In many instances, the government engages in broad information gathering that is not directly tied to a concrete penalty or consequence, but which still may chill speech. For example, people might fear that if the government learns about their speech or associations, they will wind up on a terrorist watch list. However, they might never know if they are in fact on a watch list, and the consequences of being placed on such a list might be unclear. Being placed on a watch list might result in extra airline screening, or it might have no impact on the individual at all. Or the information could go into a government database for some unknown future use when the time is ripe.

These uses are speculative, and they present a difficult case for chilling effect analysis. Courts might conclude that people should wait to see how the information is used; if the government uses their information against them, defendants would then be able to allege a cognizable chilling effect. However, this ignores the central premise of the chilling effect doctrine—that many will not be willing to accept the risk and will instead simply change their behavior. Therefore, even if the information is never used at trial, uncertainty about the government’s intentions may still deter First Amendment activities. The government might argue that it must keep secret the uses of the information it gathers, but this only exacerbates the problem—lack of transparency makes it especially difficult for individuals to allege a sufficiently concrete chilling effect. By collecting data and obscuring its potential uses, the government can effectively limit people’s ability to assert their First Amendment rights by making it impossible for them to establish a sufficient chill.

The First Amendment concept of overbreadth might provide a solution to the problems presented by situations involving such large-scale information gathering programs. According to the Supreme Court, “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” Overbreadth doctrine relaxes the normal standing rules to allow people to bring suit without having to show that the law is unconstitutional as applied to them. To challenge a statute as overbroad, an individual need only show that some application of the law is unconstitutional and might chill the speech of parties not before the court. For a statute “to be facially challenged on overbreadth grounds” there “must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” . . . .

We can adapt overbreadth doctrine to address the problem of proving a chilling effect when the government engages in large-scale information gathering initiatives. In this context, litigants could challenge an information gathering program as overbroad, regardless of whether they could prove that they personally suffered a concrete chilling effect. Instead, courts would determine whether the government program sweeps so broadly that it captures a substantial amount of First Amendment activity. A program that sweeps in a great deal of First Amendment activity will be deemed unconstitutionally overbroad if not narrowly tailored to a substantial government interest. Allowing such challenges will have the secondary benefit of bringing greater transparency to information gathering programs, as the government will be forced to justify its activities and the breadth of their scope.

Judge Batchelder relied extensively on Laird v. Tatum, 408 U.S. 1 (1972), a Supreme Court case involving government surveillance of public demonstrations. The Court concluded that the plaintiffs failed to establish a cognizable First Amendment injury because “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.”

As I wrote in my article:

Laird was not especially clear about when government surveillance (and information gathering practices more generally) will cause a cognizable First Amendment injury. Indeed, one view of Laird interprets it as a very narrow, fact-specific holding based on the plaintiffs’ highly tenuous First Amendment injury. The Court concluded that the plaintiffs merely articulated “speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm to respondents.” In other words, Laird might be read to state only that naked allegations of “speculative apprehensiveness” are insufficient to establish a cognizable chilling effect.

The wiretapping involved in the NSA surveillance program differs substantially from the surveillance in Laird. The Laird surveillance involved activities in public places. In contrast, the surveillance in the NSA program involved wiretapping private conversations, a substantially more invasive form of surveillance. Indeed, wiretapping has long been recognized as one of the most intrusive and problematic forms of government surveillance. In Laird, the Court relied on the fact that "[t]here is no evidence of illegal or unlawful surveillance activities." That's not the case with the NSA program, which involved illegal warrantless wiretapping. Laird is thus readily distinguishable.

Moreover, Judge Batchelder also concluded that it was unclear whether the potential chilling effect of the surveillance on the plaintiff's freedom of speech "can fairly be traced to the absence of a warrant, or if the chill would still exist without regard to the presence or absence of a warrant." She continued:

The insufficiency of this step leads to a breakdown in the causal pathway [between the surveillance and the chilling effect injury]. . . . A wiretap is always 'secret' -- that is its very purpose -- and because of this secrecy, neither the plaintiffs nor their oversees contacts would know, with our without a warrant, whether their communications were being tapped. Therefore, the NSA's secret possession of a warrant would have no more effect on the subjective willingness or unwillingness of these parties to "freely engage in conversations and correspond via email."

One of the difficulties with this line of reasoning is that it runs contrary to the very rationale behind warrants. Judge Batchelder seems to be suggesting that obtaining a warrant has no impact on whether people are chilled in their expression. But according to the rationale behind the warrant requirement, it is the process of the government having to justify its searches before the judiciary that gives us the assurance that we can exercise our freedoms without the fear of improper government surveillance. Under our system of regulation of government searches, we cannot expect complete immunity from being subjected to a government search; but we can expect that we will not be searched contrary to established constitutional and legal procedures. If the court is right and warrants have no effect, then there would be no injury to a person if the government searched without a warrant so long as the person wasn't aware of the specific search. But the very point of procedural regulation of government searches is to give people the assurance that they will not be searched without oversight and justification. It is the destruction of this assurance that constitutes the injury. There is a big difference between a system of highly regulated surveillance subject to oversight and limitation and a system of unregulated surveillance without oversight or limit beyond the whims of the executive branch. One might be significantly more chilled in speaking under the latter regime than under the former.

Another issue in the case involved whether the plaintiffs had a claim under FISA. I will address this part of the court's decision in another post.