The Deciders

As courts wrestle with speech and privacy rights, tech giants matter the most

By Jeffrey Rosen Monday, June 24, 2013

    • When it comes to surveillance and national-security leaks, what's protected by the Constitution, what isn't--and what's changing?

    Our modern debates over speech and security date back to the Espionage Act of 1917, the law now being invoked to threaten leak prosecutions. Woodrow Wilson called for the law to suppress criticism of World War I. The Supreme Court upheld the conviction of several antiwar critics under the act, including that of the socialist leader Eugene V. Debs. But in a series of influential dissenting opinions, Justices Oliver Wendell Holmes Jr. and Louis Brandeis held a different view. "Opinions that we loathe" should not be suppressed, Holmes wrote in dissent in the 1919 Abrams case, "unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

    In 1969, the Supreme Court finally adopted the Holmes and Brandeis view that speech can be banned only when it's intended--and likely--to produce imminent lawless action. Since then, the court has applied that principle to protect the free-speech rights of a dizzying variety of unpopular speakers, including, in the past few years, manufacturers of violent video games, purveyors of antigay hate speech at military funerals, manufacturers of fetish videos depicting crushed animals and, most famously, in Citizens United, corporate expenditures in political campaigns.

    Courts have been less willing to strike down domestic-spying programs under the First Amendment or to protect the free-speech rights of leakers. In 2006, a judge rejected a First Amendment challenge to the prosecution of two alleged recipients of leaked national-security information. But when the Justice Department and FBI recently studied whether journalists might be prosecuted under the Espionage Act--such as WikiLeaks founder Julian Assange or Fox News reporter James Rosen--civil libertarians objected that this would violate the First Amendment as well as the Fourth Amendment's right to privacy.

    Courts have been similarly reluctant to entertain First Amendment challenges to government surveillance. In 1972, the Supreme Court rejected a claim that a military-surveillance program that used open-source methods would have a "chilling effect" on political protest and dissent. And last February, the court refused to consider First and Fourth Amendment challenges to the Bush Administration's warrantless surveillance program. A group of academics, journalists, lawyers and activists who communicate with suspected terrorists abroad argued that covert surveillance violated their rights. But in an Alice in Wonderland 5-4 opinion, the court held that because the program was secret, the plaintiffs couldn't prove they were being monitored, and therefore their fears were "speculative."

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