Some More Thoughts on the NSL Gag Order Case and the First Amendment
posted by Neil Richards
There’s been a lively debate brewing in the comments section of my post on yesterday’s National Security Letters decision in Doe v. Gonzalez, in which a federal judge in the SDNY struck down a provision of the Patriot Act allowing the FBI to impose gag orders on recipients of NSLs. In light of this discussion, I wanted to say a few more words about how First Amendment values are threatened by NSLs.
NSLs raise First Amendment issues on at least two different levels. On the surface is the level adjudicated yesterday – the issue of when the FBI can determine that its requests for information about others can be made secret such that the recipient of the request cannot disclose this fact. As Jack Balkin argues (persuasively, in my view) the district court in Doe correctly struck down what was a licensing scheme that rested on the discretion of the government. This is a straightforward application of Freedman v. Maryland, 380 U.S. 51 (1965), which requires that due to the risks of censorship, government cannot require a license to speak except when it follows rigorous procedural safeguards. Freedman involved the licensing of allegedly obscene movies, whereas this case involves speech about the fact of government use of secret surveillance powers. There is, of course, a substantial (yet also vague) government interest in national security on the other side here, but the fact remains that whereas Freedman involved speech that the government had the power to regulate because it was potentially outside the protection of the First Amendment, the NSL gag order provisions involve core political speech. Our best guide for how that balance should be struck in the prior restraint context, the Pentagon Papers case, 403 U.S. 713 (1971), comes down squarely on the side of free speech. So at the level of First Amendment doctrine on the gag order provision, I think the decision in Doe is correct.
My post (and my research interest in this issue) is not about this surface threat to First Amendment values. It is instead about a deeper and ultimately more important level at which NSLs and other government tools of secret surveillance threaten First Amendment values. Even if we subject the NSL gag orders to meaningful judicial review as the Doe court insisted we do, the right to speak about the surveillance rests if at all on the third party who was served with the NSL. Unless that party is both able to speak up and actually does speak up, the real target of the surveillance is unaware that the government is scrutinizing them. So even after yesterday’s decision, NSLs still allow the government to engage in widespread secret surveillance. Yesterday’s decision did nothing to change the fact that NSLs can be used to scrutinize a person’s intellectual activities, including potentially the people they call, the web sites they visit, and even the terms they enter into a search engine. Because many of us use computers and the Internet to engage in the critical First Amendment activities of reading, thinking, and imagining, the fear that the government could be watching or could easily gain access to computerized records that document our engaging in these activities could easily chill our thoughts and incite them to the boring and the mainstream. In a society which values free thought and free speech as essential tools in the search for truth and self-governance, and which relies on novel, controversial or even deviant ideas as a source of progress, we should be (to paraphrase Holmes) eternally vigilant against government attempts to interfere with these fundamental activities. NSLs (among other modern phenomena) are a threat to the intellectual privacy that nurtures and protects these activities from surveillance and interference, allowing new ideas to develop sheltered from the normalizing gaze of others. Although we often think of the First Amendment and privacy as being in conflict, this is an area of law where First Amendment values and privacy values are not just harmonious, but essentially so.
Yesterday’s decision is a small victory for First Amendment law and a small victory for civil liberties. But the larger First Amendment issues that NSLs raise, which were dismissed by the Sixth Circuit earlier this summer as nonjusticiable, remain unresolved, with our ability to engage in autonomous thought on the Internet resting in the balance.