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Frank Turney Fairbanks Jury Nullification

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Frank Turney Fairbanks Jury Nullification

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JUNEAU -- A House bill promoting the notion that jurors can ignore Alaska's criminal code and let a lawbreaking defendant off the hook had a brief hearing Wednesday in the House Judiciary Committee, then was held for later.

The bill, fostering "jury nullification," has been a bipartisan favorite of some Fairbanks-area House members, with identical versions introduced in 2002 and 2009.

This time around, it's numbered House Bill 315. The Legislature's legal division has questioned whether the bill is constitutional and the Attorney General's office says it would lead to unfair and disorderly trials. In both of its prior incarnations, the bill has never gotten past the House Judiciary Committee.

But the bill has been popular in Fairbanks.

"I think we're just more independently minded -- maybe we do interpretations differently than other areas," said Rep. Tammie Wilson, R-North Pole, prime sponsor of House Bill 315. The bill's co-sponsor is Rep. Scott Kawasaki, D-Fairbanks.

The House Judiciary Committee is under different management than it was when the nullification bills died there last decade. This year, the committee is chaired by one of the Legislature's most conservative members, Rep. Wes Keller of Wasilla. If the bill gets through the House, it would land in the Senate Judiciary Committee, where the chairman is Sen. John Coghill, R-Fairbanks. As a House member, Coghill introduced the 2002 and 2009 jury nullification bills.

House Bill 315 would toss out the current system under which juries are the triers of fact but not of law, which now is presented to the jury by the judge and in jury instructions. The bill says that if the jury finds the defendant guilty "according to the law" but determines the law was unjustly applied, it could find the defendant not guilty. It would appear to make obsolete the oath for jurors, in which they swear to try the case "solely on the evidence introduced and in accordance with the instructions of the court."

The bill requires judges to tell jurors they have "the power to judge the just application of the law and to vote on the verdict according to conscience." It grants defendants the right to present evidence and testimony in support of nullification. And it says a potential juror could not be disqualified from service for expressing support of nullification.

In a memo dated Feb. 18, Doug Gardner, director of the Legislature's legal services division, said the bill could run afoul of U.S. Supreme Court decisions going back to the 19th Century. In one case cited by Gardner, the Supreme Court said that "it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence."

In Alaska, the bill could lead to laws being applied unequally in different regions, Gardner wrote.

"Will juries in certain areas of the state decide that certain laws will not apply to individuals in those areas?" he wrote.

Wilson said as much herself in defense of the bill.

"Sometimes we make laws that fit entirely the state, and sometimes there are other circumstances we should be able to put in place, and that's what this does," she said.

Annie Carpeneti, testifying on behalf of the Attorney General's office, also raised constitutional issues about the bill.

"It allows the defendant to have the jury instructed that they may disregard the law as given to the judge and to all of us from the people who make the law -- that is, you," she told the judiciary committee. "Allowing the jury to disregard the court, disregard our rules of evidence, would result in trials that are not very orderly or not very fair, to either side."

With other bills using up most of the committee's time Wednesday, Chairman Keller cut short testimony. He apologized to people waiting to testify by phone, telling them they'd get their chance at a later hearing.

In 2009, the committee held a full hearing with citizen testimony, nearly all in favor of Coghill's bill. Among the witnesses, according to committee minutes, were Fairbanks-area residents Schaeffer Cox, Lonnie and Karen Vernon, and Ken Thesing. They described nullification as a check against an over-powerful judiciary and improper laws. Thesing said nullification was in the middle of the protest continuum between "the soapbox on the street corner" and "the cartridge box."

Cox and the Vernons are now in federal prisons for their convictions in the Fairbanks militia cases last year. Thesing wasn't charged, but was a major in Cox' militia.

Testifying against the bill in 2009, Richard Svobodny, the state's chief prosecutor, recalled how, as a young attorney, he sought a position in the district attorney's office in an Oregon county undergoing an outbreak of violence between Native Americans and European descendants. Indians were murdered by whites, and whites by Indians, he said, but white jurors only convicted the Indians; the white defendants were all acquitted.

That was jury nullification, Svobodny said, and it was wrong.

Reach Richard Mauer at rmauer@adn.com or 907-500-7388.

By RICHARD MAUER
rmauer@adn.com

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House bill pushed by Fairbanks lawmakers promotes 'jury nullification'

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JUNEAU -- A House bill promoting the notion that jurors can ignore Alaska's criminal code and let a lawbreaking defendant off the hook had a brief hearing Wednesday in the House Judiciary Committee, then was held for later. The bill, fostering "jury nullification," has been a bipartisan favorite of some Fairbanks-area House members, with identical versions introduced in 2002 and 2009.

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Top secret documents submitted to the court that oversees surveillance by US intelligence agencies show the judges have signed off on broad orders which allow the NSA to make use of information "inadvertently" collected from domestic US communications without a warrant.

The Guardian is publishing in full two documents submitted to the secret Foreign Intelligence Surveillance Court (known as the Fisa court), signed by Attorney General Eric Holder and stamped 29 July 2009. They detail the procedures the NSA is required to follow to target "non-US persons" under its foreign intelligence powers and what the agency does to minimize data collected on US citizens and residents in the course of that surveillance.

The documents show that even under authorities governing the collection of foreign intelligence from foreign targets, US communications can still be collected, retained and used.

The procedures cover only part of the NSA's surveillance of domestic US communications. The bulk collection of domestic call records, as first revealed by the Guardian earlier this month, takes place under rolling court orders issued on the basis of a legal interpretation of a different authority, section 215 of the Patriot Act.

The Fisa court's oversight role has been referenced many times by Barack Obama and senior intelligence officials as they have sought to reassure the public about surveillance, but the procedures approved by the court have never before been publicly disclosed.

The top secret documents published today detail the circumstances in which data collected on US persons under the foreign intelligence authority must be destroyed, extensive steps analysts must take to try to check targets are outside the US, and reveals how US call records are used to help remove US citizens and residents from data collection.

However, alongside those provisions, the Fisa court-approved policies allow the NSA to:

Keep data that could potentially contain details of US persons for up to five years;

Retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;

Preserve "foreign intelligence information" contained within attorney-client communications;

Access the content of communications gathered from "U.S. based machine[s]" or phone numbers in order to establish if targets are located in the US, for the purposes of ceasing further surveillance.

The broad scope of the court orders, and the nature of the procedures set out in the documents, appear to clash with assurances from President Obama and senior intelligence officials that the NSA could not access Americans' call or email information without warrants.

The documents also show that discretion as to who is actually targeted under the NSA's foreign surveillance powers lies directly with its own analysts, without recourse to courts or superiors - though a percentage of targeting decisions are reviewed by internal audit teams on a regular basis.

Since the Guardian first revealed the extent of the NSA's collection of US communications, there have been repeated calls for the legal basis of the programs to be released. On Thursday, two US congressmen introduced a bill compelling the Obama administration to declassify the secret legal justifications for NSA surveillance.

The disclosure bill, sponsored by Adam Schiff, a California Democrat, and Todd Rokita, an Indiana Republican, is a complement to one proposed in the Senate last week. It would "increase the transparency of the Fisa Court and the state of the law in this area," Schiff told the Guardian. "It would give the public a better understanding of the safeguards, as well as the scope of these programs."

Section 702 of the Fisa Amendments Act (FAA), which was renewed for five years last December, is the authority under which the NSA is allowed to collect large-scale data, including foreign communications and also communications between the US and other countries, provided the target is overseas.

FAA warrants are issued by the Fisa court for up to 12 months at a time, and authorise the collection of bulk information - some of which can include communications of US citizens, or people inside the US. To intentionally target either of those groups requires an individual warrant.

One-paragraph order

One such warrant seen by the Guardian shows that they do not contain detailed legal rulings or explanation. Instead, the one-paragraph order, signed by a Fisa court judge in 2010, declares that the procedures submitted by the attorney general on behalf of the NSA are consistent with US law and the fourth amendment.

Those procedures state that the "NSA determines whether a person is a non-United States person reasonably believed to be outside the United States in light of the totality of the circumstances based on the information available with respect to that person, including information concerning the communications facility or facilities used by that person".

It includes information that the NSA analyst uses to make this determination - including IP addresses, statements made by the potential target, and other information in the NSA databases, which can include public information and data collected by other agencies.

Where the NSA has no specific information on a person's location, analysts are free to presume they are overseas, the document continues.

"In the absence of specific information regarding whether a target is a United States person," it states "a person reasonably believed to be located outside the United States or whose location is not known will be presumed to be a non-United States person unless such person can be positively identified as a United States person."

If it later appears that a target is in fact located in the US, analysts are permitted to look at the content of messages, or listen to phone calls, to establish if this is indeed the case.

Referring to steps taken to prevent intentional collection of telephone content of those inside the US, the document states: "NSA analysts may analyze content for indications that a foreign target has entered or intends to enter the United States. Such content analysis will be conducted according to analytic and intelligence requirements and priorities."

Details set out in the "minimization procedures", regularly referred to in House and Senate hearings, as well as public statements in recent weeks, also raise questions as to the extent of monitoring of US citizens and residents.

NSA minimization procedures signed by Holder in 2009 set out that once a target is confirmed to be within the US, interception must stop immediately. However, these circumstances do not apply to large-scale data where the NSA claims it is unable to filter US communications from non-US ones.

The NSA is empowered to retain data for up to five years and the policy states "communications which may be retained include electronic communications acquired because of limitations on the NSA's ability to filter communications".

Even if upon examination a communication is found to be domestic - entirely within the US - the NSA can appeal to its director to keep what it has found if it contains "significant foreign intelligence information", "evidence of a crime", "technical data base information" (such as encrypted communications), or "information pertaining to a threat of serious harm to life or property".

Domestic communications containing none of the above must be destroyed. Communications in which one party was outside the US, but the other is a US-person, are permitted for retention under FAA rules.

The minimization procedure adds that these can be disseminated to other agencies or friendly governments if the US person is anonymised, or including the US person's identity under certain criteria.

Holder's 'minimization procedure' says once a target is confirmed to be in the US, interception of communication must stop. Photo: Nicholas Kamm/AFP/Getty Images

A separate section of the same document notes that as soon as any intercepted communications are determined to have been between someone under US criminal indictment and their attorney, surveillance must stop. However, the material collected can be retained, if it is useful, though in a segregated database:

"The relevant portion of the communication containing that conversation will be segregated and the National Security Division of the Department of Justice will be notified so that appropriate procedures may be established to protect such communications from review or use in any criminal prosecution, while preserving foreign intelligence information contained therein," the document states.

In practice, much of the decision-making appears to lie with NSA analysts, rather than the Fisa court or senior officials.

A transcript of a 2008 briefing on FAA from the NSA's general counsel sets out how much discretion NSA analysts possess when it comes to the specifics of targeting, and making decisions on who they believe is a non-US person. Referring to a situation where there has been a suggestion a target is within the US.

"Once again, the standard here is a reasonable belief that your target is outside the United States. What does that mean when you get information that might lead you to believe the contrary? It means you can't ignore it. You can't turn a blind eye to somebody saying: 'Hey, I think so and so is in the United States.' You can't ignore that. Does it mean you have to completely turn off collection the minute you hear that? No, it means you have to do some sort of investigation: 'Is that guy right? Is my target here?" he says.

"But, if everything else you have says 'no' (he talked yesterday, I saw him on TV yesterday, even, depending on the target, he was in Baghdad) you can still continue targeting but you have to keep that in mind. You can't put it aside. You have to investigate it and, once again, with that new information in mind, what is your reasonable belief about your target's location?"

The broad nature of the court's oversight role, and the discretion given to NSA analysts, sheds light on responses from the administration and internet companies to the Guardian's disclosure of the PRISM program. They have stated that the content of online communications is turned over to the NSA only pursuant to a court order. But except when a US citizen is specifically targeted, the court orders used by the NSA to obtain that information as part of Prism are these general FAA orders, not individualized warrants specific to any individual.

Once armed with these general orders, the NSA is empowered to compel telephone and internet companies to turn over to it the communications of any individual identified by the NSA. The Fisa court plays no role in the selection of those individuals, nor does it monitor who is selected by the NSA.

The NSA's ability to collect and retain the communications of people in the US, even without a warrant, has fuelled congressional demands for an estimate of how many Americans have been caught up in surveillance.

Two US senators, Ron Wyden and Mark Udall - both members of the Senate intelligence committee - have been seeking this information since 2011, but senior White House and intelligence officials have repeatedly insisted that the agency is unable to gather such statistics.

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The top secret rules that allow NSA to use US data without a warrant

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Top secret documents submitted to the court that oversees surveillance by US intelligence agencies show the judges have signed off on broad orders which allow the NSA to make use of information "inadvertently" collected from domestic US communications without a warrant.

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Good overview of the NSA program

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The long-awaited decision is a victory for prosecutors, but some language in the court's opinion could be viewed as a rebuke of sorts to officials who defended the snooping by pointing to the case involving Basaaly Moalin and three other men found guilty by a San Diego jury in 2013 on charges of fundraising for Al-Shabaab.

Judge Marsha Berzon's opinion, which contains a half-dozen references to the role of former NSA contractor and whistleblower Edward Snowden in disclosing the NSA metadata program, concludes that the "bulk collection" of such data violated the Foreign Intelligence Surveillance Act.

The call-tracking effort began without court authorization under President George W. Bush following the Sept. 11, 2001, terrorist attacks. A similar program was approved by the secretive FISA Court beginning in 2006 and renewed numerous times, but the 9th Circuit panel said those rulings were legally flawed.

The appeals court stopped just short of saying that the snooping was definitely unconstitutional, but rejected the Justice Department's arguments that collecting the metadata did not amount to a search under a 40-year-old legal precedent because customers voluntarily share such info with telephone providers.

"Here the NSA collected Moalin's (and millions of other Americans') telephony metadata on an ongoing, daily basis for years," wrote Berzon, an appointee of President Bill Clinton. "Moalin likely had a reasonable expectation of privacy in his telephony metadata - at the very least, it is a close question."

Berzon's opinion was jointed by Judge Jacqueline Nguyen, an appointee of President Barack Obama and Judge Jack Zouhary, who was appointed by President George W. Bush.

The 9th Circuit panel essentially endorsed a 2015 ruling from the New York-based 2nd Circuit that found the mass surveillance was not sufficiently tied to any specific investigation, as Congress appeared to require.

Berzon said the defendants were entitled to notice that the foreign-intelligence-related surveillance contributed to the case, but not necessarily the details of how. But she said even if Moalin and his co-defendants had clear notice of that, it wouldn't have helped their defense.

"Based on our careful review of the classified record, we are satisfied that any lack of notice, assuming such notice was required, did not prejudice defendants," she wrote. "Having carefully reviewed the classified FISA applications and all related classified information, we are convinced that under established Fourth Amendment standards, the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial."

During the public debate over the program - triggered, as the opinion notes in half a dozen places, by disclosures from Snowden - numerous officials pointed to the Moalin prosecution as concrete evidence that the program was contributing to U.S. prosecutions for terrorism. Other examples cited by officials were primarily overseas. And the Moalin case was not about any plans for attacks in the U.S., but in Somalia.

The new 9th Circuit opinion cites congressional testimony by former FBI official Sean Joyce that the metadata program gave agents a break that led to them reopening the investigation into Moalin. But Berzon goes on to suggest that the public claims by Joyce or others were inaccurate because the metadata program did not play a pivotal role.

"To the extent the public statements of government officials created a contrary impression, that impression is inconsistent with the contents of the classified record," she wrote.

Joyce, who retired from the FBI several years ago, did not immediately respond to a message seeking comment.

The metadata program was officially shut down in 2015 after Congress passed the USA FREEDOM Act, which provided a new mechanism where phone providers retained their data instead of turning it over to the government. The revamped system appears to have been abandoned by the NSA in 2018 or 2019.

The release of the 59-page opinion Wednesday is another reminder of the exceedingly slow pace of some 9th Circuit appeals, particularly those involving classified information or FISA surveillance. The court took almost seven years to render its legal judgment on Moalin's appeal, filed in November 2013. The case was argued in November 2016, two days after Donald Trump's surprise victory in the presidential race.

Moalin, who received an 18-year sentence, and one of his co-defendants remain in prison. The two other co-defendants already completed their sentences and were released.

And the case may not be over yet: Any of the defendants or the government could seek review from a larger, 11-judge en banc court. A Supreme Court petition is also possible.

"We're disappointed in the result, especially since more recent disclosures regarding misconduct regarding FISA has further revealed how the lack of transparency in the entire process compromises individual rights of those charged with crimes as well as those never charged - including those Americans whose telephone metadata was collected and retained," said Joshua L. Dratel, a lawyer for Moalin. "In this case, we believe that the lack of transparency was prejudicial to our ability to challenge the FISA surveillance."

The American Civil Liberties Union hailed the decision as "a victory for our privacy rights," though the left-leaning group said it was "disappointed that, having found the surveillance of Mr. Moalin unlawful, the court declined to order suppression of the illegally obtained evidence in his case."

Moalin's defense team is now "evaluating the options for further appeal," the ACLU said.

A Justice Department spokesperson had no immediate comment on the ruling. An NSA spokesman declined to comment.

Another recent 9th Circuit decision involving allegations of illegal surveillance took about six years to produce an opinion, also authored by Berzon. The Justice Department said in a court filing Tuesday that it is still considering whether to seek Supreme Court review in that case.

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Court rules NSA phone snooping illegal - after 7-year delay

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The long-awaited decision is a victory for prosecutors, but some language in the court's opinion could be viewed as a rebuke of sorts to officials who defended the snooping by pointing to the case involving Basaaly Moalin and three other men found guilty by a San Diego jury in 2013 on charges of fundraising for Al-Shabaab.

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Gen. Keith B. Alexander, director of the National Security Agency and head of the U.S. Cyber Command, answers questions from lawmakers on Capitol Hill in 2013 during a Senate Appropriations Committee hearing. It was his first public appearance before Congress since revelations that the electronic surveillance agency is sweeping up Americans' phone and Internet records in its quest to investigate terrorist threats. (AP Photo/J. Scott Applewhite, used with permission from the Associated Press)

The framers of the U.S. Constitution understood how eavesdropping might intrude on privacy and chill free speech. However, the framers could not have foreseen the technological advances that now aid eavesdropping.

Electronic eavesdropping has become critical law enforcement tool

Interception of private communications via electronic surveillance has become a critical tool of law enforcement and has been used for decades to assist in gathering evidence.

Thousands of convictions have centered on evidence gathered from electronic eavesdropping, whether by physically tapping into land telecommunication lines or by intercepting wireless electronic signals. This use of wiretaps set free speech on a collision course with the government. In a post-September 11, 2001, world, wiretapping has moved to the forefront of American legal concerns with the expanded use of electronic surveillance by government agencies conducting the War on Terror.

Court originally upheld wiretaps

In Olmstead v. United States (1928), the Supreme Court held that the wiretaps attached by law enforcement to the phone lines of prohibition conspirators, including Roy Olmstead, were constitutional because there had been no physical trespass.

Chief Justice William Howard Taft asserted that a person who connects a phone to lines that extend outside of a home with the intent to project his or her voice outside has no expectation of privacy with regard to the ensuing conversations. However, he argued for judicial restraint when he suggested that Congress could make wiretaps inadmissible by passing legislation prohibiting or regulating their use.

In 1967, Court shifted to protect individual liberties in face of wiretapping

In Katz v. United States (1967), the Court held that the wiretapping of public phone booths for listening to conversations without a warrant, regardless of no physical trespass taking place, was unconstitutional, essentially reversing Olmstead.

Justice Potter Stewart concluded in Katz that "wherever a man may be, he is entitled to know that he will be free."

These two cases illustrate a shift in the Court's thinking. In Olmstead the Court showed deference to the state and its efforts to gather evidence of a crime, whereas Katz illustrates a clear move towards greater protection of individual liberties.

Concerns raised about Terrorist Surveillance Program

In October 2001, President George W. Bush issued Executive Order 13228 - referred to as the Terrorist Surveillance Program (TSP) - that authorized the National Security Administration (NSA) to track communications between individuals abroad and domestic American suspects.

It was not until December 2005 that the existence of the program was exposed by the New York Times. An article in the newspaper stated that the program was targeting U.S. citizens and was being conducted without a judicially authorized warrant.

NSA surveillance program creates First Amendment concerns

First Amendment concerns emerge when the NSA eavesdropping program utilizes data-mining operations in the organization's search for terrorists. The random collection of information from land-line calls, cell phones, and e-mail creates uneasiness about the limits of government surveillance of citizens.

The Supreme Court has previously held that listening to conversations of U.S. citizens without a warrant is unconstitutional and violates core principles of the Bill of Rights, and the Fourth Amendment regulates the ability of the government to infringe upon a citizen's First Amendment right to free speech as well as the privacy of that speech.

Ruling that wiretapping without warrants violates First Amendment was vacated by 6th Circuit

On August 17, 2006, in American Civil Liberties Union v. National Security Agency/Central Security Service (E.D.Mich.), U.S. District Judge Anna Diggs Taylor issued an injunction against the Bush administration and the NSA and ordered the TSP be discontinued.

The court held that the TSP violated "the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution and the statutory law."

The ACLU argued that the wiretapping violated its and its clients' right to free speech in their communication with people outside of the United States.

The injunction was intended to end the warrantless wiretapping by the NSA, which justified the action as essential in fighting the War on Terror. The district court held that the Foreign Intelligence Surveillance Act (FISA) of 1978 is still law, and that the NSA should have sought warrants from the secret FISA court. The FISA court was intended to place a wall between intelligence information gathering and criminal investigations.

However, the Sixth Circuit Court of Appeals vacated Judge Diggs's ruling in July 2007, finding that the ACLU and the other plaintiffs lacked standing to challenge the federal policies.

Supreme Court rejected arguments to establish standing in government wiretapping case

In possible "Clapper v. Amnesty International (2013), petitioners argued about the chilling effect " that wiretaps conducted under FISA might have on their First Amendment Rights.

They argued that there was "an objectively reasonable likelihood" that the government would acquire their communications, and that this risk had led them to pursue costly alternatives like foreign travel rather than phone calls.

The federal district court had dismissed the case for lack of standing, but the Second U.S. Circuit Court of Appeals had reversed this ruling. Justice Samuel Alito wrote the decision for five members of the Court, rejecting their arguments to establish standing.

Court has said there is expectation of privacy for cell phone location information

However, in a ruling that has been noted as pushing back on certain mass surveillance activities, the Supreme Court in Carpenter v. United States (2018) ruled that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through cell-site location information.
This article first was published in 2009 and has been updated. The primary contributor was Paul Pope, a professor at Montana State University, Billings. It has been updated by other First Amendment Encyclopedia contributors.
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Gen. Keith B. Alexander, director of the National Security Agency and head of the U.S. Cyber Command, answers questions from lawmakers on Capitol Hill in 2013 during a Senate Appropriations Committee hearing. It was his first public appearance before Congress since revelations that the electronic surveillance agency is sweeping up Americans' phone and Internet records in its quest to investigate terrorist threats.

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The Privacy and Civil Liberties Oversight Board spent more than six years scrutinizing the surveillance-related system, called XKeyscore. Its report is classified.

Travis LeBlanc, a Democratic appointee to the Privacy and Civil Liberties Oversight Board, criticized a classified report by the organization. Credit... Zach Gibson/Getty Images

WASHINGTON - A member of a civil liberties watchdog board that investigates the nation's security programs criticized on Tuesday a major - but still secret - report by his organization about a National Security Agency surveillance-related system, portraying the effort as shoddy and a missed opportunity.

The official, Travis LeBlanc, is a Democratic appointee to the five-member agency, the Privacy and Civil Liberties Oversight Board. His critique - in a newly declassified, 10-page statement - opened a window into infighting at the board and offered a few hints about the classified study, which it completed in December after more than six years of work.

But other current and former officials pushed back on Mr. LeBlanc's complaints and defended the oversight effort. Because the underlying report remains classified, it is difficult to assess the rival points of view.

The existence of the system, called XKeyscore, came to public light in 2013 as part of the leaks by the former intelligence contractor Edward Snowden. The system enables National Security Agency analysts to query huge repositories of intercepted internet communications and metadata in search of information.

Most of the intercepts that XKeyscore makes available to analysts have been vacuumed up by the agency under Executive Order 12333, which governs surveillance that takes place abroad and the interception of foreign-to-foreign communications as they cross domestic soil.

Congress has left that type of national-security surveillance largely unregulated, and 12333 rules permit bulk, indiscriminate collection without a warrant. That has long raised privacy and civil liberties concerns about what the government may do with Americans' private messages that are incidentally swept in. (Because of how the internet works, domestic messages are sometimes routed abroad.)

The oversight board decided in 2014 to undertake a classified study of Executive Order 12333 activities that would include examination of three topics governed by that edict. Two involved the C.I.A., and their topics remain classified. The third involves the National Security Agency's XKeyscore system.

The study, about 56 pages, was provided to Congress and executive branch oversight officials in classified briefings in March, current and former officials said.

Several issues complicated responsibility for the report. The first is that the board evolved significantly during the effort.

The study's scope was chosen when the board was under Democratic control. Then some members departed and the board lacked a quorum, but its staff pursued the effort. The report was completed when the board was under Republican control.

Another complicating factor is that the board approved the report in December by voice vote without recorded opposition, according to several officials. Mr. LeBlanc told its general counsel the next day to record him as a no, they said. Mr. LeBlanc said he had abstained during the voice vote, adding that he was "shocked" that the board was suddenly voting on it.

"I am unable to support" the XKeyscore system report, he wrote. "I harbor serious reservations about the deficiencies in our oversight of the XKeyscore program as well as significant concerns about the program's operations."

Mr. LeBlanc offered myriad criticisms of the report, portraying the board's approval of it as rushed and pointing to gaps like a failure to scrutinize the use of artificial intelligence in connection with the system, to conduct an adequate assessment of oversight mechanisms, and to scrutinize the National Security Agency's collection activities under Executive Order 12333, including those that can incidentally pull in Americans' private messages.

The report, he wrote, "unfortunately reads more like a book report of the XKeyscore program than an independent oversight analysis grappling with key concerns in this evolving technological and legal landscape."

But Adam Klein, a Republican who was the board's chairman until he stepped down on June 20, defended the effort as valuable.

"This is a detailed, comprehensive report and recommendations on a very complex program," he said. "It reflects six years of work by board staff and multiple iterations of board members. It's highly factual, substantive and apolitical - the type of oversight the board was created to perform."

Mr. Klein and other current and former officials also pushed back on some of Mr. LeBlanc's complaints.

"The board did obtain information and ask hard questions about the location and manner of collection," Mr. Klein said. "The board also asked hard questions about many other issues related to XKeyscore, including compliance and oversight mechanisms applicable to the program."

In an interview, however, Mr. LeBlanc said that "minimal" information about collection activities made it into the report and that there was no effort to analyze it. His unclassified statement, which was reported earlier by The Washington Post, portrays some of the collection activities as problematic but provides no details.

Mr. LeBlanc also criticized the board for not doing more to look at episodes in which National Security Agency analysts in 2019 had violated searching rules, including in a type of compliance incident deemed "questionable intelligence activities," meaning that it had violated the law, executive order or other policy rules.

"Obviously, violations of U.S. law and the known collection or processing of U.S. person information are serious compliance issues. Yet, the former board did not request specific information," he wrote, in a line that was preceded and followed by redacted material.

But a U.S. official, speaking on the condition of anonymity, characterized the 2019 compliance episodes as relatively minor - like a typo in a name being searched, resulting in pulling up information about the wrong person - and said none indicated a systemic problem.

Mr. LeBlanc also complained that the National Security Agency lacked XKeyscore-specific training for privacy and civil liberties rules protecting Americans. The U.S. official said the agency already trained analysts in such rules before giving them access to any system, but it was carrying out a lesson on XKeyscore in response to a recommendation in the report.

Finally, in his statement, Mr. LeBlanc said that the board had asked the agency for its legal analysis of privacy and civil liberties raised by the use of XKeyscore in 2015. The next year it was given a 13-page memo dated 2016, which "made it appear as if N.S.A. had not prepared a written analysis of the legality of XKeyscore until prompted" by the oversight board.

An N.S.A. spokesman said its general counsel "regularly reviews N.S.A. intelligence programs and capabilities to ensure compliance" with the law and had "conducted appropriate legal reviews of the use of XKeyscore."

A footnote in Mr. LeBlanc's statement says that the N.S.A. told the oversight board this year that it had also produced "prior legal analyses of XKeyscore" before the 2016 memo. But while the board has pressed for access to those "purported" memos, he wrote, the agency has not provided any.

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Privacy Watchdog Board's Secret Report on N.S.A. System Fell Short, Member Says

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The Privacy and Civil Liberties Oversight Board spent more than six years scrutinizing the surveillance-related system, called XKeyscore. Its report is classified. WASHINGTON - A member of a civil liberties watchdog board that investigates the nation's security programs criticized on Tuesday a major - but still secret - report by his organization about a National Security Agency surveillance-related system, portraying the effort as shoddy and a missed opportunity.

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The National Security Agency at Fort Meade, Md. (Patrick Semansky/AP)

Correction

An extensive surveillance program first revealed by former National Security Agency contractor Edward Snowden in 2013 continues to operate with no judicial and limited congressional oversight despite its potential to capture Americans' communications, a member of a privacy watchdog agency said in a statement released Tuesday.

The National Security Agency's XKeyscore program was the subject of a five-year investigation by the Privacy and Civil Liberties Oversight Board (PCLOB), an independent government privacy watchdog, that wrapped up in December.

According to documents leaked by Snowden, the program has existed for more than a decade. It allows analysts to use a Google-like search function across vast databases of Internet traffic captured from sites worldwide to pluck out the emails, Web browsing histories and social media activity of specific people.

The program relies heavily on the "autonomous collection of massive data sets," and analysis driven by artificial intelligence, Travis LeBlanc, a Democratic board member appointed by President Donald Trump, said in a statement. His partly redacted statement was released after it went through a declassification process.

LeBlanc was alone among the board's five members to vote against approving the panel's classified report on XKeyscore in December, saying that the board "failed to adequately investigate or evaluate" the NSA's collection activities.

"What most concerned me was that we have a very powerful surveillance program that eight years or so after exposure, still has no judicial oversight, and what I consider to be inadequate legal analysis and serious compliance infractions," LeBlanc said in an interview.

Privacy watchdog's next target: The least-known but largest and most complex NSA surveillance regime

The board sent copies of the report to Congress, the White House and the Office of the Director of National Intelligence in March.

NSA officials pushed back against LeBlanc's assertions, saying the agency conducted appropriate legal reviews of the use of XKeyscore. They also said the agency has protections to safeguard Americans' privacy. They pointed to a document issued in January that outlines the rules.

Former board chairman Adam Klein, an appointee of Trump who stepped down from the board this month, defended its work. "The board produced a detailed, comprehensive report and recommendations on a very complex program," he said. "The clarity of description will enable Congress and other appropriate actors in the executive branch to ask hard questions as needed about this program."

The program operates under a broad framework laid out by a presidential directive known as Executive Order 12333, which governs most surveillance taking place outside the United States and some surveillance taking place inside the United States. When collection activities take place under 12333, they are not subject to oversight by the Foreign Intelligence Surveillance Court.

According to a 2009 slide released by Snowden and published in the Intercept in 2015, many of the sites that XKeyscore relies on for data were either in the United States or linked to sites in the United States. LeBlanc, in his statement, suggested as much. "It is beyond obvious that NSA must gather or collect that signals intelligence from somewhere - in the United States or abroad."

The NSA declined to discuss the location of the collection.

"I continue to be concerned that Americans still know far too little about the government's surveillance activities under EO 12333 and how it threatens their privacy," said Sen. Ron Wyden (D-Ore.), a member of the Intelligence Committee, in a statement to The Washington Post. "I've been pressing for multiple PCLOB reports about EO 12333 to be declassified, which will shed light on these secret authorities that govern the collection and use of Americans' personal information."

Privacy and civil liberties board will review surveillance law that has vexed Trump

The program also resulted in hundreds of compliance incidents in 2019, a majority of which were considered "questionable intelligence activities" - a category that means the action may have involved improper surveillance of Americans' communications, according to U.S. officials, who spoke on the condition of anonymity because details are classified.

"Obviously violations of U.S. law and the known collection or processing of U.S. person information are serious compliance issues," LeBlanc said in his statement.

Rebecca Richards, NSA's civil liberties and privacy officer, said: "When we looked at the [questionable intelligence activities] associated with this, we didn't find any of them to identify systemic issues or any particular concerns. We found them to be standard intelligence practices."

The incidents could include making a typo in a query or making too broad a query, she said.

Richards noted that the NSA has adopted the board's recommendation that it provide training for analysts specifically on XKeyscore. Analysts, she said, already receive general compliance training.

LeBlanc devoted some of his strongest criticism to the NSA's legal analysis, which he said "lacks any consideration of recent relevant" privacy case law, including Supreme Court decisions that have imposed stricter limits on cellphone and geolocation surveillance.

Agency spokesman Charlie Stadtlander said "NSA's Office of General Counsel regularly reviews NSA intelligence programs and capabilities to ensure compliance with the Constitution, laws, and other applicable regulations and policies."

But some privacy advocates say the technical capabilities have outpaced the law. For instance, according to slides disclosed by Snowden, the program enabled an analyst to review communications indiscriminately as long as they were not tagged as belonging to an American, meaning that the analyst could inadvertently be viewing an American's information without penalty, said Ashkan Soltani, a senior fellow at Georgetown University's Institute for Technology Law and Policy.

And much of the indexing work on the data is done by machines, before a human even sets eyes on it, Soltani said. "The realities of the Internet today means the likelihood that the NSA might accidentally be processing an American's communications is quite high," he said.

In NSA-intercepted data, those not targeted far outnumber the foreigners who are

LeBlanc said the board did not analyze the extent to which XKeyscore's use of machine analysis - as opposed to human review - of Americans' information triggers Fourth Amendment scrutiny.

The board, he said, ultimately "failed the public" by not using its investigation to "delve into important technological and modern electronic surveillance issues" raised by XKeyscore.

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NSA surveillance program still raises privacy concerns years after exposure, member of privacy watchdog says

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Correction An extensive surveillance program first revealed by former National Security Agency contractor Edward Snowden in 2013 continues to operate with no judicial and limited congressional oversight despite its potential to capture Americans' communications, a member of a privacy watchdog agency said in a statement released Tuesday.

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1791

Fourth Amendment to the Constitution is enacted

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."(1)

1952

November
National Security Agency (NSA) Founded
The newly formed NSA, part of the Defense Department, is charged with acquiring information from overseas sources in order to protect the United States from her enemies. (2)

1968

Congress Limits Wiretapping
The Omnibus Crime Control and Safe Streets Act is passed by Congress, mandating that all wiretapping be performed only after a court order is obtained. However, an exception is created allowing the President to use warrantless wiretapping to respond to national security issues. (3)

1975

Congressional Church Hearings
A Senate committee on intelligence activities, commonly known as the Church Committee, reveals serious federal abuses of surveillance powers, including against civil rights leaders, Vietnam War protesters, union advocates, and other political activists. The Committee's final report condemns these abuses as excessive, undemocratic, and unconstitutional. The report also suggests that Congress create rules limiting intelligence gathering tactics. (4)(5)

1978

January
President Jimmy Carter Limits Electronic Surveillance of U.S. Citizens
President Jimmy Carter issues Executive Order 12036, which states that "No agency within the Intelligence Community shall engage in any electronic surveillance directed against a United States person abroad or designed to intercept a communication sent from, or intended for receipt within, the United States except as permitted by the procedures established pursuant to section 2-201." (6)

October
Congress Passes Foreign Intelligence Surveillance Act (FISA)
In response to the Church Committee's report, Congress passes FISA, which authorizes surveillance of foreign powers or their agents, and creates a judicial system to oversee the program and ensure that it is only used in response to serious national security issues. It is opposed by civil libertarians on the grounds that it violates the Fourth Amendment, amid concerns that warrants may be issued without adequate proof and against American citizens. The law eventually causes the NSA to alter its rules on domestic intelligence gathering and concentrate on foreign spying. (7)(8)

1994

October
CALEA Requires Telecommunications Providers to Give Government Access to Electronic Records
Congress enacts the Communications Assistance for Law Enforcement Act (CALEA), which sets standards for how telecommunications providers will provide wiretapping information to the government. It requires providers to install new wiretapping devices on their phone systems, and ensures that the government will have free access to communications information. (9)

2001

January 20
George W. Bush Inaugurated as the 43rd President of the United States; John Ashcroft becomes Attorney General
George W. Bush officially takes office as President, and names John Ashcroft, a former senator from Missouri, as his new attorney general. Republicans support Ashcroft as a nominee intimately familiar with the workings of the US government and its policies. However, numerous civil liberties groups, including the ACLU, express concern over previous attempts at curtailing First Amendment rights and other freedoms while Senator.

2002

Bush Issues Executive Order Allowing Warrantless Wiretapping
President Bush, through a secret executive order, authorizes the NSA, which already has confidential surveillance program in place, to wiretap communications between foreign citizens suspected of having links to terrorist groups and individuals on American soil. This wiretapping is allowed without any warrant. Communications between people located in the US still requires a warrant. (15)(16)(17)

2003

July 17
Bush Administration Discloses Wiretapping Program to Congress
Vice President Dick Cheney and other administration officials give limited information about the warrantless wiretapping program to the heads of the Senate and House intelligence committees. Sen. John Rockefeller sends a letter to Cheney detailing his concerns over the program and questions whether the program is legal. (18)

2005

February 3
John Ashcroft Leaves Post as Attorney General, Replaced by Alberto Gonzales
On November 9, 2004, amid increasing outcry over his controversial policies, John Ashcroft resigns from his position of Attorney General. This resignation becomes effective on February 3, 2005, when the Senate confirms Alberto Gonzales, White House counsel, as the new attorney general. (19)

December 6
Bush Tries to Dissuade theNew York Times from Publishing Warrantless Wiretapping Story
President Bush invites the publisher of the New York Times, Arthur Sulzberger, Jr., to the Oval Office, and tries to convince the paper not to run a story about the NSA warrantless wiretapping program which began in early 2002 and is still secret. (20)

December 16
New York Times Discloses Warrantless Wiretapping Program
The New York Times publishes a front-page article revealing details about the NSA's warrantless wiretapping program, despite President Bush's requests that it not be revealed to the public. It is later disclosed that the newspaper had known about the program for over a year. (21)(22)

December 17
Bush Supports Wiretapping Program in Press Conference
President Bush speaks on national television in defense of the USA PATRIOT Act, which is up for renewal, and claims that the New York Times printed the NSA wiretapping story illegally. He states that he authorized the NSA program shortly after 9/11, in accordance with his powers as President. In addition, he says that the program is overseen by various government agencies and is in compliance with the Constitution. Furthermore, he asserts that the program is vital to national security, and points to communications between the US-based September 11 hijackers and Al Qaeda members overseas as evidence that the program is essential to the security of the United States. (23)

December 24
The New York Times Reveals NSA Wiretapping Methods
The New York Times publishes an article detailing the various methods, including data mining, used by the NSA to perform wiretapping, which had yet to be acknowledged by the Bush administration. It tells how the NSA approached telecommunications companies and asked them to keep records of international telephone and Internet communication patterns that were deemed suspicious. All of the wiretapping is done without requesting a warrant from the Foreign Intelligence Surveillance Court. (25)

2006

January 31
Electronic Frontier Foundation (EFF) Sues AT&T for Providing Customer Information to the NSA
The Electronic Frontier Foundation, a digital civil liberties advocacy group, files a lawsuit against AT&T, alleging that the company's cooperation with the NSA in data mining customers' telephone and Internet records breaches the privacy of their customers and is therefore illegal. On May 15, the government files a secret brief, to which only AT&T and the EFF were allowed very limited access, asking the court to dismiss the lawsuit, claiming that continuing the case would reveal state secrets. (26)

May 11
USA Today Reveals Telephone Companies Have Provided Phone Records to the NSA since 2001
A USA Today article describes how the nation's largest telecommunications companies, since shortly after the September 11th attacks, have been secretly providing their customers' domestic calling records to the NSA, which is using them to investigate Americans' calling patterns. This marks the first time that purely domestic calls are revealed as being subject to NSA wiretapping. AT&T, Verizon, and BellSouth are implicated in the program, but Qwest states that it has refused to give any information to the government. (29)

August 17
US District Court Judge Finds NSA Program to be Unconstitutional
In the case ACLU v. NSA, Federal District Court Judge Anna Diggs Taylor finds that the President does not have the power to authorize the NSA warrantless wiretapping program under either the Iraq War resolution or the Constitution, and thus deeming the program unconstitutional. The program continues unabated as the government appeals her ruling. (32)(33)(34)

September 28
House Passes Bill Authorizing Warrantless Wiretapping
The House of Representatives passes a bill, introduced by Republican Rep. Heather Wilson, authorizing the Bush administration to conduct warrantless wiretapping on the condition that it occurs after the House and Senate intelligence committees have been notified and the people being investigated have been named. The bill still allowed for the circumventing of FISA. Democrats accuse the administration of attempting to justify their past actions violating citizens' civil liberties. The bill never passes the Senate. (35)

1. http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution

2. http://www.nytimes.com/2005/12/16/politics/16programbox.html?ex=1167800400&en=bb2a1a176f5c3c12&ei=5070

3. http://www.usdoj.gov/crt/split/42usc3789d.htm

4. http://www.dkosopedia.com/wiki/Warrantless_Eavesdropping_Timeline

5. http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=3&ei=5090&en=e32072d786623ac1&ex=1292389200

6. http://www.fas.org/irp/offdocs/eo/eo-12036.htm

7. http://www.epic.org/privacy/terrorism/fisa/

8. http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=3&ei=5090&en=e32072d786623ac1&ex=1292389200

9. http://www.fcc.gov/calea/

10. http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=5&ei=5090&en=e32072d786623ac1&ex=1292389200

11. http://www.usdoj.gov/olc/warpowers925.htm

12. http://www.dkosopedia.com/wiki/Warrantless_Eavesdropping_Timeline

13. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ056.107

14. http://www.npr.org/templates/story/story.php?storyId=4759727

15. http://www.dkosopedia.com/wiki/Warrantless_Eavesdropping_Timeline

16. http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=3&ei=5090&en=e32072d786623ac1&ex=1292389200

17. http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm?csp=34

18. http://www.dkosopedia.com/wiki/Warrantless_Eavesdropping_Timeline

19. http://en.wikipedia.org/wiki/John_Ashcroft

20. http://www.msnbc.msn.com/id/10536559/site/newsweek

21. http://www.cnn.com/2005/US/12/16/nytimes.statement/

22. http://www.nytimes.com/2005/12/16/politics/16program.html?ei=5090&en=e32072d786623ac1&ex=1292389200

23. http://www.whitehouse.gov/news/releases/2005/12/20051217.html

24. http://www.fas.org/irp/agency/doj/fisa/doj122205.pdf

25. http://www.commondreams.org/headlines05/1224-02.htm

26. http://www.eff.org/legal/cases/att/

27. http://en.wikipedia.org/wiki/Usa_patriot_act

28. http://freegovinfo.info/node/435

29. http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm?csp=34

30. http://uspolitics.about.com/b/a/207737.htm

31. http://thinkprogress.org/2006/07/18/gonzo-nsa/

32. http://www.washingtonpost.com/wp-dyn/content/article/2006/08/17/AR2006081700650.html

33. http://www.cnn.com/2006/POLITICS/08/17/domesticspying.lawsuit/index.html

34. http://www.aclu.org/images/nsaspying/asset_upload_file689_26477.pdf

35. http://www.washingtonpost.com/wp-dyn/content/article/2006/09/28/AR2006092801281.html

36. http://en.wikipedia.org/wiki/United_States_general_elections%2C_2006

37. http://en.wikipedia.org/wiki/United_States_general_elections%2C_2006

38. http://en.wikipedia.org/wiki/United_States_general_elections%2C_2006

This document is licensed under the GNU Free Documentation License, which means that you can copy and modify it as long as the entire work (including additions) remains under this license. Portions of this document were copied from dKosopedia, from the entry titled "Warrantless Eavesdropping Timeline" ( http://www.dkosopedia.com/wiki/Warrantless_Eavesdropping_Timeline).

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1791 Fourth Amendment to the Constitution is enacted "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be

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Look up PRISM in Wikipedia-- it has a GREAT constitutional overview

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The NSA's recently revealed PRISM project allows the NSA to monitor the internet traffic of foreigners, but sweeps up American communicators in the process while the once equally secret Boundless Information program analyzes and is fed in part by metadata on calls routed through Verizon, and it is safe to assume, other telecommunications carriers as well. How concerned should we be? The answer depends on what one's concerns are. If the concern is the privacy of one's own conversations, there is little reason for all but a handful of Americans to lose sleep over this, and those most likely to lose sleep are also most likely to pose security threats.

The programs are somewhat different, but given what we have been told so far, here's how they are likely to work. The telecommunications data mining appears to be both vast and indiscriminate but only collects so-called metadata; that is, data on which phone numbers called which other numbers, how long the calls lasted, the locations where calls were made and received and the like. No conversations have been recorded, so what was said is forever beyond the government's reach. If, however, a number called or called from belongs to a suspected terrorist, here or abroad, or to someone whose calling patterns or call locations arouse suspicions, the NSA, FBI or other agency will most likely be able to secure a warrant, based on probable cause, that will authorize listening to what is said in calls to and/or from the identified number. It is not, however, just those who call or are called by previously identified suspicious numbers who will be vulnerable to having their calls seen as suspicious and their conversations monitored. Data mining can cast suspicion on those who call others who have called suspicious numbers, those who call third party numbers whom suspicious callers call and the like. Still, although the net is potentially wide, it is likely that relatively few Americans are selected for active surveillance, and then only after a court has reviewed the reasonableness of monitoring requests given patterns in the metadata and connections to known security risks.

To give an example, consider the aftermath of the Boston Marathon bombing. The authorities feared the Tsarnaev brothers might have had domestic accomplices, and they also wanted to know if foreign instigation played a role. Through PRISM, they would have been able to retrieve archived phone data, examine calls made to and from the Tsarnaev brothers' phones and identify not only patterns that might suggest others were involved but also people they might talk to to learn more about how the Tsarnaevs had been radicalized. The data analysis would allow them to take a giant step toward answering the questions that most concerned them in a less intrusive and more objective way than by having human gumshoes patiently track down various leads and leads stemming from leads. This may explain why very soon after the bombings the authorities could tell us they were reasonably confident that the Tsarnaevs had acted alone and had hatched their plot without foreign involvement. (Given Tamerlan Tsarnaev's travels back to Russia, the latter conclusion is not yet completely safe to draw; modern technology does not obviate all needs for gumshoe detective work). President Obama, members of Congress and James Clapper, the top U.S. intelligence official, have all said that the kinds of monitoring that feed Boundless Informant have contributed to identifying terrorists and thwarting possible attacks. There is no reason to doubt their word.

PRISM appears to be a far narrower intelligence gathering program but far more intrusive. It can capture not just metadata but the content of communications transmitted via the web, including messages sent and retrieved, uploaded videos and the like. It is specifically targeted, and without a warrant neither American citizens nor permanent resident are legal targets. However, the protections citizens and permanent residents enjoy appear loose. News stories suggest that data capture is allowed to proceed whenever a responsible agent thinks it more likely than not that a possible target is foreign. The standard, if true, means that some communications involving only Americans are inevitably captured, and Americans may be caught up in surveillance aimed at foreigners, such as recordings of foreign chat room conversations.

The protection most of us enjoy under PRISM may be more practical than legal. The amount of data that can be collected limits the reach of the program. Not only is capturing too much information from innocent Americans a waste of resources, but also suspicious communications can be lost in a forest of irrelevant data. The NSA thus has powerful reasons to limit impermissible observations, at least where there is no good reason to suspect Americans of terrorist involvements. Still we lack two bits of information important in assessing this program. One is the fate of information pertaining to Americans who should not have been observed in the first place. If this information is purged from all databases except perhaps when the person is dangerous, erroneous capture is less of a concern than it otherwise would be. Second, we don't know how monitoring targets are determined or the number of targets selected. To the extent that individuals, organizations and sites are targeted based on target-specific concerns about the threats they pose, the net cast is likely to be narrow, and even if the reasons for targeting do not rise to the level of legally cognizable probable cause, they tend in this direction. But if targets are selected based on the impersonal outputs of other data mining efforts like the telephone records that feed Boundless Informant, all bets are off. Depending on the algorithms used and the degree to which they have been empirically validated, the net could be wide or narrow, and the likelihood that a target would be involved in terrorism or that citizens would be swept into the net may be great or small. Congress in overseeing PRISM should demand this information if it is not already provided.

It is easy to be cynical about government and the respect that agencies show for the laws under which they operate. Cynicism is fed by occasional scandals and by the more frequent pseudo-scandals which make it appear that within the Beltway things are out of control. Having spent four years as a Division Director at the National Science Foundation and three years as Chief Scientist in the Human Factors/ Behavioral Science Division of DHS's Science and Technology Directorate, I am not cynical. Time and again I have seen government employees seek to follow the law even when it seems silly and interferes with their mission. When I joined DHS I was most surprised by the fierceness of efforts to comply with the U.S. Privacy Act. At times interpretations of what the Act protected were so broad as to border on the ridiculous, and costs were real: research projects with national security implications were delayed, redesigned or even precluded because privacy officers, sometimes with little basis in the statute, felt there was a risk that personally identifiable information (PII) would be impermissibly collected. The absence of any reason to fear revelation or misuse made no difference. The strict scrutiny applied to research that might involve PII is, to be sure, relaxed in front line operational settings like PRISM and legal restrictions may differ, but my experience in two agencies as well as conversations with people in the intelligence community (IC) lead me to believe that it is a mistake to regard as a sham the legal restrictions on PRISM or other IC data mining and surveillance activities.

Through its PRISM and Boundless Informant efforts, NSA is working to protect the nation, apparently with some success. The 99.9% of us who pose no threat of terrorism and do not inadvertently consort with possible terrorists should not worry that the government will track our phone or internet exchanges or that our privacy will be otherwise infringed.

This does not mean, however, that the NSA programs and the capacities they reveal are of no concern. They should be regarded as canaries in the coal mine; they provide early warning of dangers we may be confronting. These capacities, along with increasingly ubiquitous surveillance cameras, photo recognition software, the ongoing development of rapid recognition DNA analysis, drones that can spy or kill and DNA, fingerprint, photo and other searchable digital databases together create what I have called the infrastructure of tyranny.

"These capacities, along with increasingly ubiquitous surveillance cameras, photo recognition software, the ongoing development of rapid recognition DNA analysis, drones that can spy or kill and DNA, fingerprint, photo and other searchable digital databases together create what I have called the infrastructure of tyranny."

These technologies potentially enable small groups of people to control and restrict the freedom of far larger numbers. We think this could not happen here, and I do not claim it is imminent, but recent trends in politics and social life suggest that if the fear was ever groundless, it no longer is. Not only are our politics deeply and too often viciously divided, but divisions seem to be stoked by extremists who personally profit from their ability to arouse emotions and by small numbers of extremely wealthy individuals who spend freely to advance their views of the good society. Moreover, our political parties and Congress itself sometimes seem more interested in thwarting the opposition or scoring points with their most committed supporters than with cooperating and compromising to promote the national interest. Concerns raised by these developments are exacerbated by an increased tendency within Congress to ignore more or less neutral procedural commitments and understandings that have allowed effective governance despite sometimes deep differences in political goals. In addition, we live in a time of increasing inequality and decreasing social mobility. The experience of other countries from the French Revolution on suggests that when inequality becomes too great and a small group of "haves" is seen as capturing too large a share of the pie, protests begin that even if peaceful at the start are prone to erupt into violence. Even before violence from below erupts, and almost always afterwards, we have seen those on top muster their resources to suppress dissent and to preserve their positions of power, using violence of their own if need be.

Historically the masses tend, sooner or later, to prevail, but in PRISM, Boundless Informant and other new technologies we are developing a set of tools that make it more likely that an elite core will be able to disrupt nascent revolt and maintain its preferred position by increased surveillance and even selective killing. Although it is not likely, it is not unimaginable that a future administration could, with substantial popular support, use a genuine crisis as an excuse to postpone a scheduled election, could put down subsequent protests with violence and could create a situation in which it maintained itself in power using the infrastructure we are creating to protect us from crime and terrorism. Even if the possibility is small it cannot be too much diminished. Doing this is likely to involve combating inequality, strengthening democratic institutions and perhaps abandoning the volunteer army, matters too far afield to be further discussed here.

Even if it seems fanciful to fear that American democracy could one day be imperiled by technologies and activities developed to fight crime and terrorism, it is not farfetched to recognize the degree to which foreign governments can, and to some degree are, using these technologies to enable powerful elites to control people who desire more freedom or might seek to replace them in power. Moreover the lines demarcating those in control may relegate people of certain religions, gender, or gender preferences or ethnic heritage to permanent positions of economic disadvantage and powerlessness. The capacity that foreign nations have to use technology to suppress dissent is likely to grow over time with profound effects on our country's relations with them. It would be nice to think that by controlling American exports of these technologies, we could forestall this, but we can't. We no longer can control, if we ever could, the use or development of sophisticated surveillance and suppressive technologies. I don't even have a solution to suggest for this one.

Beyond these fateful concerns and of more immediate import is a peculiar feature of the way the debate over data mining and other surveillance technologies has developed. People, or at least the chattering elites, seem most upset when the federal government is acting. Attention falls off when privacy infringing technologies are used by state governments or in the private sector. Yet the federal government really is on our side and is using these technologies to protect us. Moreover, through our votes and outrage we can to some extent control how the federal government uses them. The same is not true of the private sector. They can and do use these technologies to track our purchases, to stimulate impulsive buying, to set different prices for different customers, to extend or deny credit using attributes with little obvious relation to credit worthiness, to hire or not based on health indicators or long past or other employment-irrelevant behavior and to decide whether or at what price we are insurable against various harms. None of this is done in our interest as consumers or citizens although not everything runs counter to these interests, and most of what is done is unregulated. States are similarly often more free than the federal government to employ surveillance technologies because federalism allows them to do things the federal government cannot do, and we attend less to what is going on in their nether reaches. Here the danger is not that they don't have their citizens' interest at heart but rather that if we decide to deny the federal government a certain capacity, states may develop that capacity and the federal government may be able to do what we thought we were forbidding by working through the states. This may have happened when some early federal data mining efforts were protested and withdrawn.

Of the surveillance concerns I have mentioned the private sector and state-level capacities are the easiest to deal with. As a general principle whenever efforts are made to restrict federal government activities in the interest of privacy, potential privacy infringements by the private sector and state governments should also be considered and often should be regulated. Moreover, because the private sector uses data mining and surveillance technologies to reach ends of no interest to the government, we should develop philosophies and policies suitable to the protection of privacy and other interests in private sector contexts.

Data mining in connection with PRISM and Boundless Informant appropriately raises concerns. But it would not be surprising if upon closer inspection and as more is known, it is discovered that the privacy threats that these programs pose for American citizens are small, their compliance with legal restrictions is genuine, and their contributions to the fight against terrorism has value more than commensurate with any costs they impose. At the same time we are well advised to be wary about what we are creating. Efforts associated with the "war against terrorism should be regarded as military in essence, and the posse comitatus law which prevents the military from acting to enforce domestic criminal law, no matter how great the need, should be clearly extended and strictly applied to the NSA, the CIA and similar organizations, including some aspects of work done by the FBI, even if they could make valuable contributions to crime control more generally. Moreover, what we are learning about these programs should serve as a wakeup call to stimulate social and political changes that will make it less likely and less possible for a government in power to extend its time in office by undemocratic means. In addition, as we think about privacy and data mining, we should be as alert to and concerned about the privacy dangers posed by private and state sector data mining as we are to the dangers posed by federal activity. Regardless of who is doing the infringing, privacy is a human value we should cherish.

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PRISM and Boundless Informant: Is NSA Surveillance a Threat?

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The NSA's recently revealed PRISM project allows the NSA to monitor the internet traffic of foreigners, but sweeps up American communicators in the process while the once equally secret Boundless Information program analyzes and is fed in part by metadata on calls routed through Verizon, and it is safe to assume, other telecommunications carriers as well.

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"'The stuff I saw really began to disturb me," Mr. Snowden recalled. "I could watch drones in real time as they surveilled the people they might kill." He added: "I watched N.S.A. tracking people's Internet activities as they typed. I became aware of just how invasive U.S. surveillance capabilities had become. I realized the true breadth of this system. And almost nobody knew it was happening" New York Times

Introduction
The controversy related to issues surrounding NSA surveillance first became a hot topic for debate when it was disclosed in June of 2013 by former defense contractor Edward Snowden and journalist (and former debater) Glenn Greenwald that the US National Security Agency (NSA) and other federal agencies are engaging in extensive surveillance to fight crime and reduce the threat of terrorism.

The magnitude of the disclosure shocked many people, including elected representatives who were unaware of the extent of the surveillance. Civil rights advocates view the surveillance as an assault on privacy and liberty, while law enforcement and national security officials see these mass surveillance programs, and other targeted surveillance programs that are based on individual suspicion, as essential weapons in the war on terror, the fight against nuclear weapons proliferation, the general protection of US national security, and even efforts to reduce conventional crime.

Since the release of the original story, the controversy has become front page news around the world, with more and more arguably problematic programs described in the leaked trove of Snowden documents coming to light. New stories appear on a daily, making this one of the easiest topics to research and update in some time.

The federal mass surveillance programs that had been revealed are catalogued in former debater Glenn Greenwald's most recent book, No Place to Hide: Edward Snowden, the NSA, and the US Surveillance Stat e, which also offers a page-turning read into Greenwald's initial meetings with Snowden and documentary film maker Laura Poitras in Hong Kong, as well as his access to the documents. The initial meetings are also documented in Poitras' CitizenFour. Curtailing any of these and other mass surveillance programs will make for arguably strong Affirmative cases.

In this essay, I will examine some key terms in the resolution, discuss some important aspects of its wording for the strategic development of arguments on both the Pro and the Con. By the time you finish reading the essay, you should have a good idea as to how most of the main arguments on the topic will play out as well as some strategic considerations that you should consider when selecting arguments on both sides of the resolution.
The Wording of the Resolution The NSA should end its surveillance of U.S. citizens and lawful permanent residents.
The topic area chose for debate is a good one. The wording of the resolution is not great, however, and this is something that will become obvious as I walk you through it.

NSA. The NSA is the National Security Agency, which is part of the Department of Defense, is one federal agency that engages in surveillance of US citizens. The Federal Bureau of Investigation (FBI) and state/local law enforcement also engage in surveilance.

End. The choice of the word, "end" in the resolution is probably the most problematic, as even the strongest opponents of the programs do not say we should end the programs. Most (maybe all) of the opponents argue that the government should have to obtain warrants to carry out the surveillance. For example, this article has a number of suggestions for reforms.

US citizens and lawful permanent residents. While I appreciate the desire to limit the discussion to US citizens and LPRs, the central current question related to the surveillance is whether the surveillance of non-US citizens living abroad that incidentally results in surveillance of US citizens is constitutional and acceptable. US citizens and LPEs are not ordinarily targeted by this surveillance. And the surveillance of US citizens abroad is considered constitutional, as the Constitution doesn't apply to US citizens outside the US. So the wording of the resolution is really poorly targeted - US citizens are ordinarily not directly subject to NSA surveillance and the constitution doesn't apply to US citizens living abroad. These are very important things to keep in mind when preparing your debates, as the literature is going to "miss" the wording of the resolution.
Authorities
In order to better understand the topic, the foundation for the wording issues discussed, and the basics of the Pro and Con arguments, it is important to understand where NSA authority to surveil US citizens primarily stems from.

According to the American Civil Liberties Union (ACLU):

The FISA Amendments Act of 2008 (FAA) gives the NSA almost unchecked power to monitor Americans' international phone calls, text messages, and emails - under the guise of targeting foreigners abroad. The ACLU has long warned that one provision of the statute, Section 702, would be used to eavesdrop on Americans' private communications. In June 2013, The Guardian published documents provided by whistleblower Edward Snowden confirming the massive scale of this international dragnet. Recent disclosures also show that an unknown number of purely domestic communications are monitored, that the rules that supposedly protect Americans' privacy are weak and riddled with exceptions, and that virtually every email that goes into or out of the United States is scanned for suspicious keywords...

Executive Order 12,333, signed by President Reagan in 1981 and modified many times since, is the authority primarily relied upon by the intelligence agencies to gather foreign intelligence outside of the United States. Recent disclosures indicate that the U.S. government operates a host of large-scale programs under EO 12333, many of which appear to involve the collection of vast quantities of Americans' information. These programs have included, for example, the NSA's collection of billions of cellphone location records each day; its recording of every single cellphone call into, out of, and within at least two countries; and its surreptitious interception of data from Google and Yahoo user accounts as that information travels between those companies' data centers located abroad...

For many years, the government claimed sweeping authority under the Patriot Act to collect a record of every single phone call made by every single American "on an ongoing daily basis." This program not only exceeded the authority given to the government by Congress, but it violated the right of privacy protected by the Fourth Amendment, and the rights of free speech and association protected by the First Amendment. For this reason, the ACLU challenged the government's collection of our phone records under Section 215 of the Patriot Act just days after the program was revealed in June 2013 by The Guardian. In May 2015, a court of appeals found that the phone records program violated Section 215, and Congress allowed the provision to expire in June of that year. The program was reformed by the USA Freedom Act, which passed days later.

Ashley Gorski et al elaborate on Section 702

Section 702 allows the government to monitor Americans' international emails, web-browsing, and phone calls without a warrant, relying on the compelled assistance of companies like Facebook, Google, AT&T, and Verizon. Under the law, the government can "target" the communications of any non-U.S. person abroad to collect "foreign intelligence information" - even if an American is on the other end of the line. Although the government cannot directly target Americans, this surveillance predictably captures substantial quantities of Americans' communications. That is in part because the targeting rules are so broad: the government's targets need not have any connection to terrorism investigations or criminal activity, and can include academics, journalists, and human rights workers. Last year, the United States targeted more than 200,000 individuals and groups under the law, resulting in the mass collection of hundreds of millions of communications (if not more). The government obtains these communications without warrants, but nevertheless uses them in ordinary criminal investigations of Americans.

They add on Executive Order 12333

EO 12333 is the primary authority under which the government conducts foreign intelligence surveillance, and it encompasses a wide array of warrantless surveillance programs. Unlike Section 702 surveillance, most EO 12333 surveillance occurs outside the United States. Although this surveillance is directed at foreigners, Americans' communications are routinely sent, routed, or stored abroad, where they may be caught up in the EO 12333 dragnet. Under EO 12333, the United States also contends that it can search through and collect communications in bulk - without any target whatsoever - to obtain foreign intelligence. According to news reports, the National Security Agency (NSA) has relied on EO 12333 to collect nearly 5 billion records per day on the locations of cell phones; amass hundreds of millions of contact lists and address books from personal email and messaging accounts; and record every cell phone call to, from, and within at least two countries.

Most recently, the government, in a lawsuit, has clearly articulated which programs continue:

Nicholas Iovino, November 2, 2020, Courthouse News Service, Telecoms Customers Take Fight Over NSA Spying Programs to Ninth Circuit, https://www.courthousenews.com/telecoms-customers-take-fight-over-nsa-spying-programs-to-ninth-circuit/

Lead plaintiff Carolyn Jewel sued the NSA in 2008, long before NSA contractor Edward Snowden leaked a trove of classified records unveiling details about the NSA's multiple warrantless spying programs in 2013. The lawsuit claims the NSA used three programs to spy on American citizens in a way that violates the First and Fourth Amendments, the Wiretap Act, Stored Communications Act and Foreign Intelligence Surveillance Act. Those programs include the bulk collection of cellphone and landline records from phone companies, mass interception and searching of Americans' emails and other internet communications, and collection of metadata from internet communications, such as timestamps and "to" and "from" data from emails. has acknowledged the existence of those programs. It says the bulk collection of internet communications and metadata was discontinued and replaced with more targeted collection of data based on specific selection terms. The bulk collection of phone records continues.

Pro Contentions
Privacy/totalitarianism. There are many different ways to understand " privacy," an idea originally articulated by Samuel D. Warren and Louis D. Brandeis in 1890[1]. These include the right to be left alone, the right to be secure in one's person, the right to have certain information about one kept secret, the right to to associate with who one wishes without interference[2].

The threat to privacy from any type of surveillance is significant because it involves monitoring of individuals. In many instances, people expect what is being monitored to otherwise be private.

Mass surveillance is especially intrusive.

Citron & Macht, 2013, Danielle Keats Citron, Lois K. Macht Research Professor of Law, University of Maryland School of Law; Affiliate Scholar, Stanford Center on Internet and Society; Affiliate Fellow, Yale Information Society Project., David Gray, Associate Professor of Law, University of Maryland School of Law. We are grateful to Neil Richards for his thoughtful essay and feedback and to Julie Cohen, Leslie Henry, Amanda Pustilnik, Daniel Solove, and the participants in the Harvard Law Review Symposium on Privacy and Technology for their helpful suggestions, "ADDRESSING THE HARM OF TOTAL SURVEILLANCE: A REPLY TO PROFESSOR NEIL RICHARDS," May, p. 270

The continuous and indiscriminate surveillance they accomplish is damaging because it violates reasonable expectations of quantitative privacy, by which we mean privacy interests in large aggregations of information that are independent from particular interests in constituent parts of that whole. To be sure, the harms that Richards links to intellectual privacy are very much at stake in recognizing a right to quantitative privacy. But rather than being a function of the kind of information gathered, we think that the true threats to projects of self-development and democratic culture lie in the capacity of new and developing technologies to facilitate a surveillance state. In adopting this view, we ally ourselves in part with commitments to a quantitative account of Fourth Amendment privacy promoted by at least five Justices of the Supreme Court last Term in United States v. Jones. In Jones, police officers investigating drug trafficking in and around the District of Columbia attached a GPS-enabled tracking device on defendant Jones's car. By monitoring his movements over the course of a month, investigators were able to document both the patterns and the particulars of his travel, which played a critical role in his ultimate conviction. Although the Court resolved Jones on the narrow grounds of physical trespass, five justices wrote or joined concurring opinions showing sympathy for the proposition that citizens hold reasonable expectations of privacy in large quantities of data, even if they lack reasonable expectations of privacy in the constitutive parts of that whole. Thus, they would have held that Jones had a reasonable expectation in the aggregate of data documenting his public movements over the course of four weeks, even though he did not have any expectation of privacy in his public movements on any particular afternoon. The account of quantitative privacy advanced by the Jones concurrences has much in common with the views promoted by Warren and Brandeis. Specifically, the concurring Justices in Jones expressed worry that by "making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track," programs of broad and indiscriminate surveillance will "chill[] associational and expressive freedoms," and "alter the relationship between citizen and government in a way that is inimical to a democratic society." Their concerns are well-grounded in original understandings of the Fourth Amendment. As Professor William Stuntz has shown, the Fourth Amendment was drafted partly in reaction to eighteenth-century cases involving the British government's use of general warrants to seize personal diaries and letters in support of seditious-libel prosecutions that were designed to suppress political thought. Despite these roots, quantitative privacy is just beginning to receive recognition because it is only now under threat of extinction by technologies like Virtual Alabama and fusion centers.

Glenn Greenwald, argues that the objective of NSA surveillance is the elimination of global privacy.

"The general revelation that the objective of the NSA is literally the elimination of global privacy: ensuring that every form of human electronic communication - not just those of The Terrorists™ - is collected, stored, analyzed and monitored," he said.

Of course, it is important to note here that Pro teams cannot argue for reducing the surveillance of non-US citizens.

Beyond individual privacy violations, this surveillance laws the foundations for totalitarianism. Surveillance totalitarianism possible by discouraging intellectual exploration of controversial ideas and creating a power relationship between the government and the subject who is subject to surveillance.

Neil Richards, 2013, law professor,Washington University School of Law, Harvard Law Review, The Dangers of Surveillance, http://harvardlawreview.org/2013/05/the-dangers-of-surveillance/ DOA: 3-20-15

From the Fourth Amendment to George Orwell's Nineteen Eighty-Four, and from the Electronic Communications Privacy Act to films like Minority Report and The Lives of Others, our law and culture are full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don't really know why surveillance is bad and why we should be wary of it. To the extent that the answer has something to do with "privacy," we lack an understanding of what "privacy" means in this context and why it matters. We've been able to live with this state of affairs largely because the threat of constant surveillance has been relegated to the realms of science fiction and failed totalitarian states But these warnings are no longer science fiction. The digital technologies that have revolutionized our daily lives have also created minutely detailed records of those lives. In an age of terror, our government has shown a keen willingness to acquire this data and use it for unknown purposes. We know that governments have been buying and borrowing private-sector databases, and we recently learned that the National Security Agency ( NSA) has been building a massive data and supercomputing center in Utah, apparently with the goal of intercepting and storing much of the world's Internet communications for decryption and analysis. Although we have laws that protect us against government surveillance, secret government programs cannot be challenged until they are discovered. And even when they are, our law of surveillance provides only minimal protections. Courts frequently dismiss challenges to such programs for lack of standing, under the theory that mere surveillance creates no harms. The Supreme Court recently reversed the only major case to hold to the contrary, in Clapper v. Amnesty International USA, finding that the respondents' claim that their communications were likely being monitored was "too speculative." But the important point is that our society lacks an understanding of why (and when) government surveillance is harmful. Existing attempts to identify the dangers of surveillance are often unconvincing, and they generally fail to speak in terms that are likely to influence the law. In this Article, I try to explain the harms of government surveillance. Drawing on law, history, literature, and the work of scholars in the emerging interdisciplinary field of "surveillance studies," I offer an account of what those harms are and why they matter. I will move beyond the vagueness of current theories of surveillance to articulate a more coherent understanding and a more workable approach. At the level of theory, I will explain why and when surveillance is particularly dangerous and when it is not. First, surveillance is harmful because it can chill the exercise of our civil liberties. With respect to civil liberties, consider surveillance of people when they are thinking, reading, and communicating with others in order to make up their minds about political and social issues. Such intellectual surveillance is especially dangerous because it can cause people not to experiment with new, controversial, or deviant ideas. To protect our intellectual freedom to think without state oversight or interference, we need what I have elsewhere called "intellectual privacy." A second special harm that surveillance poses is its effect on the power dynamic between the watcher and the watched. This disparity creates the risk of a variety of harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance. At a practical level, I propose a set of four principles that should guide the future development of surveillance law, allowing for a more appropriate balance between the costs and benefits of government surveillance. First, we must recognize that surveillance transcends the public/private divide. Public and private surveillance are simply related parts of the same problem, rather than wholly discrete. Even if we are ultimately more concerned with government surveillance, any solution must grapple with the complex relationships between government and corporate watchers. Second, we must recognize that secret surveillance is illegitimate and prohibit the creation of any domestic-surveillance programs whose existence is secret. Third, we should recognize that total surveillance is illegitimate and reject the idea that it is acceptable for the government to record all Internet activity without authorization. Government surveillance of the Internet is a power with the potential for massive abuse. Like its precursor of telephone wiretapping, it must be subjected to meaningful judicial process be-fore it is authorized. We should carefully scrutinize any surveillance that threatens our intellectual privacy. Fourth, we must recognize that surveillance is harmful. Surveillance menaces intellectual privacy and increases the risk of blackmail, coercion, and discrimination; accordingly, we must recognize surveillance as a harm in constitutional standing doctrine. Explaining the harms of surveillance in a doctrinally sensitive way is essential if we want to avoid sacrificing our vital civil liberties.

Jonathan Schell, writing in the Nation, argues that this is more power than Stalin was able to exercise in totalitarian Russia.

And certainly, the four Poles, of all people, are as fully aware as any sensible person of the abyss of difference that separates the Obama administration from, say, the regime of Joseph Stalin, slayer of tens of millions of his own people. And yet it is chillingly true at the same time that the US government has gone further than any previous government-not excluding Stalin's-in setting up machinery that satisfies certain tendencies that are in the genetic code of totalitarianism. One is the ambition to invade personal privacy without check or possibility of individual protection. This was impossible in the era of mere phone wiretapping, before the recent explosion of electronic communications-before the cellphones that disclose the whereabouts of their owners, the personal computers with their masses of personal data and easily penetrated defenses, the e-mails that flow through readily tapped cables and servers, the biometrics, the street-corner surveillance cameras. But now, to borrow the name of an intelligence program from the Bush years, "Total Information Awareness" is technologically within reach. The Bush and Obama administrations have taken giant strides in this direction. That China and Russia-and Britain, and many other countries-have done the same is hardly comforting to the humble individual under the eye of the universal spying apparatus. A second totalitarian tendency has been the ambition to control the entire globe-a goal built into fascist as well as communist ideologies of the early twentieth century. In Hannah Arendt's words, "Evidence that totalitarian governments aspire to conquer the globe and bring all countries on earth under their domination can be found repeatedly in Nazi and Bolshevik literature." Neither achieved it, or even came close. But now, in the limited arena of information, a sort of shadow or rudiment of this ambition is near realization by the "sole superpower," the United States. Much attention has been paid to Americans' loss of privacy rights, but relatively overlooked in the debate over the government's surveillance activities (at least in the United States) has been that all foreign communications-including those occurring in the lands of close allies, such as Germany-are fair game and are being swept into the US data banks. The extent of the US global reach over information was mirrored in Snowden's fate. Astonishingly, almost no fully democratic country would have him. (The conspicuous exception was Bolivia, whose president suffered the indignity of a forced diversion and landing of his plane when he was suspected of carrying Snowden to safety.) Almost all others, including Poland, bowed to US pressure, actual or potential, to refuse Snowden protection. The Polish letter writers were scandalized by this spectacle. "The fact that only dictatorial governments agreed to give him shelter shames the democratic states," they wrote. "Our democracies discredit themselves with their indifference and cowardice in this matter." What happened to Snowden in Moscow diagramed the new global reality. He wanted to leave Russia, but the State Department, in an act of highly dubious legality, stripped him of his passport, leaving him-for purposes of travel, at least-stateless. Suddenly, he was welcome nowhere in the great wide world, which shrank down to a single point: the transit lounge at Sheremetyevo. Then, having by its own action trapped him in Russia, the administration mocked and reviled him for remaining in an authoritarian country. Only in unfree countries was Edward Snowden welcome. What we are pleased to call the "free world" had become a giant prison for a hero of freedom.

The NSA doesn't have a great track record when it comes to limiting abuse of its authority. During the Vietnam war, the NSA spied on Mohammed Ali, Martin Luther King, and Senator Howard Baker. Arab American lawyer Abdeen Jabara was also spied on. In March 2013, the NSA program, Boundless Informant, collected 97 billion pieces of metadata. From 1940 to 1973, the CIA and FBI engaged in a covert mail opening program. The Army intercepted domestic radio communications. An Army surveillance program placed more than 100 people under surveillance.

Although the internal link to totalitarianism from the collection of individual information by private companies is inherently smaller, there are massive privacy violations, and since governments can get ahold of the information, there is a link into totalitarianism

Daily Mail, July 7, 2014:

Noel Sharkey, a professor of artificial intelligence and robotics at Sheffield University, said that older people were more cautious with their personal data. Addressing the Cheltenham Science Festival, he said: 'I'm 65, I don't want to be targeted. I am very uncomfortable with it. It seems to me our privacy is gradually being violated and eroded without us noticing. 'I am part of the generation which all read 1984 - I think we are less happy about giving up our privacy. 'But the younger generation aren't really thinking about it. The services that Google and Facebook give us are so good that people are willing to trade off their privacy for them.' He said Google's recording of all our online activities meant it knew far too much about us. He added: 'At the moment it doesn't seem harmful. But because governments can get hold of this information, they can monitor you, things might change quite dramatically.' Google has invested billions of pounds buying up cutting-edge technologies which will increase their access to people's information. The internet giant recently paid £1.9billion for Nest Labs, a firm which makes internet-connected heating systems, allowing people to control their thermostats from afar. Supporters argue that having greater control over home applications - which may soon include fridges that automatically reorder when you run out of food and lighting systems that turn on when they sense your approach - can only benefit consumers. But connecting more things to the internet enables large firms to collect more and more data.

Racism. Many argue that NSA surveillance is illegitimately targeted at minorities, particularly Arab and Muslim minorities. In July of this year (2014), the Intercept, Glenn Greenwald's new website, published the email addresses of more than 7,000 Muslim Americans who are under warrantless surveillance:

The National Security Agency and FBI have covertly monitored the emails of prominent Muslim-Americans-including a political candidate and several civil rights activists, academics, and lawyers-under secretive procedures intended to target terrorists and foreign spies. According to documents provided by NSA whistleblower Edward Snowden, the list of Americans monitored by their own government includes:

Faisal Gill, a longtime Republican Party operative and one-time candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush;

Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;

Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;

Agha Saeed, a former political science professor at California State University who champions Muslim civil liberties and Palestinian rights;

Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country.

The individuals appear on an NSA spreadsheet in the Snowden archives called "FISA recap"-short for the Foreign Intelligence Surveillance Act. Under that law, the Justice Department must convince a judge with the top-secret Foreign Intelligence Surveillance Court that there is probable cause to believe that American targets are not only agents of an international terrorist organization or other foreign power, but also "are or may be" engaged in or abetting espionage, sabotage, or terrorism. The authorizations must be renewed by the court, usually every 90 days for U.S. citizens.

The spreadsheet shows 7,485 email addresses listed as monitored between 2002 and 2008. Many of the email addresses on the list appear to belong to foreigners whom the government believes are linked to Al Qaeda, Hamas, and Hezbollah. Among the Americans on the list are individuals long accused of terrorist activity, including Anwar al-Awlaki and Samir Khan, who were killed in a 2011 drone strike in Yemen.

Many individuals are monitored based on their race and/or ethnicity.

Cindy C. Unegbu, law student, Fall 2013, Howard Law Journal, v. 57, NOTE AND COMMENT: National Security Surveillance on the Basis of Race, Ethnicity, and Religion: A Constitutional Misstep, http://heinonline.org/HOL/Page?handle=hein.journals/howlj57&div=15&g_sent=1Restricted but available to NSDA members, p. 433-6

Picture this: you live in a society in which the government is allowed to partake in intrusive surveillance measures without the institutionalized checks and balances upon which the government was founded. In this society, the government pursues citizens who belong to a particular race or ethnicity, practice a certain religion, or have affiliations with specific interest groups. Individuals who have these characteristics are subject to surreptitious monitoring, which includes undercover government officials disguising themselves as community members in order to attend various community events and programs. The government may also place these individuals on watch lists, even where there is no evidence of wrongdoing. These watch lists classify domestic individuals as potential or suspected terrorists and facilitate the monitoring of their personal activity through various law enforcement agencies for an extended period of time. This "hypothetical" society is not hypothetical at all; in fact, it is the current state of American surveillance. The government's domestic spying activities have progressed to intrusive levels, primarily due to an increased fear of terrorism. This fear has resulted in governmental intelligence efforts that are focused on political activists, racial and religious minorities, and immigrants. The government's domestic surveillance efforts are not only geared toward suspected terrorists and those partaking in criminal activity, but reach any innocent, non-criminal, non-terrorist national, all in the name of national security. The government's power to engage in suspicionless surveillance and track innocent citizens' sensitive information has been granted through the creation and revision of the National Counterterrorism Center and the FBI's (Federal Bureau of Investigation) Domestic Investigations and Operations Guide. The grant of surveillance power has resulted in many opponents, including those within the current presidential administration, who challenge the order for numerous reasons. These reasons include the inefficiency of storing citizens' random personal information for extended periods of time, the broad unprecedented authority granted to this body of government without proper approval from Congress, and the constitutional violations due to the deprivation of citizens' rights. This Comment argues that the wide-sweeping surveillance authority granted to the government results in a violation of the Fourteenth Amendment's Equal Protection Clause due to far-reaching domestic monitoring practices. Surveillance practices, such as posing as members of the community and placing individuals on watch lists without suspicion of terrorist activity, result in the impermissible monitoring of individuals on the basis of their race or ethnicity. These practices, although done in the name of national security, an established compelling government interest, violate the Equal Protection Clause of the Fourteenth Amendment because they are not narrowly tailored to the stated interest. The procedures are not narrowly tailored to the interest of national security because of the over-inclusiveness of the measures.

Freedom of association/expression. Surveillance discourages individuals from freely associating and expressing their opinions.

Elizabeth Joh, law professor, 2013, University of California, Davis, School of Law, Arizona Law Review, Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion, p. fn34 Available at; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2285095 DOA: 1-12-15

Osborn v. United States, 385 U.S. 323, 341 (1966) (Douglas, J., dissenting); see also United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring) ("Awareness that the Government may be watching chills associational and expressive freedoms. And the Government's unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse."); Ciraolo, 476 U.S. at 225 n.10 (1986) (Powell, J., dissenting) ("It would appear that, after today, families can expect to be free of official surveillance only when they retreat behind the walls of their homes."); United States v. U.S. Dist. Court, 407 U.S. 297, 320 (1972) (" Official surveillance . . . risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent."); Johnson, 333 U.S. at 14 ("The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance."); cf. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 196 (1890) ("The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual.").

Internet surveillance chills news reporting and free speech.

Kenneth Roth, November 18, 2013, "The NSA's Global Threat to Free Speech," http://www.nybooks.com/blogs/nyrblog/2013/nov/18/nsas-global-threat-free-speech/ DOA: 3-20-15

But the NSA's overreaching endangers free speech in more direct ways as well. Consider the not-uncommon situation in which a repressive government such as China's asks an Internet company for information on a user. The most notorious request of this kind involved the Chinese journalist Shi Tao, who just completed eight years in prison for "leaking state secrets"-sending a human rights group information about media restrictions for the fifteenth anniversary of the 1989 Tiananmen Square uprising and the ensuing massacre. At China's request, Yahoo turned over Shi's email information, contributing to his conviction. One of the best defenses against such requests is for Internet companies to store user information in servers located outside the country in question. That approach is not foolproof-governments have many ways to pressure Internet companies to cooperate-but it can help to fend off such requests. US Internet companies currently opt to repatriate to servers in the United States most information on users in foreign countries. However, after the revelations about NSA surveillance, many countries have said they may require Internet companies to keep data about their citizens on servers within their own borders. If that becomes standard practice, it will be easier for repressive governments to monitor Internet communications. Weak as US privacy safeguards are, those in many other countries are no better. For example, while outraged at the NSA's snooping, many privacy activists in Brazil oppose their own government's proposed requirement to store data locally because they fear their data protection laws are inadequate. Moreover, as the case of Shi Tao shows, granting national governments easy access to user information may enable them not only to invade privacy but also to suppress criticism and unearth dissent. Anonymity is sometimes the best protection against censorship, but official access to user information makes anonymity difficult. Current proposals to change the way the Internet is regulated could, if implemented, also facilitate efforts by foreign governments to gather information on their own citizens' electronic activities. The Internet is governed mainly through informal cooperative arrangements among numerous public and private entities, but a US-based organization, the Internet Corporation for Assigned Names and Numbers, or ICANN, is responsible for, among other things, coordinating the assignment of unique identifiers that allow computers around the world to find and recognize each other. A private board of directors runs ICANN, but the US Commerce Department has a large part in its management.

Terrorism. Terrorism is the core Con argument on the topic but there are also Pro arguments that are twists (link turns) on the topic.

First, there is evidence that collecting so much data makes it impossible for authorities to find meaningful data that they could use to find and prosecute potential criminals. This avalanche of data can work to district authorities from important information and also resource in an overstretch of financial resources.

Second, European opposition to NSA surveillance has resulted in them breaking-off many data-sharing agreements with the United States. Data sharing is an important way to prevent terrorism.

Since the most common Con argument is terrorism, it makes sense for the Pro to get a "leg up" on this argument and make terrorism a Pro contention. Regardless, these Pro "links" to terrorism are link turns to the Con argument.

Internet innovation. Related to the questions of Internet freedom and the economical implications of surveillance is the question of how surveillance of the Internet may chill its development because developers will be reluctant to develop new concepts under surveillance.

John Shinal, March 17, 2015, USA Today, At SXSW, unlikely allies in privacy-law fight, http://www.pressreader.com/usa/usa-today-international-edition/20150318/281762742738887/TextView DOA: 3-21-15

"While the statutes are murky, the Fourth Amendment is crystal clear," he said during the panel. As Issa made his comments in a meeting room of the JW Marriott Hotel here, ACLU attorney Ben Wizner and privacy advocate and author Bruce Schneier - during another SXSW privacy panel just down the hall - were making a similar argument: Mass surveillance is throttling both society and business. "Pervasive surveillance leads to conformity," Schneier said. "If everything we do is watched, we'll do fewer new things." Schneier's comments echo the position of a growing number of Silicon Valley companies worried that surveillance will cost them customer trust and future business. "Right now, U.S. companies dominate Internet services," says Alex Stamos, Yahoo's chief information security officer, who was in the audience for the lawmaker's panel. "The worry is that someone else will surpass us" if customers lose trust in American technology over privacy concerns, Stamos said.

Internet innovation has the potential to gain access to all types of interesting developments, from advances in genomics, to Internet gaming, the transhumanism. I suspect this, perhaps combined with Economy and Freedom, will be a strong advantage areas.

Glenn Greenwald, attorney & journalist who broke the NSA spying story, May 2014, No Place to Hide: Edward Snowden, the NSA, and the US Surveillance State, Kindle edition

From the time that it first began to be widely used, the Internet has been seen by many as possessing an extraordinary potential: the ability to liberate hundreds of millions of people by democratizing political discourse and leveling the playing field between the powerful and the powerless. I without institutional constraints, social or state control, and pervasive fear- is central to the fulfillment of that promise. Converting the Internet into a system of surveillance thus guts it of its core potential. Worse, it turns the Internet into a tool of repression, threatening to produce the most extreme and oppressive weapon of state intrusion human history has ever seen.

Internet fracturing. And related to the questions of internet freedom, the economics of the internet, and the development of the Internet is the question of Internet fracturing - different countries and regional organizations developing their own Internets. Surveillance makes this more likely.

William Marsden, Montreal Gazette, March 15, 2015, Cyber-spying thrives as technology makes it easier; Canada was likely among the countries who shared citizens' personal data, p. A7

Early this year Google, Apple, Microsoft, Facebook, Twitter and Yahoo united to form the Reform Government Surveillance Coalition to lobby government to restrict NSA surveillance. "The reality is these are publicly traded companies that owe a fiduciary obligation to their shareholders," Goitein said. " They are mindful of their bottom line which is suffering quite badly, especially overseas, on the perception that the companies don't protect their customers privacy." All of them are feeling the heat, particularly from EU countries already concerned about their monopolistic reach. When you add on the NSA surveillance program and the fact that the majority of Internet traffic finds its way through the U.S. and its Five Eyes partners, countries like Germany are considering their own closed national Internet network - or how to spell typewriter.

"Soft power" refers to how likable the US is, and there is good evidence that reducing surveillance will improve the US image in the world - its "soft power."

Adam Quinn. October 28, 2013. The Conversationalist. Obama's Soft Power a Hard Sell After NSA Revelations. http://theconversation.com/obamas-soft-power-a-hard-sell-after-nsa-revelations-19572 DOA: 3-11-15

Soft power. Many of those who are optimistic about the ability of the US to pull off this project of declining power without declining influence place emphasis on two things: the extent to which the US has soft power due to widespread admiration for its political and cultural values, and the extent to which it has locked in influence through the extent of its existing networks of friends and allies. Even if these advantages cannot arrest America's decline on harder metrics, if played properly they can mitigate its consequences and secure an acceptable future. Shoring up support from like-minded countries such as those of Europe ought to be the low-hanging fruit of such an effort. So the current problems do harm on both fronts. It will be difficult to maintain the allure of soft power if global opinion settles on the view that American political discord has rendered its democracy dysfunctional at home, or that its surveillance practices have given rein to the mores of a police stat e.

US soft power can be valuable in facilitating global diplomacy that is necessary to arrest environmental problems, slow nuclear proliferation, mediate global disputes. By strengthening allied relationships it can also support US hard power.

Internet freedom. US surveillance practices undermine US credibility on promoting freedom of the Internet. This will result in even greater restrictions in countries like Russia and China.

Tarun Wadhwa, June 23, 2014, http://www.forbes.com/sites/tarunwadhwa/2013/06/13/with-nsa-surveillance-us-government-may-have-dealt-major-blow-to-global-internet-freedom-efforts/ Forbes, "NSA Surveillance May Have Dealt Major Blow to Global Internet Freedoms" DOA: 3-6-16

We should all be extremely concerned about the colossal surveillance infrastructure that is being built in the name of our safety. In trying to reassure the public, our leaders have told us that these programs are not meant to target us, but instead, foreigners who may pose a threat to our security. But this is merely a decision on how the data is being used today - we are getting into very dangerous territory by hoping for the best intentions of whoever is in power in the future. American history holds many lessons for us here: circumstances can change, the perception of who is a threat can vary with whoever is in office, and we cannot predict what our political situation will look like decades, or even years, from now. In the court of global public opinion, America may have tarnished its moral authority to question the surveillance practices of other nations - whether it be Russia on monitoring journalists, or China on conducting cyber espionage. Declarations by the State Department that were once statements of principle now ring hollow and hypocritical to some. No nation can rival the American surveillance state, but they no longer need support to build their own massive systems of espionage and oppression. The costs of surveillance and data storage technologies are plummeting - these will no longer be prohibitive factors. Diplomatic pressures and legal barriers that had also once served as major deterrents will soon fade away. The goal has been to promote internet freedom around the world, but we may have also potentially created a blueprint for how authoritarian governments can store, track, and mine their citizens' digital lives.

Kenneth Roth, November 18, 2013, "The NSA's Global Threat to Free Speech," http://www.nybooks.com/blogs/nyrblog/2013/nov/18/nsas-global-threat-free-speech/

The NSA's electronic spying has also done much to discredit the US government's reputation as an outspoken champion of Internet freedom. Most notably under the leadership of former Secretary of State Hillary Clinton, the US has regularly criticized countries for detaining dissident bloggers or users of social media. But today, although the United States continues to respect freedom of expression on and off line, that virtue is easily overshadowed by Washington's indifference to Internet privacy. And even America's reputation for respecting free speech is undermined when the Obama administration tries to extradite and prosecute Edward Snowden for an alleged security breach that many see as legitimate whistleblowing. Beyond Internet users, those who probably feel most at risk by Washington's disregard for privacy are US Internet companies. Companies such as Google and Facebook are undoubtedly terrified that users in other countries will begin looking for non-American alternatives to avoid NSA snooping. The German Federation of Journalists, for example, recently warned its members to avoid using US Internet companies for email or searches because of NSA surveillance, and Deutsche Telekom said it is working to keep electronic messages from entering the United States unnecessarily. Internet companies thus may become one powerful constituency to press the US government to reform its surveillance laws.

Executive power abuse. Current federal surveillance practices arguably exceed the authority of the Commander-in-Chief and Affirmative teams can argue that this assertion of executive power is tyrannical.

Robert Levy, 2006, "Wartime Executive Power and the NSA's Surveillance Authority II," http://www.cato.org/publications/congressional-testimony/wartime-executive-power-nsas-surveillance-authority-ii DOA: 3-5-15

Attorney General Gonzales has a second, more plausible, defense of warrantless surveillance - namely, Article II of the Constitution states that "The executive Power shall be vested in a President" who "shall be Commander in Chief" of the armed forces. That power, says the attorney general, trumps any contrary statute during time of war. I respectfully disagree - which is not to say I believe the president is powerless to order warrantless wartime surveillance. For example, intercepting enemy communications on the battlefield is clearly an incident of his war power. But warrantless surveillance of Americans inside the United States, who may have nothing to do with al-Qaeda, does not qualify as incidental wartime authority. The president's war powers are broad, but not boundless. Indeed, the war powers of Congress, not the president, are those that are constitutionalized with greater specificity. The question is not whether the president has unilateral executive authority, but rather the extent of that authority. And the key Supreme Court opinion that provides a framework for resolving that question is Justice Robert Jackson's concurrence in Youngstown Sheet & Tube v. Sawyer - the 1952 case denying President Truman's authority to seize the steel mills. Truman had argued that a labor strike would irreparably damage national security because steel production was essential to the production of war munitions. But during the debate over the 1947 Taft-Hartley Act, Congress had expressly rejected seizure. Justice Jackson offered the following analysis, which was recently adopted by the Second Circuit in holding that the administration could no longer imprison Jose Padilla: First, when the president acts pursuant to an express or implied authorization from Congress, "his authority is at its maximum. Second, when the president acts in the absence of either a congressional grant or denial of authority, "there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain." But third, where the president takes measures incompatible with the express or implied will of Congress - such as the NSA program, which violates an express provision of the FISA statute - "his power is at its lowest." Even under Youngstown's second category (congressional silence), the president might have inherent wartime authority to interpret the "reasonableness" standard of the Fourth Amendment in a manner that would sanction certain warrantless surveillance. But the NSA program does not fit in Youngstown's second category. It belongs in the third category, in which the president has acted in the face of an express statutory prohibition. Naturally, if the statutory prohibition is itself unconstitutional, the administration is not only permitted but obligated to ignore it. That's the argument administration supporters have proffered to excuse the NSA's defiance of FISA. To bolster their case, they cite the only opinion that the FISA Court of Review has ever issued, In re: Sealed Case. There, the appellate panel mentioned several earlier cases that concluded the president has "inherent authority to conduct warrantless searches to obtain foreign intelligence information." The Court of Review then added: "We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." Three responses: First, I do not contend that the president lacks "inherent authority to conduct warrantless searches to obtain foreign intelligence information." He has such authority, but Congress, exercising its own concurrent wartime powers, has limited the scope of that authority by excluding warrantless surveillance intentionally targeted at a U.S. person in the United States. Second, the surveillance in the earlier cases cited by Sealed Case took place pre-FISA, so Congress had not yet laid out the rules. Third, the quote from Sealed Case conveniently stops one sentence short. Here is the very next sentence: "The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable."

Secrecy. One criticism of these programs is that they operate in secret - the government won't disclose the details of the programs. This is obviously done for security reasons, but some argue it is bad for the government to carry-out these programs because it is impossible for courts to review the details of the constitutionality of the programs and for individuals affected by them to challenge the programs.

Cyber security. The link to a potential cyber security contention stems from the idea that the government maintains a "back door" for them to conduct surveillance of communications, especially encrypted communication.. These "back doors" that the government can enter through intentionally leave design flaws that threaten internet security.

Mailyn Fidler, 11-16, 20, Reporter's Committee, Seven years on, congressional oversight of National Security Agency policies is still a slog, https://www.rcfp.org/tech-press-freedom-nov-15-2020/

When Edward Snowden leaked classified information about U.S. government mass surveillance seven years ago, the former National Security Agency contractor sparked intense debate about - and reform of - many surveillance policies. Those conversations around reforming government surveillance practices have been especially important for journalists. As the Reporters Committee has previously argued, national security surveillance can chill or compromise newsgathering. Current discussions about proposed legislation that would prevent companies from using the strongest forms of encryption, such as the EARN IT Act, have resurfaced many concerns about government surveillance. But learning how NSA policies have changed is almost as hard as it was before Snowden's revelations, lawmakers are finding. The NSA is resisting congressional efforts, led by Sen. Ron Wyden (D-Ore.), to improve transparency around its policies regarding the introduction of back doors into commercial products. In response to these inquiries, NSA official Anne Neuberger told Reuters, "We don't share specific processes and procedures." But the broad strokes of post-Snowden policies on other issues have been released, including the White House-initiated Vulnerability Equities Process, which governs the process by which government agencies decide whether to reveal or keep for national security surveillance purposes vulnerabilities in information systems and technologies. Reuters reports that three former senior intelligence agency officials have said that the new NSA backdoor process requires them to "weigh the potential fallout" and to arrange for some kind of warning to the company if the back door is discovered by adversarial actors. Backdoor access to devices matters to journalists who rely on commercial products to communicate with sources domestically and overseas - especially when these back doors are in commercial encryption products that journalists use to offer sources greater protection. Documents released by Snowden revealed that the NSA worked with the Commerce Department to get a certain encryption standard accepted as the global default - in part because the agency knew how to break it and access encrypted data.

Pro teams should strongly consider adding "Back door" contentions for two reasons.

First, cyber security impacts to back door contentions allow Pro teams to have contentions with consequential, non-rights based impacts. Non-consequential impacts are difficult to win in front of lay judges in PF debate, so having something consequential will help a lot.

Second, these cyber security arguments can be used to turn terrorism arguments (terrorists could get back door access), and terrorism is the strongest Con contention.
Con Contentions Terrorism
The primary rationale for the surveillance programs described above is to prevent terrorism.

Jason Dunn, US Attorney, February 10, 2020, U.S. V. MUHTOROV - GOVERNMENT'S PUBLIC RESPONSE BRIEF, https://www.aclu.org/legal-document/us-v-muhtorov-governments-public-response-brief

The government's national security interest in conducting surveillance under Section 702 to combat terrorism and other national security threats "is an urgent objective of the highest order." Mohamud, 843 F.3d at 441. See alsoI n re Directives, 551 F.3d at 1012. In addition, the Privacy and Civil Liberties Oversight Board ("PCLOB") found that Section 702 is a uniquely valuable tool in the government's efforts to combat terrorism. PCLOB Report at 104-08.And the urgency of the government's interest is "greater, not less" when the foreign intelligence target communicates with associates in the United States. Hasbajrami, 945 F.3d at 667; see id.("If it is reasonable-and indeed necessary to the national security-for intelligence agencies to monitor the communications of suspected foreign terrorists abroad, the need to keep track of the potential threat from abroad does not lessen because some of the suspect's contacts turn out to be American nationals, or foreign nationals located within the United States").

This argument is especially strong given the wording of the topic because the Pro has to argue the programs should end.

There is recent evidence that the threat of nuclear terrorism is signoficant.

Brill, 11-28, 20, Kenneth C. Brill is a retired career Foreign Service Officer who served as U.S. Ambassador to the IAEA in the George W. Bush administration and as a senior intelligence official in the Obama Administration. He was founding director of the U.S. National Counterproliferation Center in the Office of the Director of National Intelligence (2005-2009). He was involved in international environmental issues and negotiations in both the Clinton and George W. Bush administrations, Biden must act promptly to strengthen global efforts to prevent nuclear terrorism, https://thehill.com/opinion/national-security/527796-biden-must-act-promptly-to-strengthen-global-efforts-to-prevent

But states are no longer the only source of nuclear threats to the U.S. Terrorist groups also pose a credible threat of attacking the U.S. using nuclear or radiological materials. A nuclear or radiological terrorist attack in a U.S. or other major global city would have severe and possibly devastating political, security, and economic consequences for the country attacked, as well as globally. The Biden administration will have an opportunity in 2021 to re-energize global efforts to prevent nuclear and radiological terrorism, but it will need to act promptly to do so. Lack of knowledge about weaponizing nuclear or radiological materials is no longer an impediment to nuclear terrorism, but lack of nuclear or radiological material is - but these materials are in widespread use globally for a variety of mostly peaceful purposes: 22 countries have at least one kilogram of fissile nuclear material needed for an improvised nuclear bomb, and virtually every country has radiological sources that could be used for a "dirty bomb." According to the International Atomic Energy Agency, since 1993 there have been some 3,500 incidents of lost, stolen, or misplaced nuclear and radiological material. Reliably securing these potentially destructive materials is essential to preventing nuclear or radiological terrorism.

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The NSA should end its surveillance of U.S. citizens and lawful permanent residents (essay and evidence) - DebateUS

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"'The stuff I saw really began to disturb me,'' Mr. Snowden recalled. ''I could watch drones in real time as they surveilled the people they might kill.'' He added: ''I watched N.S.A. tracking people's Internet activities as they typed. I became aware of just how invasive U.S. surveillance capabilities had...

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EPIC - Electronic Privacy Information Center

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Seeking the legal analyses from the Office of Legal Counsel concerning the NSA PRISM program.

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BRIA 19 4 a The Patriot Act: What Is the Proper Balance Between National Security and Individual Rig

Soon after September 11, U.S. Attorney General John Ashcroft brought before Congress a list of recommended changes in the law to combat terrorism. Some of these measures had long been opposed by members of Congress as infringing on the rights of Americans.

But September 11 had swept away all previous objections. The U.S. Senate quickly passed the USA PATRIOT ACT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism). Only one senator, Russell Feingold (D-Wis.), voted against it.

The next day, the House of Representatives passed the bill 357-66. The final bill was 342 pages long and changed more than 15 existing laws. Most of the Justice Department's recommendations were incorporated into it, but several provisions will expire in 2005.

On October 26, President George W. Bush signed the Patriot Act into law. He praised the "new tools to fight the present danger . . . a threat like no other our Nation has ever faced." He also asserted that the Patriot Act "upholds and respects the civil liberties guaranteed by our Constitution."

The Patriot Act defines "domestic terrorism" as activities within the United States that . . . involve acts dangerous to human life that. . . appear to be intended-

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping. . . .

The Patriot Act and Privacy

Some of the most controversial parts of the Patriot Act surround issues of privacy and government surveillance. The Fourth Amendment to the U.S. Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." It requires law-enforcement officers to obtain warrants before making most searches. To get a warrant, officers must make sworn statements before a judge "particularly describing the place to be searched, and the persons or things to be seized." The judge may only issue a search warrant if officers show "probable cause" that the person is engaged in criminal activity. Federal law requires that officers report to the court on the results of the search.

Surveillance such as wiretaps and physical searches requires officers to prove "probable cause" of criminality. Even before the Patriot Act, there were exceptions under federal law.

One was for so-called "pen-trap" orders. To obtain from a telephone company the numbers dialed to and from a particular telephone, officers must get a pen-trap order from a judge. They do not need to show probable cause, but must certify that the information is needed for an ongoing criminal investigation. The reason for the lesser standard is that these records are far less intrusive than wiretaps and physical searches.

Another major exception was for matters before the Federal Intelligence Surveillance Court. Congress created the court in 1978 following scandals revealing that U.S. intelligence agencies had spied on hundreds of thousands of American citizens, most notably the Reverend Martin Luther King Jr.

The court was a compromise between those who wanted to leave U.S. intelligence agencies free from any restrictions and those who wanted intelligence agencies to apply for search warrants like other law-enforcement agencies. Congress required U.S. intelligence agencies (the FBI and National Security Agency) to apply for warrants for wiretaps and other surveillance on foreign governments and suspected foreign agents. But because the agencies are not investigating domestic crime, they do not have to meet the probable cause standard. They only have to certify that the purpose of the investigation is to track a foreign government or agent. They do not have to report to the court on the results of the surveillance. The court meets in secret with only government representatives present and has never denied an intelligence agency's application for a search warrant.

The Patriot Act expands all these exceptions to the probable-cause requirement. Section 215 of the act permits the FBI to go before the Foreign Intelligence Surveillance Court for an order to search for "any tangible things" connected to a terrorism suspect. The order would be granted as long as the FBI certifies that the search is "to protect against international terrorism or clandestine intelligence activities [spying]." But the FBI would not need to meet the stronger standard of probable cause.

The Patriot Act now authorizes this court to issue search orders directed at any U.S. citizen who the FBI believes may be involved in terrorist activities. Such activities may, in part, even involve First Amendment protected acts such as participating in non-violent public protests.

In Section 215, "any tangible things" may include almost any kind of property-such as books, documents, and computers. The FBI may also monitor or seize personal records held by public libraries, bookstores, medical offices, Internet providers, churches, political groups, universities, and other businesses and institutions.

The Patriot Act prohibits third parties served with Section 215 orders such as Internet providers and public librarians to inform anyone that the FBI has conducted a search of their records.

Section 216 of the Patriot Act extends pen-trap orders to include e-mail and web browsing. The FBI can ask Internet service providers to turn over a log of the web sites a person visits and the addresses of e-mail coming to and from the person's computer.

Another area of concern is Section 213 of the Patriot Act. It authorizes so-called "sneak-and-peek" searches for all federal criminal investigations. When applying for a search warrant, officers may show that there is "reasonable cause to believe that providing immediate notification . . . may have an adverse result." If the judge approves, then the FBI can delay notifying a citizen about the search for a "reasonable period." Thus, the FBI may search a citizen's home or business in secret. The FBI says these searches may be necessary to prevent the destruction of evidence or to keep from jeopardizing an ongoing secret investigation.

The Debate Over the Patriot Act

According to the Bill of Rights Defense Committee, four states (Alaska, Hawaii, Maine, and Vermont) and 364 cities, towns and counties have passed resolutions protesting provisions of the Patriot Act. In response to criticism of the act, Congress may be having some second thoughts. The House of Representatives voted 309-118 to repeal "sneak-and-peek" searches. In the Senate, Senators Lisa Murkowski (R-Alaska) and Ron Wyden (D-Ore.) have introduced the Rights of Individuals Act. This is a comprehensive bill, addressing a number of issues related to the Patriot Act. One part of the Murkowski-Wyden bill would limit "sneak and peek" searches. Those whose homes or offices had been searched under "sneak and peek" would have to be notified within seven calendar days.

Attorney General Ashcroft and other Americans defend the Patriot Act. "We are at war," Ashcroft says, "and we have to do things differently than we did before." He points out that the only purpose of the Patriot Act is "to prevent terrorists from unleashing more death and destruction." Ashcroft also argues that the courts and Congress still safeguard the constitutional rights of Americans.

Public opinion has consistently supported the Patriot Act. An August 2003 Gallup Poll asked whether the Patriot Act goes too far, is about right, or doesn't go far enough in restricting people's civil liberties. Only 22 percent responded that it goes too far. Forty-eight percent said it is about right, and 21 percent answered that it does not go far enough.

In June 2003, the attorney general called for another law to further strengthen the powers of law enforcement to fight terrorists. Called "Patriot Act II" by critics, the proposed new law would, among other things, enable the government to ask a court to revoke the citizenship of any American who provides "material support" to terrorists.

The courts are just beginning to review the constitutionality of the Patriot Act. In the first major legal challenge to the Patriot Act, the American Civil Liberties Union (ACLU) filed a lawsuit in July 2003 against Section 215 searches. The suit argues that these searches violate the Fourth Amendment's protection against unreasonable searches and seizures as well as First Amendment freedoms of speech and association.

In a report called " Unpatriotic Acts," the ACLU warned that American freedom was endangered by the Patriot Act:

Section 215 is likely to chill lawful dissent. If people think that their conversations, their emails, and their reading habits are being monitored, people will feel less comfortable saying what they think-especially if they disagree with government policies.

In a Washington Post opinion piece, Heather MacDonald, a writer at the Manhattan Institute, defended the Patriot Act. She countered the ACLU by stressing that Section 215 requires a court order. She said there was no reason for anyone to feel "afraid to read books" or "terrified into silence." "Were that ever the case, it would be thanks to the misinformation spread by advocates and politicians, not because of any real threat posed by" the Patriot Act.

It will be quite some time before cases like the ACLU lawsuit will reach the U.S. Supreme Court. The basic question that the court will have to answer is: What is the proper balance between national security and protecting individual rights?

For Discussion and Writing

1. How does the Patriot Act define "domestic terrorism"? Do you think participants in public protests could ever be accused of "domestic terrorism" under this definition? Why or why not?

2. The Justice Department has proposed that the government should be able to ask a court to revoke the citizenship of any American who provides "material support" to terrorists. Do you support the proposal? Why or why not?

3. Below are two famous quotations. What do they mean? Which, if any, do you agree with? Explain.

Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. -Benjamin Franklin (1706 - 1790)

There is danger that, if the [Supreme Court] does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.-Justice Robert H. Jackson dissenting in Terminiello v. City of Chicago (1949)

For Further Information

Patriot Act Background
Text of the Patriot Act
Library Records Post Patriot Act A chart showing the legal requirements for intercept orders, search warrants, pen/trap orders, and subpoenas. By Mary Minow, an attorney and former librarian.

A Guide to the Patriot Act By Dahlia Lithwick and Julia Turner, Slate Magazine.

BeSpacific: Patriot Act Entries on the Patriot Act from a legal web log.
Wikipedia: USA PATRIOT Act
Online NewsHour
Patriot Act Continues to Spark Debate (9/17/2003)Security vs. Liberties (9/11/2003)Considering the Patriot Act (8/19/2003)Libraries and Liberties (6/18/2003)Too Tough (6/5/2003)Patriot Act 2/24/2003)Patriot Act (2/12/2003)USA Patriot Act
NOW: Patriot Act II Background on the Patriot Act and new proposals.
Flashpoints: In Focus: Patriot Act Frontline: The Patriot Act

Critics of the Patriot Act

What's So Patriotic About Trampling on the Bill of Rights? By Nancy Chang, Center for Constitutional Rights.
ACLU: USA Patriot Act American Library Association: USA PATRIOT Act Electronic Frontier Foundation: USA Patriot Act Electronic Privacy Information Center: The USA PATRIOT Act
USA Patriot Act & Intellectual Freedom A PowerPoint presentation by Carrie Lybecker, Liza Rognas, and Carlos Diaz of Evergreen State College.

Defenders of the Patriot Act

The Proven Tactics in the Fight against Crime A September 2003 speech by Attorney General John Ashcroft defending the Patriot Act from its critics.

Questions and Answers About the USA PATRIOT ACT From the U.S. Department of Justice.

Preserving Life and Liberty A Justice Department defense of the Patriot Act.

In Defense of the Patriot Act By Heather Mac Donald, a fellow at the Manhattan Institute.

In Defense of the Patriot Act By Orrin Hatch, U.S. senator from Utah.

A Letter To Congress: The Patriot Act Is Vital To Protecting National Security From Americans for Victory Over Terrorism.

More Links
Yahoo: USA Patriot Act Google Directory: USA PATRIOT Act Open Directory Project: USA PATRIOT Act Evergreen State College: USA PATRIOT Act Librarians' Index to the Internet: Patriot Act
National Security and Freedom

Form small groups to examine the USA Patriot Act.

A. The members of each group should discuss and then decide whether to support or oppose the following parts of the Patriot Act:

1. Section 213 "sneak-and-peek" searches of a person's property.

2. Section 215 orders by the Foreign Intelligence Surveillance Court for searches of a citizen's "tangible things" based on FBI certification rather than probable cause.

3. Section 215 searches of a citizen's public library records.

4. Section 215 requirement that third parties like librarians are prohibited from informing anyone an FBI search has taken place.

B. The whole class should next discuss the Patriot Act provisions one at a time. At the beginning of each discussion, group members should report their decision along with their reasons for it. The students should then try to persuade each other to support or oppose the provision. At the end of the discussion on each provision, the class should vote to support or oppose it.

C. Using information and arguments from the article and class discussion, the students should write an essay on this question:

What is the proper balance between national security and the protection of individual rights?

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CONSTITUTIONAL RIGHTS FOUNDATION Bill of Rights in Action Fall 2003 (19:4) National Security and Freedom BRIA 19:4 Home | The Patriot Act: What Is the Proper Balance Between National Security and Individual Rights? | The Alien and, Congress passed the Patriot Act shortly after the September 11 terrorist attacks.

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The revelations that Obama administration secretly collected phone records and accessed the internet activity of millions of Americans have raised new questions about the public's willingness to sacrifice civil liberties in the interests of national security. Since 9/11, Americans generally have valued protection from terrorism over civil liberties, yet they also have expressed concerns over government overreach and intrusions on their personal privacy.

Security First. Since shortly after 9/11, Pew Research has asked whether people's greater concern is that anti-terror policies will go too far in restricting civil liberties, or that they won't go far enough in adequately protecting the country. The balance of opinion has consistently favored protection. Most recently, in 2010, 47% said they were more concerned that government policies "have not gone far enough to adequately protect the country," while 32% said they were more concerned that "they have gone too far in restricting the average person's civil liberties."

But Fewer See Need to Sacrifice Civil Liberties. Yet fewer Americans think it will be necessary to sacrifice civil liberties to combat terrorism than did so shortly after the 9/11 attacks. In a poll conducted in 2011, shortly before the 10th anniversary of 9/11, 40% said that "in order to curb terrorism in this country it will be necessary for the average person to give up some civil liberties," while 54% said it would not. A decade earlier, in the aftermath of 9/11 and before the passage of the Patriot Act, opinion was nearly the reverse (55% necessary, 35% not necessary).

Track Terrorists - Not Me. The public has never liked the idea of the government monitoring their personal phone calls or emails. In the 9/11 anniversary survey, just 29% favored "the U.S. government monitoring personal telephone calls and emails" in order to curb terrorism. It drew less support than the other anti-terror tactics asked about in the survey.

Bush's Domestic Surveillance Program. In late 2005, news that President George W. Bush authorized the National Security Agency to monitor phone calls and emails -without court permission - stirred intense civil liberties concerns, especially among Democrats. From early 2006 through early 2009, public support for the program ranged from 48% to 54%. The question asked if it was generally right or wrong "for the government to monitor telephone and e-mail communications of Americans suspected of having terrorist ties without first obtaining permission from the courts." There were consistently wide partisan differences on views of this program: in February 2008, nearly twice as many Republicans (74%) as Democrats (39%) favored the phone and email monitoring.

Privacy Concerns: It's Not Just Government

What is often overlooked in the debate over government surveillance of private communications is the widespread public concern over the amount of personal information businesses are collecting. In our 2012 political values survey, 64% said they were concerned that "the government is collecting too much information about people like me." Yet 74% expressed this concern about business corporations.

Concern that business corporations are collecting too much personal information crosses party lines. In addition, Republicans have become much more concerned about possible privacy intrusions by the government than they were during Bush's presidency (72% in 2012, 39% in 2007).

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Balancing Act: National Security and Civil Liberties in Post-9/11 Era

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The revelations that Obama administration secretly collected phone records and accessed the internet activity of millions of Americans have raised new questions about the public's willingness to sacrifice civil liberties in the interests of national security. Since 9/11, Americans generally have valued protection from terrorism over civil liberties, yet they also have expressed concerns over government overreach and intrusions on their personal privacy.

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Current and former government officials have been pointing to the terror attacks in Paris as justification for mass surveillance programs. CIA Director John Brennan accused privacy advocates of "hand-wringing" that has made "our ability collectively internationally to find these terrorists much more challenging." Former National Security Agency and CIA director Michael Hayden said, "In the wake of Paris, a big stack of metadata doesn't seem to be the scariest thing in the room."

Ultimately, it's impossible to know just how successful sweeping surveillance has been, since much of the work is secret. But what has been disclosed so far suggests the programs have been of limited value. Here's a roundup of what we know.

An internal review of the Bush administration's warrantless program - called Stellarwind - found it resulted in few useful leads from 2001-2004, and none after that. New York Times reporter Charlie Savage obtained the findings through a Freedom of Information Act lawsuit and published them in his new book, Power Wars: Inside Obama's Post-9/11 Presidency:

[The FBI general counsel] defined as useful those [leads] that made a substantive contribution to identifying a terrorist, or identifying a potential confidential informant. Just 1.2 percent of them fit that category. In 2006, she conducted a comprehensive study of all the leads generated from the content basket of Stellarwind between March 2004 and January 2006 and discovered that zero of those had been useful.

In an endnote, Savage then added:

The program was generating numerous tips to the FBI about suspicious phone numbers and e-mail addresses, and it was the job of the FBI field offices to pursue those leads and scrutinize the people behind them. (The tips were so frequent and such a waste of time that the field offices reported back, in frustration, "You're sending us garbage.")

In 2013, the President's Review Group on Intelligence and Communications Technologies analyzed terrorism cases from 2001 on, and determined that the NSA's bulk collection of phone records "was not essential to preventing attacks." According to the group's report,

In at least 48 instances, traditional surveillance warrants obtained from the Foreign Intelligence Surveillance Court were used to obtain evidence through intercepts of phone calls and e-mails, said the researchers, whose results are in an online database.

More than half of the cases were initiated as a result of traditional investigative tools. The most common was a community or family tip to the authorities. Other methods included the use of informants, a suspicious-activity report filed by a business or community member to the FBI, or information turned up in investigations of non-terrorism cases.

Another 2014 report by the nonprofit New America Foundation echoed those conclusions. It described the government claims about the success of surveillance programs in the wake of the 9/11 attacks as "overblown and even misleading."

An in-depth analysis of 225 individuals recruited by al-Qaeda or a like-minded group or inspired by al-Qaeda's ideology, and charged in the United States with an act of terrorism since 9/11, demonstrates that traditional investigative methods, such as the use of informants, tips from local communities, and targeted intelligence operations, provided the initial impetus for investigations in the majority of cases, while the contribution of NSA's bulk surveillance programs to these cases was minimal.

Edward Snowden's leaks about the scope of the NSA's surveillance system in the summer of 2013 put government officials on the defensive. Many politicians and media outlets echoed the agency's claim that it had successfully thwarted more than 50 terror attacks. ProPublica examined the claim and found "no evidence that the oft-cited figure is accurate."

It's impossible to assess the role NSA surveillance played in the 54 cases because, while the agency has provided a full list to Congress, it remains classified.

The NSA has publicly discussed four cases, and just one in which surveillance made a significant difference. That case involved a San Diego taxi driver named Basaaly Moalin, who sent $8,500 to the Somali terrorist group al-Shabab. But even the details of that case are murky. From the Washington Post:

In 2009, an FBI field intelligence group assessed that Moalin's support for al-Shabab was not ideological. Rather, according to an FBI document provided to his defense team, Moalin probably sent money to an al-Shabab leader out of "tribal affiliation" and to "promote his own status" with tribal elders.

Also in the months after the Snowden revelations, the Justice Department said publicly that it had used warrantless wiretapping to gather evidence in a criminal case against another terrorist sympathizer, which fueled ongoing debates over the constitutionality of those methods. From the New York Times:

Prosecutors filed such a notice late Friday in the case of Jamshid Muhtorov, who was charged in Colorado in January 2012 with providing material support to the Islamic Jihad Union, a designated terrorist organization based in Uzbekistan.

Mr. Muhtorov is accused of planning to travel abroad to join the militants and has pleaded not guilty. A criminal complaint against him showed that much of the government's case was based on intercepted e-mails and phone calls.

Local police departments have also acknowledged the limitations of mass surveillance, as Boston Police Commissioner Ed Davis did after the Boston Marathon bombings in 2013. Federal authorities had received Russian intelligence reports about bomber Tamerlan Tsarnaev, but had not shared this information with authorities in Massachusetts or Boston. During a House Homeland Security Committee hearing, Davis said,

"There's no computer that's going to spit out a terrorist's name. It's the community being involved in the conversation and being appropriately open to communicating with law enforcement when something awry is identified. That really needs to happen and should be our first step."

Lauren Kirchner
Lauren Kirchner was a senior reporting fellow at ProPublica.

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What's the Evidence Mass Surveillance Works? Not Much

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Current and former government officials have been pointing to the terror attacks in Paris as justification for mass surveillance programs. CIA Director John Brennan accused privacy advocates of "hand-wringing" that has made "our ability collectively internationally to find these terrorists much more challenging."

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In Jewel v. NSA, EFF is suing the NSA and other government agencies on behalf of AT&T customers to stop the illegal unconstitutional and ongoing dragnet surveillance of their communications and communications records.

Filed in 2008, Jewel v. NSA is aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.

It also includes declarations from three NSA whistleblowers along with a mountain of other evidence, including secret government documents recently published in the Guardian and Washington Post that confirm our allegations. Two of the most critical documents directly reference the "upstream" collection of communications from fiber optic cables and the domestic telephone records collection program, which was subsequently confirmed by the government in June 2013.

In addition to suing the government agencies involved in the domestic dragnet, Jewel v. NSA also targets the individuals responsible for creating authorizing and implementing the illegal program including DIRNSA Keith Alexander and former Vice President Dick Cheney, Cheney's former chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales, and other individuals who ordered or participated in the warrantless domestic surveillance.

The Obama administration moved to dismiss Jewel in 2009, claiming that litigation over the wiretapping program would require the government to disclose privileged "state secrets" and that it was immune from suit. The court instead ruled that the case should be dismissed on standing grounds. Fortunately, in December of 2011, the 9 th U.S. Circuit Court of Appeals ruled that Plaintiffs' allegations were sufficient to provide standing and Jewel could proceed in district court.

In July 2012, EFF moved to have the court declare that the FISA law applies instead of the state secrets privilege; in September, 2012 the government renewed its "state secrets" claims and the matter was heard by the federal district court in San Francisco on Dec. 14, 2012.

In July 2013, the court rejected the government's "state secrets" argument, ruling that any properly classified details can be litigated under the procedures of the Foreign Intelligence Surveillance Act (FISA). The court did dismiss some of our statutory claims, but the other claims, including that the program violates the First and Fourth Amendments of the Constitution, continue.

For the full complaint in Jewel v. NSA and the RECAP archive of the full Jewel case docket at the District Court.

Watch video of the Dec. 14, 2012 Hearing here and read the most recent court ruling rejecting the government's "state secrets" argument here.

Oral argument on the Government's Motion to Dismiss the Appeal was held on October 28, 2015 at 2:00 in Courtroom 1 of the Richard H. Chambers US Court of Appeals, Pasadena, CA. You can watch the oral argument here.

More on NSA Spying:

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In Jewel v. NSA, EFF is suing the NSA and other government agencies on behalf of AT&T customers to stop the illegal unconstitutional and ongoing dragnet surveillance of their communications and communications records. Filed in 2008, Jewel v. NSA is aimed at ending the NSA's dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it.

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Jewel v. NSA: On to the Ninth Circuit: 2019 Year in Review

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Jewel v. NSA, EFF’s landmark case challenging NSA’s mass spying moved forward in 2019, setting up a crucial decision for the Ninth Circuit in 2020. We’ve pursued this case for over a decade because we believe that mass surveillance, like all general search and seizure schemes, is both illegal and...

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Overview

The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment. Incorporation applies both substantively and procedurally. Prior to the doctrine's (and the Fourteenth Amendment's) existence, the Bill of Rights applied only to the Federal Government and to federal court cases. States and state courts could choose to adopt similar laws, but were under no obligation to do so.

After the passage of the Fourteenth Amendment, the Supreme Court favored a process called " selective incorporation." Under selective incorporation, the Supreme Court would incorporate certain parts of certain amendments, rather than incorporating an entire amendment at once.

Some argue that Privileges or Immunities Clause is a more appropriate textual basis than the due process clause for incorporation of the Bill of Rights but because Slaughter-House Cases dealing with this clause are surrounded by controversy this theory is not supported by the majority of the court.

As a note, the Ninth Amendment and the Tenth Amendment have not been incorporated, and it is unlikely that they ever will be. The text of the Tenth Amendment directly interacts with state law, and the Supreme Court rarely relies upon the Ninth Amendment when deciding cases.

Incorporated Amendments

First Amendment (fully incorporated)

Guarantee against the establishment of religion: Everson v Board of Education, 330 U.S. 1 (1947)

Free Exercise of Religion: Hamilton v. Regents of the University of California, 293 U.S. 245 (1934), Cantwell v. Connecticut, 310 U.S. 296 (1940)

Freedom of Speech: Gitlow v. New York 268 U.S. 652 (1925)

Freedom of the Press: Near v. Minnesota 283 U.S. 697 (1931)

Right of Assembly and Petition: DeJonge v. Oregon 299 U.S. 353 (1937)

Freedom of expressive association: Even though not directly mentioned in the Amendment, See Roberts v. United States Jaycees 468 U.S. 609 (1984) where the court states that "implicit in the right to engage in activities protected by the First Amendment is a corresponding right to associate with others in pursuit of wide variety of political, social, economic, educational, religious and cultural ends."

Second Amendment (fully incorporated)

Fourth Amendment (fully incorporated)

Freedom from unreasonable search and seizure: Mapp v. Ohio, 367 U.S. 643 (1961)

Requirements in a warrant: Aguilar v. Texas, 378 U.S. 108 (1964)

Fifth Amendment (partially incorporated)

Sixth Amendment (partially incorporated)

Eight Amendment

Reverse Incorporation

Reverse incorporation under Bolling v. Sharpe , refers to the Supreme Court using state law to fill in the gaps when deciding issues which Supreme Court itself has not considered before. This doctrine has not been used very often by the Supreme Court. For more on reverse incorporation, see this Southern California Law Review article and this University of Michigan Law Review article .

Further Reading

For more on the Incorporation Doctrine, see this ABA article on the Seventh Amendment, this Valparaiso Law Review article on the Third Amendment, and this ABA article.

Amended by Krystyna Blokhina Gilkis 3.30.20

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The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment. Incorporation applies both substantively and procedurally.

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https://fija.org/library-and-resources/library/jury-nullification-faq/what-is-jury-nullification.html#:~:text=In%20its%20strictest%20sense%2C%20jury,defendant%20has%20broken%20the%20law.

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In its strictest sense, jury nullification occurs when a jury returns a Not Guilty verdict even though jurors believe beyond reasonable doubt that the defendant has broken the law. Because the Not Guilty verdict cannot be overturned, and because the jurors cannot be punished for their verdict, the law is said to be nullified in that particular case.

In what can be said to be a milder form of jury nullification, some of the jurors, or even just one in most cases, can hang the jury by maintaining a Not Guilty verdict even though they believe the defendant broke the law. There is no requirement that jurors must come to a unanimous verdict. If the jury cannot unanimously agree on a verdict of either Guilty or Not Guilty, this is known as a hung jury. When further deliberation clearly will be unproductive, the judge will declare a mistrial. The prosecution may or may not retry the case in the future, but the law has at least been nullified in the trial at hand.

Former prosecutor and current Georgetown University Law Center professor Paul Butler has dubbed another variation on this theme to be "jury nullification 2.0". He used this term in reference to the case of Touray Cornell, a Missoula, Montana man charged with possession of 1/16th of an ounce of marijuana in a county that had passed a citizen initiative instructing law enforcement to make marijuana enforcement their lowest priority. Of 27 potential jurors questioned during voir dire, only five said they would vote to convict a person of possession of such a small amount of marijuana. Skeptical that it would even be possible to seat a jury, the judge in the case called a recess during which time the lawyers worked out a deal known as an "Alford plea" in which the defendant didn't admit guilt.

When these kinds of rejections of enforcement of laws stack up over time, the laws become unenforceable. We've seen this rejection of the Fugitive Slave Laws and alcohol prohibition, for example, undermine such laws' enforcement. Eventually, it is no longer worth the time or hassle or embarrassment for government officials to try to enforce these laws. They may be further nullified in a sense either remaining on the books but not being enforced or being repealed altogether.

When jurors in capital cases convict the accused and find in the sentencing phase of the trial that the necessary conditions have been met to impose the death penalty, but choose instead to sentence them to life without parole, this may also be referred to as jury nullification.

Other terms you may hear in place of jury nullification are conscientious acquittal, juror veto, or jury pardon.

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In its strictest sense, jury nullification occurs when a jury returns a Not Guilty verdict even though jurors believe beyond reasonable doubt that the defendant has broken the law . Because the Not Guilty verdict cannot be overturned, and because the jurors cannot be punished for their verdict, the law is said to be nullified in that particular case.

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What is jury nullification?

Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.

When has jury nullification been practiced?

The most famous nullification case is the 1735 trial of John Peter Zenger, charged with printing seditious libels of the Governor of the Colony of New York, William Cosby. Despite the fact that Zenger clearly printed the alleged libels (the only issue the court said the jury was free to decide, as the court deemed the truth or falsity of the statements to be irrelevant), the jury nonetheless returned a verdict of "Not Guilty."
Jury nullification appeared at other times in our history when the government has tried to enforce morally repugnant or unpopular laws. In the early 1800s, nullification was practiced in cases brought under the Alien and Sedition Act. In the mid 1800s, northern juries practiced nullification in prosecutions brought against individuals accused of harboring slaves in violation of the Fugitive Slave Laws. And in the Prohibition Era of the 1930s, many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws.

More recent examples of nullification might include acquittals of "mercy killers," including Dr. Jack Kevorkian, and minor drug offenders.

Do juries have the right to nullify?

Juries clearly have the power to nullify; whether they also have the right to nullify is another question. Once a jury returns a verdict of "Not Guilty," that verdict cannot be questioned by any court and the "double jeopardy" clause of the Constitution prohibits a retrial on the same charge.

Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.

Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power.

Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.

Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.

If jurors have the power to nullify, shouldn't they be told so?

That's a good question. As it stands now, jurors must learn of their power to nullify from extra-legal sources such as televised legal dramas, novels, or articles about juries that they might have come across. Some juries will understand that they do have the power to nullify, while other juries may be misled by judges into thinking that they must apply the law exactly as it is given. Many commentators have suggested that it is unfair to have a defendant's fate depend upon whether he is lucky enough to have a jury that knows it has the power to nullify.

Judges have worried that informing jurors of their power to nullify will lead to jury anarchy, with jurors following their own sympathies. They suggest that informing of the power to nullify will increase the number of hung juries. Some judges also have pointed out that jury nullification has had both positive and negative applications--the negative applications including some notorious cases in which all-white southern juries in the 1950s and 1960s refused to convict white supremacists for killing blacks or civil rights workers despite overwhelming evidence of their guilt. Finally, some judges have argued that informing jurors of their power to nullify places too much weight on their shoulders--that is easier on jurors to simply decide facts, not the complex issues that may be presented in decisions about the morality or appropriateness of laws.

On the other hand, jury nullification provides an important mechanism for feedback. Jurors sometimes use nullification to send messages to prosecutors about misplaced enforcement priorities or what they see as harassing or abusive prosecutions. Jury nullification prevents our criminal justice system from becoming too rigid--it provides some play in the joints for justice, if jurors use their power wisely.

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Welcome to Famous Trials, the Web's largest and most visited collection of original essays, trial transcripts and exhibits, maps, images, and other materials relating to the greatest trials in world history. "Famous Trials" first appeared on the Web in 1995, making this site older than about 99.97% of all websites.

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SCOTUS Rules That Sixth Amendment Requires Unanimous Jury Verdicts For Criminal Convictions In Federal And State Courts | JD Supra

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On April 20, 2020, the Supreme Court issued an opinion in Ramos v. Louisiana, ruling that the Sixth Amendment of the U.S. Constitution requires...

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https://www.billofrightsinstitute.org/resources/principles-and-virtues

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Introduction

Drawn from an examination of human nature, these principles and virtues shape the American republic with ordered liberty and help form the conscience of the nation. Together, the principles and virtues bind a diverse, self-governing people together in communities and promote a healthy civil society. The continuation of the American experiment in self-government requires we know and understand these principles and practice these virtues.

Download Founding Principles Download Virtues & Vices

Understanding the Principles

The foundations of the government of the United States are oriented around the ideas of liberty and equality as articulated in the natural rights tradition of John Locke and others. This tradition holds that, by nature of their existence, human beings possess rights, independent of any governing or societal power. In the maintenance of these rights natural rights thinkers saw the greatest possibility for individuals to flourish through the freedom to direct their own lives. The people maintain their freedom and rights through formal institutions of government and informal community traditions and institutions. This maintenance requires the people to be vigilant and informed in order to ensure that these institutions are directed towards their right ends. It was an understanding of these fundamental principles that informed the design of the United States Constitution and Bill of Rights. The principles contained below define the protections built into the Constitution for this purpose. In understanding these principles, We the People are better able to protect and advance freedom and opportunity for all.

FOUNDING PRINCIPLES: DEFINITIONS

The American regime is built upon a philosophical foundation that makes an argument for a constitutional republic. The graphic above outlines the logic of that argument. The list is not comprehensive but provides a starting place for the investigation of the American experiment in self-government.

Natural Rights & Foundations

These are the philosophical principles which provide the focus for the governing structure of the United States.

Natural/Inalienable Rights: Rights which belong to humans by nature and can only be justly abridged through due process. Examples are life, liberty, and property.

Liberty: The power to think and act as one sees fit without restraint except by the laws of nature and interfering with someone else's rights.

Equality: All individuals have the same claim as human beings to natural rights and treatment under the law.

Justice: Having a political order that protects the rights of all equally and treats everyone equally under the law.

Consent & Republican Government

These principles of republicanism provide the foundations upon which the sovereignty of the people within government is maintained.

Majority Rule/Minority Rights: Laws are made with the consent of the majority but do not infringe on the inalienable rights of the minority.

Consent of the Governed/Popular Sovereignty: The power of government comes from the people.

Democracy: A form of government in which ultimate authority is based directly on the will of the people.

Republic: A constitutional form of government with elected representatives who represent and "refine and enlarge" the will of the people.

Limited Government

To keep the governing power to its proper scope, government must be limited and provide recourse for citizens to be protected from arbitrary power.

Rule of Law: Government and citizens all abide by the same laws regardless of political power. Those laws must be stable and justly applied.

Due Process: The government must apply law and rules equally to all people.

Constitutional/Auxiliary Precautions

To keep government within these limited bounds, there must be rules that bind both individual citizens and government action.

Separation of Powers: The branches of government each have powers to limit the powers of the other branches and to prevent any branch from becoming too powerful.

Checks and Balances: Constitutional powers are distributed among the branches of government allowing each to limit the application of power of the other branches and to prevent expansion of power of any branch.

Federalism: The national and state governments have a balance of separate and shared powers. The people delegate certain powers to the national government, while the states retain other powers; and the people retain all powers not delegated to the governing bodies.

Bill of Rights

As a final recourse against government abuse, the Founding generation codified a list of rights that they believed were essential to the maintenance of their constitutional governing structure.

Freedom of Religion: The right to choose one's religion or form of worship, if any, without interference; freedom of conscience.

Freedom of Speech, Press, and Assembly: The right to express one's opinions freely, orally or in writing and the right to gather with others in groups of one's choice without arbitrary or unreasonable restrictions.

Private Property: The natural right of all individuals to create, obtain, and control their possessions, beliefs, faculties, and opinions as well as the fruits of their labor.

VIRTUES & VICES

The maintenance of our republican government requires the people be vigilant, informed, and virtuous, ensuring that governing institutions are directed towards their right ends. Good habits, or virtues, promote self-government and help guarantee that communities orient themselves towards advancing the spirit of a common purpose. A list of those civic virtues are provided here.

Virtues

Courage: The ability to take constructive action in the face of fear or danger. To stand firm as a person of character and do what is right, especially when it is unpopular or puts one at risk.

Honor: Demonstrating good character and being trustworthy.

Humility: A recognition that one's ignorance is far greater than one's knowledge. Putting others ahead of ourselves in thought, word, and deed. A willingness to give others credit and to admit when we are wrong.

Integrity: To tell the truth, expose untruths, and keep one's promises.

Justice: Upholding of what is fair and right. Respecting the rights and dignity of all.

Moderation: The avoidance of excess or extremes.

Prudence: Practical wisdom that applies reason and other virtues to discern right courses of action in specific situations.

Respect: Regard for and defending the equal rights and inherent dignity of all human beings, including oneself.

Responsibility: Acting on good judgment about what is right or wrong even when it is not popular. Individuals must take care of themselves, their families, and their fellow citizens/others in civil society and a republic and be vigilant to preserve their own liberty and the liberty of others.

Vices

Cowardice: Failing to take constructive action in the face of fear or danger. A lack of firmness or conviction.

Contempt: Showing disregard, disdain, or lack of consideration for someone or something worthy of action or admiration.

Immoderation (Extremism): Acting in excess or to an extreme. Lacking restraint.

Dishonor: Failing to demonstrate good character, integrity, and acting deceptively.

Self-Deception: Acting on a belief that a false idea or situation is true. Being deluded or deceived by ideas that endanger the humanity of others and movements that are unjust.

Injustice: To harm others by applying unequal rules and damaging another's inalienable rights and dignity.

Hubris: To have excessive pride, vanity, and arrogance that usually leads to a tragic fall.

Imprudence: Acting without care or thoughtfulness for consequences. Exercising lack of wisdom appropriate to situations.

Irresponsibility: Acting on poor judgment or failing the trust others place in you.

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Principles and Virtues - Bill of Rights Institute

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Drawn from an examination of human nature, these principles and virtues shape the American republic with ordered liberty and help form the conscience of the nation. Together, the principles and virtues bind a diverse, self-governing people together in communities and promote a healthy civil society.

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https://www.lawyers.com/legal-info/criminal/criminal-law-basics/jury-voting-requirements-to-return-a-verdict.html#:~:text=A%20unanimous%20jury%20verdict%20is,case%20beyond%20a%20reasonable%20doubt.&text=Prosecutors%20who%20seek%20to%20convict,that%20the%20defendant%20is%20guilty.

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https://www.deseret.com/opinion/2021/9/17/22679928/the-inspired-us-constitution-5-principles-that-animate-our-countrys-governing-document

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In his April 4 address at the general conference of The Church of Jesus Christ of Latter-day Saints, President Dallin H. Oaks spoke of his belief that "the United States Constitution contains at least five divinely inspired principles": popular sovereignty, the separation of powers, federalism, individual rights, and the rule of law.

In a five-part series, Justin Collings, a professor of law and associate dean at Brigham Young University Law School, addresses each of those principles in turn and explores how this divinely inspired document has morphed over time - for better or for worse. From the temptation of executive overreach to the tension between state autonomy and federal control, Collings lends his expert voice to help readers understand more deeply the framework of the compact that has governed the country for nearly 250 years.

For more sharp commentary on the subject, we invite readers to explore excerpts from the July/August issue of Deseret Magazine which was dedicated to examining the U.S. Constitution and the country's founding principles:

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The inspired Constitution: 5 principles that animate our country's governing document

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In his April 4 address at the general conference of The Church of Jesus Christ of Latter-day Saints, President Dallin H. Oaks spoke of his belief that "the United States Constitution contains at least five divinely inspired principles": popular sovereignty, the separation of powers, federalism, individual rights, and the rule of law.

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As more and more social and economic activities have place online, the importance of privacy and data protection is increasingly recognized.

Of equal concern is the collection, use and sharing of personal information to third parties without notice or consent of consumers. 137 out of 194 countries had put in place legislation to secure the protection of data and privacy.

Africa and Asia show different level of adoption with 61 and 57 per cent of countries having adopted such legislations. The share in the least developed countries in only 48 per cent.

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Please select a country or a region

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Data Protection and Privacy Legislation Worldwide

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Overview

The expectation of privacy test, originated from Katz v. United States is a key component of Fourth Amendment analysis. The Fourth Amendment protects people from warrantless searches of places or seizures of persons or objects, in which they have an subjective expectation of privacy that is deemed reasonable in public norms. The test determines whether an action by the government has violated an individual's reasonable expectation of privacy.

The Reasonable Expectation of Privacy Test

In Katz, Jutsice Harlan created the Reasonable Expectation of Privacy Test in his concurring opinion. Although it was not formulated by the majority, this test has been the main takeaway of the case. Justice Harlan created a two-part test:

1. an individual has exhibited an actual (subjective) expectation of privacy

2. the expectation is one that society is prepared to recognize as reasonable

If both of these requirements have been met, and the government has taken an action which violates this "expectation," then the government's action has violated the individual's Fourth Amendment rights.

Elaborating on & Applying the Test

According to the Supreme Court in Rakas v. Illinois (1978), the "expectation of privacy must have a source outside of the Fourth Amendment either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society."

For example, private homes are at the core of Fourth Amendment protection, as they are closely associated with the ownership interest in property law.

Exceptions

There are, however, exceptions to the Reasonable Expectation of Privacy Test. For example, federal Fourth Amendment protections do not extend to governmental intrusion and information collection conducted upon open fields; expectation of privacy in an open field is not considered reasonable. Some states, however, do grant protection to open fields.

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The expectation of privacy test, originated from Katz v. United States is a key component of Fourth Amendment analysis. The Fourth Amendment protects people from warrantless searches of places or seizures of persons or objects, in which they have an subjective expectation of privacy that is deemed reasonable in public norms. The test determines whether an action by the government has violated an individual's reasonable expectation of privacy.

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A case in which the Court found that a Connecticut law requiring counseling and medical treatment violated a woman’s right to privacy guaranteed by the First, Third, Fourth, and Ninth Amendments.

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The legal tussle between Apple and the U.S. Federal Bureau of Investigation (FBI) over access to the iPhone used by a shooter in last year's San Bernardino attacks is now over after authorities announced they had accessed the devic e.

But the larger debate between technology firms and law enforcement authorities over data privacy and access remains. CNBC explains the case and why it was such a big deal.

Last month, a federal judge asked Apple to help the FBI unlock an iPhone belonging to Syed Farook, who was responsible for the shootings in San Bernardino in December which left 14 people dead.

The judge asked Apple to provide "reasonable technical assistance" to the U.S. authorities, which would require the technology giant to overhaul the system that disables the phone after 10 unsuccessful password attempts. Once this feature kicks in, all the data on the phone is inaccessible. Apple declined to help the FBI.

At the time, Apple chief executive Tim Cook called the order "chilling" and said that it would require writing new software that would be "a master key, capable of opening hundreds of millions of locks". Cook's argument was that if the FBI could access this iPhone, nothing would stop them from doing it to many others.

Law enforcement authorities insisted that it was a one-off request. As a result the case went to court.

The case marked one of the highest-profile clashes in the debate over encryption and data privacy between the government and a technology company.

Law enforcement authorities say that encryption used by the likes of Apple makes it harder for them to solve cases and stop terrorist attacks.

Technology firms have kicked back, saying that encryption is key to protecting user data from hackers.

Data privacy has been a sensitive topic particularly after revelations by former National Security Agency contractor Edward Snowden about the extent of the government's surveillance activities.

A hearing set for last week was postponed after the government said that it had found a third-party that was able to unlock the iPhone. Reports suggested that it was Israeli firm Cellebrite. This was never confirmed by the company.

On Monday, the Department of Justice said it had managed to access the data on the iPhone in question and asked the judge to drop the case. The FBI said in a statement that it could not comment on the "technical aspects" of how the iPhone was unlocked nor the third-party that was involved.

Apple said that it "will continue to help law enforcement with their investigations, as we have done all along, and we will continue to increase the security of our products as the threats and attacks on our data".

It appears to be the best of a bad situation.

Apple stuck to its guns on defending civil liberties.

"From the beginning, we objected to the FBI's demand that Apple build a backdoor into the iPhone because we believed it was wrong and would set a dangerous precedent. As a result of the government's dismissal, neither of these occurred," Apple said in a statement following the dropping of the case.

The FBI got their desire result - getting access to Farook's iPhone.

Still, there are questions about the effectiveness of Apple's security.

Probably not. Rumblings between technology companies and the government are likely to continue.

Last month, several news outlets revealed that there have been numerous requests from law enforcement agencies across the country for Apple to help unlock other iPhones.

Apple will want to know how the FBI got into the iPhone in order for it to patch up any vulnerabilities in its software. The iPhone maker is likely to continue bolstering security in its software and devices.

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The legal tussle between Apple and the U.S. Federal Bureau of Investigation (FBI) over access to the iPhone used by a shooter in last year's San Bernardino attacks is now over after authorities announced they had accessed the devic e. But the larger debate between technology firms and law enforcement authorities over data privacy and access remains.

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PRIVACY

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The 1927 case of Olmstead v. United States proved to be an incredibly important and influential decision. The case revolved around the prosecution of Washington state resident Roy Olmstead for attempting to smuggle and sell alcohol in violation of Prohibition. After suspecting Olmstead for years, the government gathered evidence by wiretapping Olmstead's office phones without first obtaining a warrant. Olmstead argued that the police had violated his Fourth and Fifth Amendment rights. The Supreme Court, in a 5 - 4 decision, ruled that the government could use the evidence obtained from wiretapping. The "Exclusionary Rule," which holds that illegally-obtained evidence may not be used against defendants at trial, was in force at the time. However Chief Justice William Taft cited previous decisions which characterized the Fourth Amendment as only applying to physical search and seizure.

This case is notable not just for the immediate outcome, but also for the important ideas in the dissent. Justice Louis Brandeis wrote an influential dissent that was the foundation for future court decisions. In it, he attacked the proposition that the government had the power to wiretap phones without warrant, arguing that there is no difference between listening to a phone call and reading a sealed letter. Brandeis argued that the Founders had "conferred against the government, the right to be let alone - the most comprehensive of rights and the right most favored by civilized men." Furthermore Brandeis advanced the idea that the 'unclean hands' principle, which is the idea that courts should not aid a plaintiff who has acted unethically with regards to the subject of the case, applies to the federal government. The government should not violate the laws of states to gather evidence (wiretapping was illegal in many states, including Washington) and then use that evidence to prosecute people.

The Brandeis dissent was widely cited and came to prominence in later Supreme Court decisions. The 1967 Katz v. U.S. case overturned the Olmstead ruling, holding that warrants were in fact required to wiretap payphones, with Brandeis's dissent held as a primary influence. Its description of the reasonable expectation of privacy citizens have has been enshrined in law and constitutional interpretation, and has implications for a range of issues, from abortion rights to the freedom of the press.

Resources

Questions

What role does the right to privacy play in modern political issues?

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Olmstead v. United States (1927) - Bill of Rights Institute

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The 1927 case of Olmstead v. United States proved to be an incredibly important and influential decision. The case revolved around the prosecution of Washington state resident Roy Olmstead for attempting to smuggle and sell alcohol in violation of Prohibition. After suspecting Olmstead for years, the government gathered evidence by wiretapping Olmstead's office phones without first obtaining a warrant.

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Introduction

The U. S. Constitution contains no express right to privacy. The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment's privilege against self-incrimination, which provides protection for the privacy of personal information. In addition, the Ninth Amendment states that the "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people." The meaning of the Ninth Amendment is elusive, but some persons (including Justice Goldberg in his Griswold concurrence) have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments.

The question of whether the Constitution protects privacy in ways not expressly provided in the Bill of Rights is controversial. Many originalists, including most famously Judge Robert Bork in his ill-fated Supreme Court confirmation hearings, have argued that no such general right of privacy exists. The Supreme Court, however, beginning as early as 1923 and continuing through its recent decisions, has broadly read the "liberty" guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, and termination of medical treatment. Polls show most Americans support this broader reading of the Constitution.

The Supreme Court, in two decisions in the 1920s, read the Fourteenth Amendment's liberty clause to prohibit states from interfering with the private decisions of educators and parents to shape the education of children. In Meyer v Nebraska (1923), the Supreme Court struck down a state law that prohibited the teaching of German and other foreign languages to children until the ninth grade. The state argued that foreign languages could lead to inculcating in students "ideas and sentiments foreign to the best interests of this country." The Court, however, in a 7 to 2 decision written by Justice McReynolds concluded that the state failed to show a compelling need to infringe upon the rights of parents and teachers to decide what course of education is best for young students. Justice McReynolds wrote:

"While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."Two years late, in Pierce v Society of Sisters, the Court applied the principles of Meyer to strike down an Oregon law that compelled all children to attend public schools, a law that would have effectively closed all parochial schools in the state.

The privacy doctrine of the 1920s gained renewed life in the Warren Court of the 1960s when, in Griswold v Connecticut (1965), the Court struck down a state law prohibiting the possession, sale, and distribution of contraceptives to married couples. Different justifications were offered for the conclusion, ranging from Court's opinion by Justice Douglas that saw the "penumbras" and "emanations" of various Bill of Rights guarantees as creating "a zone of privacy," to Justice Goldberg's partial reliance on the Ninth Amendment's reference to "other rights retained by the people," to Justice Harlan's decision arguing that the Fourteenth Amendment's liberty clause forbade the state from engaging in conduct (such as search of marital bedrooms for evidence of illicit contraceptives) that was inconsistent with a government based "on the concept of ordered liberty."

In 1969, the Court unanimously concluded that the right of privacy protected an individual's right to possess and view pornography (including pornography that might be the basis for a criminal prosecution against its manufacturer or distributor) in his own home. Drawing support for the Court's decision from both the First and Fourth Amendments, Justice Marshall wrote in Stanley v Georgia:

"Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."The Burger Court extended the right of privacy to include a woman's right to have an abortion in Roe v Wade (1972), but thereafter resisted several invitations to expand the right. Kelley v Johnson (1976), in which the Court upheld a grooming regulation for police officers, illustrates the trend toward limiting the scope of the "zone of privacy." (The Court left open, however, the question of whether government could apply a grooming law to members of the general public, who it assumed would have some sort of liberty interest in matters of personal appearance.) Some state courts, however, were not so reluctant about pushing the zone of privacy to new frontiers. The Alaska Supreme Court went as far in the direction of protecting privacy rights as any state. In Ravin v State (1975), drawing on cases such as Stanley and Griswold but also basing its decision on the more generous protection of the Alaska Constitution's privacy protections, the Alaska Supreme Court found constitutional protection for the right of a citizen to possess and use small quantities of marijuana in his own home.

The Supreme Court said in the 1977 case of Moore v. East Cleveland that "the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in the Nation's history and tradition." Moore found privacy protection for an extended family's choice of living arrangements, striking down a housing ordinance that prohibited a grandmother from living together with her two grandsons. Writing for the Court, Justice Powell said, "The choice of relatives in this degree of kinship to live together may not lightly be denied by the state."

In more recent decades, the Court recognized in Cruzan v Missouri Department of Health (1990) that individuals have a liberty interest that includes the right to make decisions to terminate life-prolonging medical treatments (although the Court accepted that states can impose certain conditions on the exercise of that right). In 2003, in Lawrence v Texas, the Supreme Court, overruling an earlier decision, found that Texas violated the liberty clause of two gay men when it enforced against them a state law prohibiting homosexual sodomy. Writing for the Court in Lawrence, Justice Kennedy reaffirmed in broad terms the Constitution's protection for privacy:

" These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.... The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.'"
One question that the Court has wrestled with through its privacy decisions is how strong of an interest states must demonstrate to overcome claims by individuals that they have invaded a protected liberty interest. Earlier decisions such as Griswold and Roe suggested that states must show a compelling interest and narrowly tailored means when they have burdened fundamental privacy rights, but later cases such as Cruzan and Lawrence have suggested the burden on states is not so high.

The future of privacy protection remains an open question. Justices Scalia and Thomas, for example, are not inclined to protect privacy beyond those cases raising claims based on specific Bill of Rights guarantees. The public, however, wants a Constitution that fills privacy gaps and prevents an overreaching Congress from telling the American people who they must marry, how many children they can have, or when they must go to bed. The best bet is that the Court will continue to recognize protection for a general right of privacy.
1. Assuming that there exists a general right of privacy, what sort of conduct to you think lies at its very center? What sort of conduct lies at its periphery? What sort of conduct should be considered outside of the protection of a reasonably interpreted right of privacy?

Cases Meyer v Nebraska (1923)
Griswold v Connecticut (1965)
Stanley v Georgia (1969)
Ravin v State (1975)
Kelley v Johnson (1976)
Moore v East Cleveland (1977)
Cruzan v. Missouri Dep't. of Health (1990)
Lawrence v Texas (2003)

Estelle Griswold, of the Planned Parenthood League, whose lawsuit led to the invalidation of a state law banning contraceptives.

Bill of Rights (and 14th Amendment) Provisions Relating to the Right of Privacy
Amendment I
(Privacy of Beliefs)
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Liberty Clause of the Fourteenth Amendment
No State shall... deprive any person of life, liberty, or property,
without due process of law.

Questions

Tyron Garner and John Lawrence (with their attorney), the gay men
who successfully challenged Texas's sodomy law.

2. Is there a stronger basis in the Constitution for protecting personal privacy rights as opposed to personal economic rights, such as the liberty of contract recognized in Lochner v New York?
3. When the state burdens an important privacy right, what sort of justification should the state have to make to sustain its regulation? What arguments would be likely to convince the U. S. Supreme Court (unlike the Alaska Supreme Court) that the Constitution protects the right to possess obscene materials but not marijuana or other drugs?
4. Some state constitutions provide express protection for privacy. Would you favor including such a provision in your state's constitution? What wording would you suggest for a constitutional amendment protecting privacy?
5. The Constitution has been interpreted to protect the right to marry, as well as the right to live a homosexual lifestyle. Should it also be interpreted to protect the right of homosexuals to marry?
6. Are a person's choices with respect to personal appearance protected by the Constitution? Should the Constitution protect the right of students or police officers to wear their hair in any style they see fit? Why or why not? Would a tax on beards, such as the one adopted by Peter the Great, be constitutional?
7. The choice of a woman to have an abortion was found in Roe v Wade to be the sort of fundamental personal decision deserving privacy protection under the Fourteenth Amendment's liberty clause. In what respects is abortion a private matter, and in what respects might it not be? If you don't believe that the Constitution protects the decision to have an abortion, do you believe that it would prevent the government from forcing a woman to have an abortion and, if it would, what is the constitutional basis for that protection?

Further Reading

The most frequently quoted statement by a Supreme Court justice on the subject of privacy comes in Justice Brandeis's dissent in Olmstead v. U. S. (1928):

"The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality -- the right to be left alone -- the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man's home and privacies of life. This is a recognition of the significance of man's spiritual nature, his feelings, and his intellect."

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The Right of Privacy: Is it Protected by the Constitution?

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Introduction The U. S. Constitution contains no express right to privacy. The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment's privilege against self-incrimination, which provides protection for the privacy of personal information.

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Many different cases about speech and social media PRE MAhoney decision-- great explanation

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Many different cases about speech and social media PRE MAhoney decision-- great explanation

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In the wake of last week's National Walkout Day, students involved in sanctioned and unsanctioned demonstrations are voicing their opinions on social media. But at what points could those opinions cause problems at schools?

So far, there haven't been any media reports of schools suspending or disciplining students for comments on social media criticizing administrators. But with another protest scheduled for April 19, the debate over National Walkout Day isn't going away. And at one Pennsylvania school, a video shot by students protesting at a National Walkout Day detention is nearing 3 million online views.

The basic Supreme Court decisions that draw free-speech lines for public high school and secondary schools students date back more than 30 years - to a time when the commercial Internet, yet alone Snapchat, Facebook and Twitter, didn't exist. A few recent federal court decisions below the Supreme Court level show divided opinions about what students can say on social media when they aren't physically at school.

The foundational decisions about public school student speech start with Tinker v. Des Moines Independent Community School District from 1969 and West Virginia v. Barnette from 1943. The Tinkerdecision famously said that students don't "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," but it also gave school administrators very broad powers to prevent conduct that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." The Barnette decision said students couldn't be forced to take actions such as an oath or a pledge that conflicted with their religious beliefs.

Two other decisions from the 1980s clarified more actions administrators can take at public schools to restrict student speech if educational or safety concerns became factors. In Bethel School District v. Fraser (1986), the Court said a public high school student couldn't use sexually explicit language at an assembly, while in Hazelwood v. Kuhlmeier (1988) said that public high school officials could censor a student newspaper if needed.

Generally, all of those decisions dealt with actions taken by students physically on campus or within a school. But in current times, much speech by students happens outside of school. And in some cases, those statements can disrupt school activities.

A recent example was in a case from Pennsylvania about a public-school student punished by his school district for a Facebook post about a bomb threat. In R.L. v. Central York School District (2016), Judge John E. Jones III at the federal Middle District of Pennsylvania said that the York School District's 23-day suspension of the student with didn't violate his First Amendment rights.

Judge Jones said the location where the student made the Facebook post wasn't material. But he agreed with the student's parents that the school's handbook overstated its ability to regulate student speech under the Supreme Court's Tinker decision.

Concerns about off-campus student speech were part of a different 2016 case that the Supreme Court declined to hear. In Bell v. Itawamba County School Board, lower federal courts disagreed about student free speech conducted on social media off-campus. Bell, a Mississippi public high school student, published rap songs and lyrics on Facebook and YouTube that criticized several teachers after other students accused them of sexual harassment.

A three-judge U.S. Fifth Circuit Court of Appeals panel ruled 2-1 against the school district on the First Amendment claim. But the full Fifth Circuit Court of Appeals reversed the three-judge panel's ruling, saying that "the almost 50-year-old standard for restricting student speech, [was] based on a reasonable forecast of a substantial disruption" and the school board acted within that standard.

In November 2017, a federal judge in San Francisco dealt with a student speech case in Shen v. Albany Unified School District. A student at Albany High School created an Instagram account and invited other students to follow it. The student created racist and derogatory messages that targeted other students and school personnel. Once more students found out about the account, school officials stepped in after "a cascade of disruptive events" happened at the school. In the end, students who posted on the Instagram account were expelled, while those followed it without posting were suspended.

The question before Judge James Donato was the off-campus location of the Instagram posts. Donato said off-campus social media activity could be considered "school speech." The students' Instagram activities were "by students for students" with the intention of disturbing the school campus. Donato cited a 2013 decision from the Ninth Circuit, Wynar v. Douglas County School District, that said schools could punish students who established websites to bully or disparage other students. Judge Donato upheld the school's actions against five students, but he ruled for four students who were not extensively involved with the account.

But not every federal case has gone against students. In 2015, a federal district court judge in Portland, Oregon, ruled in Burge v. Colton School District that a middle-school student couldn't be suspended for his social media activities. Braeden Burge ranted on Facebook about a teacher who gave him a C grade. Burge's mother forced him to delete the posts, which were only available to his Facebook friends. But several weeks later, school officials became aware of them, and he was suspended for three and one-half days. The school claimed it had the power under the Tinker decision to discipline Burge. The Court disagreed, saying the comments were seen by few people and not actively investigated by the school.

The fallout out from the National Walkout Day demonstrations could further test these boundaries, especially at schools where protestors face detention or suspensions for their actions.

One clue might come from a recently lawsuit settled in Minnesota over student off-campus criticism and the Edina High School Young Conservatives Club. School officials shut down the club after some members on social media complained about other students who didn't stand when "Taps" was played at a Veterans Day assembly. The school didn't admit wrongdoing in the settlement, but it changed its policies to make it clear students couldn't be disciplined for free speech that didn't conflict with its "basic educational mission."

That harkens back to another key part of the Court's 1969 Tinker decision, which actually referred to a 1966 case where black students were suspended from a segregated school for wearing "freedom buttons" in Mississippi. "In order for [a school] to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," Justice Abe Fortas said in Tinker.

Nearly 50 years later, the Tinker decision could face more redefinition as social media adds another dimension to these First Amendment questions.
Scott Bomboy is the editor in chief of the National Constitution Center.

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Is high school student speech protected on social media?

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In the wake of last week's National Walkout Day, students involved in sanctioned and unsanctioned demonstrations are voicing their opinions on social media. But at what points could those opinions cause problems at schools? So far, there haven't been any media reports of schools suspending or disciplining students for comments on social media criticizing administrators.

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Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity. Such restrictions come in many forms, such as imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property. Such regulations are frequently upheld and represent a common part of the regulatory landscape in most cities and counties. In this photo, a protestor pokes fun at protest signs. Regulations about the size and placement of such signs are content-neutral limitations frequently upheld in courts. (Image via Wikimedia Commons, CC BY 3.0)

Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity.

Such restrictions come in many forms, such as

imposing limits on the noise level of speech,

capping the number of protesters who may occupy a given forum,

barring early-morning or late-evening demonstrations, and

restricting the size or placement of signs on government property.

Such regulations or licensing laws that require parade or demonstration permits are frequently upheld and represent a common part of the regulatory landscape in most cities and counties.

Restrictions can survive First Amendment challenge under a 3-prong test

To survive First Amendment constitutional challenges, such restrictions must satisfy a three-prong test outlined by the Supreme Court in Ward v. Rock Against Racism (1989).

1. The regulation must be content neutral.

2. It must be narrowly tailored to serve a significant governmental interest.

3. It must leave open ample alternative channels for communicating the speaker's message.

Restriction based on subject matter is not content-neutral

The first prong, requiring content neutrality, will be violated by any regulation that describes permissible expression in terms of its subject matter.

Police Department of Chicago v. Mosley (1972) provides an example of a time, place and manner regulation that failed the content-neutrality requirement. In Mosley an ordinance prohibited all picketing within 150 feet of any school building while classes were in session. However, picketing was allowed if the school was involved in a labor dispute.

Writing for the Court, Justice Thurgood Marshall observed that the ordinance "describes impermissible picketing not in terms of time, place, and manner, but in terms of subject matter. The regulation thus slips from the neutrality of time, place, and circumstance into a concern about content. This is never permitted."

Mosley does not exemplify the only way that a speech restriction can violate the content-neutrality requirement. Even if the regulation does not, as in Mosley, expressly discriminate on the basis of subject matter, it can run afoul of the content-neutrality requirement if the circumstances surrounding its enactment or the history of its enforcement reveal a governmental intent to favor or punish particular messages.

Speech restrictions will be deemed content neutral, even if they impinge more severely on a particular speaker or message, so long as the government can credibly justify its regulation as serving purposes that have nothing to do with the content of speech.

Regulation must be narrowly tailored to promote substantial government interest

The second prong of Ward's three-prong test requires that the regulation must be narrowly tailored to serve a significant governmental interest. This narrow tailoring requirement is not nearly as stringent as its language would suggest. The Supreme Court has stressed that this prong does not require time, place, and manner restrictions to be the least restrictive or least intrusive means of achieving the government's end.

Instead, according to Ward, the requirement of narrow tailoring is satisfied "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation."

This relaxed conception of narrow tailoring is vividly reflected in the case law. Regulations that fail this test invariably feature broad restraints on traditional forms of expressive activity - imposing, for example, sweeping prohibitions on parades, demonstrations, residential picketing, door-to-door leafleting, or public hand billing. The narrow tailoring requirement will certainly be violated by a categorical ban on any of the foregoing methods of expressive conduct. So, for example, an ordinance would violate the narrow tailoring requirement by banning parades anywhere within a city's central business district on all workdays because it would allow parades only when the downtown streets were bereft of onlookers.

Absent a categorical or substantial ban on a traditional method of expressive activity, courts routinely uphold time, place, and manner restrictions as satisfying the requirement of narrow tailoring.

Speaker must have alternative channels of communication

Under Ward's third prong, the regulation must leave open ample alternative channels for communicating the speaker's message.

Two different themes run through the cases that construe this requirement. First, the Supreme Court has shown a "special solicitude" for inexpensive methods of communication. Accordingly, a speech restriction may run afoul of this requirement if it precludes forms of expression that are much less expensive than feasible alternatives. Second, the ample alternative channels requirement most commonly arises when a speaker identifies one particular place as uniquely suited to conveying a message, but the government insists that the speaker take up position in an alternative location.

The basic test for gauging the sufficiency of alternative channels is whether the speaker is afforded a forum that is accessible and where the intended audience is expected to pass.

In performing this analysis, a court should take account of the speaker's intended audience and the extent to which the chosen location contributes to his or her message. A speech restriction does not leave open ample alternative channels if the speaker is left unable to reach the intended audience.

In performing analysis of time, place and manner restrictions, a court should take account of the speaker's intended audience and the extent to which the chosen location contributes to his or her message. A good example of this is Million Youth March, Inc. v. Safir (S.D.N.Y. 1998), where New York City denied a permit request by the Nation of Islam to hold a massive rally in Harlem, insisting that the rally be held instead on Randall's Island. The Nation of Islam brought suit under the First Amendment, challenging the city's imposition of Randall's Island as the only permissible site for the rally. The court stressed that the Randall's Island alternative was constitutionally inadequate because it thwarted the plaintiff 's access to its target audience, the residents of Harlem. In this photo, participants at the Million Youth March react to a speech during the rally Saturday, Sept. 5, 1998, in the Harlem neighborhood of New York. (AP Photo/Adam Nadel, used with permission from the Associated Press)

Court ruled the city did not provide adequate alternative in Million Youth March case

A good example of this is Million Youth March, Inc. v. Safir (S.D.N.Y. 1998), where New York City denied a permit request by the Nation of Islam to hold a massive rally in Harlem, insisting that the rally be held instead on Randall's Island. Located in the middle of the East River between Manhattan and Queens, Randall's Island was inaccessible by bus or subway and was virtually uninhabited.

The Nation of Islam brought suit under the First Amendment, challenging the city's imposition of Randall's Island as the only permissible site for the rally. In an extensive and instructive three-prong analysis, a federal judge ruled that the city had violated the ample alternative channels requirement.

The court stressed that the Randall's Island alternative was constitutionally inadequate because it thwarted the plaintiff 's access to its target audience, the residents of Harlem, and because holding the rally in Harlem was part and parcel of the plaintiff's message - a message that focused on ways to improve the lives of African Americans.

As the foregoing discussion shows, proper time, place, and manner analysis requires careful attention to each of Ward's three prongs - and to the particular approach that courts have developed for each of those prongs.

It is important to note that the Ward test governs only time, place, and manner restrictions imposed by legislative bodies.

Court requires "stringent" scrutiny of injunctions that restrict speech

Judicial injunctions that impose content-neutral time, place, and manner restrictions are subject to a heightened form of intermediate scrutiny. Observing that "[i]njunctions . . . carry greater risks of censorship and discriminatory application than do general ordinances," the Supreme Court held in Madsen v. Women's Health Center, Inc. (1994) that appellate courts should subject content-neutral injunctions to more "stringent" First Amendment scrutiny than comparable legislation - that "when evaluating a content-neutral injunction, we think that our standard time, place, and manner analysis is not sufficiently rigorous."

Announcing a new standard of review for judicially imposed time, place, and manner restrictions, the Court wrote,"[w]e must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." This effectively converts the second prong of Ward into a least restrictive means requirement.
This article was originally published in 2009. Kevin Francis O'Neill is an associate professor at Cleveland-Marshall College of Law where he teaches First Amendment, Evidence, Civil Procedure, and Pretrial Practice. His scholarship focuses on the Speech Clause of the First Amendment. Prior to entering academia, Mr. O'Neill served as the Legal Director for the American Civil Liberties Union of Ohio where he focused special attention on First Amendment issues, reproductive freedom, police misconduct, and government mistreatment of the homeless.
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Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity. Such restrictions come in many forms, such as imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property.

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Specifically about your competition question

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The Constitution in American Life - U5 Q1: Freedom of Speech and Student Rights

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Current Events Articles - Bill of Rights Institute

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The most effective way to secure a freer America with more opportunity for all is through engaging, educating, and empowering our youth. And the most effective way to achieve that is through investing in The Bill of Rights Institute. We contribute to teachers and students by providing valuable resources, tools, and experiences that promote civic engagement through a historical framework.

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GREENWOOD VILLAGE | A student expelled from Cherry Creek High School for posting an anti-Semitic comment on Snapchat is appealing a district court dismissal of his case against the district for violating his First-Amendment rights.

Legal experts believe the appeal could be successful, given a Supreme Court ruling over the summer that limited schools' ability to regulate student speech that takes place off campus.

According to court documents, on a Friday evening in September of 2019 a Cherry Creek High School student referred to only as C.G. posted a picture to Snapchat of several friends in a thrift store wearing vintage hats. The hats resembled WWII-era military garb, and the post was captioned "Me and the boys bout to exterminate the Jews."

C.G. deleted the post and offered an apology within several hours, the lawsuit said. A fellow student saw the post and told her father about it, who contacted the police and circulated it among members of the community.

The police arrived to C.G.'s house and determined there was no threat, the lawsuit said. Another parent contacted the school about the post, expressing concern about antisemitism in the district and asking the school to use the incident to address hate speech in the community.

School officials initially suspended C.G. and ultimately expelled him for one year on the grounds that he violated school conduct and that the district could regulate "behavior on or off school property which is detrimental to the welfare, safety or morals of other students or school personnel," according to the lawsuit.

C.G. and his parents sued the district in U.S. District Court in Colorado, alleging that his First Amendment rights had been violated. Last August the court dismissed the case, stating that the school had the legal grounds to discipline C.G. even though the post was not made during school or on school property, and did not explicitly mention any district students or staff. It also rejected the claim that C.G.'s due process rights were violated.

In September, C.G. and his parents submitted his case to the 10th Circuit Court of Appeals. The Colorado ACLU, the national ACLU, the Foundation for Individual Fights in Education and the Cato Institute all filed "friend of the court" briefs in his support.

"The ACLU brief concedes that the speech in question is undeniably offensive, but maintains that the detestable nature of the speech here cannot justify diminishing the First Amendment's protections for young people," the national ACLU said in a . "Outside of school-supervised settings, young people have the right to express themselves without being punished for their ideas, and other young people and adults have the right to hear what they have to say."

In an email, Cherry Creek spokesperson Abbe Smith said, " The District prevailed in this matter involving First Amendment issues at the trial court leve l and we hope that the 10 th Circuit will uphold that decision."

Scott Levin, the director of the the Mountain States Anti-Defamation League, told the that the ADL is "very much a pro-First Amendment organization" but that the post in question was demeaning to victims of the Holocaust and caused a lot of pain to the local Jewish community.

"Holocaust jokes are never appropriate, and unfortunately they are all too prevalent at this time," Levin said. "We were hoping that when this came forward and was made public it could be a teachable moment for students and for others about the inappropriateness of Holocaust analogies."

This is the first case regarding schools' ability to regulate online speech that takes place off campus to reach federal appellate court since a Supreme Court ruling over the summer addressed the issue.

Mahoney v. B.L. involved a cheerleader at a Pennsylvania school who was suspended from the cheer squad for making a profane Snapchat post after she failed to make the varsity squad. The Supreme Court ruled that her First Amendment rights were violated, and that schools can only regulate off-campus student speech when there is a significant reason to do so.

Alan Chen, a Denver University law professor who specializes in First Amendment cases, told the that the Supreme Court ruling was "definitely in favor" of the Cherry Creek student, which has a lot of similarities to .

C.G.'s post was an offensive joke that under the First Amendment pretty clearly qualifies as protected speech, Chen said. The Supreme Court ruling said that the less a student's off-campus speech is connected to school, the more their First Amendment rights are equivalent to that of an adult.

"Here, there's absolutely no connection to the school whatsoever," he said.

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Cherry Creek student expelled for anti-Semitic Snapchat appeals lost free speech ruling - Sentinel Colorado

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GREENWOOD VILLAGE | A student expelled from Cherry Creek High School for posting an anti-Semitic comment on Snapchat is appealing a district court dismissal of his case against the district for violating his First-Amendment rights. Legal experts believe the appeal could be successful, given a Supreme Court ruling over the summer that limited schools' ability to regulate student speech that takes place off campus.

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Facts of the case

At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking. Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs. Frederick sued under 42 U.S.C. 1983, the federal civil rights statute, alleging a violation of his First Amendment right to freedom of speech. The District Court found no constitutional violation and ruled in favor of Morse. The court held that even if there were a violation, the principal had qualified immunity from lawsuit. The U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit cited Tinker v. Des Moines Independent Community School District , which extended First Amendment protection to student speech except where the speech would cause a disturbance. Because Frederick was punished for his message rather than for any disturbance, the Circuit Court ruled, the punishment was unconstitutional. Furthermore, the principal had no qualified immunity, because any reasonable principal would have known that Morse's actions were unlawful.

Question

1) Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events?

2) Does a school official have qualified immunity from a damages lawsuit under 42 U.S.C. 1983 when, in accordance with school policy, she disciplines a student for displaying a banner with a drug reference at a school-supervised event?

Conclusion

Yes and not reached. The Court reversed the Ninth Circuit by a 5-4 vote, ruling that school officials can prohibit students from displaying messages that promote illegal drug use. Chief Justice John Roberts's majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use. The majority held that Frederick's message, though "cryptic," was reasonably interpreted as promoting marijuana use - equivalent to "[Take] bong hits" or "bong hits [are a good thing]." In ruling for Morse, the Court affirmed that the speech rights of public school students are not as extensive as those adults normally enjoy, and that the highly protective standard set by Tinker would not always be applied. In concurring opinions, Justice Thomas expressed his view that the right to free speech does not apply to students and his wish to see Tinker overturned altogether, while Justice Alito stressed that the decision applied only to pro-drug messages and not to broader political speech. The dissent conceded that the principal should have had immunity from the lawsuit, but argued that the majority opinion was "[...] deaf to the constitutional imperative to permit unfettered debate, even among high-school students [...]."

Cite this page

"Morse v. Frederick." Oyez, www.oyez.org/cases/2006/06-278. Accessed 24 Mar. 2021.

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At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking. Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs.

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One of the most notable religion cases in years

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Read: How Trump is reversing Obama's nondiscrimination legacy
The case is named for Kendra Espinoza, a single mother who lives near Kalispell, Montana, who took her two daughters out of public school after one struggled academically and the other faced repeated bullying. She enrolled her girls in a private school, Stillwater Christian, but, like the two other mothers named in the case, Espinoza struggled to pay tuition on her income as an office assistant and night janitor. In 2015, the Montana legislature created a scholarship incentive program to help families send their kids to private schools, religious or secular, which Espinoza says she looked forward to using. Before that could happen, however, the state department of revenue put a rule in place banning the program's funds from being used at religious schools, saying that would violate Montana's constitution.

The Supreme Court has to decide whether the kind of no-aid provision found in Montana's state constitution runs afoul of the U.S. Constitution. For nearly two decades, the Court has held that state voucher programs can include religious schools if a particular state wants the inclusion. Should justices rule in favor of Espinoza and the other parents in this case, they would be taking that principle a step further: If states want to have a voucher program, they can't exclude religious schools from participating.

It was inevitable that the Court would hear this kind of case eventually, Richard Garnett, a law professor at the University of Notre Dame, told me. Four or five decades ago, the Court was much more hostile toward voucher programs than it is today: The justices thought "aid to religious schools itself is suspect," he said. Eventually, the Court softened this posture, in 2002 ruling in favor of an Ohio program that allowed state money to be used for tuition at private religious schools. Then, two years ago, the justices ruled in Trinity Lutheran Church v. Comer, deciding by a vote of 7 to 2 that states could not exclude religious organizations from participating in neutral state programs, such as a grant for resurfacing playgrounds. Although the justices bent over backwards to make the limits of their decision clear, "everybody who read that knew: Of course we're talking about other forms of aid," Garnett said. "Everybody knew the next case was going to be one involving school funding."

The stakes of the Court's decision in Espinoza could reach far beyond Montana. More than 30 states have similar provisions banning public aid to private religious schools, according to a brief filed by the Becket Fund for Religious Liberty. These measures have long been a target of ire for religious-freedom advocates: Many came about during a late-19th-century wave of anti-Catholic legislation, when politicians stoked fear about Catholics' inability to place their duties as U.S. citizens over their allegiance to the pope. These provisions are generally referred to as Blaine amendments, after Representative James Blaine, who tried and failed to secure a federal constitutional amendment banning government aid to sectarian schools. The Supreme Court should find these measures unconstitutional, lawyers for Becket and other groups argue, so that states can craft "public programs without being weighed down by the bigotry of the past."

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important string of supreme court decisions

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persistent disappointments of media coverage

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Your Neighbor's Christian Education, Courtesy of Your Tax Dollars

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Read: How Trump is reversing Obama's nondiscrimination legacy The case is named for Kendra Espinoza, a single mother who lives near Kalispell, Montana, who took her two daughters out of public school after one struggled academically and the other faced repeated bullying.

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An Independent Judiciary: Cherokee Nation v. Georgia and Cooper v. Aaron

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Citizens United v. Federal Election Commission

Argued March 24, 2009
Reargued September 9, 2009
Decided January 21, 2010

Full case name
Citizens United, Appellant v. Federal Election Commission

Docket no.
08-205

Citations

558 U.S. 310 (more)

Argument
Oral argument

Reargument
Reargument

Opinion announcement
Opinion announcement

Case history

Prior

Motion for preliminary injunction denied, 530 F. Supp. 2d 274 ( D.D.C. 2008);[1] probable jurisdiction noted, 555 U.S. 1028 (2008).

Holding

The provisions of the Bipartisan Campaign Reform Act restricting unions, corporations, and profitable organizations from independent political spending and prohibiting the broadcasting of political media funded by them within 60 days of a general election or 30 days of a primary election violate the First Amendment's protections of freedom of speech. United States District Court for the District of Columbia reversed.

Court membership

Chief Justice

John Roberts

Associate Justices

John P. Stevens · Antonin Scalia
Anthony Kennedy · Clarence Thomas
Ruth Bader Ginsburg · Stephen Breyer
Samuel Alito · Sonia Sotomayor

Case opinions

Majority

Kennedy, joined by Roberts, Scalia, Alito (in full); Thomas (all but Part IV); Stevens, Ginsburg, Breyer, Sotomayor (only as to Part IV)

Concurrence

Roberts, joined by Alito

Concurrence

Scalia, joined by Alito; Thomas (in part)

Concur/dissent

Stevens, joined by Ginsburg, Breyer, Sotomayor

Concur/dissent

Thomas

Laws applied

U.S. Const. amend. I, Bipartisan Campaign Reform Act

This case overturned a previous ruling or rulings

Austin v. Michigan Chamber of Commerce, 1990. McConnell v. FEC, 2003 (in part).

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), is a landmark United States Supreme Court case concerning campaign finance. The Court held that the free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political communications by corporations, including nonprofit corporations, labor unions, and other associations.

The case arose after Citizens United, a conservative non-profit organization, sought to air and advertise a film critical of Democratic presidential candidate Hillary Clinton shortly before the 2008 Democratic primary elections. This violated the 2002 Bipartisan Campaign Reform Act, which prohibited any corporation or labor union from making an "electioneering communication" within 30 days of a primary or 60 days of an election, or making any expenditure advocating the election or defeat of a candidate at any time.

In a majority opinion joined by four other justices, Associate Justice Anthony Kennedy held that the Bipartisan Campaign Reform Act's prohibition of all independent expenditures by corporations and unions violated the First Amendment's protection of free speech. The Court overruled Austin v. Michigan Chamber of Commerce (1990), which had allowed different restrictions on speech-related spending based on corporate identity, as well as a portion of McConnell v. FEC (2003) that had restricted corporate spending on electioneering communications. The ruling effectively freed labor unions and corporations to spend money on electioneering communications and to directly advocate for the election or defeat of candidates. In his dissenting opinion, Associate Justice John Paul Stevens argued that Court's ruling represented "a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government."

The decision remains highly controversial, generating much public discussion and receiving strong support and opposition from various groups. Senator Mitch McConnell commended the decision, arguing that it represented "an important step in the direction of restoring the First Amendment rights". By contrast, President Barack Obama stated that the decision "gives the special interests and their lobbyists even more power in Washington". The ruling had a major impact on campaign finance, allowing unlimited election spending by corporations and labor unions and fueling the rise of Super PACs. Later rulings by the Roberts Court, including McCutcheon v. FEC (2014), would strike down other campaign finance restrictions.

In the case, No. 08-205, 558 U.S. 310 (2010), the non-profit organization Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts, which was a violation of the 2002 Bipartisan Campaign Reform Act, commonly known as the McCain-Feingold Act or "BCRA" (pronounced "bik-ruh"). Section 203 of BCRA defined an "electioneering communication" as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions. The United States District Court for the District of Columbia held that §203 of BCRA applied and prohibited Citizens United from advertising the film Hillary: The Movie in broadcasts or paying to have it shown on television within 30 days of the 2008 Democratic primaries. The Supreme Court reversed this decision, striking down those provisions of BCRA that prohibited corporations (including nonprofit corporations) and unions from making independent expenditures for "electioneering communications". The majority decision overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003). The Court, however, upheld requirements for public disclosure by sponsors of advertisements (BCRA §201 and §311). The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties, which remain illegal in races for federal office.

Section 203 of the Bipartisan Campaign Reform Act of 2002 (known as BCRA or McCain-Feingold Act) modified the Federal Election Campaign Act of 1971, 2 U.S.C. § 441b to prohibit corporations and unions from using their general treasury to fund "electioneering communications" (broadcast advertisements mentioning a candidate in any context) within 30 days before a primary or 60 days before a general election. During the 2004 presidential campaign, Citizens United, a nonprofit 501(c)(4) organization, filed a complaint before the Federal Election Commission (FEC) charging that advertisements for Michael Moore's film Fahrenheit 9/11, a docudrama critical of the Bush administration's response to the terrorist attacks on September 11, 2001, produced and marketed by a variety of corporate entities, constituted political advertising and thus could not be aired within the 30 days before a primary election or 60 days before a general election. The FEC dismissed the complaint after finding no evidence that broadcast advertisements featuring a candidate within the proscribed time limits had actually been made. The FEC later dismissed a second complaint which argued that the movie itself constituted illegal corporate spending advocating the election or defeat of a candidate, which was illegal under the Taft-Hartley Act of 1947 and the Federal Election Campaign Act Amendments of 1974. In dismissing that complaint, the FEC found that:

The complainant alleged that the release and distribution of FAHRENHEIT 9/11 constituted an independent expenditure because the film expressly advocated the defeat of President George W. Bush and that by being fully or partially responsible for the film's release, Michael Moore and other entities associated with the film (made by Nuss & co.) excessive and/or prohibited contributions to unidentified candidates. The Commission found no reason to believe the respondents violated the Act because the film, associated trailers and website represented bona fide commercial activity, not "contributions" or "expenditures" as defined by the Federal Election Campaign Act.

In response, Citizens United produced the documentary Celsius 41.11, which is highly critical of both Fahrenheit 9/11 and 2004 Democratic presidential nominee John Kerry. The FEC, however, held that showing the movie and advertisements for it would violate the Federal Election Campaign Act, because Citizens United was not a bona fide commercial film maker.

In the wake of these decisions, Citizens United sought to establish itself as a bona fide commercial film maker before the 2008 elections, producing several documentary films between 2005 and 2007. By early 2008, it sought to run television commercials to promote its political documentary Hillary: The Movie and to air the movie on DirecTV.

In December 2007, Citizens United filed a complaint in U.S. District Court for the District of Columbia challenging the constitutionality of several statutory provisions governing "electioneering communications". It asked the court to declare that the prohibition on corporate and union funding were facially unconstitutional, and also as applied to Hillary: The Movie, and to enjoin the Federal Election Commission from enforcing its regulations. Citizens United also argued that the Commission's disclosure and disclaimer requirements were unconstitutional as applied to the movie pursuant to the Supreme Court decision in Federal Election Commission v. Wisconsin Right to Life, Inc.. It also sought to enjoin funding, disclosure and disclaimer requirements as applied to Citizens United's intended ads for the movie.

In accordance with special rules in section 403 of the BCRA, a three-judge court was convened to hear the case. On January 15, 2008, the court denied Citizens United's motion for a preliminary injunction, finding that the suit had little chance of success because the movie had no reasonable interpretation other than as an appeal to vote against Senator Clinton, that it was therefore express advocacy, not entitled to exemption from the ban on corporate funding of electioneering communications, and that television advertisements for the movie within 30 days of a primary violated the BCRA restrictions on "electioneering communications". The court held that the Supreme Court in McConnell v. FEC (2003) had found the disclosure requirements constitutional as to all electioneering communications, and Wisconsin RTL did not disturb this holding because the only issue of that case was whether speech that did not constitute the functional equivalent of express advocacy could be banned during the relevant pre-election period.

On July 18, 2008, the District Court granted summary judgment to the Federal Election Commission. In accordance with the special rules in the BCRA, Citizens United appealed to the Supreme Court which docketed the case on August 18, 2008 and granted certiorari on November 14, 2008.

The Supreme Court heard oral argument on March 24, 2009 and then asked for further briefs on June 29; the re-argument was heard on September 9, 2009.

During the original oral argument, Deputy Solicitor General Malcolm L. Stewart (representing the FEC) argued that under Austin v. Michigan Chamber of Commerce, the government would have the power to ban books if those books contained even one sentence expressly advocating the election or defeat of a candidate and were published or distributed by a corporation or labor union. In response to this line of questioning, Stewart further argued that under Austin the government could ban the digital distribution of political books over the Amazon Kindle or prevent a union from hiring an author to write a political book.

According to a 2012 article in The New Yorker by Jeffrey Toobin, the Court expected after oral argument to rule on the narrow question that had originally been presented-Can Citizens United show the film? At the subsequent conference among the justices after oral argument, the vote was 5-4 in favor of Citizens United being allowed to show the film. The justices voted the same as they had in Federal Election Commission v. Wisconsin Right to Life, Inc., a similar 2007 case, with Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito in the majority.

According to Toobin, Roberts agreed to withdraw the opinion and schedule the case for reargument. When he did, the "Questions Presented" to the parties were, however, more expansive, touching on the issues Kennedy's opinion had identified. According to Toobin, the eventual result was therefore a foregone conclusion from that point on. Toobin's account has been criticized for drawing conclusions unsupported by the evidence in his article.

On June 29, 2009, the last day of the term, the Court issued an order directing the parties to re-argue the case on September 9 after briefing whether it might be necessary to overrule Austin and/or McConnell v. Federal Election Commission to decide the case. Justice Stevens noted in his dissent that in its prior motion for summary judgment, Citizens United had abandoned its facial challenge of BCRA §203's constitutionality, with the parties agreeing to the dismissal of the claim.

Justice Sotomayor sat on the bench for the first time during the second round of oral arguments. This was the first case argued by then-Solicitor General and future Supreme Court Justice Elena Kagan. Former Bush Solicitor General Ted Olson and First Amendment lawyer Floyd Abrams argued for Citizens United, and former Clinton Solicitor General Seth Waxman defended the statute on behalf of various supporters. Legal scholar Erwin Chemerinsky called it "one of the most important First Amendment cases in years".

On January 21, 2010, the Court issued a 5-4 decision in favor of Citizens United that struck down the BCRA's restrictions on independent expenditures from corporate treasures as violations of the First Amendment.

Five justices formed the majority and joined an opinion written by Justice Anthony Kennedy. The Court found that the BCRA §203 prohibition of all independent expenditures by corporations and unions violated the First Amendment's protection of free speech. The majority wrote, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

Justice Kennedy's opinion also noted that because the First Amendment does not distinguish between media and other corporations, the BCRA restrictions improperly allowed Congress to suppress political speech in newspapers, books, television, and blogs. The Court overruled Austin, which had held that a state law that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments. The Court also overruled that portion of McConnell that upheld BCRA's restriction of corporate spending on "electioneering communications". The Court's ruling effectively freed corporations and unions to spend money both on "electioneering communications" and to directly advocate for the election or defeat of candidates (although not to contribute directly to candidates or political parties).

The majority ruled that the Freedom of the Press clause of the First Amendment protects associations of individuals in addition to individual speakers, and further that the First Amendment does not allow prohibitions of speech based on the identity of the speaker. Corporations, as associations of individuals, therefore have free speech rights under the First Amendment. Because spending money is essential to disseminating speech, as established in Buckley v. Valeo, limiting a corporation's ability to spend money is unconstitutional because it limits the ability of its members to associate effectively and to speak on political issues.

The decision overruled Austin because that decision allowed different restrictions on speech-related spending based on corporate identity. Additionally, the decision said that Austin was based on an "equality" rationale - trying to equalize speech between different speakers - that the Court had previously rejected as illegitimate under the First Amendment in Buckley. The Michigan statute at issue in Austin had distinguished between corporate and union spending, prohibiting the former while allowing the latter. The Austin Court, over the dissent by Justices Scalia, Kennedy, and O'Connor, had held that such distinctions were within the legislature's prerogative. In Citizens United v. Federal Election Commission, however, the majority argued that the First Amendment purposefully keeps the government from interfering in the "marketplace of ideas" and "rationing" speech, and it is not up to the legislatures or the courts to create a sense of "fairness" by restricting speech.

The majority also criticized Austin's reasoning that the "distorting effect" of large corporate expenditures constituted a risk of corruption or the appearance of corruption. Rather, the majority argued that the government had no place in determining whether large expenditures distorted an audience's perceptions, and that the type of "corruption" that might justify government controls on spending for speech had to relate to some form of "quid pro quo" transaction: "There is no such thing as too much speech." The public has a right to have access to all information and to determine the reliability and importance of the information. Additionally, the majority did not believe that reliable evidence substantiated the risk of corruption or the appearance of corruption, and so this rationale did not satisfy strict scrutiny.

The Court's opinion relied heavily on the reasoning and principles of the landmark campaign finance case of Buckley and First National Bank of Boston v. Bellotti, in which the Court struck down a broad prohibition against independent expenditures by corporations in ballot initiatives and referenda. Specifically, the Court echoed Bellotti's rejection of categories based on a corporation's purpose. The majority argued that to grant Freedom of the Press protections to media corporations, but not others, presented a host of problems; and so all corporations should be equally protected from expenditure restrictions.

The Court found that BCRA §§201 and 311, provisions requiring disclosure of the funder, were valid as applied to the movie advertisements and to the movie itself. The majority ruled for the disclosure of the sources of campaign contributions, saying that

... prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation's political speech advances the corporation's interest in making profits, and citizens can see whether elected officials are "in the pocket" of so-called moneyed interests... This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

Chief Justice Roberts, with whom Justice Alito joined, wrote separately "to address the important principles of judicial restraint and stare decisis implicated in this case".

Roberts wrote to further explain and defend the Court's statement that "there is a difference between judicial restraint and judicial abdication." Roberts explained why the Court must sometimes overrule prior decisions. Had prior Courts never gone against stare decisis (that is, against precedent), for example, "segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants". Roberts' concurrence recited a plethora of case law in which the court had ruled against precedent. Ultimately, Roberts argued that " stare decisis... counsels deference to past mistakes, but provides no justification for making new ones".

Justice Scalia joined the opinion of the Court, and wrote a concurring opinion which Justice Alito joined in full and Justice Thomas joined in part. Scalia addressed Justice Stevens' dissent, specifically with regard to the original understanding of the First Amendment. Scalia wrote that Stevens' dissent was "in splendid isolation from the text of the First Amendment... It never shows why 'the freedom of speech' that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form." He further considered the dissent's exploration of the Framers' views about the "role of corporations in society" to be misleading, and even if valid, irrelevant to the text. Scalia principally argued that the First Amendment was written in "terms of speech, not speakers" and that "Its text offers no foothold for excluding any category of speaker." Scalia argued that the Free Press clause was originally intended to protect the distribution of written materials and did not only apply to the media specifically. This understanding supported the majority's contention that the Constitution does not allow the Court to separate corporations into media and non-media categories.

A dissenting opinion by Justice Stevens was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. To emphasize his unhappiness with the majority, Stevens read part of his 90-page dissent from the bench. Stevens concurred in the Court's decision to sustain BCRA's disclosure provisions but dissented from the principal holding of the Court. He argued that the Court's ruling "threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution." He added: "A democracy cannot function effectively when its constituent members believe laws are being bought and sold."

Stevens also argued that the Court addressed a question not raised by the litigants when it found BCRA §203 to be facially unconstitutional, and that the majority "changed the case to give themselves an opportunity to change the law". He argued that the majority had expanded the scope beyond the questions presented by the appellant and that therefore a sufficient record for judging the case did not exist. Stevens argued that at a minimum the Court should have remanded the case for a fact-finding hearing, and that the majority did not consider other compilations of data, such as the Congressional record for justifying BCRA §203.

Stevens argued that the Court had long recognized that to deny Congress the power to safeguard against "the improper use of money to influence the result [of an election] is to deny to the nation in a vital particular the power of self protection". After recognizing that in Buckley v. Valeo the Court had struck down portions of a broad prohibition of independent expenditures from any sources, Stevens argued that nevertheless Buckley recognized the legitimacy of "prophylactic" measures for limiting campaign spending and found the prevention of "corruption" to be a reasonable goal for legislation. Consequently, Stevens argued that Buckley left the door open for carefully tailored future regulation. Although the majority echoed many of the arguments in First National Bank of Boston v. Bellotti, Stevens argued that the majority opinion contradicted the reasoning of other campaign finance cases - in particular, Austin v. Michigan State Chamber of Commerce and McConnell v. Federal Election Commission - and found it telling that the majority, when citing such cases, referenced mainly dissenting opinions.

Stevens argued that the majority failed to recognize the possibility for corruption outside strict quid pro quo exchanges. He referenced facts from a previous BCRA challenge to argue that, even if the exchange of votes for expenditures could not be shown, contributors gain favorable political access from such expenditures. The majority, however, had considered access to be insufficient justification for limiting speech rights.

Stevens responded that in the past, even when striking down a ban on corporate independent expenditures, the Court "never suggested that such quid pro quo debts must take the form of outright vote buying or bribes" ( Bellotti). Buckley, he said, also acknowledged that large independent expenditures present the same dangers as quid pro quo arrangements, although Buckley struck down limits on such independent expenditures. Using the record from a previous BCRA §203 challenge, he argued that independent expenditures were sometimes a factor in gaining political access and concluded that large independent expenditures generate more influence than direct campaign contributions. Furthermore, Stevens argued that corporations could threaten Representatives and Senators with negative advertising to gain unprecedented leverage. Stevens supported his argument by citing Caperton v. A.T. Massey Coal Co., where the Court held that $3 million in independent expenditures in a judicial race raised sufficient questions about a judge's impartiality to require the judge to recuse himself in a future case involving the spender. Stevens argued that it was contradictory for the majority to ignore the same risks in legislative and executive elections, and argued that the majority opinion would exacerbate the problem presented in Caperton because of the number of states with judicial elections and increased spending in judicial races.

Second, Stevens argued that the majority did not place enough emphasis on the need to prevent the "appearance of corruption" in elections. Earlier cases, including Buckley and Bellotti, recognized the importance of public confidence in democracy. Stevens cited recent data indicating that 80% of the public view corporate independent expenditures as a method used to gain unfair legislative access. Stevens predicted that if the public believes that corporations dominate elections, disaffected voters will stop participating.

Third, Stevens argued that the majority's decision failed to recognize the dangers of the corporate form. Austin held that the prevention of corruption, including the distorting influence of a dominant funding source, was a sufficient reason for regulating corporate independent expenditures. In defending Austin, Stevens argued that the unique qualities of corporations and other artificial legal entities made them dangerous to democratic elections. These legal entities, he argued, have perpetual life, the ability to amass large sums of money, limited liability, no ability to vote, no morality, no purpose outside profit-making, and no loyalty. Therefore, he argued, the courts should permit legislatures to regulate corporate participation in the political process.

Legal entities, Stevens wrote, are not "We the People" for whom our Constitution was established. Therefore, he argued, they should not be given speech protections under the First Amendment. The First Amendment, he argued, protects individual self-expression, self-realization and the communication of ideas. Corporate spending is the "furthest from the core of political expression" protected by the Constitution, he argued, citing Federal Election Commission v. Beaumont, and corporate spending on politics should be viewed as a business transaction designed by the officers or the boards of directors for no purpose other than profit-making. Stevens called corporate spending "more transactional than ideological". Stevens also pointed out that any member of a corporation may spend personal money on promoting a campaign because BCRA only prohibited the use of general treasury money.

Stevens critiqued the majority's main argument: the prohibition of spending guards free speech and allows the general public to receive all available information. Citing Austin, Stevens argued that corporations unfairly influence the electoral process with vast sums of money that few individuals can match. This process, he argued, puts disproportionate focus on supporting this type of speech and gives the impression of widespread acclaim regardless of actual support.

Fifth, Stevens criticized the majority's fear that the government could use BCRA §203 to censor the media. The focus placed on this hypothetical fear made no sense to him because it did not relate to the facts of this case - if the government actually attempted to apply BCRA §203 to the media (and assuming that Citizens United could not constitute media), the Court could deal with the problem at that time. Stevens described the majority's supposed protection of the media as nothing more than posturing. According to him, it was the majority's new rule in this case, that prohibited a law from distinguishing between speakers or funding sources. This new rule would be the only reason why media corporations could not be exempted from BCRA §203.

Stevens recognizes that "[t]he press plays a unique role not only in the text, history, and structure of the First Amendment but also in facilitating public discourse," and even grants that the majority "raised some interesting and difficult questions about Congress' authority to regulate electioneering by the press, and about how to define what constitutes the press." In response he forcefully indicates that, in his view, (emphasis in original) " that [this question of regulating and defining the press] is not the case before us." Stevens opinion expresses his view that the institutional press can be distinguished from other persons and entities that are not the press while the majority opinion viewed "freedom of the press" as an activity, applicable to all citizens or groups of citizens seeking to publish views. However, while Stevens has been interpreted as implying the press clause specifically protects the institutional press it isn't clear from his opinion. In footnote 62 Stevens does argue that the free press clause demonstrates "that the drafters of the First Amendment did draw distinctions-explicit distinctions-between types of "speakers," or speech outlets or forms" but the disjunctive form of the sentence doesn't clearly entail that the distinction must have been between types of speakers rather than outlets or forms.

Sixth, Stevens claimed that the majority failed to give proper deference to the legislature. Stevens predicted that this ruling would restrict the ability of the states to experiment with different methods for decreasing corruption in elections. According to Stevens, this ruling virtually ended those efforts, "declaring by fiat" that people will not "lose faith in our democracy". Stevens argued that the majority's view of a self-serving legislature, passing campaign-spending laws to gain an advantage in retaining a seat, coupled with "strict scrutiny" of laws, would make it difficult for any campaign finance regulation to be upheld in future cases.

Seventh, Stevens argued that the majority opinion ignored the rights of shareholders. A series of cases protects individuals from legally compelled payment of union dues to support political speech. Because shareholders invest money in corporations, Stevens argued that the law should likewise help to protect shareholders from funding speech that they oppose. The majority, however, argued that ownership of corporate stock was voluntary and that unhappy shareholders could simply sell off their shares if they did not agree with the corporation's speech. Stevens also argued that Political Action Committees (PACs), which allow individual members of a corporation to invest money in a separate fund, are an adequate substitute for general corporate speech and better protect shareholder rights. The majority, by contrast, had argued that most corporations are too small and lack the resources and raw number of shareholders and management staff necessary to maintain compliance, accounting and administrative costs of a PAC. In this dispute, the opposing views essentially discussed differing types of entities: Stevens focused his argument on large, publicly held corporations while the justices in the majority, particularly Justice Scalia's concurring opinion, placed an emphasis on small, closely held corporations and non-profits.

Stevens concluded his dissent by writing:

At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

The decision was highly controversial and remains a subject of widespread public discussion. There was a wide range of reactions to the case from politicians, academics, attorneys, advocacy groups and journalists.

Senate Minority Leader Mitch McConnell, a plaintiff in the earlier related decision McConnell v. FEC, said:

For too long, some in this country have been deprived of full participation in the political process. With today's monumental decision, the Supreme Court took an important step in the direction of restoring the First Amendment rights of these groups by ruling that the Constitution protects their right to express themselves about political candidates and issues up until Election Day. By previously denying this right, the government was picking winners and losers. Our democracy depends upon free speech, not just for some but for all.

Citizens United, the group filing the lawsuit, said, "Today's U.S. Supreme Court decision allowing Citizens United to air its documentary films and advertisements is a tremendous victory, not only for Citizens United but for every American who desires to participate in the political process." During litigation, Citizens United had support from the United States Chamber of Commerce and the National Rifle Association.

Heritage Foundation fellow Hans A. von Spakovsky, a former Republican member of the Federal Election Commission, said "The Supreme Court has restored a part of the First Amendment that had been unfortunately stolen by Congress and a previously wrongly-decided ruling of the court."

The American Civil Liberties Union filed an amicus brief that supported the decision, saying that "section 203 should now be struck down as facially unconstitutional", though membership was split over the implications of the ruling and its board sent the issue to its special committee on campaign finance for further consideration. On March 27, 2012, the ACLU reaffirmed its stance in support of the Supreme Court's Citizens United ruling.

Bradley A. Smith, professor of law at Capital University Law School, former chairman of the FEC, founder of the Center for Competitive Politics and a leading proponent of deregulation of campaign finance, wrote that the major opponents of political free speech are "incumbent politicians" who "are keen to maintain a chokehold on such speech". Empowering "small and midsize corporations - and every incorporated mom-and-pop falafel joint, local firefighters' union, and environmental group - to make its voice heard" frightens them. In response to statements by President Obama and others that the ruling would allow foreign entities to gain political influence through U.S. subsidiaries, Smith pointed out that the decision did not overturn the ban on political donations by foreign corporations and the prohibition on any involvement by foreign nationals in decisions regarding political spending by U.S. subsidiaries, which are covered by other parts of the law.

Campaign finance expert Jan Baran, a member of the Commission on Federal Ethics Law Reform, agreed with the decision, writing that "The history of campaign finance reform is the history of incumbent politicians seeking to muzzle speakers, any speakers, particularly those who might publicly criticize them and their legislation. It is a lot easier to legislate against unions, gun owners, 'fat cat' bankers, health insurance companies and any other industry or 'special interest' group when they can't talk back." Baran further noted that in general conservatives and libertarians praised the ruling's preservation of the First Amendment and freedom of speech, but that liberals and campaign finance reformers criticized it as greatly expanding the role of corporate money in politics.

Attorney Kenneth Gross, former associate general counsel of the FEC, wrote that corporations relied more on the development of long-term relationships, political action committees and personal contributions, which were not affected by the decision. He held that while trade associations might seek to raise funds and support candidates, corporations which have "signed on to transparency agreements regarding political spending" may not be eager to give.

The New York Times asked seven academics to opine on how corporate money would reshape politics as a result of the court's decision. Three of the seven wrote that the effects would be minimal or positive: Christopher Cotton, a University of Miami School of Business assistant professor of economics, wrote that "There may be very little difference between seeing eight ads or seeing nine ads (compared to seeing one ad or two). And, voters recognize that richer candidates are not necessarily the better candidates, and in some cases, the benefit of running more ads is offset by the negative signal that spending a lot of money creates. Eugene Volokh, a professor of law at UCLA, stated that the "most influential actors in most political campaigns" are media corporations which "overtly editorialize for and against candidates, and also influence elections by choosing what to cover and how to cover it". Holding that corporations like Exxon would fear alienating voters by supporting candidates, the decision really meant that voters would hear "more messages from more sources". Joel Gora, a professor at Brooklyn Law School who had previously argued the case of Buckley v. Valeo on behalf of the American Civil Liberties Union, said that the decision represented "a great day for the First Amendment" writing that the Court had "dismantled the First Amendment 'caste system' in election speech".

The Editorial Board of the San Antonio Express-News criticized McCain-Feingold's exception for media corporations from the ban on corporate electioneering, writing that it "makes no sense" that the paper could make endorsements up until the day of the election but advocacy groups could not. "While the influence of money on the political process is troubling and sometimes corrupting, abridging political speech is the wrong way to counterbalance that influence."

Anthony Dick in National Review countered a number of arguments against the decision, asking rhetorically, "is there something uniquely harmful and/or unworthy of protection about political messages that come from corporations and unions, as opposed to, say, rich individuals, persuasive writers, or charismatic demagogues?" He noted that "a recent Gallup poll shows that a majority of the public actually agrees with the Court that corporations and unions should be treated just like individuals in terms of their political-expenditure rights". A Gallup poll taken in October 2009 and released soon after the decision showed 57 percent of those surveyed agreed that contributions to political candidates are a form of free speech and 55 percent agreed that the same rules should apply to individuals, corporations and unions. Sixty-four percent of Democrats and Republicans believed campaign donations are a form of free speech.

Chicago Tribune editorial board member Steve Chapman wrote "If corporate advocacy may be forbidden as it was under the law in question, it's not just Exxon Mobil and Citigroup that are rendered mute. Nonprofit corporations set up merely to advance goals shared by citizens, such as the American Civil Liberties Union and the National Rifle Association, also have to put a sock in it. So much for the First Amendment goal of fostering debate about public policy."

President Barack Obama stated that the decision "gives the special interests and their lobbyists even more power in Washington - while undermining the influence of average Americans who make small contributions to support their preferred candidates". Obama later elaborated in his weekly radio address saying, "this ruling strikes at our democracy itself" and "I can't think of anything more devastating to the public interest". On January 27, 2010, Obama further condemned the decision during the 2010 State of the Union Address, stating that, "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests - including foreign corporations - to spend without limit in our elections. Well, I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities." On television, the camera shifted to a shot of the SCOTUS judges in the front row directly in front of the President while he was making this statement, and Justice Samuel Alito was frowning, shaking his head side to side while mouthing the words "Not true".

Democratic Senator Russ Feingold, a lead sponsor of the 2002 Bipartisan Campaign Reform Act, stated "This decision was a terrible mistake. Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president." Representative Alan Grayson, a Democrat, stated that it was "the worst Supreme Court decision since the Dred Scott case, and that the court had opened the door to political bribery and corruption in elections to come. Democratic congresswoman Donna Edwards, along with constitutional law professor and Maryland Democratic State Senator Jamie Raskin, have advocated petitions to reverse the decision by means of constitutional amendment. Rep. Leonard Boswell introduced legislation to amend the constitution. Senator John Kerry also called for an Amendment to overrule the decision. On December 8, 2011, Senator Bernie Sanders proposed the Saving American Democracy Amendment, which would reverse the court's ruling.

Republican Senator John McCain, co-crafter of the 2002 Bipartisan Campaign Reform Act and the party's 2008 presidential nominee, said "there's going to be, over time, a backlash ... when you see the amounts of union and corporate money that's going to go into political campaigns". McCain was "disappointed by the decision of the Supreme Court and the lifting of the limits on corporate and union contributions" but not surprised by the decision, saying that "It was clear that Justice Roberts, Alito and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to BCRA." Republican Senator Olympia Snowe opined that "Today's decision was a serious disservice to our country."

Although federal law after Citizens United v. Federal Election Commission still prohibited corporate contributions to all political parties, Sanda Everette, co-chair of the Green Party, stated that "The ruling especially hurts the ability of parties that don't accept corporate contributions, like the Green Party, to compete." Another Green Party officer, Rich Whitney, stated "In a transparently political decision, a majority of the US Supreme Court overturned its own recent precedent and paid tribute to the giant corporate interests that already wield tremendous power over our political process and political speech."

Ralph Nader condemned the ruling, saying that "With this decision, corporations can now directly pour vast amounts of corporate money, through independent expenditures, into the electoral swamp already flooded with corporate campaign PAC contribution dollars." He called for shareholder resolutions asking company directors to pledge not to use company money to favor or oppose electoral candidates. Pat Choate, former Reform Party candidate for Vice President, stated, "The court has, in effect, legalized foreign governments and foreign corporations to participate in our electoral politics."

Senator Bernie Sanders, a contender in the 2016 Democratic Primary, has filed a constitutional amendment to overturn the Supreme Court's Decision. Further, both Sanders and Hillary Clinton said that, if they were elected, they would only have appointed Supreme Court Justices who were committed to the repeal of Citizens United. In September 2015, Sanders said that "the foundations of American Democracy are being undermined" and called for sweeping campaign finance reform. Sanders repeated such calls in the years since.

Former Supreme Court Justice Sandra Day O'Connor, whose opinions had changed from dissenting in Austin v. Michigan State Chamber of Commerce to co-authoring (with Stevens) the majority opinion in McConnell v. Federal Election Commission twelve years later, criticized the decision only obliquely, but warned, "In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon."

Kathleen M. Sullivan, professor at Stanford Law School and Steven J. Andre, adjunct professor at Lincoln Law School, argued that two different visions of freedom of speech exist and clashed in the case. An egalitarian vision skeptical of the power of large agglomerations of wealth to skew the political process conflicted with a libertarian vision skeptical of government being placed in the role of determining what speech people should or should not hear. Wayne Batchis, Professor at the University of Delaware, in contrast, argues that the Citizens United decision represents a misguided interpretation of the non-textual freedom of association.

The four other scholars of the seven writing in the aforementioned The New York Times article were critical. Richard L. Hasen, Distinguished Professor of election law at Loyola Law School argued differently from his Slate article above, concentrating on the "inherent risk of corruption that comes when someone spends independently to try to influence the outcome of judicial elections", since judges are less publicly accountable than elected officials. Heather K. Gerken, Professor of Law at Yale Law School wrote that "The court has done real damage to the cause of reform, but that damage mostly came earlier, with decisions that made less of a splash." Michael Waldman, director of the Brennan Center for Justice at N.Y.U. School of Law, opined that the decision "matches or exceeds in ideological or partisan overreaching by the court", explaining how "Exxon or any other firm could spend Bloomberg-level sums in any congressional district in the country against, say, any congressman who supports climate change legislation, or health care, etc." and Fred Wertheimer, founder and president of Democracy 21 considered that "Chief Justice Roberts has abandoned the illusory public commitments he made to 'judicial modesty' and 'respect for precedent' to cast the deciding vote for a radical decision that profoundly undermines our democracy," and that "Congress and presidents past have recognized this danger and signed numerous laws over the years to prevent this kind of corruption of our government."

In a Magazine survey of over 50 law professors, Richard Delgado ( University of Alabama), Cass Sunstein ( Harvard), and Jenny Martinez ( Stanford) all listed Citizens United as the "worst Supreme Court decision since 1960," with Sunstein noting that the decision is "undermining our system of democracy itself."

The New York Times stated in an editorial, "The Supreme Court has handed lobbyists a new weapon. A lobbyist can now tell any elected official: if you vote wrong, my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election." Jonathan Alter called it the "most serious threat to American democracy in a generation". The Christian Science Monitor wrote that the Court had declared "outright that corporate expenditures cannot corrupt elected officials, that influence over lawmakers is not corruption, and that appearance of influence will not undermine public faith in our democracy".

In 2012, Ben Cohen, the co-founder of Ben & Jerry's ice cream, founded Stamp Stampede, a sustained protest to demonstrate widespread support for a proposed constitutional amendment to overturn Citizens United. The campaign encourages people to rubber stamp messages such as "Not To Be Used for Bribing Politicians" on paper currency. In 2014, Cohen told , "As long as the Supreme Court rules money is speech, corporations and the wealthy are using it by giving piles of it to politicians to pass or not pass laws that they want. Now, the rest of the people, [those] who don't have that money, can actually make their voice heard by using money to stamp a message out."

Most blogs avoided the theoretical aspects of the decision and focused on more personal and dramatic elements, including the Barack Obama- Samuel Alito face-off during the President's State of the Union address. There, President Obama argued that the decision "reversed a century of law" (the federal ban on corporate contributions dates back to the 1907 Tillman Act, and the ban on union and corporate expenditures dates from 1947) and that it would allow "foreign corporations to spend without limits in our elections", during which Justice Alito, in the audience, perceptibly mouthed the words "not true". This event received extensive comment from political bloggers, with a substantial amount of the coverage concentrated on whether or not foreign corporations would be able to make substantial political contributions in US elections. In the opinion, the Court had specifically indicated it was not overturning the ban on foreign contributions.

An ABC- The Washington Post poll conducted February 4-8, 2010, showed that 80% of those surveyed opposed (and 65% strongly opposed) the Citizens United ruling, which the poll described as saying "corporations and unions can spend as much money as they want to help political candidates win elections". Additionally, 72% supported "an effort by Congress to reinstate limits on corporate and union spending on election campaigns". The poll showed large majority support from Democrats, Republicans and independents.

A Gallup Poll conducted in October 2009, after oral argument, but released after the Supreme Court released its opinion, found that 57 percent of those surveyed "agreed that money given to political candidates is a form of free speech" and 55 percent agreed that the "same rules should apply to individuals, corporations and unions". In the same poll, however, respondents by 52% to 41% prioritized limits on campaign contributions over protecting rights to support campaigns and 76% thought the government should be able to place limits on corporation or union donations.

Separate polls by various conservative organizations, including the plaintiff Citizens United and the Center for Competitive Politics, found support for the decision. In particular, the Center for Competitive Politics poll found that 51% of respondents believed that Citizens United should have a right to air ads promoting Hillary: The Movie. The poll also found that only 22 percent had heard of the case.

Polling conducted by Ipsos in August 2017 found that 48% of Americans oppose the decision and 30% support it, with the remainder having no opinion. It also found that 57% percent of Americans, favored "limits on the amount of money super PACs can raise and spend".

SpeechNow is a nonprofit, unincorporated association organized as a section 527 entity under the U.S. Internal Revenue Code. The organization was formed by individuals who seek to pool their resources to make independent expenditures expressly advocating the election or defeat of federal candidates. SpeechNow planned to accept contributions only from individuals, not corporations or other sources prohibited under the Federal Election Campaign Act. On February 14, 2008, SpeechNow and several individual plaintiffs filed a complaint in the U.S. District Court for the District of Columbia challenging the constitutionality of the Federal Election Campaign Act provisions governing political committee registration, contribution limits and disclosure. The plaintiffs contended that the Act unconstitutionally restricts their association guaranteed under the First Amendment. By requiring registration as a political committee and limiting the monetary amount that an individual may contribute to a political committee, SpeechNow and the other plaintiffs asserted that the Act unconstitutionally restricted the individuals' freedom of speech by limiting the amount that an individual can contribute to SpeechNow and thus the amount the organization may spend. SpeechNow also argued that the reporting required of political committees is unconstitutionally burdensome.

On March 26, 2010, the U.S. Court of Appeals for the District of Columbia Circuit ruled in SpeechNow.org. v. FEC that the contribution limits of 2 U.S.C. §441a were unconstitutional as applied to individuals' contributions to SpeechNow. The court also ruled that the reporting requirements of 2 U.S.C. §§432, 433 and 434(a) and the organizational requirements of 2 U.S.C. §431(4) and §431(8) can be constitutionally applied to SpeechNow. A unanimous nine-judge panel of the United States Court of Appeals struck down the federal limits on contributions to federal political committees that make only independent expenditures and do not contribute to candidates or political parties. This type of "independent expenditure committee" is inherently non-corruptive, the Court reasoned, and therefore contributions to such a committee can not be limited based on the government's interest in preventing political corruption. In light of the Supreme Court's decision in Citizens United v. FEC, in which the Supreme Court held that the government has no anti-corruption interest in limiting independent expenditures, the appeals court ruled that "contributions to groups that make only independent expenditures cannot corrupt or create the appearance of corruption." As a result, the court of appeals held that the government has no anti-corruption interest in limiting contributions to an independent group such as SpeechNow. Contribution limits as applied to SpeechNow "violate the First Amendment by preventing [individuals] from donating to SpeechNow in excess of the limits and by prohibiting SpeechNow from accepting donations in excess of the limits." The court noted that its holding does not affect direct contributions to candidates, but rather contributions to a group that makes only independent expenditures. The appeals court held that, while disclosure and reporting requirements do impose a burden on First Amendment interests, they "'impose no ceiling on campaign related activities'" and "'do not prevent anyone from speaking.'" Furthermore, the court held that the additional reporting requirements that the Commission would impose on SpeechNow if it were organized as a political committee are minimal, "given the relative simplicity with which SpeechNow intends to operate." Since SpeechNow already had a number of "planned contributions" from individuals, the court ruled that SpeechNow could not compare itself to "ad hoc groups that want to create themselves on the spur of the moment." Since the public has an interest in knowing who is speaking about a candidate and who is funding that speech, the court held that requiring such disclosure and organization as a political committee are sufficiently important governmental interests to justify the additional reporting and registration burdens on SpeechNow.

On June 27, 2011, ruling in the consolidated cases of Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (No. 10-238) and McComish v. Bennett (No. 10-239), the Supreme Court deemed unconstitutional an Arizona law that provided extra taxpayer-funded support for office seekers who have been outspent by privately funded opponents or by independent political groups. A conservative 5-4 majority of justices said the law violated free speech, concluding the state was impermissibly trying to "level the playing field" through a public finance system. Arizona lawmakers had argued there was a compelling state interest in equalizing resources among competing candidates and interest groups. Opponents said the law violated free-speech rights of the privately financed candidates and their contributors, inhibiting fundraising and spending, discouraging participation in campaigns and limiting what voters hear about politics. Chief Justice John Roberts said in the court's majority opinion that the law substantially burdened political speech and was not sufficiently justified to survive First Amendment scrutiny.

As a consequence of the decision, states and municipalities are blocked from using a method of public financing that is simultaneously likely to attract candidates fearful they will be vastly outspent and sensitive to avoiding needless government expense. "The government can still use taxpayer funds to subsidize political campaigns, but it can only do that in a manner that provides an alternative to private financing" said William R. Maurer, a lawyer with Institute for Justice, which represented several challengers of the law. "It cannot create disincentives." The ruling meant the end of similar matching-fund programs in Connecticut, Maine and a few other places according to David Primo, a political science professor at University of Rochester who was an expert witness for the law's challengers.

Despite the Citizens United ruling, in December 2011, the Montana Supreme Court, in Western Tradition Partnership, Inc. v. Attorney General of Montana, upheld that state's law limiting corporate contributions. Examining the history of corporate interference in Montana government that led to the Corrupt Practices Law, the majority decided that the state still had a compelling reason to maintain the restrictions. It ruled that these restrictions on speech were narrowly tailored and withstood strict scrutiny and thus did not contradict Citizens United v. Federal Election Commission.

While granting permission to file a certiorari petition, the US Supreme Court agreed to stay the Montana ruling, although Justices Ginsburg and Breyer wrote a short statement urging the Court "to consider whether, in light of the huge sums of money currently deployed to buy candidate's allegiance, Citizens United should continue to hold sway". In June 2012, over the dissent of the same four judges who dissented in Citizens United, the Court simultaneously granted certiorari and summarily reversed the decision in American Tradition Partnership, Inc. v. Bullock, 567, U.S. __ (2012). The Supreme Court majority rejected the Montana Supreme Court arguments in a two paragraph, twenty line per curiam opinion, stating that these arguments "either were already rejected in Citizens United, or fail to meaningfully distinguish that case." The ruling makes clear that states cannot bar corporate and union political expenditures in state elections.

In addition to limiting the size of donations to individual candidates and parties, the Federal Election Campaign Act also includes aggregate caps on the total amount that an individual may give to all candidates and parties. In 2012, Shaun McCutcheon, a Republican Party activist, sought to donate more than was allowed by the federal aggregate limit on federal candidates. McCutcheon et al filed suit against the Federal Election Commission (FEC). In 2014, the US Supreme Court reversed a ruling of the DC District Court's dismissal of McCutcheon v. FEC and struck down the aggregate limits. The plurality opinion invalidated only the aggregate contribution limits, not limits on giving to any one candidate or party. The decisive fifth vote for McCutcheon came from Justice Thomas, who concurred in the judgment on the grounds that all contribution limits are unconstitutional.

The New York Times reported that 24 states with laws prohibiting or limiting independent expenditures by unions and corporations would have to change their campaign finance laws because of the ruling.

After Citizens United and SpeechNow.org numerous state legislatures raised their limits on contributions to candidates and parties. At the federal level, lawmakers substantially increased contribution limits to political parties as part of the 2014 budget bill. Such changes are widely perceived as efforts to place candidates and parties on something closer to equal footing with organizations making independent expenditures.

While many states and the federal government have raised contribution limits in response to Citizens United, proposals aimed at discouraging political spending, or providing for public financing of campaigns, have been less successful.

In February 2010, Senator Charles E. Schumer of New York, immediate past Chairman of the Democratic Senatorial Campaign Committee, and Representative Chris Van Hollen of Maryland, Chairman of the Democratic Congressional Campaign Committee, outlined legislation aimed at undoing the decision. In April 2010, they introduced such legislation in the Senate and House, respectively. On June 24, 2010, H.R.5175 (The DISCLOSE Act) passed in the House of Representatives but failed in the Senate. It would have required additional disclosure by corporations of their campaign expenditures. The law, if passed, would also have prohibited political spending by U.S. companies with twenty percent or more foreign ownership, and by most government contractors. The DISCLOSE Act included exemptions to its rules given to certain special interests such as the National Rifle Association and the American Association of Retired Persons. These gaps within the proposal attracted criticism from lawmakers on both political parties. "They are auctioning off pieces of the First Amendment in this bill... The bigger you are, the stronger you are, the less disclosure you have," said Republican Congressman Dan Lungren of California. Democratic Congressman Adam Schiff of California commented, "I wish there had been no carve-outs". The bill was criticized as prohibiting much activity that was legal before Citizens United.

The DISCLOSE Act twice failed to pass the U.S. Senate in the 111th Congress, in both instances reaching only 59 of the 60 votes required to overcome a unified Republican filibuster. A scaled down version of the DISCLOSE Act was reintroduced in both the House and Senate in 2012 but did not pass.[citation needed ]

Some have argued for a constitutional amendment to overturn the decision. Although the decision does not address "corporate personhood," a long-established judicial and constitutional concept, much attention has focused on that issue. Move to Amend, a coalition formed in response to the ruling, seeks to amend the Constitution to abolish corporate personhood, thus stripping corporations of all rights under the Constitution. In an online chat with web community Reddit, President Obama endorsed further consideration of a constitutional amendment and stated "Over the longer term, I think we need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United (assuming the Supreme Court doesn't revisit it)". He further elaborated that "Even if the amendment process falls short, it can shine a spotlight on the super-PAC phenomenon and help apply pressure for change."

Members of 16 state legislatures have called for a constitutional amendment to reverse the court's decision: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Montana, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and West Virginia.

Most of these are non-binding resolutions, but three states - Vermont, California, and Illinois - called for an Article V Convention to draft and propose a federal constitutional amendment to overturn Citizens United. In Minnesota, the Minnesota Senate passed a similar resolution, "Senate File No. 17," on May 2, 2013, but the House of Representatives returned the measure to the General Calendar (meaning the measure did not pass) on May 15, 2013. Thirty-four states are needed to call an Article V convention.

On a local level, Washington D.C. and 400 other municipalities passed resolutions requesting a federal constitutional amendment.

Since Citizens United, however, 13 states have actually raised their contribution limits.

The Citizens United ruling "opened the door" for unlimited election spending by corporations, but most of this spending has "ended up being funneled through the groups that have become known as super PACs." Critics predicted that the ruling would "bring about a new era of corporate influence in politics," allowing companies and businesspeople to "buy elections" to promote their financial interests. Instead, large expenditures, usually through "Super PACS," have come from "a small group of billionaires", based largely on ideology. This has shifted power "away from the political parties and toward the ... donors themselves. In part, this explains the large number and variety of candidates fielded by the Republicans in 2016."

Citizens United v. Federal Election Commission has often been credited for the creation of " super PACs", political action committees which make no financial contributions to candidates or parties, and so can accept unlimited contributions from individuals, corporations and unions. Certainly, the holding in Citizens United helped affirm the legal basis for super PACs by deciding that, for purposes of establishing a "compelling government interest" of corruption sufficient to justify government limitations on political speech, "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption".

It took another decision, by the U.S. Court of Appeals for the District of Columbia Circuit, Speechnow.org v. Federal Election Commission, to actually authorize the creation of super PACs. While Citizens United held that corporations and unions could make independent expenditures, a separate provision of the Federal Election Campaign Act, at least as long interpreted by the Federal Election Commission, held that individuals could not contribute to a common fund without it becoming a PAC. PACs, in turn, were not allowed to accept corporate or union contributions of any size or to accept individual contributions in excess of $5,000. In Speechnow.org, the D.C. Circuit, sitting en banc, held 9-0 that in light of Citizens United, such restrictions on the sources and size of contributions could not apply to an organization that made only independent expenditures in support of or opposition to a candidate but not contributions to a candidate's campaign.

Citizens United and SpeechNOW left their imprint on the 2012 United States presidential election, in which single individuals contributed large sums to "super PACs" supporting particular candidates. Sheldon Adelson, the gambling entrepreneur, gave approximately fifteen million dollars to support Newt Gingrich. Foster Friess, a Wyoming financier, donated almost two million dollars to Rick Santorum's super PAC. Karl Rove organized super PACs that spent over $300 million in support of Republicans during the 2012 elections.

In addition to indirectly providing support for the creation of super PACs, Citizens United allowed incorporated 501(c)(4) public advocacy groups (such as the National Rifle Association, the Sierra Club, and the group Citizens United itself) and trade associations to make expenditures in political races. Such groups may not, under the tax code, have a primary purpose of engaging in electoral advocacy. These organizations must disclose their expenditures, but unlike super PACs they do not have to include the names of their donors in their FEC filings. A number of partisan organizations such as Karl Rove's influential conservative Crossroads Grassroots Policy Strategies and the liberal 21st Century Colorado have since registered as tax-exempt 501(c)(4) groups (defined as groups promoting "social welfare") and engaged in substantial political spending. This has led to claims of large secret donations, and questions about whether such groups should be required to disclose their donors. Historically, such non-profits have not been required to disclose their donors or names of members. See National Association for the Advancement of Colored People v. Alabama.

In an August 2015 essay in Der Spiegel, Markus Feldkirchen wrote that the Citizens United decision was "now becoming visible for the first time" in federal elections as the super-rich have "radically" increased donations to support their candidates and positions via super PACs. Feldkirchen also said in the first six months of 2015 the candidates and their super PACs received close to $400 million: "far more than in the entire previous campaign." He opined that super-rich donating more than ever before to individual campaigns plus the "enormous" chasm in wealth has given the super-rich the power to steer the economic and political direction of the United States and undermine its democracy. In October 2015, The New York Times observed that just 158 super-rich families each contributed $250,000 or more, while an additional 200 families gave more than $100,000 for the 2016 presidential election. Both groups contributed almost half of the "early money" for candidates in the 2016 presidential election as of June 30, 2015 through channels like super PACs legalized by the Supreme Court's Citizens United decision.

Weakening of "establishment" forces

At least in the Republican Party, the Citizens United ruling has weakened the fund raising power of the Republican "establishment" in the form of the "three major" Republican campaign committees ( Republican National Committee, National Republican Congressional Committee, National Republican Senatorial Committee). Columnist Thomas B. Edsall notes that in 2008, "the last election before the Citizens United decision", the three campaign committees "raised six times" the money that "nonparty conservative organizations" did - $657.6 million vs. $111.9 million. By 2016 those party committees raised less than the independent groups - $652.4 million v. $810.4 million. Thus the new funding "freed candidates to defy" the party establishment, although not it seems, to move policy making away from traditional Republican priorities.

Studies have shown that the Citizens United ruling gave Republicans an advantage in subsequent elections. One study by political scientists at University of Chicago, Columbia University and the London School of Economics found "that Citizens United increased the GOP's average seat share in the state legislature by five percentage points. That is a large effect - large enough that, were it applied to the past twelve Congresses, partisan control of the House would have switched eight times. In line with a previous study, we also find that the vote share of Republican candidates increased three to four points, on average." A 2016 study in the Journal of Law and Economics found "that Citizens United is associated with an increase in Republicans' election probabilities in state house races of approximately 4 percentage points overall and 10 or more percentage points in several states. We link these estimates to on-the-ground evidence of significant spending by corporations through channels enabled by Citizens United."

Notes

1. ^ Hasen, Richard (January 21, 2010). "Money Grubbers: The Supreme Court kills campaign finance reform". . Archived from the original on January 24, 2017.

2. Barnes, Robert (March 15, 2009). "'Hillary: The Movie' to Get Supreme Court Screening". The Washington Post.

3. ^ "Memorandum Opinion" (PDF). Citizens United v. Federal Election Commission. District Court for the District of Columbia. January 15, 2008.

4. "Docket for 08-205". U.S. Supreme Court. August 18, 2008.

5. ^ Holland, Jesse J. (March 22, 2009). ""Hillary: The Movie" next on Supreme Court docket". Seattle Post-Intelligencer. Associated Press.

6. ^ CounterPunch, February 4, 2010, Chucking Precedent at the High Court Archived February 8, 2010, at the Wayback Machine

7. ^ Syllabus : Citizens United v. Federal Election Commission, Supreme Court of the United States.

8. Roberts opinion et ibid.

9. Steven's opinion at ibid.

10. ^ Smith, Bradley (January 27, 2010). "President Wrong on Citizens United Case". National Review. Archived from the original on January 30, 2010.

11. ^ Dick, Anthony (January 25, 2010). "Defending Citizens United". National Review. Archived from the original on February 9, 2010.

12. This has been argued to refer to the ^ Tillman Act of 1907 and subsequent campaign finance laws like the 1947 Taft-Hartley Act, brookings.edu, blogs.wsj.com. Others suggested that he simply was paraphrasing a sentence in Justice Stevens' dissent: "[t]he Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)." jurist.law.pitt.edu Archived February 5, 2010, at the Wayback Machine

13. ^ Baumann, Nick (January 22, 2010). "Grayson: Court's Campaign Finance Decision "Worst Since Dred Scott"". Mother Jones. Mother Jones and the Foundation for National Progress.

14. ^ Remsen, Nancy (December 8, 2011). "Sen. Bernie Sanders, I-Vt., offers constitutional amendment on corporate "citizenship"". The Burlington Free Press. Archived from the original on July 12, 2012.

15. ^ Nader, Ralph (January 22, 2010). "The Supremes Bow to King Corporation". CounterPunch. Archived from the original on January 26, 2010.

16. ^ Andre, Steven J. (2010). "The Transformation of Freedom of Speech: Unsnarling the Twisted Roots of Citizens United v. FEC". John Marshall Law Review. 44 (1): 69-127.

17. Wayne Batchis, Citizens United and the Paradox of "Corporate Speech": From Freedom of Association to Freedom of The Association, 36 ^ NYU Rev. L. & Soc. Change Archived May 13, 2013, at the Wayback Machine 5 (2012).

18. Alter, Jonathan (February 1, 2010). "High Court Hypocrisy: Dick Durbin's got a good idea". . Newsweek, Inc.

19. ^ Isquith, Elias (September 4, 2014). "'From the beginning, I was in it for real': Ice cream legend's plan to radically up-end America". .

20. ^ Wert, Justin J.; Ronald Keith Gaddie; Charles S. Bullock (2011). "Of Benedick and Beatrice: Citizens United and the Reign of the Laggard Court" (PDF). Cornell Journal of Law and Public Policy. 20: 720.

21. Dan Eggan, ^ Poll: Large majority opposes Supreme Court's decision on campaign financing, The Washington Post, February 17, 2010.

22. ^ "Citizens United :: Press Releases :: Citizens United Releases Results of National Opinion Poll on Campaign Finance "Reform"". April 17, 2010. Archived from the original on April 17, 2010.

23. ^ Justices Kennedy, Ginsburg, and Breyer (February 17, 2012). "Stay Order in Pending Case" (PDF). Supreme Court of the United States.

24. ^ United States District Court for the District of Columbia (June 22, 2012). "MCCUTCHEON et al v. FEDERAL ELECTION COMMISSION Verified Complaint for Declaratory and Injunctive Relief" (PDF). justia.com.

25. ^ "Supreme Court of the United States Shaun McCutcheon and Republican National Committee, Plaintiffs-Appellants v. Federal Election Commission" (PDF). James Madison Center for Free Speech. August 16, 2013.

26. ^ Kirkpatrick, David D. (February 11, 2010). "Democrats Try to Rebuild Campaign-Spending Barriers". The New York Times. p. A19. Congressional Democrats outlined legislation Thursday aimed at undoing a recent Supreme Court decision that allows corporations and interest groups to spend freely on political advertising.

27. ^ Movement to Abolish Corporate Personhood Gaining Traction. Boulder Weekly July 14, 2011.

28. ^ Reid, Brandon (December 4, 2014). "Illinois third state to call for constitutional convention to overturn 'Citizens United'". Rock River Times.

29. ^ Abdul-Razzak, Nour; Prato, Carlo; Wolton, Stephane (2017). "How Outside Spending Shapes American Democracy". SSRN Electronic Journal. doi:10.2139/ssrn.2823778. ISSN 1556-5068.

30. ^ Klumpp, Tilman; Mialon, Hugo M.; Williams, Michael A. (2016). "The Business of American Democracy: Citizens United, Independent Spending, and Elections". The Journal of Law and Economics. 59 (1): 1-43. doi:10.1086/685691. ISSN 0022-2186.

Chemerinsky, Erwin (2019). Constitutional Law: Principles and Policies (6th ed.). New York: Wolters Kluwer. ISBN 978-1-4548-9574-9.

Alexander M. "Citizens United and equality forgotten" 35 New York University Review of Law & Social Change (2011) 499.

Brown, W. "Law and Legal Reason," Undoing the Demos: Neoliberalism's Stealth Revolution (Zone Books, 2015): 151-173.

Dawood, Yasmin. "Campaign Finance and American Democracy." Annual Review of Political Science (2015) Abstract & download

Gerken H. "The real problem with Citizens United: Campaign finance, dark money, and shadow parties" 97 Marquette Law Review (2014) 903.

Hansen, Wendy L., Michael S. Rocca, and Brittany Leigh Ortiz. "The effects of Citizens United on corporate spending in the 2012 presidential election." Journal of Politics 77.2 (2015): 535-45. in JSTOR

Kang M. "The end of campaign finance law" 98 Virginia Law Review (2012) 1.

Kuhner T. Capitalism v. Democracy: Money in Politics and the Free Market Constitution (Stanford University Press, 2014)

Ewan McGaughey, 'Fascism-Lite in America (or the social idea of Donald Trump)' (2016) TLI Think! Paper 26/2016

Post, Robert, ed. Citizens Divided: Campaign Finance Reform and the Constitution (Harvard University Press, 2014)

Text of Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) is available from: Cornell CourtListener Findlaw Google Scholar Justia

"Did the Citizens United Ruling Shut Out Your Voice?"

Court documents. Dead link.

Court documents

Oral Argument Transcript, PDF links to one of the two oral arguments.

Text of Supreme Court decision, PDF

Text of Supreme Court decision, HTML

Seligman, Joel, "Is The Corporation The Person? Reflections on Citizens United v. Federal Election Commission", speech May 6, 2010; with thanks by Seligman to John Field for assistance.

Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341 (2009).

Citizens United and the Scope of Professor Teachout's Anti-Corruption Principle, 107 Nw. U. L. Rev. 399; 107 Nw. U. L. Rev. Colloquy 1 (2012).

"Money Unlimited: How John Roberts Orchestrated Citizens United" by Jeffrey Toobin, published in The New Yorker on May 21, 2012. An article about the beginnings of campaign finance law i.e. the Tillman Act of 1907, the Supreme Court case history regarding campaign finance before Citizens United, the court proceedings leading to the Citizens United ruling, and the aftermath of Citizens United.

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Citizens United v. Federal Election Commission Argued March 24, 2009Reargued September 9, 2009Decided January 21, 2010 Full case name Citizens United, Appellant v. Federal Election Commission Docket no. 08-205 Citations 558 U.S. 310 (more ) Argument Oral argument Reargument Reargument Opinion announcement Opinion announcement Case history Prior Motion for preliminary injunction denied, 530 F.

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Case that started the two pronged test.

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FACTS: Two Houston police officers applied to a magistrate for a warrant to search Aguilar's home for narcotics. Their affidavit, in relevant part, recited that:

" Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of law."

The search warrant was issued and narcotics were found.

ISSUES: Did the affidavit provide sufficient basis for finding of probable cause and issuance of a search affidavit?

HOLDING: No

DISCUSSION: In passing on the validity of the search warrant, the reviewing court may consider only information brought to the magistrate's attention. Informed and deliberate determinations of magistrates are to be preferred over hurried action of officers who may happen to make arrests, and evidence sufficient to support a magistrate's disinterested determination to issue a warrant will not necessarily justify the officer in making search without warrant.

The point of the Fourth Amendment is not that it denies law enforcement the support of usual inferences which reasonable men may draw from evidence but that it requires that such inferences to be drawn by neutral and detached magistrate instead of the officer engaged in the often competitive enterprise of ferreting out crime. An affidavit for a search warrant may be based on hearsay information and need not reflect direct personal observations of the affiant, but magistrate must be informed of some of the underlying circumstances on which informant based his conclusions and some of the underlying circumstances from which officer concluded that the informant, whose identity need not be disclosed, was "credible" or that his information was reliable.

Although the reviewing court will pay substantial deference to judicial determinations of probable cause, the court must still insist that the magistrate perform his "neutral and detached" function and not serve merely as a rubber stamp.

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FACTS: Two Houston police officers applied to a magistrate for a warrant to search Aguilar's home for narcotics. Their affidavit, in relevant part, recited that: " Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of law."

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The Nesbett Courthouse in downtown Anchorage.

A Superior Court judge in Anchorage has issued a ruling that may hobble the big-money independent expenditure groups that have come to dominate Alaska elections.

Jason Harrow, of the group Equal Citizens, is one of the attorneys who brought the case on behalf of three Alaska voters.

"I think many Alaskans saw in the last election cycle, with respect to groups that were supporting Gov. Dunleavy from out of state and things like that, that these independent groups can be very similar and very closely aligned with the campaigns ... and because they're technically independent, there's no limits that apply," Harrow said. "And that's what we were targeting."

Judge William Morse says the Alaska Public Offices Commission should reinstate the $500 annual per-person contribution limit to independent groups, or Political Action Committees, that's in state law. APOC stopped enforcing it following a 2010 U.S. Supreme Court decision in the case of Citizens United v. Federal Election Commission. Harrow says APOC went too far in its interpretation.

"Well, the key point is that it wasn't quite Citizens United that led to the opening of the floodgates," Harrow said.

Harrow expects the case will be reviewed by the state Supreme Court, and then he hopes to bring it to the U.S. Supreme Court, to curb unlimited money in politics.

A spokeswoman for the state Department of Law says the department believes the court's order is mistaken. The department has filed a petition for rehearing.

Liz Ruskin covers Alaska issues in Washington as the network's D.C. correspondent. She was born in Anchorage and is a West High grad. She has degrees from the University of Washington and the University of Missouri School of Journalism in Columbia. She previously worked at the Homer News, the Anchorage Daily News and the Washington bureau of McClatchy Newspapers. She also freelanced for several years from the U.K. and Japan, in print and radio. Liz has been APRN's Washington, D.C. correspondent since October 2013. She's @lruskin on Twitter. She welcomes your news tips at lruskin (at) alaskapublic (dot) org | About Liz

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Judge says Alaska should crack down on unlimited contributions in state elections

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A Superior Court judge in Anchorage has issued a ruling that may hobble the big-money independent expenditure groups that have come to dominate Alaska elections. Jason Harrow, of the group Equal Citizens, is one of the attorneys who brought the case on behalf of three Alaska voters.

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Free speech v. hate speech in South Africa

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Free speech v. hate speech in South Africa

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It's an all-too-common practice in South Africa: Someone says something truly offensive, they have their trial by social media, and then find themselves facing charges of hate speech.

Momberg, Catzavelos, Sparrow, Nair, Khumalo, Malema and even Edward Zuma. These are people, from all walks of life and different ethnic backgrounds, who have fallen foul of hate speech laws - usually thanks to their own daft, shortsighted actions.

But at what point does "expressing yourself" become "exposing yourself"? We've had a look at the legalities separating free speech from its evil twin. Here's what you need to know:

Hate speech vs free speech in South Africa

What "freedom of speech" is in South African law

Let's clear this one up straight away. Freedom of expression is guaranteed by the South African Bill of Rights, within the Constitution. This is the absolute letter of the law:
Everyone has the right to freedom of expression, which includes:

Freedom of the press and other media

Freedom to receive or impart information or ideas

The freedom of artistic creativity.

Academic freedom and freedom of scientific research.

That means every South African is free to consume whatever media they desire, and in turn, all media publications should be allowed to publish whatever they want so long as it falls in line with proper and correct media law frameworks.

All South Africans are allowed to share any information they feel is necessary, and must be allowed their rights to express and access ideas. The Bill of Rights also allows the broad range of artists to paint, write or perform anything that they want to. Furthermore, no limits shall be placed on what we can and cannot research, whether that's in a personal or educational capacity.

What counts as hate speech?

We've already stated that the laws on free speech allow people to express themselves in any manner they wish. However, the waters get a bit murkier here. These laws are effectively meant to regulate free speech, rather than limit it.

Here's how the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 describes hate speech:
No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to:
The difference between free speech and hate speech

So where does the line get drawn? A pretty clear way to start defining hate speech is by looking at the most black and white part of it: If you are directly calling for the harm of a certain group of people, based on ethnicity, race, gender or religion, you are committing hate speech.

Using extremely derogatory terms (based on demographics mentioned in the last paragraph) to refer to an individual is also classed as hate speech. The Kessie Nair case is a good example, here. He's lawfully being charged on the grounds of hate crimes, after ticking two boxes:

Not only did he refer to Cyril Ramaphosa as the "k*****-president", but his social media posts in the week leading up to his racist rant encouraged locals in Chatsworth to engage in "sporadic acts of violence", with obvious racial undertones.

Let's put it this way: Hate speech is something that's perhaps been over-complicated. And it's something 99% of us will find incredibly easy to avoid. However, if you do use an extremely offensive word to convey your hatred of a certain type of person, or encourage violence against them, that's when you're in this territory.

If you express a displeasure or opposition to one of these groups - without calling for acts of violence or using grossly offensive terms - then you are covered by free speech.

Occasions where hate speech can be used

You could end up hearing elements of hate speech come from people who aren't racist, homophobic, or xenophobic. A prime example is when a news outlet shares video footage of someone caught hurling racial abuse or using horrendous language.

As Business Tech report, this falls under "fair and accurate reporting or commentary in the public interest or publication of material in accordance with the Constitution". Nadia Froneman, an associate at law firm Eversheds Sutherland, also told the publication hate speech can be used in:

Any good faith artistic creativity, performance or expression to the extent that it does not advocate hatred that constitutes incitement to cause harm based on one of the listed grounds;

Any academic or scientific enquiry;

The bona fide interpretation and proselytization or espousing of religious material to the extent that it does not advocate hatred that constitutes incitement to cause harm based on one of the listed grounds.

Hate speech "in context"

So if you watch a show that depicts life under apartheid, you'd expect to hear plenty of offensive terms and beliefs that quantify as hate speech. However, that is fine to use as it's merely providing context to a story. If the show isn't glorifying these ideals, it's in the clear.

The point about religious materials is still a grey area, though. When proposals for a new Hate Speech Bill were circulated earlier this year, some theological groups argued that their holy books would fall foul of rules that limit opposition to homosexuality.

With gay relationships forbidden by some major religions, this has caused a bit of a headache. Religious texts - particularly newly-published ones - aren't exempt from hate speech rules, however.

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The key differences between hate speech and free speech in South Africa

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It's an all-too-common practice in South Africa: Someone says something truly offensive, they have their trial by social media, and then find themselves facing charges of hate speech. Momberg, Catzavelos, Sparrow, Nair, Khumalo, Malema and even Edward Zuma.

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Incidents at Northwestern and Harvard reveal a growing tension between traditional journalistic practices and the demands of student activists.

The campus newspaper at Northwestern University drew intense criticism from student advocates for the way it covered protests against a speech on campus by Jeff Sessions, a former attorney general. Credit... Evan Jenkins for The New York Times

EVANSTON, Ill. - Jeff Sessions, President Trump's former attorney general, was speaking to a packed lecture hall on Northwestern University's campus last week, but the real action was unfolding offstage.

Student protesters were pushing through a back door of the building. The police confronted them and tried, unsuccessfully, to block their entrance. Colin Boyle, a student photographer for The Daily Northwestern, the campus newspaper, captured it all.

After the event, Ying Dai, one of the students, saw a photo of herself on his Twitter feed - sprawled painfully on the floor - and addressed him directly.

"Colin please can we stop this trauma porn," she wrote on Twitter. "I was on the ground being shoved and pushed hard by the police. You don't have to intervene but you also didn't have to put a camera in front of me top down."

By the end of the night, Mr. Boyle had deleted the picture, and not long after, editors at The Daily Northwestern published a statement apologizing for their journalists having posted photographs of protesters on social media, and for using the school directory to attempt to contact students.

The newspaper's response set off a national firestorm this week. Prominent professional journalists derided the apology and weighed in to note, often incredulously, that the Northwestern journalists had been doing some of the most basic, standard work that reporters have always done - watching public events, interviewing people and describing what they saw.

"The Daily had an obligation to capture the event, both for the benefit of its current audience as well as for posterity," Charles Whitaker, dean of Northwestern's highly acclaimed Medill journalism school, said in a lengthy statement he issued as the debate roiled the journalism profession.

The episode was the latest in a series of flare-ups on college campuses across the country, where shifting sensibilities and heightened criticism of the media have made the environment thornier for student journalists.

In interviews, some student journalists said they had addressed the clashes by adhering to what they described as core tenets of a free press. Others said they found themselves struggling to meet two dueling goals: responding to the changing expectations of the students they cover, particularly from those on the political left, while upholding widely accepted standards of journalism.

"Nobody at this point quite knows how to do that," said Olivia Olander, 19, a sophomore who covered the Sessions speech for Northwestern News Network, a television channel on campus. "Everybody's trying to figure out a solution and still be good journalists along the way."

At a time when some say heightened sensitivities have become the norm on American campuses, it is not uncommon for college newspaper editors to be confronted by students who are upset at being photographed in a public place without being asked for their permission; who view receiving a text message or phone call from a reporter as an invasion of their privacy; and who expect journalists to help assuage their concerns that graphic images in a newspaper could cause trauma to readers.

Greta Bjornson, who worked last academic year as the editor of The Vermont Cynic, a student newspaper at the University of Vermont, said that student activists sometimes raised valid points about a lack of diversity on the newspaper staff. Other times, she said, they would ask to change a headline after publication, or would decline to talk to reporters.

"It's just changing so quickly," said Ms. Bjornson, 22. "I think it's just a tricky time, especially to be a student journalist. No matter what you do, I feel like you're going to make somebody angry."

In Evanston, the lakefront suburb of Chicago that is home to Northwestern, students who were involved in the conflict over coverage of the Sessions speech said they had endured several days of painful but ultimately fruitful discussions, culminating with The Daily's apologetic statement on Sunday.

"Ultimately, The Daily failed to consider our impact in our reporting surrounding Jeff Sessions," said the statement, signed by eight editors. "We know we hurt students that night, especially those who identify with marginalized groups."

In an interview, Mr. Boyle, 21, the student photographer who deleted photographs he had posted, said that while he supported the First Amendment, he did not intend to cause trauma to the people he photographed.

"There was definitely a lot of panic," Mr. Boyle, a senior majoring in journalism who grew up in Chicago, said of his reaction to being criticized. "There was me being worried that I'm hurting people with my coverage."

Troy Closson, the editor in chief of The Daily Northwestern, wrote on Twitter that he felt added pressure as only the third African-American student to hold the top position at the paper in its more than 135-year history. "Being in this role and balancing our coverage and the role of this paper on campus with my racial identity - and knowing how our paper has historically failed students of color, and particularly black students, has been incredibly challenging to navigate," he wrote.

Mr. Whitaker, the Medill dean, defended The Daily, but criticized the paper's decision to apologize.

"I have also offered that it is naïve, not to mention wrongheaded, to declare, as many of our student activists have, that The Daily staff and other student journalists had somehow violated the personal space of the protesters by reporting on the proceedings, which were conducted in the open and were designed, ostensibly, to garner attention," he said.

In a coffee shop in Evanston on Tuesday, Ms. Dai, 23, the student who had questioned Mr. Boyle's photograph of her, said that she and other activists were trying to challenge journalistic norms and push for a more sensitive approach to reporting that considers the vulnerability of the people whose lives are portrayed.

"We weren't there to get in the newspaper," she said of the protest at the Sessions event. "We weren't there to get national attention. People still hold dear that their journalistic duty is the most important thing, and that's not the case."

Campus activists and student journalists have long wrestled with tensions. In 1990, students burned copies of The University Daily Kansan after an editor changed the publication's style for referring to African-American students from "Black" to "black." At the time, the change brought the newspaper in line with the style of The Associated Press, but it was seen as offensive by some on campus.

In 2015, students at Wesleyan University petitioned to deny funds to the campus paper after a student wrote a column voicing skepticism about the Black Lives Matter movement. And at the University of Missouri that year, an assistant professor called for "some muscle" to remove a journalist who was trying to photograph an encampment of protesters seeking action to address racial issues.

At Harvard this year, more than a dozen student groups have joined a boycott of a student-run newspaper, The Harvard Crimson, over its coverage of a student protest calling for the abolition of the United States Immigration and Customs Enforcement agency.

The controversy centered on the reporters' decision to contact ICE officials for comment after the rally. Groups like Act on a Dream, the immigrants' rights advocacy group that organized the rally, criticized the paper on social media for reaching out to the federal agency, saying that doing so had put undocumented students who participated in the rally in danger.

In a note to readers, The Crimson's president, Kristine E. Guillaume, and its managing editor, Angela N. Fu, said that in their view a core principle of journalism was at stake in the dispute - that of contacting every person or organization relevant to a story to seek their comment.

While The Crimson's top editors have stood their ground, Act on a Dream and others have posted an online petition demanding that the paper apologize for "the harm they inflicted on the undocumented community" and that it change its policies. The groups have said they will boycott The Crimson by declining any interview requests until the paper changes its practices.

Those signing the petition included the Harvard College Democrats; the Phillips Brooks House Association, Harvard's largest community service organization; and several groups representing Latino and black students.

The debate has reached the student government, which voted narrowly to issue a statement criticizing The Crimson and expressing solidarity with Act on a Dream.

And there has been dissent within The Crimson. Danu Mudannayake, 21, a senior who is an illustrator at the paper, said in an interview, "We just internally want to see more done to address the concerns on campus and not uphold this quite cold front that 'We are a newspaper at the end of the day, and that is before anything else.'"

She suggested that the era called for a different kind of journalism, particularly for student journalists.

"We can still be serious student journalists, but still have more empathy," she said. "I think the question of empathetic journalism is, at least for us on the inside, what's at the heart of it."

Hadar Harris, the executive director of the Washington-based Student Press Law Center, said she saw the incidents at Harvard and Northwestern as a reflection of a polarized society beyond colleges. She said student journalists often face the pressure of reporting in real time to a wider audience, and may not have all the training and support they need.

On most large college campuses, including Northwestern's, students manage, write and publish newspapers independently. Some publications have faculty advisers, but the final editorial decisions are generally made by students.

"No one wants to be sexist or racist or homophobic," Ms. Harris said. "There needs to be training to enable student journalists to really cover these complicated issues without being buffeted by political concerns."

For Robyn Cawley, editor in chief of The Daily Cardinal at the University of Wisconsin, it was a small relief that the confrontation in Evanston had happened far away from her turf in Madison.

"I was thinking, like, imagine if this had happened on our campus," she said. "We would have sent somebody to the protest. We wouldn't have given it a second thought. You're out in public, you're protesting, it's very likely you're going to have some sort of media coverage there."

Ms. Cawley, who is majoring in English and environmental studies, said she had occasionally felt pressure from fellow students who have tried to exert control over the paper's coverage. Once, she said, a former volunteer with the College Democrats urged her to take down an article, arguing that it presented them in an unflattering light.

"I was like, of course you're not going to like it," she said. "Good for you. That's the point of journalism."

Julie Bosman reported from Evanston, Mitch Smith from Chicago and Kate Taylor from Cambridge, Mass. Susan Beachy contributed research from New York.

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News or 'Trauma Porn'? Student Journalists Face Blowback on Campus

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Incidents at Northwestern and Harvard reveal a growing tension between traditional journalistic practices and the demands of student activists. EVANSTON, Ill. - Jeff Sessions, President Trump's former attorney general, was speaking to a packed lecture hall on Northwestern University's campus last week, but the real action was unfolding offstage.

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Hate speech in Germany and its complications

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Hate speech in Germany and its complications

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In October a new law comes into force in Germany that will impose huge fines on social networks if they don't delete illegal content including hate speech. It's touched off a huge debate over freedom of expression and has attracted an unusual collection of opponents.

The law is called Netzwerkdurchsetzungsgesetz - NetzDG for short. It obliges the biggest social networks - those with more than two million German users - to take down "blatantly illegal" hate speech within 24 hours of it being reported. For material that's less obviously violating the law, networks such as Facebook and Instagram will have seven days to consider and, if appropriate, delete posts. Failure to meet these deadlines could lead to fines of up to €50m.

Critics argue the short timeframes coupled with the potentially large fines will lead social networks to be overly cautious and delete huge amounts of content - even things that are perfectly legal. But the law's supporters, and the German government, argue that it will force social media companies to proactively deal with online incitement and hate speech.

What counts as 'illegal hate speech' in Germany?

The law doesn't actually change what's considered hate speech in Germany. No new offences are created. The law simply cites sections of the German Criminal Code which details illegal speech online. The categories range from "forming terrorist organisations", to the much vaguer "defamation of religions, religious and ideological associations."

In addition, German law restricts some types of speech that are allowed in many other countries. For instance, the use of Nazi symbols is banned, as are the symbols and flags of some extremist groups.

An earlier draft of the NetzDG bill barred "defamation of the President of the Federation", but the clause was removed after criticism. The law has also been criticised for containing no legal mechanism for people whose posts are wrongly deleted to appeal to get them reinstated.

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So who is worried?

Opposition has come from a wide range of groups and politicians on both the left and right - and Facebook has also made its disagreement with the law clear.

The United Nations has also weighed in. David Kaye, the UN's Special Rapporteur on Freedom of Expression, has written to the German government to warn about the potential consequences of the law.

"With these 24 hour and seven day deadlines - if you are a company you are going to want avoid fines and bad public branding of your platform," he says. "If there is a complaint about a post you are just going to take it down. What is in it for you to leave it up? I think the result is likely to be greater censorship."

The group Reporters without Borders says the German law has already inspired a "draconian" new online media law in Russia.

But there are voices in Germany who are in favour of the law and who argue that making social networks more responsible for hate speech and illegal content on their platforms is a good thing.

Anas Modamani is a refugee from Syria who now lives in Berlin. In August 2015 he was catapulted to notoriety for taking a selfie with Angela Merkel while she was visiting a migrant shelter.

But the picture would come back to haunt him, as it was used to accuse him of attacks in Brussels and Berlin. His famous photograph was cropped and pasted into wanted posters and false news reports.

"When I read the fake news on the internet, I really cried, it was really bad in my life, it was all untrue," Modamani says.

He decided to take Facebook to court for not doing enough to stop the lies being shared about him, but in March 2017 he lost the case. The court ruled Facebook had taken enough measures to attempt to block defamatory images of him for users in Germany.

Because of his experiences, Modamani is a supporter of NetzDG.

"I think the law is a good idea because people will be a little bit afraid, they can't just write what they want," he says. "I don't mind if other comments get deleted along with the bad ones."

Modamani's lawyer, Chan-Jo Jun, is also optimistic about the new law, and plans to use it immediately after it comes into effect.

"I regularly report the post that was the subject of the [earlier] trial and I keep getting the answer [from Facebook] that it does not violate community standards," Jun says. "Therefore it is still online. After October I will file a complaint against Facebook under the NetzDG - with the NetzDG, the court case would not have been necessary."

On the other side of the legal debate is attorney Joachim Steinhoefel. While Chan-Jo Jun has taken Facebook to court to get them to remove posts, Steinhoefel has threatened the company with legal action to get a post reinstated.

In May, photojournalist Markus Hibbeler wrote a Facebook post about Islam and freedom of expression. Translated from German, the post read in part: "We shouldn't shield Muslims, and certainly not Islam, which has never been through an enlightenment or reformation, from criticism and constantly protect them."

His post was deleted by Facebook and his account was suspended for seven days. Hibbeler, with Steinhoefel's help, threatened to sue Facebook if the post wasn't put back up within a week and his account reinstated. They succeeded, and Facebook reinstated the post and apologised.

It's cases like Hibbeler's, Steinhoefel says, that show how NetzDG threatens freedom of expression. He says he doesn't trust Facebook to decide what posts are legal and illegal and thinks the most likely outcome will be a mass deletion of legal posts that Facebook doesn't want to take any risks with, out of an abundance of caution.

The attorney has started a blog where he posts examples of Facebook deleting posts which he says break no laws. The blog also catalogues what Steinhoefel says are blatantly illegal posts which Facebook hasn't removed.

For example, one of the latter posts reads: "Jews to the gas chambers". Facebook has not removed it, despite it being reported to the company.

"It goes to show how unprofessional they are in dealing with this content," Steinhoefel says. He is suspicious of the real motive behind the new law and says it will allow "the media and political elite to regain control over the political debate in Germany."

"The law is superfluous," he says. "The law as it is right now in Germany makes Facebook responsible for illegal content on its site from the moment they know about it. It just takes state prosecutors and courts to implement these laws."

The German government, however, is determined to press forward with NetzDG. Gerd Billen, a State Secretary in the German Ministry of Justice, says that although existing laws oblige Facebook to delete illegal comments "there are no rules about when they have to do it, how they have to organise and what their complaint management system should look like."

"There is a fear of 'over-blocking' but the reality is 'under-blocking'," Billen says. "They don't block enough. We don't believe there will be a problem (with over-blocking) because the social networks want to keep their customers."

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Billen downplays concerns about freedom of speech, and points out that social media companies already censor content that is perfectly legal.

"There is no obligation for any private company in Germany or somewhere else in the world to guarantee freedom of speech," he says. "To guarantee freedom of speech is something a government does but not private companies. I didn't find any notice in the terms and conditions of Facebook that the company will respect freedom of speech.

"For example they delete many things that are allowed in Germany. Facebook don't accept naked people on their platform. They can decide if they don't want it, so they delete it."

Opposition from social media companies

A Facebook spokesperson admitted to the BBC that they can't rule out the possibility of legal content being deleted.

"The law is not the right way to fight hate speech online," the spokesperson says. "It provides an incentive to delete content that is not clearly illegal and would have the effect of transferring responsibility for complex legal decisions from public authorities to private companies.

"Several legal experts have assessed the draft law as being against the German constitution and non-compliant with EU law. Facebook is committed to working in partnership with governments and civil society on solutions that would have made this law unnecessary."

The BBC also learnt that although the company will soon have another 500 content moderators based in Essen, in western Germany, Facebook has not hired any new staff in response to the law.

"We are still evaluating what the law really means for us," the spokesperson says.
You can follow BBC Trending on Twitter @BBCtrending, and find us on Facebook. All our stories are at bbc.com/trending.

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Will Germany's new law kill free speech online?

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In October a new law comes into force in Germany that will impose huge fines on social networks if they don't delete illegal content including hate speech. It's touched off a huge debate over freedom of expression and has attracted an unusual collection of opponents. The law is called Netzwerkdurchsetzungsgesetz - NetzDG for short.

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OverviewFighting words are, as first defined by the Supreme Court (SCOTUS) in Chaplinsky v New Hampshire, 315 U.S. 568 (1942),

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Neo Nazis don't have 1st Amendment Rights to HARASS

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Neo Nazis don't have 1st Amendment Rights to HARASS

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District court ruling in Montata-- super interesting

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Tanya Gersh of Whitefish, Mont., became the target of a neo-Nazi "troll storm" of online harassment orchestrated by The Daily Stormer. Credit Credit Dan Chung/Southern Poverty Law Center, via Associated Press

A lawsuit accusing the publisher of the neo-Nazi site Daily Stormer of coordinating a "terror campaign" of online harassment against a Jewish real estate agent cannot be dismissed on First Amendment grounds, a federal judge in Montana ruled this week.

In his ruling denying a motion to dismiss the lawsuit, Dana L. Christensen, the chief judge for United States District Court in Missoula, Mont., wrote that the real estate agent, Tanya Gersh, was a private citizen, not a public figure, and that the publisher, Andrew Anglin, incited his followers to harass her as part of a personal campaign.

The events that spurred the lawsuit began in the fall of 2016, when The Daily Stormer published a series of articles attacking Ms. Gersh, of Whitefish, Mont., for her interactions with Sherry Spencer, the mother of the white supremacist leader Richard Spencer.

Ms. Spencer owned a building in Whitefish and Ms. Gersh had talked to her about its potential sale after word circulated that residents were considering a protest there against white supremacy.

The call to protest was spurred by video of Mr. Spencer, who resided part time in Whitefish, railing against Jews and shouting "Hail Trump! Hail our people!" at an alt-right meeting in Washington, according to the suit.

The suit contends that Ms. Gersh counseled Ms. Spencer to sell the building and repudiate her son's views. And initially, Ms. Spencer agreed, it says, even asking Ms. Gersh to represent her in such a sale.

Then Ms. Spencer reversed course, and published a blog post on Medium, charging that Ms. Gersh had tried to threaten and extort her to sell the building and break with her son. Mr. Anglin then began writing and publishing his own articles calling for "a troll storm" against Ms. Gersh.

"Tell them you are sickened by their Jew agenda to attack and harm the mother of someone whom they disagree with," he wrote, according to the suit.

In the months that followed, the site published over 30 related posts - and the phone numbers, email addresses and social media profiles of Ms. Gersh, her husband and 12-year-old son, as well as friends and colleagues, the suit states.

By the spring of 2017, the family had received more than 700 vulgar and hateful messages, including death threats, many referencing the Holocaust. Some phone messages consisted solely of the sound of gunshots.

The Southern Poverty Law Center filed the lawsuit on Ms. Gersh's behalf in April 2017. Mr. Anglin sought to have it dismissed, and a magistrate judge, Jeremiah C. Lynch, ruled against him in May. Mr. Anglin filed objections to that ruling, which sent the case to Judge Christensen for additional review.

David Dinielli, a lawyer for the law center, said in a statement that Judge Christensen's ruling on Wednesday "underscores what both we and our client have said from the beginning of this case - that online campaigns of hate, threats, and intimidation have no place in a civil society, and enjoy no protection under our Constitution."

In a phone interview, Mr. Dinielli said that the Gersh family had notified law enforcement of the harassment, but there have been no criminal charges.

The organization now expects the civil case to go to trial. It has taken a long time because it proved impossible to serve Mr. Anglin with legal papers, Mr. Dinielli said. Mr. Anglin's last known address was in Ohio, but his whereabouts have been unknown for nearly two years. He is still running the site, possibly from overseas.

His lawyer, Marc Randazza, said that Judge Christensen's decision was dangerous for free speech.

"The rule we lay down for the Nazi applies equally to the civil rights activist," Mr. Randazza said in a statement. "And that ruling, if it stands, is not going to be good for anyone who engages in common outrage culture. Maybe that's a good thing, but I think not."

The site has also faced two other lawsuits. Taylor Dumpson, the first black woman to serve as American University's student government president, filed a suit in May. She became an online target after a real-life incident: nooses and hateful messages left on campus a day after her inauguration. The suit was filed by the Lawyers' Committee for Civil Rights Under Law.

Dean Obeidallah, a Muslim comedian and radio host, filed a defamation lawsuit in August 2017 after the site falsely accused him of masterminding the deadly bombing of an Ariana Grande concert in Manchester, England, last year.

Mr. Anglin never responded, and Mr. Obeidallah said his lawyers were preparing to file paperwork for a default judgment.

"I don't expect us to collect any money," he said by email. "But if we did collect any money from Anglin I would donate it all to organizations that fight bigotry and racism."

The site was booted from Google and GoDaddy web hosting services after it posted an article mocking Heather D. Heyer, the woman killed in an attack on counterprotesters at a white nationalist rally in Charlottesville, Va., last year.

It then bounced around the globe with different web domains, and is currently online with the domain name ".name." There have also been reports that Mr. Anglin is using crypto-currency to fund the site.

"He should be assured that if we end up with a judgment, we will go to the ends of the earth to collect, so that he doesn't do this again and can no longer publish," Mr. Dinielli said.

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Neo-Nazi Harassment Not Protected by First Amendment, Judge Rules

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A lawsuit accusing the publisher of the neo-Nazi site Daily Stormer of coordinating a "terror campaign" of online harassment against a Jewish real estate agent cannot be dismissed on First Amendment grounds, a federal judge in Montana ruled this week. In his ruling denying a motion to dismiss the lawsuit, Dana L.

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A good overview of the Skokie and Collin v. Smith

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A good overview of the Skokie and Collin v. Smith

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Wikipedia is a great starting point for cases-- this has an excellent overview of the case and how they are connected

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National Socialist Party of America v. Village of Skokie - Wikipedia

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National Socialist Party of America v. Village of Skokie , 432 U.S. 43 (1977), arising out of what is sometimes referred to as the Skokie Affair, is a United States Supreme Court case dealing with freedom of speech and freedom of assembly. Related court decisions are captioned Collin v.

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Applies to school officials, does not apply to police, but an interesting connection-- school officials can search without a warrant

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New Jersey v. T.L.O. (1985)

Summary

In this case, the Supreme Court held that while the search warrant requirement does not apply to public school officials, teachers and administrators are bound by the Fourth Amendment's essential requirement that searches be "reasonable."

Resources

Activity

The two freshman girls heard footsteps approaching and the creak of the bathroom door opening. Figuring it was just another student, they didn't put out their cigarettes. They were smoking in the bathroom, which they knew was in violation of school rules. But a moment later it was a teacher who now stood across from them in the smoky bathroom air, arms folded. The teacher brought them to the office where a vice-principal met them.

When one of the two girls, T.L.O., denied that she had been smoking, the vice principal demanded to see her purse. He found a pack of cigarettes, and also noticed a packet of rolling papers, which he believed were an indication of marijuana use. This led him to search her purse, where he discovered a small amount of marijuana, drug paraphernalia, and a large sum of money. The school called her mother to bring her to the police station, where T.L.O. admitted to selling drugs at school. Later. T.L.O. was convicted in juvenile court.

T.L.O. appealed her conviction. She believed that the school had acted illegally in searching her purse, and therefore the evidence against her should not have been allowed to be used against her in Court. This is known as the exclusionary rule - illegally obtained evidence is inadmissible.

The Supreme Court had to consider whether the Fourth Amendment's "prohibition on unreasonable searches and seizures applies to searches conducted by public school officials." The Court answered that question clearly: "We hold that it does." However, they found that the vice principal had acted reasonably, and that therefore T.L.O.'s conviction based on the evidence the vice principal discovered should stand. The Court conceded that students have a rightful expectation of privacy on school grounds, and that school officials do not have the authority of parents (who would not be bound by the Fourth Amendment). The Court reasoned, though, that the students' right to expect privacy must be balanced with the "substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds."

Questions

1. Why did the Supreme Court find T.L.O.'s conviction constitutional?

2. According to the Fourth Amendment, "probable cause" of a crime is required when police conduct a search. The Supreme Court has said that school officials, on the other hand, must have "reasonable suspicion" that laws or school policies are being broken by students. How do these standards differ? Why is "reasonable suspicion" the standard school officials follow?

3. In his dissenting opinion, Justice Brennan argued the thorough search of T.L.O.'s purse was unreasonable. "When he opened the purse, he discovered the pack of cigarettes. At this point, his search for evidence of the smoking violation was complete." Do you agree? Why or why not?

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New Jersey v. T.L.O. (1985) - Bill of Rights Institute

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New Jersey v. T.L.O. (1985) Summary In this case, the Supreme Court held that while the search warrant requirement does not apply to public school officials, teachers and administrators are bound by the Fourth Amendment's essential requirement that searches be "reasonable." Resources New Jersey v.

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Good Article about hate speech and Chaplinksy

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Good Article about hate speech and Chaplinksy

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Former Vermont governor Howard Dean defends his statement that " Hate speech is not protected by the first amendment " by saying:

I'm pleased to say that I have read Chaplinsky v. New Hampshire (1942), which is usually cited as recognizing a "fighting words" exception to the First Amendment - personally addressed face-to-face insults that are likely to start an imminent fight are not constitutionally protected. But that has little to do with "hate speech" as most people tend to use the phrase: (1) Such personal insults are constitutionally unprotected entirely without regard to whether they are bigoted. (2) Bigoted expressions of opinion that don't involve such personally addressed face-to-face insults are constitutionally protected. (3) Indeed, statutes that target only bigoted "fighting words" for special punishments are constitutionally unprotected, even if they are limited to such personally addressed face-to-face insults, see R.A.V. v. City of St. Paul (1992).

Sometimes, I've seen people cite Chaplinsky for the proposition that even general expressions of opinion are unprotected simply because they might yield a violent reaction. But while one can read Chaplinsky itself this way, later precedents make clear that this is not the law. Cohen v. California (1971) is the clearest example: Cohen was convicted for wearing a jacket that said "Fuck the Draft," but the Court rejected the view that the conviction could be upheld on the grounds that the statement was "fighting words":

This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called "fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New Hampshire (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not "directed to the person of the hearer." Cantwell v. Connecticut (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult.

(Cantwell v. Connecticut [1940], on which Cohen relied, really did involve "hate speech" as many people use the term - an attack on Catholicism by a Jehovah's Witness, in a neighborhood that was about 90 percent Catholic - and did indeed enrage listeners to the point where they said they were tempted to violence, though they resisted the temptation. But Cantwell and Cohen make clear that such speech is protected.)

So Chaplinsky doesn't hold that "Hate speech is not protected by the first amendment." Indeed, as my earlier post noted, other cases make clear that what is usually labeled "hate speech" - advocacy of bigoted views - is protected by the First Amendment.

Moreover, the particular statement to which Dean was apparently referring - Ann Coulter's 2002 statement quoted as, "My only regret with Timothy McVeigh is he did not go to the New York Times Building" - would not constitute "fighting words," whether if said in a speech at Berkeley (the apparent occasion for Dean's quote), in the initial interview with the Observer, or most other contexts. So I don't think that Chaplinsky does anything to support Dean's initial statement.

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is hate speech constitutionally protected

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Opinion | No, Gov. Dean, Chaplinsky v. New Hampshire does not recognize a 'hate speech' exception

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Former Vermont governor Howard Dean defends his statement that " Hate speech is not protected by the first amendment " by saying: I'm pleased to say that I have read Chaplinsky v. New Hampshire (1942), which is usually cited as recognizing a "fighting words" exception to the First Amendment - personally addressed face-to-face insults that are likely to start an imminent fight are not constitutionally protected.

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Riley v. California - cell phone search incident to Arrest

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Riley v. California - cell phone search incident to Arrest

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A case in which the Court found that the San Diego Police Department's search of an arrested gang member's cell phone pictures without a warrant violated the Fourth Amendment.

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Privacy and the Alaska Constitution- Failing to Fulfill the Promi

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The Supreme Court's ruling made a major statement on privacy in the digital age. Credit Credit Tom Brenner/The New York Times

WASHINGTON - In a major statement on privacy in the digital age, the Supreme Court ruled on Friday that the government generally needs a warrant to collect troves of location data about the customers of cellphone companies.

"We decline to grant the state unrestricted access to a wireless carrier's database of physical location information," Chief Justice John G. Roberts Jr. wrote for the majority.

The 5-to-4 ruling will protect "deeply revealing" records associated with 400 million devices, the chief justice wrote. It did not matter, he wrote, that the records were in the hands of a third party. That aspect of the ruling was a significant break from earlier decisions.

The Constitution must take account of vast technological changes, Chief Justice Roberts wrote, noting that digital data can provide a comprehensive, detailed - and intrusive - overview of private affairs that would have been impossible to imagine not long ago.

The decision made exceptions for emergencies like bomb threats and child abductions. "Such exigencies," he wrote, "include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm or prevent the imminent destruction of evidence."

In general, though, the authorities must now seek a warrant for cell tower location information and, the logic of the decision suggests, other kinds of digital data that provide a detailed look at a person's private life.

The decision thus has implications for all kinds of personal information held by third parties, including email and text messages, internet searches, and bank and credit card records. But Chief Justice Roberts said the ruling had limits.

"We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party," the chief justice wrote. The court's four more liberal members - Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan - joined his opinion.

Each of the four other justices wrote a dissent, with the five opinions running to more than 110 pages. In one dissent, Justice Anthony M. Kennedy said the distinctions drawn by the majority were illogical and "will frustrate principled application of the Fourth Amendment in many routine yet vital law enforcement operations."

"Cell-site records," he wrote, "are uniquely suited to help the government develop probable cause to apprehend some of the nation's most dangerous criminals: serial killers, rapists, arsonists, robbers and so forth."

In a second dissent, Justice Samuel A. Alito Jr. wrote that the decision "guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely."

The case, Carpenter v. United States, No. 16-402, arose from armed robberies of Radio Shacks and other stores in the Detroit area starting in 2010.

Witnesses said that Timothy Ivory Carpenter had planned the robberies, supplied guns and served as lookout, typically waiting in a stolen car across the street.

"At his signal, the robbers entered the store, brandished their guns, herded customers and employees to the back, and ordered the employees to fill the robbers' bags with new smartphones," a court decision said, summarizing the evidence against him.

Prosecutors also relied on months of records obtained from cellphone companies to prove their case. The records showed that Mr. Carpenter's phone had been nearby when several of the robberies happened. He was convicted and sentenced to 116 years in prison.

Mr. Carpenter's lawyers said cellphone companies had turned over 127 days of records that placed his phone at 12,898 locations, based on information from cellphone towers. The records disclosed whether he had slept at home on given nights and whether he attended his usual church on Sunday mornings.

Chief Justice Roberts wrote that the information was entitled to privacy protection.

"Mapping a cellphone's location over the course of 127 days provides an all-encompassing record of the holder's whereabouts," he wrote, going on to quote from an earlier opinion. "As with GPS information, the time-stamped data provides an intimate window into a person's life, revealing not only his particular movements, but through them his 'familial, political, professional, religious and sexual associations.'"

In dissent, Justice Kennedy wrote that GPS devices provide much more precise location information than do cell towers. Chief Justice Roberts responded that cell tower technology is developing quickly.

"As the number of cell sites has proliferated," he wrote, "the geographic area covered by each cell sector has shrunk, particularly in urban areas. In addition, with new technology measuring the time and angle of signals hitting their towers, wireless carriers already have the capability to pinpoint a phone's location within 50 meters."

Chief Justice Roberts left open the question of whether limited government requests for location data required a warrant. But he said that access to seven days of data is enough to raise Fourth Amendment concerns.

The legal question for the justices was whether prosecutors violated the Fourth Amendment, which bars unreasonable searches, by collecting without warrant vast amounts of data from cellphone companies that showed Mr. Carpenter's movements.

In a pair of recent decisions, the Supreme Court expressed discomfort with allowing unlimited government access to digital data. In United States v. Jones, it limited the ability of the police to use GPS devices to track suspects' movements. And in Riley v. California, it required a warrant to search cellphones.

Chief Justice Roberts wrote that both decisions supported the result in the new case.

As his opinion in Riley pointed out, he wrote, "cellphones and the services they provide are 'such a pervasive and insistent part of daily life' that carrying one is indispensable to participation in modern society."

And the Jones decision, he wrote, addressed digital privacy in the context of location information.

"The question we confront today," he wrote, "is how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person's past movements through the record of his cellphone signals. Such tracking partakes of many of the qualities of the GPS monitoring we considered in Jones. Much like GPS tracking of a vehicle, cellphone location information is detailed, encyclopedic and effortlessly compiled."

Technology companies including Apple, Facebook and Google filed a brief urging the Supreme Court to continue to bring Fourth Amendment law into the modern era. "No constitutional doctrine should presume," the brief said, "that consumers assume the risk of warrantless government surveillance simply by using technologies that are beneficial and increasingly integrated into modern life."

Older Supreme Court decisions offered little protection for information about businesses' customers. In 1979, for instance, in Smith v. Maryland, the Supreme Court ruled that a robbery suspect had no reasonable expectation that his right to privacy extended to the numbers dialed from his landline phone. The court reasoned that the suspect had voluntarily turned over that information to a third party: the phone company.

Relying on the Smith decision's "third-party doctrine," federal appeals courts have said that government investigators seeking data from cellphone companies showing users' movements do not require a warrant.

But Chief Justice Roberts wrote that the doctrine is of limited use in the digital age.

"While the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records," he wrote. "After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person's movements."

"When the government tracks the location of a cellphone," the chief justice wrote, "it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone's user."

A federal law, the Stored Communications Act, does require prosecutors to go to court to obtain tracking data, but the showing they must make under the law is not probable cause, the standard for a warrant. Instead, they must demonstrate only that there were "specific and articulable facts showing that there are reasonable grounds to believe" that the records sought "are relevant and material to an ongoing criminal investigation."

That was insufficient, the court ruled. But Chief Justice Roberts emphasized the limits of the decision. It did not address real-time cell tower data, he wrote, "or call into question conventional surveillance techniques and tools, such as security cameras."

"Nor do we address other business records that might incidentally reveal location information," the chief justice wrote. "Further, our opinion does not consider other collection techniques involving foreign affairs or national security."

A version of this article appears in print on , on Page A1 of the New York edition with the headline: Warrant Required for Cellphone Tracking Data. Order Reprints | Today's Paper | Subscribe

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In Ruling on Cellphone Location Data, Supreme Court Makes Statement on Digital Privacy

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WASHINGTON - In a major statement on privacy in the digital age, the Supreme Court ruled on Friday that the government generally needs a warrant to collect troves of location data about the customers of cellphone companies. "We decline to grant the state unrestricted access to a wireless carrier's database of physical location information," Chief Justice John G.

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A senior ice hockey captain in Alaska was suspended from his team over the weekend after he posted at least two hate-filled remarks on his personal Twitter account late last week.

Soldotna senior Ethan Brown made disparaging remarks about Alaska Natives and homosexuals while also making a racist remark about the former first family, boys hockey coach coach Derek Urban confirmed to KTVA on Saturday.

According to a prepared statement from Soldotna principal Tony Graham that was obtained by the Alaska Dispatch News, Soldotna High and the Kenai Peninsula Borough School District are addressing the incident.

"Hate filled, racist, and disparaging remarks run counter to the mission of the KPBSD, our schools, and our athletic programs, and will not be tolerated," Graham said in the statement. "... Conversations about the appropriate use of social media will continue with our students and athletes."

Graham declined to tell the Dispatch News if Brown has been suspended from school, citing the Family Educational Rights and Privacy Act.

"He addressed the team, and I think they have all taken something from it," Urban said to KTVA. "They understand it's not a joking matter, and how insensitive it was."

Graham told KTVA that further discussion and guidance will be provided to the school's student athletes on the proper usage of social media.

"He's actually a pretty good kid, so, it's just a disappointment," Urban said.

The coach added that while Brown's captaincy has been stripped, he could return to the team as long as he undergoes "diversity education."

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Tim Whelan Jr., USA TODAY High School Sports

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Brendan C. Hall, USA TODAY High School Sports

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Hockey captain in Alaska suspended for racist, homophobic tweets

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A senior ice hockey captain in Alaska was suspended from his team over the weekend after he posted at least two hate-filled remarks on his personal Twitter account late last week. Soldotna senior Ethan Brown made disparaging remarks about Alaska Natives and homosexuals while also making a racist remark about the former first family, boys hockey coach coach Derek Urban confirmed to KTVA on Saturday.

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An extensive collection of documents, court decisions, essays, images, and links relating to the United States Constitution, including its history and interpretation. Designed for use by serious students.

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The First Amendment to the U.S. Constitution protects free speech and press freedom of all Americans, including students in school. Although the U.S. Supreme Court has made clear these rights are not unlimited, it has also affirmed neither "students [nor] teachers shed their Constitutional rights to freedom of expression at the schoolhouse gate."

In fact, free expression has long been regarded as the foundation of U.S. democracy. Thomas Jefferson perhaps said it best: "Our liberty depends on freedom of the press and that cannot be limited without being lost."

The first direct experience most Americans have with press freedom, and the censorship that limits it, begins when they are in school working on student media. That's why journalism educators, judges and First Amendment advocates have urged schools to support and foster student free expression because it is key to persuading young people " that our Constitution is a living reality, not [just] parchment preserved under glass. "

The Journalism Education Association, the nation's largest association of scholastic journalism educators and secondary school media advisers, has adopted strong policy statements endorsing student freedom of expression. For our democracy to be truly participatory, JEA believes students must be empowered so they see the value of making a difference.

Beyond the implications for citizenship education, there are other solid pedagogical reasons for supporting student press freedom. Instilling in students a sense of responsibility and teaching them to make wise decisions requires giving them responsibility to act independently. For the same reasons administrators don't conduct chemistry experiments themselves or play quarterback for the football team, sound educational outcomes come from allowing student journalists to make content decisions for themselves.

Administrators must properly define the role of the media adviser when it comes to censorship and press freedom. The Journalism Education Association's Adviser Code of Ethics affirms the role of a teacher/adviser is to guide and instruct, not to prohibit or censor. Asking advisers to impose their content choices on student editors both offends their professional standards and results in a publication less relevant and connected to the student audience the publication exists to serve.

Many administrators have not considered an additional justification for protecting student press freedom: protection from lawsuits. A federal appeals court decision helps illustrate this.

In the case Yeo v. Town of Lexington, a community member sued a Massachusetts public high school for infringement of his First Amendment rights after editors of the school's student yearbook and newspaper rejected advertisements he had submitted. His ad criticized school policies relating to sex education; student journalists choose not to get involved in the ongoing political conflict. In rejecting his First Amendment claim, a federal appeals court determined student editors, not school officials, had made the decision to reject the ads. Thus, the court concluded there was no First Amendment violation. Had the school principal or even the media adviser made the decision to remove the ads, the First Amendment claim might have been successful.

"School officials have an interest in [students'] autonomy to make educational decisions," the court stated. "Officials have determined the best way to teach journalism skills is to respect the students' editorial judgment, a degree of autonomy similar to that exercised by professional journalists. That choice by the officials parallels the allocation of responsibility for editorial judgments made by the First Amendment itself."

The Yeo ruling supports an argument made by First Amendment advocates: Schools are most protected from legal liability when they leave content decisions to students.

One additional benefit of providing students with an outlet for free expression in school under the guidance of a faculty adviser: Students are less likely to turn to social networking sites and other outside-of-school venues to express their frustration with school policies and officials. When they are given the opportunity to speak freely as part of a student media program that teaches ethical and journalistic principles including fairness, accuracy and context, they become stronger, more responsible speakers in their lives outside of school.

Because the First Amendment is solely a limitation on government action, private schools are not limited by it in their ability to censor. However, in a number of states, most notably California, state law may provide press freedom protections to private school student journalists. And most high-achieving private schools follow the example of their public-school counterparts and provide students with a free press experience.
Press freedom terms
* First Amendment: the provision of the U.S. Constitution that provides protection to free speech and press freedom, including for students.
* Censorship: prohibiting publication of information preventing reporters access to public information or creating an atmosphere in which student censor themselves.
* Prior review: the act of someone outside a student publication staff, typically an administrator, requiring approval of student media content before publication. This frequently leads to prior restraint, a practice rejected by journalism educators as educationally unsound.
* Prior restraint: the act of someone outside a student publication staff prohibiting student media content prior to publication. This form of censorship is frequently the result of prior review.

Four key U.S. Supreme Court decisions define student free expressions rights a school administrator should understand:
Tinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District (1969)

Facts: Iowa students who wore black armbands to school to express their concern about the Vietnam War were suspended. School officials claimed the message conveyed by the armbands was hurtful to others.

Ruling: Even in school, students are entitled to strong First Amendment protection. However, student free expression may be limited when school officials can demonstrate "substantial disruption of or material interference with school activities."

Quotes: "Students in school as well as out of school are 'persons' under our Constitution. They are possessed of fundamental rights which the State must respect." A school "must be able to show that its [censorship is based on] something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

How the courts apply it: When school officials can show student expression will result in a significant physical disruption of classes or school activities (fighting, vandalism, etc.) or legally invade the rights of others (libel, invasion of privacy, etc.), some limited censorship will be permitted. But controversial expression is entitled to strong First Amendment protection.
Hazelwood School District v. Kuhlmeier
Hazelwood School District v. Kuhlmeier (1988)
Facts: A Missouri high school student newspaper was censored by a school principal after students prepared stories about teen pregnancy and the impact of divorce on children. The school argued students interviewed for the pregnancy story could be identified and parents hadn't been interviewed for the divorce story.

Ruling: Despite the Tinker ruling's recognition of strong First Amendment protection, student expression in school-sponsored venues may be subject to greater limitations when those venues have not been established as "designated public forums." In that context, school officials can censor if they provide a reasonable education justification for their actions.

Quote: "[E]ducators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."

How the courts apply it: Although the decision gives school officials greater authority to censor, it doesn't require them to do so. In addition, when a publication is operating as a designated public forum where student editors are given the authority to make their own content decisions or when the school's action is intended to punish a particular viewpoint, censorship is not allowed.
Bethel School District v. Fraser
Bethel School District v. Fraser (1986)
Facts: A Washington state high school student nominated a friend for student government in a speech at a school assembly that included sexual innuendo and puns. School officials admitted the speech was not obscene but claimed the speech was disruptive and inappropriate. They suspended the student and refused to allow him to speak at graduation. The student sued for violation of his First Amendment rights.

Ruling: Vulgar and indecent language, used in the context of a school-sponsored assembly before a captive audience, is not protected by the First Amendment and can be punished by school officials.

Quote: "Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse."

How the courts apply it: Vulgar and indecent student speech, at least in a school-sponsored context or in the classroom, can be punished by school officials.
Morse v. FrederickMorse v. Frederick (2007)
Facts: An Alaska high school student held up a banner that read "Bong Hits 4 Jesus" across the street from the school as the Olympic torch relay passed. Students had been released from school to watch the event. School officials suspended him for his actions, and he sued for violation of his First Amendment rights.

Ruling: The First Amendment allows school administrators to restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use.

Quote: "The 'special characteristics of the school environment,' and the governmental interest in stopping student drug abuse ... allow schools to restrict student expression that they reasonably regard as promoting illegal drug use."

How the courts apply it: Although advocacy of illegal drug use is not protected, speech that can plausibly be interpreted as commenting on a political or social issue, including the "war on drugs" or marijuana legalization, is protected.

In light of these four court decisions, most legal scholars conclude there are only four legally permissible justifications for censorship of student expression by school officials.

1. When the expression will create a material and substantial disruption of school activities or an invasion of the rights of others - Tinker

2. When the expression is pervasively vulgar, lewd or indecent - Fraser

3. When the expression advocates illegal drug use - Morse

4. Only in the context of school-sponsored, non-public forum student expression, when the censorship is viewpoint neutral and is based on a reasonable educational justification - Hazelwood

These court decisions make clear students in public schools do have significant First Amendment protections, even when working in school-sponsored student media. One federal court case helps illustrate that point.

Student journalists at Utica High School in Michigan prepared a news story and an editorial about a lawsuit filed by community members against the school district. A family who lived near the district's school bus parking lot claimed they became ill from breathing the exhaust of school buses left idling for hours. Members of the student newspaper staff believed the lawsuit was one relevant to its readers, noting the parking lot was also near the high school athletic field and an elementary school playground. School officials refused to comment for the story and ultimately ordered the newspaper adviser not to allow students to cover the topic.

Student editor Katy Dean eventually sued her school for violating students' First Amendment rights after she was unable to persuade officials to reconsider their decision. In the case Dean v. Utica Community Schools (E.D. Mich. 2004), the court ruled in favor of Dean and against the school's censorship.

The court offered several justifications for its conclusion. First, it noted the newspaper had been operating as a designated public forum for student expression. As the newspaper adviser testified in court, for more than 20 years no school official had censored or reviewed the newspaper before publication, and the publication's own policies gave content control to student editors. Thus, the court concluded limitations of the Hazelwood standard did not apply, even though the publication was school-sponsored.

Second, the court said even if the publication were subject to the Hazelwood censorship standard, the school could not meet it. It was not "educationally reasonable" to censor an accurate story about a lawsuit filed against the school district. In fact, the judge in the case concluded this was exactly the kind of substantive journalism the school should encourage students to engage in.

Finally, the court held even if the publication were subject to Hazelwood limitations and even if the censorship were considered educationally reasonable, the school's actions were not "viewpoint neutral" as Hazelwood requires. Because the school's motivation for censoring was clearly to silence a viewpoint with which it disagreed - that of the family who filed the lawsuit - the school's actions could not stand.

The Dean decision is a wake-up call to administrators who censor simply because they fear news coverage will make the school look bad. The ruling emphasizes the First Amendment is alive and well in public schools.
Press freedom defined by state law
Beyond First Amendment protections, seven states have enacted statutes that provide even stronger protection for student journalists.

In each of these states, laws require school officials to justify all acts of censorship under a standard based on the Supreme Court's Tinker opinion. In addition, two states ( Pennsylvania and Washington) have state regulations that may expand student rights.
Legal limitations on speech
Scholastic journalism education isn't just about rights. It's also about helping students understand their legal obligations and responsibilities. A quality journalism education emphasizes the importance of avoiding unprotected speech including libel, obscenity, invasion of privacy and copyright infringement. When students, teachers and school administrators understand these legal principles, everyone benefits.
* Libel: publication of false statements of fact that damage a person's reputation. Statements that can be proven true are not libelous.
* Obscenity: explicit descriptions of graphic sexual or excretory activities that are not protected under the First Amendment; "four-letter words" or other vulgar or profane comments are not legally obscene.
* Invasion of privacy: legal restrictions defined by state law that limit the ability of journalists to gather and publish certain private information about individuals.
* Copyright infringement: using another's original creative work without permission. This includes stories, photos, illustrations, music, etc. The law does allow some educational and information uses without permission when it falls within the category of "fair use."
Access to information
In order for student journalists to cover their schools effectively, they must have adequate access to information. Administrators can play a key role by ensuring their staffs are familiar with state's open records and open meetings laws and are prepared to provide student journalists with the same information to which any community member or journalist would be entitled.

* FERPA (Family Educational Rights and Privacy Act, 20 U.S. Code sec. 1232g): a federal law that regulates schools' release of student education records. This law does not apply to information student journalists publish, but only to records school officials release that personally identify individual students.

Recommendations
Administrators should:
* Establish a school policy that designates student media as forums for student expression to provide the best learning. (The Student Press Law Center's " Model Guidelines for High School Student Media" provide a good example.) Doing this allows students to dispel rumors and misinformation, offer solid facts and provide an outlet for comment, opinion and debate. Both the students on the publication staff and the school as a whole benefit.
* Use definable terms (libel, copyright infringement, etc.) in school policies related to student media and student expression rather than vague, subjective words and phrases that will inevitably lead to confusion. Language to avoid includes: "offensive to good taste," "inappropriate" or "material inconsistent with the shared values of a civilized social order."
* Encourage student media staffs to develop clear policies to help guide them in making journalistically strong, ethically sound decisions.
* Provide a clear job description for media advisers and recognize their role is to guide and teach, not to determine content or censor.
* Refrain from prior review of student media content or from requesting it of another school staff member. The practice negates the role of the media adviser, results in direct censorship of content and encourages self-censorship by students.
* Maintain open lines of communication between school officials, advisers and student journalists. Administrators will not be happy with every decision journalists make, and sometimes students will make mistakes. But as in any classroom or extracurricular environment, those mistakes can create the greatest opportunity for learning and growth.
* Keep abreast of changes in student press law.

Scholastic media law resources
* Student Press Law Center: This national organization serves as a legal advocate for student journalists and their advisers and produces a wide variety of information and educational materials on student press law. Students and advisers can get free assistance from media lawyers and help with developing policies and classroom resources.
* Journalism Education Association: The nation's largest association of scholastic journalism educators and secondary school media advisers has adopted strong policy statements endorsing student freedom of expression.
* JEA Scholastic Press Rights Commission: This organization of journalism teachers seeks to educate about the role of free and journalistically responsible student news media in 21st-century learning and civic engagement.

See also: Journalism ethics at center stage
School boards and student media
The value of using social media in journalism
Internet access and safety
Differences between law and ethics
Yearbook ethical guidelines for student media
Online ethical guidelines for student media
Visual ethical guidelines for student media
Definitions of prior review, restraint and forums
Which type of forum best serves your students and community
Importance of open forum status
JEA Adviser Code of Ethics
Internet freedom of expression
Why avoiding prior review is educationally sound
First Amendment Press Freedom questions

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The First Amendment to the U.S. Constitution protects free speech and press freedom of all Americans, including students in school. Although the U.S. Supreme Court has made clear these rights are not unlimited, it has also affirmed neither "students [nor] teachers shed their Constitutional rights to freedom of expression at the schoolhouse gate."

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The First Amendment to the Constitution protects speech no matter how offensive its content. Restrictions on speech by public colleges and universities amount to government censorship, in violation of the Constitution. Such restrictions deprive students of their right to invite speech they wish to hear, debate speech with which they disagree, and protest speech they find bigoted or offensive. An open society depends on liberal education, and the whole enterprise of liberal education is founded on the principle of free speech.

How much we value the right of free speech is put to its severest test when the speaker is someone we disagree with most. Speech that deeply offends our morality or is hostile to our way of life warrants the same constitutional protection as other speech because the right of free speech is indivisible: When we grant the government the power to suppress controversial ideas, we are all subject to censorship by the state. Since its founding in 1920, the ACLU has fought for the free expression of all ideas, popular or unpopular. Where racist, misogynist, homophobic, and transphobic speech is concerned, the ACLU believes that more speech - not less - is the answer most consistent with our constitutional values.

But the right to free speech is not just about the law; it's also a vital part of our civic education. As Supreme Court Justice Robert Jackson wrote in 1943 about the role of schools in our society: "That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." Remarkably, Justice Jackson was referring to grade school students. Inculcating constitutional values - in particular, the value of free expression - should be nothing less than a core mission of any college or university.

To be clear, the First Amendment does not protect behavior on campus that crosses the line into targeted harassment or threats, or that creates a pervasively hostile environment for vulnerable students. But merely offensive or bigoted speech does not rise to that level, and determining when conduct crosses that line is a legal question that requires examination on a case-by-case basis. Restricting such speech may be attractive to college administrators as a quick fix to address campus tensions. But real social change comes from hard work to address the underlying causes of inequality and bigotry, not from purified discourse. The ACLU believes that instead of symbolic gestures to silence ugly viewpoints, colleges and universities have to step up their efforts to recruit diverse faculty, students, and administrators; increase resources for student counseling; and raise awareness about bigotry and its history.

QUESTIONS

Q: The First Amendment prevents the government from arresting people for what they say, but who says the Constitution guarantees speakers a platform on campus?

A: The First Amendment does not require the government to provide a platform to anyone, but it does prohibit the government from discriminating against speech on the basis of the speaker's viewpoint. For example, public colleges and universities have no obligation to fund student publications; however, the Supreme Court has held that if a public university voluntarily provides these funds, it cannot selectively withhold them from particular student publications simply because they advocate a controversial point of view.

Of course, public colleges and universities are free to invite whomever they like to speak at commencement ceremonies or other events, just as students are free to protest speakers they find offensive. College administrators cannot, however, dictate which speakers students may invite to campus on their own initiative. If a college or university usually allows students to use campus resources (such as auditoriums) to entertain guests, the school cannot withdraw those resources simply because students have invited a controversial speaker to campus.

Q: Does the First Amendment protect speech that invites violence against members of the campus community?

A: In Brandenburg v. Ohio, the Supreme Court held that the government cannot punish inflammatory speech unless it intentionally and effectively provokes a crowd to immediately carry out violent andunlawful action. This is a very high bar, and for good reason.

The incitement standard has been used to protect all kinds of political speech, including speech that at least tacitly endorses violence, no matter how righteous or vile the cause. For example, in NAACP v. Clairborne Hardware, the court held that civil rights icon Charles Evans could not be held liable for the statement, "If we catch any of you going in any of them racist stores, we're going to break your damn neck." In Hess v. Indiana,the court held that an anti-war protestor could not be arrested for telling a crowd of protestors, "We'll take the fucking street later." And In Brandenburg itself, the court held that a Ku Klux Klan leader could not be jailed for a speech stating "that there might have to be some revengeance [sic] taken" for the "continued suppression of the white, Caucasian race."

The First Amendment's robust protections in this context reflect two fundamentally important values. First, political advocacy - rhetoric meant to inspire action against unjust laws or policies - is essential to democracy. Second, people should be held accountable for their own conduct, regardless of what someone else may have said. To protect these values, the First Amendment allows lots of breathing room for the messy, chaotic, ad hominem, passionate, and even bigoted speech that is part and parcel of American politics. It's the price we pay to keep bullhorns in the hands of political activists.

Q: But isn't it true you can't shout fire in a crowded theater?

People often associate the limits of First Amendment protection with the phrase "shouting fire in a crowded theater." But that phrase is just (slightly inaccurate) shorthand for the legal concept of "incitement." (Although, if you think there's a fire - even if you're wrong - you'd better yell!) The phrase, an incomplete reference to the concept of incitement, comes from the Supreme Court's 1919 decision in Schenck v. United States. Charles Schenck and Elizabeth Baer were members of the Executive Committee of the Socialist Party in Philadelphia, which authorized the publication of more than 15,000 fliers urging people not to submit to the draft for the First World War. The fliers said things like: "Do not submit to intimidation," and "Assert your rights." As a result of their advocacy, Schenck and Baer were convicted for violating the Espionage Act, which prohibits interference with military operations or recruitment, insubordination in the military, and support for enemies of the United States during wartime.

Writing for the Supreme Court, Justice Oliver Wendell Holmes Jr. held that Schenck's and Baer's convictions did not violate the First Amendment. Observing that the "most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic," Holmes reasoned by analogy that speech urging people to resist the draft posed a "clear and present danger" to the United States and therefore did not deserve protection under the First Amendment. This is the problem with the line about shouting fire in a crowded theater - it can be used to justify suppressing any disapproved speech, no matter how tenuous the analogy. Justice Holmes later advocated for much more robust free speech protections, and Schenck was ultimately overruled. It is now emphatically clear that the First Amendment protects the right to urge resistance to a military draft, and much else.

Q: But what about campus safety? Doesn't the First Amendment have an exception for "fighting words" that are likely to provoke violence?

A: The Supreme Court ruled in 1942 that the First Amendment does not protect "fighting words," but this is an extremely limited exception. It applies only to intimidating speech directed at a specific individual in a face-to-face confrontation that is likely to provoke a violent reaction. For example, if a white student confronts a student of color on campus and starts shouting racial slurs in a one-on-one confrontation, that student may be subject to discipline.

Over the past 50 years, the Supreme Court hasn't found the "fighting words" doctrine applicable in any of the cases that have come before it, because the circumstances did not meet the narrow criteria outlined above. The "fighting words" doctrine does not apply to speakers addressing a large crowd on campus, no matter how much discomfort, offense, or emotional pain their speech may cause.

In fact, the Supreme Court has made clear that the government cannot prevent speech on the ground that it is likely to provoke a hostile response - this is called the rule against a " heckler's veto." Without this vital protection, government officials could use safety concerns as a smokescreen to justify shutting down speech they don't like, including speech that challenges the status quo. Instead, the First Amendment requires the government to provide protection to all speakers, no matter how provocative their speech might be. This includes taking reasonable measures to ensure that speakers are able to safely and effectively address their audience, free from violence or censorship. It's how our society ensures that the free exchange of ideas is uninhibited, robust, and wide-open.

Q:What about nonverbal symbols, like swastikas and burning crosses? Are they constitutionally protected?

Symbols of hate are constitutionally protected if they're worn or displayed before a general audience in a public place - say, in a march or at a rally in a public park. The Supreme Court has ruled that the First Amendment protects symbolic expression, such as swastikas, burning crosses, and peace signs because it's "closely akin to 'pure speech.'" The Supreme Court has accordingly upheld the rights of students to wear black armbands in school to protest the Vietnam War, as well as the right to burn the American flag in public as a symbolic expression of disagreement with government policies.

But the First Amendment does not protect the use of nonverbal symbols to directly threaten an individual, such as by hanging a noose over their dorm room or office door. Nor does the First Amendment protect the use of a non-verbal symbol to encroach upon or desecrate private property, such as by burning a cross on someone's lawn or spray-painting a swastika on the wall of a synagogue or dorm. In R.A.V. v. City of St. Paul, for example, the Supreme Court struck down as unconstitutional a city ordinance that prohibited cross-burnings based solely on their symbolism. But the Court's decision makes clear that the government may prosecute cross-burners under criminal trespass and/or anti-harassment laws.

Q:Isn't there a difference between free speech and dangerous conduct?

A: Yes. Speech does not merit constitutional protection when it targets a particular individual for harm, such as a true threat of physical violence. And schools must take action to remedy behavior that interferes with a particular student's ability to exercise their right to participate fully in the life of the university, such as targeted harassment.

The ACLU isn't opposed to regulations that penalize acts of violence, harassment, or threats. To the contrary, we believe that these kinds of conduct can and should be proscribed. Furthermore, we recognize that the mere use of words as one element in an act of violence, harassment, intimidation, or invasion of privacy does not immunize that act from punishment.

Q: Aren't restrictions on speech an effective and appropriate way to combat white supremacy, misogyny, and discrimination against LGBT people?

A: Historically, restrictions on speech have proven at best ineffective, and at worst counter-productive, in the fight against bigotry. Although drafted with the best intentions, these restrictions are often interpreted and enforced to oppose social change. Why? Because they place the power to decide whether speech is offensive and should be restrained with authority figures - the government or a college administration - rather than with those seeking to question or dismantle existing power structures.

For example, under a speech code in effect at the University of Michigan for 18 months, there were 20 cases in which white students charged Black students with offensive speech. One of the cases resulted in the punishment of a Black student for using the term "white trash" in conversation with a white student. The code was struck down as unconstitutional in 1989.

To take another example, public schools throughout the country have attempted to censor pro-LGBT messages because the government thought they were controversial, inappropriate for minors, or just wrong. Heather Gillman's school district banned her from wearing a shirt that said "I Support My Gay Cousin." The principal maintained that her T-shirt and other speech supporting LGBT equality, such as "I Support Marriage Equality," were divisive and inappropriate for impressionable students. The ACLU sued the school district and won, because the First Amendment prevents the government from making LGBT people and LGBT-related issues disappear.

These examples demonstrate that restrictions on speech don't really serve the interests of marginalized groups. The First Amendment does.

Q: But don't restrictions on speech send a strong message against bigotry on campus?

A: Bigoted speech is symptomatic of a huge problem in our country. Our schools, colleges, and universities must prepare students to combat this problem. That means being an advocate: speaking out and convincing others. Confronting, hearing, and countering offensive speech is an important skill, and it should be considered a core requirement at any school worth its salt.

When schools shut down speakers who espouse bigoted views, they deprive their students of the opportunity to confront those views themselves. Such incidents do not shut down a single bad idea, nor do they protect students from the harsh realities of an often unjust world. Silencing a bigot accomplishes nothing except turning them into a martyr for the principle of free expression. The better approach, and the one more consistent with our constitutional tradition, is to respond to ideas we hate with the ideals we cherish.

Q: Why does the ACLU use its resources to defend the free speech rights of white supremacists, misogynists, homophobes, transphobes, and other bigots?

Free speech rights are indivisible. Restricting the speech of one group or individual jeopardizes everyone's rights because the same laws or regulations used to silence bigots can be used to silence you. Conversely, laws that defend free speech for bigots can be used to defend civil rights workers, anti-war protestors, LGBT activists, and others fighting for justice. For example, in the 1949 case of Terminiello v. City of Chicago, the ACLU successfully defended an ex-Catholic priest who had delivered a racist and anti-Semitic speech. The precedent set in that case became the basis for the ACLU's defense of civil rights demonstrators in the 1960s and 1970s.

Q: How does the ACLU propose to ensure equal opportunity in education?

A: Universities are obligated to create an environment that fosters tolerance and mutual respect among members of the campus community, an environment in which all students can exercise their right to participate meaningfully in campus life without being subject to discrimination. To advance these values, campus administrators should:

speak out loudly and clearly against expressions of racist, sexist, homophobic, and transphobic speech, as well as other instances of discrimination against marginalized individuals or groups;

react promptly and firmly to counter acts of discriminatory harassment, intimidation, or invasion of privacy;

create forums and workshops to raise awareness and promote dialogue on issues of race, sex, sexual orientation, and gender identity;

intensify their efforts to ensure broad diversity among the student body, throughout the faculty, and within the college administration;

vigilantly defend the equal rights of all speakers and all ideas to be heard, and promote a climate of robust and uninhibited dialogue and debate open to all views, no matter how controversial.

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The First Amendment to the Constitution protects speech no matter how offensive its content. Restrictions on speech by public colleges and universities amount to government censorship, in violation of the Constitution. Such restrictions deprive students of their right to invite speech they wish to hear, debate speech with which they disagree, and protest speech they find bigoted or offensive.

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Clothing as a primary means for expressing ideas for students is as primitive as clothing itself, yet schools across the country often grapple with whether to enforce strict dress code policies that may interfere with a students' right to self-expression.

While school boards are generally allowed to create and enforce dress code programs within their districts, they must do so without violating the constitutional rights of students.
School Dress Code Laws
The first school dress code law was established in 1969 by the U.S. Supreme Court. The case, known as Tinker vs. Des Moines Independent School District, involved several high school students who wore black armbands to school in a planned protest against the Vietnam War. In a far-reaching decision, the Court essentially decided that schools may limit student expression (such as enforcing dress codes) if there is a legitimate concern that such expression will be disruptive to the learning environment or violate the rights of others.

Today, most states have laws that allow school boards to make dress code rules for students within their district to promote a safe, disciplined school environment, prevent interference with schoolwork and discipline, and to encourage uniformity of student dress. For instance, dress codes that prohibit clothing that is vulgar, obscene or worn in a manner that disrupts school activity are generally permitted - whereas dress codes that censor student expression because educators do not like the message are generally not permitted.
Dress Code Policies vs. Freedom of Speech
Not all speech is protected in a school setting. For example, students who wear clothing that follows the latest fashion trend - such as oversized shirts and slouchy jeans for boys, or short skirts and mid-drift cut-out shirts on girls - or clothing that supports a particular sports team, religion, or political point of view, may be prohibited in dress code policies if the student's choice in clothing draws attention away from the school's learning environment.

Therefore, limits on dress codes have including the following:

Limits on 'gang-related' clothing, sometimes described as over-sized clothing and other clothing meant to show affiliation with a certain gang or group, such as certain colors, logos, brand names, or arrangement

Ban on suggestively-themed T-shirts, such as Marilyn Manson t-shirts

Requirement to wear school colors only

Limits on skirt, shirt, and pant length

Ban on clothing that depicts lewd, sexually explicit, or idecent drug use

Seasonal closthing restriction, such as limits on midriffs and lower backs not being exposed in hot weather

"Baggy pants" restriction prohibiting students from wearing clothin that exposes underwear or body parts in a way that is indecent or vulgar

Freedom of Religion Issues
In contrast to limits on dress as a means to providing a safe learning environment, school dress codes, in most cases, cannot be used to prevent students from expressing their religion beliefs. Both the Constitution and most state laws protect students' rights to wear religious attire inool school, such as the wearing of a turban, yarmulke, or head scarf.

Below are situations where dress codes have been challenged on religious freedom grounds:

Muslim Girl suspended for wearing a head scarf

Ban on cross necklaces

Bans on wearing traditional dress (such as feather or tribal cloth) to graduation

Ban on the wearing of non-US flag necklaces

Ban on rosaries

Requirement that boys cut their hair to comply with a campus dress code

What Schools Can Do
Generally, schools have the right to create rules that provide an effective public school education for its students. Both students and staff of primary, elementary, junior and senior high school campuses have the right to be safe and secure in their persons. This means that school may include in their dress codes methods which further the goals of a learning institution and that prevents violent or abusive behavior.
What You Can Do
Students and parents should obtain a copy of your school's dress code policy to get an understanding of what may or may not be acceptable clothing at school. For questions concerning whether the policy infringes on your constitutional rights, you may wish to consult with an education attorney in your area who can advise you of the laws in your state.

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Clothing as a primary means for expressing ideas for students is as primitive as clothing itself, yet schools across the country often grapple with whether to enforce strict dress code policies that may interfere with a students' right to self-expression.

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The plaintiff in the other free-speech case, Packingham v. North Carolina, was far less sympathetic. When he was a 21-year-old college student in 2002, Lester Packingham pled guilty to a sexual crime involving a 13-year-old girl. North Carolina law automatically required him to register in the state's sex-offender database. Six years later, the state passed a law making it a felony for registered sex offenders to access a "commercial social-networking site." The statute defined what falls under that definition with incredible breadth: Alito wrote in his concurring opinion that accessing Amazon, Walmart, and WebMD could violate the law.

In Packingham's case, the accessed website was closer to what the law's drafters seemed to have in mind. After winning a traffic-court dispute in 2010, he posted a celebratory remark on Facebook. "Man God is Good!" Packingham wrote. "How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent. . . . . .Praise be to GOD, WOW! Thanks JESUS!" A police officer saw the statement and arrested him for it; Packingham's lawyers say more than 1,000 other registrants have been charged and tried under the same provision.

The eight justices who heard his case-Neil Gorsuch didn't join the Court in time to participate in Packingham or Tam -unanimously ruled in his favor and struck down the North Carolina statute in question. But they sharply differed in their style and approach to the underlying issues. Kennedy, for example, adopted the contemplative, nebulous tone he typically reserves for landmark decisions on abortion or LGBT rights.

"While we now may be coming to the realization that the cyber age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be," he wrote for the Court. "The forces and directions of the internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow."

From Kennedy's perspective, this meant the Court should exercise "extreme caution" before limiting the First Amendment's application to the internet, even when the restrictions target one of society's most universally loathed groups. "It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences," he explained. "Even convicted criminals-and in some instances especially convicted criminals-might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives."

Kennedy's opinion drew some criticism from Alito, who concurred with the overall result but wrote separately because of his dissatisfaction with Kennedy's "undisciplined dicta," the formal term for the extraneous parts of a judge's opinion that don't directly affect the case itself. "The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks," Alito wrote, metonymously referring to Kennedy and his majority opinion's sweeping language. Chief Justice John Roberts and Justice Clarence Thomas joined him.

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The Supreme Court Offers a Warning on Free Speech

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The plaintiff in the other free-speech case, Packingham v. North Carolina, was far less sympathetic. When he was a 21-year-old college student in 2002, Lester Packingham pled guilty to a sexual crime involving a 13-year-old girl. North Carolina law automatically required him to register in the state's sex-offender database.

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Podcast on "absolutist" principle of speech (john Stuart mill)

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Podcast on "absolutist" principle of speech (john Stuart mill)

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BROOKE GLADSTONE From WNYC in New York, this is On The Media, and on this week's show, our radical, paradoxical free speech tradition.

ANDREW MARANTZ Mmm. Whenever you write about free speech, obviously the free speech absolutists are going to come out of the woodwork and there are a lot of absolutists on the internet. But I didn't expect it to be so unrelated to what I actually argued.

P.E. MOSKOWITZ It's one thing to talk about all these nice and fluffy concepts of free speech and being able to say whatever you want, but in the day to day reality of the United States, that just doesn't exist for many people.

ANDREW MARANTZ John Stuart Mill argues for one simple principle-the harm principle. It amounts to this: the state, my neighbors and everyone else should let me get on with my life as long as I don't harm anyone in the process.

JOHN POWELL John Stuart Mill was brilliant, but this is the point that I want to make. He was wrong. [END CLIP]

BROOKE GLADSTONE Why revisiting our assumptions about free speech and democracy might save us from ourselves. It's all coming up after this.

[MUSIC UP & UNDER]

BROOKE GLADSTONE From WNYC in New York, this is On the Media. Bob Garfield is out this week. I'm Brooke Gladstone. And this week we're talking about free speech. Is it all it's cracked up to be? America's defining ideal or is free speech killing us?

ANDREW MARANTZ Uh, maybe. I think so.

BROOKE GLADSTONE Andrew Marantz is a New Yorker staff writer and he recently wrote an op-ed in The New York Times which has that title, you got slammed.

ANDREW MARANTZ I was trying to argue against free speech absolutism. I was trying to say, 'free speech is really important but we've got to worry about what free speech is doing to us in addition to just protecting it.'.

BROOKE GLADSTONE So how does it feel to be called a wannabe tyrant, a wannabe Robespierre? And of course, a fascist.

ANDREW MARANTZ Mmm. Whenever you write about free speech, obviously the free speech absolutists are going to come out of the woodwork and there are a lot of absolutists on the internet. But I didn't expect it to be so unrelated to what I actually argued. Arguing not against free speech, which I love and cherish but arguing against free speech absolutism. That because we value the First Amendment and must protect it, we can't think about or protect or value anything else including things that might be in opposition to it.

BROOKE GLADSTONE You tweeted to boost your article as one does. Most of the comments were along the lines of, 'why don't you move to China? Why don't you move to North Korea.' In fact, there was that video of the guy using the Yoda hand puppet.

TWITTER USER AS YODA North Korea. Head there immediately at 0 percent gun violence, harassment and Nazis. They have, make for yourself, a new life. You must Andrew. [END CLIP]

ANDREW MARANTZ Look I mean, I get the point. That, you know, you can do away with a lot of problems of freedom by getting rid of freedom. Obviously, I'm not advocating for that.

BROOKE GLADSTONE As you wrote in your piece, you're not for censoring people that you disagree with. You don't want government censorship of unpopular political views. I guess that raises the question, what are you advocating for?

ANDREW MARANTZ I didn't even come close to advocating any government restrictions or regulations in the piece because I'm very, very skeptical of any government restriction on speech of any kind. But I was trying to challenge the notion that because free speech is important that's the end of the conversation.

BROOKE GLADSTONE You were ratioed, which means in the parlance of our times, significantly more replies to your tweet than you had retweets or likes. And they were overwhelmingly negative so we know it didn't strike a positive chord.

ANDREW MARANTZ Not with the free speech absolutists on Twitter. I wasn't surprised by that. I mean it's, it's, it's challenging a view that is very, very prevalent on the internet specifically. It's not a random sample. The people who have anime avatars on Twitter are way more likely to be hardcore free speech absolutists than most people.

BROOKE GLADSTONE What's the problem with free speech absolutism?

ANDREW MARANTZ The problem is just because we love freedom of speech doesn't mean we can pretend that it has no consequences. So absolutism is a lack of complexity that makes us unable to see the world for what it is. I mean, whenever speech is restricted in any way, the first thing you hear from a free speech absolutist is a slippery slope argument. If you restrain Nazis from speaking in Charlottesville, how do we defend against a slippery slope into more and more and more government restrictions? I'm fine with that slippery slope argument. I just don't know why, if you're worried about the slippery slope that comes from restricting Nazi speech, why aren't you worried about the slippery slope that comes from letting Nazis speak?

BROOKE GLADSTONE Is it fair to say that you don't have a rock solid faith in the strength of our institutions to uphold democracy?

ANDREW MARANTZ That is extremely fair to say. I don't, I don't have a rock solid faith in many things but that is something I have very little faith in.

BROOKE GLADSTONE Why not?

ANDREW MARANTZ I just think we've seen that institutions are human creations. Humans are extremely fallible. There's, there's no guiding hand drawing us inevitably into some shining future. If you really ask people, 'are we guaranteed to enter into some shining utopian future?' If they really thought about it, they'd say no. But we often act as if the answer is yes. In the old, old days, it used to be because there was the divine hand of providence or there was some telos us that we were bound to arrive.

BROOKE GLADSTONE Telos?

ANDREW MARANTZ A fulfillment, some place we are bound to end up. The kind of American myth is that our telos is greatness, Manifest Destiny, shining city on a hill. You know, we might hit bumps in the road, but ultimately we are making our union ever more perfect. This is a big part of why people just didn't think it was possible that Trump could be president because the myth was so strong that it wasn't possible.

BROOKE GLADSTONE The arc may be long but we inclined toward--

ANDREW MARANTZ Justice. Maybe, sometimes we do. But there's no guarantee. So one of my favorite philosophers is this guy named Richard Rorty who relies on a concept called Contingency. Contingency just means there's no predetermined arc. The arc is made by people. In 1989, he has a book called Contingency, Irony and Solidarity. So there was this notion that we used to be mired in superstition and that we used to be mired in oppressive politics and that the Enlightenment solved both of those things, that there was this movement toward rationality being the center of our philosophical universe and democracy being the center of our political universe. And Rorty is critical of that for many reasons.

BROOKE GLADSTONE Some of which are manifestly obvious.

ANDREW MARANTZ Some of which are obvious. Politically, you can't think that the Enlightenment was the end of the struggle for freedom when people were literally owning other people. It just doesn't make sense. And Rorty thinks that you can't think of the Enlightenment as the end of philosophical trajectory either because, basically, he thinks we were replacing one kind of superstition with another. Instead of having the superstition that some divine hand would carry us into our inevitable future, we replaced that with man or rationality or the universe. And I use man advisedly because there weren't a lot of women around at that time doing this work, which is, itself, a problem. So Rorty says, 'no instead of getting stuck in this predestined arc thing, the idea that will bring us out of that is contingency.

BROOKE GLADSTONE You brought us a piece of tape from a philosopher named Eduardo Mendieta.

ANDREW MARANTZ Yeah, so unfortunately, Rorty is not with us anymore. He died in 2007. But I spoke to a guy named Eduardo Mendieta who's a philosopher at Penn State who spoke to Rorty many, many times throughout his life, has a book of interviews with Rorty. And we talked about contingency.

ANDREW MARANTZ A lot of people would just sort of tacitly assume you know we're on a path toward progress. We are making our union ever more perfect and that on some level they're just kind of waiting for that to inevitably happen.

EDUARDO MENDIETA That's correct. What Rorty was saying, we have to not use that as banisters or alibis for our commitment to the institutions that we have created. They're fragile. They were inventions that resulted from a lot of creative and, and struggle. They're fragile and that means they can be abolished. They can collapse and, ultimately, they can be defeated. We have to not only protect the institutions that we have created but make them durable and wherever we need to transform them to make them more inclusive. [END CLIP]

BROOKE GLADSTONE I wonder if that's what really gets people angry.

ANDREW MARANTZ Yeah, maybe. I think that people want to have that faith in the American myth. I think people want to see whatever path we're on as a path toward progress.

BROOKE GLADSTONE Once you start picking apart the idea that seems to define America, that our system is unique and uniquely resilient--

ANDREW MARANTZ And exceptional.

BROOKE GLADSTONE Exactly.

ANDREW MARANTZ And that we, the American people, are pure and good. Our institutions are made of us. So if you suggest that they could be tending in a terrible direction then maybe we're terrible.

BROOKE GLADSTONE So your idea is, 'we need to deal with this issue of speech because our system can't take it.'

ANDREW MARANTZ I don't think our institutions are inherently unable to break or inherently always breaking. I don't think the inherent stuff gets us anywhere. I just think things could happen in the future that are surprising and that to me, that idea is called contingency. If we think of ourselves as contingent and our national character as contingent and our future as contingent, then we just actually have to look at trends and do the work of getting to where we want to go instead of waiting for it to happen automatically. Freedom means work. It's a struggle and sometimes it means looking in unpleasant directions. It's very easy to fall into some kind of narrative. Marx has a narrative of history. Hagel has a narrative of history. Even people who are arguing against a previous narrative often, at least according to Rorty, fall into their own narrative without sometimes realizing it.

BROOKE GLADSTONE Ayn Rand.

ANDREW MARANTZ Exactly. Ayn Rand is a perfect example. It's very easy to see all of human events as reducible to, 'well, this is what human beings are. And this is how history works and we're just kind of spectators waiting for it to play itself out.'.

ANDREW MARANTZ And if any version of that narrative is something that Rorty would have a problem with-the model is wrong. The Correct Model is a contingent model. The way free speech plays into that is that if you just take care of making sure that the government doesn't get in people's way and that it lets them say whatever they want, you can't just sit back and automatically wait for the arc of history to carry you to where you want to go.

BROOKE GLADSTONE You can't adhere to the notion that it can't happen here.

ANDREW MARANTZ Right. Talk about myths of American identity. One of the core parts of that is that phrase, 'it can't happen here.' The 'it' referring to fascism, totalitarianism. The 20th century was pretty scary time throughout the world and yet, the American exceptionalism myth was so strong, people persisted in believing that the scary things that happen in other countries can't happen here.

BROOKE GLADSTONE So tell me about, I don't know, maybe to call it a prophetic vision that Rorty shared back in the late 90s. He predicted that both white collar and blue collar workers would eventually feel an existential threat and rather than unite, would sort of turn on each other.

ANDREW MARANTZ So he was a pretty analytical philosopher, but in the 90s he took a turn toward the public intellectual. He gives this series of lectures at Harvard, he calls it Achieving Our Country, which is after a James Baldwin line. And he has this vision of what might happen. And it's funny because he calls himself a utopian in many ways, but this is a dystopian vision. And again, there's contingency for you, right? Sometimes you envision what the future will be like if everything works out according to your hopes and dreams, and sometimes you envision the opposite. And it's important to hold both in your head. So this one was the vision of what happens if things don't go the way Rorty wants. And in his view, Bill Clinton and what we would now call the neo liberal left was ignoring workers' needs and was not paying attention to the things that give rise to populism and only the right was paying attention to those needs. He said, 'at that point, something will crack. The non suburban electorate will decide that the system has failed and start looking around for a strong man to vote for. Someone willing to assure them that, once he is elected, the smug bureaucrats, tricky lawyers, overpaid bond salesmen and postmodernist professors will no longer be calling the shots. One thing that is very likely to happen is that the gains made in the past 40 years by black and brown Americans and by homosexuals will be wiped out. Jocular contempt for women will come back into fashion. All the resentment which badly educated Americans feel about having their manners dictated to them by college graduates will find an outlet.' 1997.

BROOKE GLADSTONE Wow. Did he predict when that something would crack?

ANDREW MARANTZ Not in this speech but there's another thing he wrote for The New York Times. Looking back from this speculative, fictional vantage point of the late 21st century and in that piece, he said, that the year that things started to crack, the beginning of the dark ages was 2014.

BROOKE GLADSTONE Not 2016. I guess he was a couple of years off.

ANDREW MARANTZ Well, maybe but I actually would argue that the rise of the alt-right and the deep fractional polarization of American politics, I might put that at 2014. The sort of toxic blend that eventually gives rise to Trump--

ANDREW MARANTZ You know, Steve Bannon starts recruiting lonely videogame teenagers in 2014, right, not 2016.

BROOKE GLADSTONE Ok. Let's just stipulate that our institutions are in fact vulnerable. Now it's time to bring it back to the First Amendment or speech. The defining element of what it is we want to protect, right?

ANDREW MARANTZ Absolutely.

BROOKE GLADSTONE The marketplace of ideas and so forth.

ANDREW MARANTZ The marketplace, I don't even believe that the actual marketplace solves everything.

BROOKE GLADSTONE There is no free market so we'll never know.

ANDREW MARANTZ Exactly. Well and I don't think there is a free marketplace of ideas either.

ANDREW MARANTZ There's corporate speech, there are censors and police of all kinds whether we see them or not. There's all kinds of speech that the government restricts, libel child pornography, harassment of certain kinds, threats of certain kinds and we don't call that, you know, North Korea. We've just learned to live with it.

BROOKE GLADSTONE There's so much we've learned to live with that we can't see. It's just, what do you choose to restrict?

ANDREW MARANTZ Just before a change in how we think about or regulate speech, right up until the moment that happens, we take for granted that it can't possibly change. No new restrictions could possibly come into effect, that would be tyranny, that would be North Korea. And then right after it changes, we kind of get used to it.

BROOKE GLADSTONE Well, what about then the view of John Stuart Mill?

[MUSIC UP & UNDER]

BROOKE GLADSTONE He believed that free speech was the fundamental right. The right that gives rise to all the other rights, the bottom of the pyramid.

ANDREW MARANTZ Yeah. That is for him, the pillar.

BROOKE GLADSTONE And for you?

ANDREW MARANTZ I don't think it's the only one. Speech matters enormously but so does harm. And I think Mill was wrong to think that speech can't cause harm to the extent that he did believe that. I mean, if we interpret Mill as thinking that speech is always just about me and my beliefs and it can't harm you, I think that's wrong. I think speech can cause individual harm and it can cause societal harm. And so of course, we need to take speech rights into account but we need to take other things into account too.

[MUSIC UP & UNDER]

BROOKE GLADSTONE Coming up, more with Andrew Marantz wherein he answers the question: is the whole philosophy undergirding our First Amendment fatally flawed?

ANDREW MARANTZ I don't know but fatally, but it's definitely flawed.

BROOKE GLADSTONE This is On The Media. I'm Brooke Gladstone with Andrew Marantz, interrogating the American creed of free speech. He's the author of the new book Anti-social: Online Extremists, Techno-Utopians and the Hijacking of the American Conversation. And you, Andrew, say that free speech doesn't mean what we think it means.

ANDREW MARANTZ In fact, John Powell, who's a law professor at UC Berkeley, he compared the way we understand free speech to the way most of us understand gravity.

JOHN POWELL We all think we know it is, but if you talk to a serious astrophysicist, which I've done, they will said, 'we have no idea what gravity is, why it works, how it works and we've been working on it for 100 years.

ANDREW MARANTZ According to John Powell, there are inherent tensions in the Constitution between different key rights. And he thinks that these tensions are so fundamental that we actually should look at our constitution as two documents in one. There's a pre-Civil War constitution, one written before most Americans had full rights, and there's a post-Civil War constitution, which was designed to extend new rights to more and more groups of Americans. And he thinks these are two conflicting documents that are still, in a sense, at war.

JOHN POWELL When Lincoln gave his Gettysburg Address, he used the phrase, 'fourscore and seven years ago.' Afterwards, it was a firestorm because people were pissed, some people, because what Lincoln was doing was criticizing the Constitution. Fourscore and seven years ago was the Declaration of Independence, not the Constitution. And he was saying that the Constitution was a flawed slave document. And he ended by calling for something radically different than essentially a slave Constitution. Here we just had the bloodiest war in U.S. History, is still a war which killed more people than all the other wars combined, and clearly there was an effort to do something radical.

ANDREW MARANTZ The post-Civil War constitution, the one that began with the 13th, 14th and 15th Amendments, that was supposed to make all people born on U.S. Soil citizens, full citizens with the right to vote, the right to participate fully in democracy. According to these amendments, they now enjoyed equal protection under the law.

JOHN POWELL The 14th Amendment is designed to bring the freed slaves and blacks generally into political community. If you're born in the United States, you are a citizen-full stop.

ANDREW MARANTZ So the problem, according to Powell, is that we never really implemented the post-Civil War constitution fully and the court has never really reckoned with the tensions that can arise when you strengthen one right at the expense of another. So if you consider freedom of speech, you can see how strengthening one person's speech rights can actually limit someone else's ability to participate fully in democracy. If someone's speech terrorizes someone else into silence.

P.E. MOSKOWITZ It's one thing to talk about all these nice and fluffy concepts of free speech and being able to say whatever you want but, in the day to day reality of the United States, that just doesn't exist for many people.

P.E. MOSKOWITZ I mean in the early 1900s, two hardcore union supporter brothers conspired to try to blow up the LA Times, which was a very lonely anti-union newspaper. They didn't want to hurt anyone. The point was to call attention to the anti-union behavior of the paper. They ended up hurting people. They ended up getting caught and the ACLU defended them. You know, they were saying, 'well, we don't condone blowing things up,' but you have to agree that it makes sense that people are this angry because no one is listening to them. Does someone who work 60 hours a week and therefore has no time to attend that council meeting where you could exercise your free speech, do they have a right to free speech? Technically, they do but in reality, in materialist reality, they do not.

ANDREW MARANTZ In the middle of the First World War, there was an activist named Charles Schenck who is handing out anti-war flyers urging men to evade the draft. He was sentenced to jail for violating the new Espionage Act, which banned interference with military operations or recruitment. Schenck said that the act infringed on his First Amendment rights. But the Supreme Court upheld the conviction. In fact, one justice, Oliver Wendell Holmes wrote an opinion saying that Schenck's pamphlets met a quote, 'clear and present danger standard and that therefore the government could send Schenck to jail.' Holmes compared non-violent political protest to shouting fire falsely in a crowded theater.

P.E. MOSKOWITZ The U.S. Government has decided time and time again that that line between speech and violence should be enforced when it comes to things the government doesn't like such as leftist agitation, civil rights agitation and expanded speech, usually at the behest of corporations or the far-right.

ANDREW MARANTZ That precedent was largely upheld for another 50 years. Then in 1969, the Supreme Court went in a pretty different direction. This was in a unanimous opinion in a case called Brandenburg v. Ohio.

SUSAN BENESCH Brandenburg was a white supremacist who stood in a field in Ohio and yelled out a speech at a relatively small group of followers.

ANDREW MARANTZ Susan Benesch teaches human rights at American University and she's the director of the Dangerous Speech Project, which studies how certain kinds of public rhetoric can lead to mass violence.

SUSAN BENESCH He said things like, 'black people should be sent back to Africa.' He called for also terrible things to be done to Jews. And he was convicted. He appealed his conviction and the United States Supreme Court decided to overturn his conviction. The Supreme Court decided that it is lawful under the First Amendment even to incite to violence as long as there is not a likelihood that your incitement will lead to what's called imminent lawless action. So that means that I can actually stand in front of a crowd of people and try my absolute best to convince them to go and attack another group of people. And as long as I'm likely to be unsuccessful, that's entirely legal.

ANDREW MARANTZ Brandenburg essentially enshrined John Stewart Mills harm principle into law. So for the government to restrict speech, there has to be evidence of physical harm. For instance neo-Nazi rhetoric about gassing Jews, that might inflict psychological harm on a Holocaust survivor but as long as there is no immediate incitement to physical violence, the government considers that protected speech. Skokie, Illinois in 1977 was home to some 7,000 Holocaust survivors. That year a group of neo-Nazis filed for a permit to march there promising to wear swastikas and hold signs reading 'Free Speech for White Americans.'

MALE DEMONSTRATOR It's freedom of speech man.

FRANK COLLIN I used the hysteria of the Jewish community to propel the issue of First Amendment rights for National Socialism and for people who speak up for the white. [END CLIP]

ANDREW MARANTZ Village of Skokie tried to stop the Nazis from marching, but the ACLU took the case to the Supreme Court and the court upheld the Nazis' right to march.

JOHN POWELL The speech absolutists try to say, 'you can't regulate speech.'

ANDREW MARANTZ Berkeley law professor John Powell.

JOHN POWELL Why? Well, because it would harm the speaker. It would somehow truncate their expression and their self-determination and say, 'Ok, what's the harm?' The harm is a psychological harm. Wait a minute I thought you said psychological harms do not count. Make a choice, they don't count or they do count. It can't count for the speaker but not the listener.

ANDREW MARANTZ The retort of the free speech absolutist is to say, 'well, the best answer to speech you don't like is more speech.' But in practice, it doesn't always work. For instance in the 1970s, as more and more women started to enter the workplace, their male co-workers were often hostile or outright intimidating. So again, this is the tension between the 1st and 14th Amendments, between the right to speech and the right to full public participation. Here, the right of the male co-workers to sexually harass the women in their workplace, which is speech after all, and the rights of those women to fully participate in the workplace. In 1986, the Supreme Court made a decisive turn away from a free speech absolutist position in the case of Meritor Savings Bank, FSB v. Vinson. The court declared unanimously that creating a hostile work environment for women was not protected speech.

JOHN POWELL This actually as a harm, it creates a hostile workplace. Women can't perform.

MALE CORRESPONDENT The court says that sexual harassment in the workplace is a form of discrimination and therefore against the law.

MALE CORRESPONDENT It indirectly requires employers to ensure an atmosphere that is not conducive to sexual harassment and warns them that should they fail, they may be held legally accountable. [END CLIP]

JOHN POWELL That doctrine was later extended to race but it took a long time. Both of those are saying there are some conditions where you cause harm and can't simply be fixed by more speech.

ANDREW MARANTZ It's not just a workplace issue. If you're an African-American intending to vote and people are holding up signs outside your polling place saying, 'I know where you live.' Those signs are speech but their speech that is designed to diminish your full participation in our democracy. Another place where this tension between speech and participation shows up is in the influence of money in our politics. A lot of people are very worried that money has a voice that normal citizens don't. 'Don't worry about that,' says Mitt Romney. 'Corporations are just like you.'.

MITT ROMNEY Corporations are people, my friend. We can raise taxes--of course, they are. Everything corporations earn ultimately goes to people.

MITT ROMNEY So. Where do you think it goes?

CROWD It goes into your pocket. [END CLIP]

ANDREW MARANTZ In a Supreme Court decision in 2010 called Citizens United v. the FEC. The court granted corporations and unions an almost unrestricted right to use their general funds for quote, 'electioneering communication.' This released rivers of cash for political ads. Justice Anthony Kennedy who authored this ruling said that these expenditures do not give rise to corruption and even if there is an appearance of influence, voters still will not quote, 'lose faith in our democracy.'

ANTHONY KENNEDY Political speech is indispensable to decision making in a democracy. And this is no less true because the speech comes from a corporation rather than an individual. [END CLIP]

ANDREW MARANTZ Justice John Paul Stevens wrote an impassioned dissent and he said, 'under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote. Given that voting is, among other things, a form of speech.

P.E. MOSKOWITZ If you take that kind of hard line, 'we'll defend anything as long as it's related to free speech then you end up defending something that I think is extremely harmful for the US.

ANDREW MARANTZ P.E. Moskowitz.

P.E. MOSKOWITZ You know, the ability of people to spend unlimited amounts of dark money getting their preferred candidates elected.

ANDREW MARANTZ Any argument over the First Amendment is ultimately an argument about harm, about that tension between speech and equal protection under the law. How can it not be?

[CLIP OF AMBI]

ANDREW MARANTZ August 12th 2017.

FEMALE CORRESPONDENT The governor of Virginia says three people are dead following the violence in Charlottesville.

[AMBI/PEOPLE SHOUTING/CAR SCREECHING]

FEMALE CORRESPONDENT A state of emergency declared after a white supremacist and encounter protesters clashed.

CROWD [CHANTING] [END CLIP]

SUSAN BENESCH The common rhetorical pattern in dangerous speech, it is when you accuse another group of doing to your in-group what you'd like to get the in group to endorse doing to them.

ANDREW MARANTZ Susan Benesch again. She says that the, 'Jews will not replace us,' chant is textbook dangerous speech. Specifically the kind that she refers to as accusation in a mirror. There are striking patterns that emerge when you look at a lot of this stuff, although I don't recommend doing that, across languages, across cultures, certainly across religions and even across historical periods. So I thought, 'huh. If there are these striking patterns, could it be that there is what I call dangerous speech?' The category here of language that does something to people such that it's at least a precursor if not also a prerequisite for mass intergroup violence.

ANDREW MARANTZ If you are say a white supremacist group that is toying with the idea of, oh I don't know, getting rid of the Jews, then you might start by accusing the Jews of wanting to get rid of you.

SUSAN BENESCH So I began to think about how that could be prevented. I eventually went to law school to become a human rights lawyer. In my first summer law school, I worked at the U.N. tribunal for the former Yugoslavia, the War Crimes Tribunal. I was assigned to the prosecution team working on the case of Radovan Karadzic who was a Serbian civilian leader--

MALE CORRESPONDENT A litany of cruelty.

JUDGE Murder, a crime against humanity.

MALE CORRESPONDENT Committed in a war that cost over one hundred thousand lives, created millions of refugees and became the darkest chapter of post-war European history. [END CLIP]

SUSAN BENESCH And I began to wonder what was it that somebody like Karadzic did that helped to bring about social transformation that makes genocide and ethnic cleansing and other atrocities possible. Since, after all, thousands of people don't wake up all of a sudden one morning and decide that it's a good idea to massacre their neighbors or even to condone the massacre of their neighbors. If you look at the 1930s in Germany, a remarkably short period passed between the point at which most Germans regarded the Nazis as a disreputable small bunch of street thugs and the point at which a critical mass of Germans began to regard them as a legitimate political force and even to support them. There has to be some kind of a collective psychosocial transformation to make people believe that violence against another group of people is not only acceptable but necessary.

BROOKE GLADSTONE Uh, Andrew?

BROOKE GLADSTONE Can I just cut in here for a second.

ANDREW MARANTZ Yeah. What's up?

BROOKE GLADSTONE What are we going with this?

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BROOKE GLADSTONE Have her observations led you to conclude that white supremacists, whose visibility and noise level have admittedly grown since at least the Obama administration, that they'll ultimately influence the minds of enough Americans that our democracy implodes? Is that what you really believe?

ANDREW MARANTZ I'm not saying that will necessarily happen or that it is happening or even that it's likely to happen. What I'm saying is that given contingency, that is possible. Let's play one more piece of Susan Benesch.

SUSAN BENESCH If you wait until a country is about to explode then you're unlikely to be able to prevent violence. It makes much more sense to start when the situation is not dire. And that's where I think we are in the United States. I am, of course, very worried but somewhat reassured by the large number of people who are expressing concern about it since that is one of the important ways, in my view, to diminish the power of such speech.

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ANDREW MARANTZ So since the 60s, the Supreme Court has really been focused on the rights of individual speakers, on protecting that right. So the question is if they were to expand their scope to protect everyone else's rights, the rights of people who are harmed by that speech. What would that actually mean? What would it look like? Would that just destroy free speech as we know it?

BROOKE GLADSTONE Well, that's coming up next. This is On The Media.

BROOKE GLADSTONE This is On The Media, I'm Brooke Gladstone with Andrew Marantz, New Yorker staff writer. Hi.

BROOKE GLADSTONE So, earlier in the show we talked about how Jon Stewart Mills' harm principle stipulates that my right to throw a punch ends at the tip of your nose. Here's another clip of John Powell speaking at UC Berkeley questioning Mill's assumption that there a clear line between physical and psychological harm.

JOHN POWELL John Stuart Mill was brilliant, but this is the point that I want to make. He was wrong. What we learned over the last 40 years on the mind science is that many psychological harms from the brain's perspective are almost indistinguishable from what we think of as physical harms. And in fact, the body is not neatly divided. So when you have a psychological shock, you have a physical reaction when you have a physical shock, you have a psychological reaction. The law is actually struggling with that.

BROOKE GLADSTONE But you spoke to Susan Torres Harding. She is a professor of psychology at Roosevelt University and she studies exactly this sort of thing.

ANDREW MARANTZ She's saying that when people experience the effects of racism on a daily basis it affects their physical bodies. They may experience hypertension, chronic diseases, even lower birth rates.

SUSAN TORRES HARDING Race in itself is a completely made up category. There is no kind of biologic indicator to it. But if people act like it's true then it can have very real serious consequences on people's health and people's life chances over a lifetime. We expect that those effects may add up like any other kind of chronic stressor.

JOHN POWELL Many conservatives are nervous about that because like, well if we acknowledge that, where does it end? If we start recognizing implicit bias, we start recognizing psychological harms, it will radically change society. And it would. And it should.

ANDREW MARANTZ When Powell talked about that it reminded me of this other case where the judges were worried about unraveling the whole system underneath the case they were looking at. So there was this case called McCleskey v. Kemp in 1987. And the Supreme Court had to consider whether the death penalty was being disproportionately applied against black offenders. And they found that it wasn't. But in a dissenting opinion, Brennan, one of the justices, he said that their finding wasn't based on data. It was based on what he called a fear of too much justice.

BROOKE GLADSTONE Because the data would show that of course the death penalty was disproportionately affecting black defendant.

ANDREW MARANTZ Yeah. That, that data was presented to the court. And Brennan was basically saying the rest of my colleagues don't want to look at this because they're afraid of what it would mean.

BROOKE GLADSTONE What would it mean?

ANDREW MARANTZ Well if the death penalty is racist then maybe the whole criminal justice system is racist. And that they don't want to do that work of undoing the entire system they've built.

ANDREW MARANTZ And and there's kind of an analogy here to free speech, right? What Powell is saying is if we really took the 14th Amendment seriously--

BROOKE GLADSTONE Equal protection.

ANDREW MARANTZ --equal protection, full citizenship, it might undo all the work we've done to interpret the First Amendment the way we have. So we kind of just don't want to look at it.

BROOKE GLADSTONE So Powell says the judges are worried that we're going to have to rethink our whole approach to free speech maybe pass more laws restricting it like they have in Europe.

BROOKE GLADSTONE Because why?

ANDREW MARANTZ Because Moskowitz does not trust the government.

P.E. MOSKOWITZ More often than not those laws are used to just limit speech that the government doesn't like. And I know in France, for example, there have been a couple of times where their anti-anti-Semitism law has been used to clamp down on pro Boycott, Divestment, Sanction speech, which, you know, I think is a legitimate form of speech. And as a Jew, not one that I find inherently anti-Semitic.

ANDREW MARANTZ So obviously not everyone agrees with that way of talking about the BDS movement but the point is free speech restrictions, when they get weaponized, they can be weaponized by the left or by the right. Susan Benesch who's the director of the Dangerous Speech Project, she does not want to get rid of this Brandenburg standard-the standard that says that all speech is permitted unless it incites imminent physical violence. Even she wants to keep that standard in place because she thinks it might even create more problems than it would solve.

SUSAN BENESCH I'm quite skeptical that law, especially criminal law, is a useful tool to control speech. When people are prosecuted for hate speech, for example, in other countries where hate speech is a crime, the prosecution publicizes them and their speech and they end up with even more followers than before they were prosecuted.

ANDREW MARANTZ She also said that we need to remember Brandenburg only applies in public spaces. And--

BROOKE GLADSTONE Right.

ANDREW MARANTZ --we live our lives in a lot of private spaces. You know, workplaces, universities even online spaces that are built by private companies. So the First Amendment doesn't apply there in the same way and Benesch thinks that a lot in those spaces can be achieved by shifting norms rather than shifting laws.

SUSAN BENESCH What is the likelihood that an American politician will use the N-word knowing that the microphone is on? The likelihood is very tiny because that person will then lose that election. The person will be punished not by law but in another way.

BROOKE GLADSTONE The norms that were supposed to keep a troll from winning a presidential election didn't quite work in 2016, did it?

ANDREW MARANTZ Definitely true. I think she's making a more minimalist point there. That even though Trump is a troll, even he understands he's not supposed to say the N-word in public. At least--

BROOKE GLADSTONE At the time of this recording.

ANDREW MARANTZ Right, exactly. So this goes back to what I was saying about Richard Rorty.

BROOKE GLADSTONE The philosopher you talked about at the beginning of the hour who believes there is no arc of history that's going to deliver us towards justice. That everything is possible and that our future turns on contingency.

ANDREW MARANTZ Exactly. So his whole thing was that the way history moved forward was that people, they don't just change laws or tweak this or that idea. Their beliefs and behaviors have to change at a really deep fundamental level. There are assumptions that they hold without even being able to articulate them often. And those assumptions that, when those assumptions change, we can change things that used to be considered quite strange and those can just become normal or vice versa. And the deepest social norms, the assumptions that we carry around that we don't even always think about consciously, for him, he, he referred to those as vocabularies.

BROOKE GLADSTONE Assumptions on which we build our view of ourselves and our nation.

ANDREW MARANTZ Our behavior, everything. There's so core to us that we don't even articulate them. And so when we hear norms we think like etiquette or polytests or whatever,but it's really much deeper than that.

BROOKE GLADSTONE Yeah, but right now we're all really worried about, you know, the new normal. How did we get down here so fast and how do we climb out and reach for a less rageful, less ugly vocabulary as you'd say?

BROOKE GLADSTONE Benesch says that the Germans sunk really fast into Naziism and climbed out of it quickly too. Although, admittedly it had the foot of the allies on their neck.

ANDREW MARANTZ Right. And it might be that the acuteness of the crisis is related to how quickly you build your way out. Luckily we've never had a crisis that bad.

BROOKE GLADSTONE And she says we're not there yet.

ANDREW MARANTZ She says we're not there yet so our rebuilding is likely to be more slow and gradual. And we've seen examples of this, you know, we had a civil rights movement we had a women's movement. More recently we had a marriage equality movement. These social norms can change. We've seen it happen in our lifetimes. And at first, you know, it seems really scary to certain people, they can't imagine abiding by it. And pretty quickly they integrate it into their vocabularies and it becomes a thing they take for granted.

BROOKE GLADSTONE It sounds so easy, all we have to do is interrogate a few assumptions that have led us to this moment and maybe get rid of some, right?

ANDREW MARANTZ Exactly. Piece of cake.

ANDREW MARANTZ So, I mean we can start thinking about how to chip away at it, right? We can drop that view we talked about earlier that the arc of history will just naturally deliver us where we need to go. We can drop our view of American exceptionalism that we are this shining city on a hill. We could just, you know, be a little more humble.

BROOKE GLADSTONE At the beginning of the hour you alluded to an essay that Rorty wrote in 1996 called Looking Backward From the Year 2096. And he envisioned a Dark Age beginning in 2014, a kind of Margaret Atwood-y autocracy in which our cherished rights and our freedoms, they all implode in a kind of orgy of violence and chaos. And then he imagines us climbing out of that hole and starting to rebuild. And he was a little light on the details when it came to how we did that.

ANDREW MARANTZ It's true. It's all sort of general and speculative, um, but I think the closest he comes to imagining the specifics is when he talks about getting away from focusing on individual rights, the John Stuart Mill stuff, the where I can swing my fists and where the tip of your nose is, getting away from that framework and shifting to a framework about fraternity and social compacts and solidarity.

BROOKE GLADSTONE And so listeners, we've pulled a few paragraphs from Rorty's speculative essay so we can hear it in his words. You start.

ANDREW MARANTZ All right. 'Our long, hesitant, painful recovery over the last five decades, from the breakdown of democratic institutions during the dark years, 2014 to 2044 has changed our political vocabulary as well as our sense of the relation between the moral order and the economic order. Just as 20th century Americans had trouble imagining how their pre-Civil War ancestors could have stomach slavery so we at the end of the 21st century have trouble imagining how our great grandparents could have legally permitted a CEO to get 20 times more than her lowest paid employees.'

BROOKE GLADSTONE That is a really big shift--

BROOKE GLADSTONE --from where we are now.

ANDREW MARANTZ Big shift. It's also kind of quaint that he thought 20 times more was so obscene. But yeah. So you can see how for Rorty, the whole game, it's not about replacing one law or even replacing one government with another. It's about replacing the whole framework. Right? So, so we're not doing the individual rights thing anymore, we're, we're changing out our whole discourse for a new one.

BROOKE GLADSTONE He says, 'how to formulate a principle of fraternity. Fraternity is an inclination of the heart. One that produces a sense of shame at having much when others have little. It's not the sort of thing that anybody can have a theory about or that people can be argued into having.'

ANDREW MARANTZ You just arrive at that new vocabulary. It's not winning or losing an argument.

BROOKE GLADSTONE Yeah. And he talks about humility. The America that he describes at the end of this century, we're no longer an economic powerhouse and we no longer believe that's our destiny. He wrote, 'we are citizens of an isolationist, unambitious middle grade nation. Our products are only now becoming competitive again in international markets and politicians continue to urge that our consistently low productivity is a small price to pay for union control of the workplace and worker ownership of the majority of firms.'

ANDREW MARANTZ Make America middle great again. So he continues. 'American exceptionalism did not survive the dark years. We no longer think of ourselves as singled out by divine favor. We are now once again a constitutional democracy. But we have proved as vulnerable as Germany, Russia and India to dictatorial takeovers.'

BROOKE GLADSTONE We have a sense of fragility, of susceptibility to the vicissitudes of time and chance, which Walt Whitman and John Dewey may never have known. But our chastened mood, our lately learned humility may have made us better able to realize that everything depends on keeping our fragile sense of American fraternity intact. So, Rorty believes there's no way to force people to feel empathy.

ANDREW MARANTZ Right. So as I was talking about earlier, part of what he thought was broken about the Enlightenment framework was that you can't just throw more speech into the mix if the, if the conversational framework is broken. You can't just compete with more and more noise, you have to change the framework itself. And it is a, it's a chicken and egg thing, I should acknowledge. You know, in order to change the society, you have to change the vocabulary. In order to change the vocabulary, you have to change the society.

BROOKE GLADSTONE Yeah. I don't know, it just sounds, literally, like wishful thinking.

ANDREW MARANTZ You know, this is how a guy who was an analytical philosopher starts writing utopian sci-fi fiction. He, he, he actually believed that in order to make a better world, you have to start by just making one up.

BROOKE GLADSTONE And he starts by imagining a horrific dark age?

ANDREW MARANTZ In his version of the imagined future of America, we have to hit rock bottom before we start building our way back up.

BROOKE GLADSTONE And so this is what passes for hope for you Andrew?

ANDREW MARANTZ Haha, I did tell you before, I'm the guy who thinks our institutions are not deserving of any real faith and that we might be teetering on the brink of democratic collapse at any moment. So from me right now, this is probably as close to optimism as you're gonna get.

BROOKE GLADSTONE I'll take it. Andrew Marantz, New Yorker staff writer and author of Anti-social: Online Extremists, Techno-utopians and the Hijacking of the American Conversation. Thanks for the hour.

ANDREW MARANTZ Absolutely, it was fun.

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BROOKE GLADSTONE That's it for this week's show, which was produced almost single handedly by Micahel Loewinger. Our show is also produced by Alana Casanova-Burgess, Leah Feder, Jon Hanrahan and Asthaa Chaturvedi. We had more help from Charlotte Gartenberg. And our show was edited by me. Our technical director is Jennifer Munson. Our engineers this week were Sam Bair and Josh Han. Katya Rogers is our executive producer. On The Media is a production of WNYC Studios. Bob Garfield will be back next week. Thanks again to New Yorker staff writer Andrew Marantz. I'm Brooke Gladstone.

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UNDERWRITING On The Media is supported by the Ford Foundation, The John S. and James L. Knight Foundation and the listeners of WNYC Radio.

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Sticks and Stones | On the Media | WNYC Studios

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BROOKE GLADSTONE From WNYC in New York, this is On The Media, and on this week's show, our radical, paradoxical free speech tradition. ANDREW MARANTZ Mmm. Whenever you write about free speech, obviously the free speech absolutists are going to come out of the woodwork and there are a lot of absolutists on the internet.

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A case in which the Court held that a Ku Klux Klan's First Amendment rights were violated by an Ohio criminal syndicalism law.

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From today's opinion by Justice Samuel Alito (for four justices) in Matal v. Tam, the "Slants" case:

[The idea that the government may restrict] speech expressing ideas that offend ... strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate."

Justice Anthony Kennedy wrote separately, also for four justices, but on this point the opinions agreed:

A law found to discriminate based on viewpoint is an "egregious form of content discrimination," which is "presumptively unconstitutional." ... A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government's benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

And the justices made clear that speech that some view as racially offensive is protected not just against outright prohibition but also against lesser restrictions. In Matal, the government refused to register "The Slants" as a band's trademark, on the ground that the name might be seen as demeaning to Asian Americans. The government wasn't trying to forbid the band from using the mark; it was just denying it certain protections that trademarks get against unauthorized use by third parties. But even in this sort of program, the court held, viewpoint discrimination - including against allegedly racially offensive viewpoints - is unconstitutional. And this no-viewpoint-discrimination principle has long been seen as applying to exclusion of speakers from universities, denial of tax exemptions to nonprofits, and much more.

(Justice Neil Gorsuch wasn't on the court when the case was argued, so only eight justices participated.)

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Opinion | Supreme Court unanimously reaffirms: There is no 'hate speech' exception to the First Amendment

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From today's opinion by Justice Samuel Alito (for four justices) in Matal v. Tam , the "Slants" case: [The idea that the government may restrict] speech expressing ideas that offend ... strikes at the heart of the First Amendment.

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Awesome discussion/debate video about modern free speech issues

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Awesome discussion/debate video about modern free speech issues

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Some of the nation's top First Amendment scholars debate the future of free speech in America. Topics include the Supreme Court's Hobby-Lobby case, defamation and hate speech on the internet. The...