First Amendment

By Susan N. Herman, president of the American Civil Liberties Union and Centennial Professor of Law at Brooklyn Law School

The 10th anniversary of 9/11 may be over, but let’s not move on too fast. As students and fans of the Constitution, many of us have spent time deploring how the “War on Terror” has jeopardized our rights. Now it’s time to deepen that conversation and get serious about reversing the damage.  

The news is not all bleak. The past decade offers some reassuring evidence of the power and resilience of our Constitution. My new book, Taking Liberties: The War on Terror and the Erosion of American Democracy, discusses a number of ways in which the Constitution’s multiple interlocking layers of self-protection have worked to limit the extent of the damage done. 

For example, the right to trial by jury enabled an Idaho jury to honor the First Amendment by rejecting the federal government’s attempt to prosecute graduate student Sami al-Hussayen for posting links on a website.  

Article III’s decision to insulate federal judges empowered some principled judges to test politically driven strategies against the Constitution. Judge Victor Marrero in the Southern District of New York, for instance, found that the absolute and permanent gag orders automatically attaching to National Security Letters violated the First Amendment, because they prevented recipients of these government demands from ever telling anyone – including Congress, a lawyer, or a court – anything about their own experiences.    

Freedom of the press enabled reporters to tell the public things the government was trying to conceal – as in James Risen and Eric Lichtblau’s New York Times story revealing the long-secret and illegal NSA surveillance program, and Barton Gellman’s Washington Post exposé on the use of National Security Letters.

by Jeremy Leaming

The Roberts Court, some commentators have noted, appears to side more often than not with corporate interests, and has altered precedent on pleading standards that make it much easier for judges to dismiss civil complaints – think Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. The Supreme Court also has weakened the ability of people to band together to challenge malfeasance of large corporations, see Wal-Mart v. Dukes and AT&T v. Concepcion.

A new ACS Issue Brief explores another avenue to the courthouse that the Roberts Court is narrowing, involving the ability of people to challenge unconstitutional government support of religion.

The First Amendment’s establishment clause requires that government act with neutrality toward religion, meaning a certain amount of separation between government and religion is a must. But, according to the ACS Issue Brief, the ability of people to bring constitutional challenges to government action supporting or advancing religion is becoming increasingly difficult.

In “The Slow, Tragic Demise of Standing In Establishment Clause Challenges,” Willamette University law school professor Steven K. Green writes, “By deciding not to decide certain classes of challenges, courts will effectively be throwing Establishment Clause questions … to the politically elected branches. Political expediency, rather than constitutional fealty, will become the rule of law, and Justice Robert Jackson’s immortal statement about withdrawing questions of constitutional rights from ‘the vicissitudes of political controversy’ and placing them ‘beyond the reach of majorities and officials’ will be stood on its head.”

Green notes that in its 1968 Flast v. Cohen opinion, the Supreme Court upheld the right of taxpayers to challenge “government expenditures where the litigant could demonstrate a connection between the legislative action authorizing the expenditure and the purported constitutional violation. As a result of Flast, any taxpayer could allege that a legislative appropriation on behalf of religion violated the Establishment Clause, regardless of her own connection to the entity or institution receiving the government funds.”