khashoggi murder had never taken place. Engagement on these terms normalizes the grotesque and increases the likelihood that other journalists and dissidents will find themselves similarly targeted in the future.

The administration, Congress, and American business and civic leaders all have a role to play in holding the regime accountable. The Biden administration deserves credit for releasing the DNI’s report, but press freedom will be an empty slogan unless the Saudi regime and the Crown Prince are made to pay a price for their lawless conduct.

Image: A protest sign reading “Khashoggi way” is seen across the street from the White House in Washington, DC, on December 23, 2018. Khashoggi, a Saudi contributor to the Washington Post, was killed on October 2 shortly after entering the kingdom’s consulate in Istanbul. Photo by Andrew CABALLERO-REYNOLDS/AFP/Getty Images

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