an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Yesterday a district court in Manhattan struck down Patriot Act provisions that prevented people who received National Security Letters from the FBI (essentially administrative warrants for business records that do not require prior judicial approval) from disclosing that they had received a National Security Letter if the FBI director certified that disclosure would be harmful to national security, interfere with a pending investigation, interfere with diplomatic relations, or threaten life or safety of particular persons. (This particular provision is directed at businesses who provide electronic communications services like ISP's. The National Security Letters require ISP's to disclose information to the FBI about customers who use e-mail or other services.)
Recipients may go to court to get permission to speak about the fact that they have received a National Security Letter but the burden rests on them to obtain permission. In addition, courts are instructed that they must decline to give permission to speak unless recipients of the National Security Letter show that there is no reason to believe that disclosure might lead to one of the above mentioned harms as stated by the FBI. Moreover, if FBI officials certify that disclosure may harm national security or interfere with diplomatic relations, the certification must be deemed "conclusive" unless it is shown that it was made in bad faith. Moreover, if the court grants the request, the FBI may immediately recertify, requiring that the recipient go through the process again. On the other hand, if the court rejects the request, the recipient must wait a full year before attempting to get permission to speak about what has happened to them once again.
The court struck down these rules as a prior restraint on speech that was not justified by the judicial standards of Freedman v. Maryland. Freedman was a case about prior restraints against films thought to be obscene (and thus unprotected by the First Amendment) but courts have extended it more generally to procedures that seek to impose a prior restraint. Essentially, Freedman sets a floor to what government may do; in some cases the law of prior restraint is more stringent than the Freedman standards.
Freedman v. Maryland requires that when government seeks to impose a prior restraint, it has the burden of immediately taking its position before a court to defend the suppression and it bears the burden of showing that the suppression is justified. Freedman and other cases also require clear standards for when government officials may deny the right to speak, and their determinations must be subject to substantive judicial review.
The court thought that these Patriot Act provisions violated Freedman v. Maryland. It is not difficult to see why. The FBI comes to a business and, without a judicial warrant, asks for records of the business's customers. The business, concerned about the increasing abuseof the use of national security letters wants to complain in public. However, it is forbidden to tell anyone by law. It must hire a lawyer and get permission from a judge. The FBI does not immediately have to go to court to defend its decision. The burden of proof is on the business, and it is very high, because the court must reject the request unless there is no chance that national security will be harmed. Moreover, if the FBI uses the magic words "national security" or "diplomatic relations" (although puzzlingly, not threat to life and safety of individuals) its claim is conclusive and courts may not review it further.
Remarkably, these challenged provisions of the Patriot Act violate almost every feature of Freedman's test. In fact, it's almost a parody of the existing doctrine. If you wanted to write a law that went out of its way to violate the Freedman standards, you couldn't do much better than this one. The only defense that the government could have, I suspect, is that Freedman shouldn't apply when the government says that national security is threatened, and that the test should be the test of the Pentagon Papers Case. But Pentagon Papers, as I read it, assumes that Freedman offers a less stringent test that is easier to meet. That is because Freedman involves material that the government claims is not even protected speech (because it is obscene); the speech in this case is clearly protected expression but the government seeks to suppress it for national security reasons.
It is worth noting that Congress passed this version of the Patriot Act because the same district court struck down an earlier version as even more unconstitutional because the ban on speaking was permanent, and did not provide any system for judicial review. The new version did provide judicial review, but in a very truncated and limited fashion; hence the court struck it down under Freedman v. Maryland.
Orin Kerr asks why the court spends so much time talking about judicial review in the middle of the opinion. The reason, I think, is tied to the First Amendment theory of Freedman, which requires substantive judicial review of the reasons given for the restraint. The court wants to show that the standard chosen by the statute-- shifting the burden of proof and requiring that certain claims be treated as "conclusive"-- preempts substantive judicial review under Freedman. The court is arguing that Congress cannot get around First Amendment requirements of judicial review by redefining what forms of judicial review are permissible. Posted
by JB [link]
Well, that's the essence of what I tried to tell Orin over at Concurring Opinions where Neil Richards posted on the ruling, although I did not cite Freedman, and you make the case much more eloquently than I ever could.