Speech and expression

The nature of our First Amendment vision is expanding, as new technologies enable people to interact with public information and become "active collaborators, "rather than just "passive listeners," White House Open Government Initiative Director Beth Noveck said during an ACS event addressing government transparency and national security.

Noveck, who is also United States Deputy Chief Technology Officer, said the federal government is in the process of adopting a culture of transparency, one which emphasizes collaboration instead of the "us versus them" mentality of the traditional mechanisms of obtaining information, such as the Freedom of Information Act.

But four panelists who spoke following Noveck's address pointed out that there are many contexts in which an us versus them dynamic continues, and perhaps is necessary, such as when watchdogs and journalists seek to obtain information that disparages the government, and in the national security context, when the government keeps information secret in the name of the country's protection.

"It's a lovely thing whatever the government decides to tell us as a matter of discretion and grace, but sometimes the government does want to keep secrets," said New York Times Supreme Court correspondent Adam Liptak, who moderated the panel.

"From my perspective, the discussion is not so much secrecy versus national security, but it is secrecy versus government wrongdoing that is in the context of national security," said Vincent Warren, executive director of the Center for Constitutional Rights.

For example, there might have been a justification at one point for keeping interrogation techniques secret, Warren explained.

"However, once it became clear that interrogation techniques amounted to war crimes, then the nature of the secrets shifted from interrogation and operational details to covering up of international war crimes. And I certainly wouldn't take the position that that's something that should remain secret," Warren said.

Warren, and his fellow panelists, Prof. Jerome A. Barron of George Washington University and Citizens for Responsibility and Ethics in Washington Executive Director Melanie Sloan, lamented that the courts do not take a more active role in making determinations about when the public has a right to national security information.

Barron pointed to the recent Supreme Court decision Holder v. Humanitarian Law Project as an example of the court's excessive deference to the government on First Amendment issues, contrasting the court's approach with its active role in New York Times Co. v. United States (the Pentagon Papers case).

"Although the First Amendment should have been central to the case, it was really treated as just a possible distant remedy for government abuse of first amendment rights," Barron said. "The case suggests that the present court takes a very different and much too limited a view of the judicial role."

Watch the full discussion below.

Read a guest blog post adapted from Melanie Sloan's comments during the panel here.

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By David Cole, a professor at Georgetown University Law Center, and counsel to several charities and foundations objecting to expansion of the "material support" statute.

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Last summer, the Supreme Court ruled that the First Amendment did not protect speech advocating peace and human rights if expressed to, or in conjunction with, a foreign group that the United States has designated "terrorist." The Court's decision in Holder v. Humanitarian Law Project employed reasoning that could have broad implications for First Amendment freedoms generally, as it held that the government's interest in denying "legitimacy" to a proscribed organization was a "compelling interest" that justified a content-based law criminalizing speech urging only lawful, nonviolent conduct.

But two cases now pending in federal courts of appeals threaten to expand still further the reach of laws banning "material support" -- to prohibit aid even to organizations that have never been "designated" as terrorist or otherwise proscribed by the government. Their resolution will be the next front in the struggle to protect civil liberties from the mandate to suppress support for terrorism. They threaten to expand the law far beyond the already broad reach the Supreme Court endorsed in Humanitarian Law Project, and to chill the legitimate humanitarian aid activities of countless charities and foundations across the United States.

In the first case, United States v. El Mezain, pending in the U.S. Court of Appeals for the Fifth Circuit, a federal judge ruled that individuals can be held criminally liable under the "material support" statute not only for supporting groups the government has formally designated and placed on an official list, but also for supporting non-designated groups, not on any government lists, if the government later proves that the non-designated group was linked to a designated group. The court required no showing that the donor knew or even should have known that the non-designated group was in any way connected to a proscribed organization.

If this decision is upheld, any charity that provides aid or does work in conflict-ridden regions around the world will be vulnerable to prosecution. Even if the charity engages in due diligence, carefully checks the government's lists of proscribed groups and individuals, and scrupulously avoids funding anyone on the list, it could still be prosecuted. Under this view of the law, there is literally nothing a charity can do to ensure that it will not be prosecuted - short of exiting the field altogether. The decision has such sweeping ramifications that the defendants' appeal has been supported by an amicus brief from a wide variety of charities, foundations, and non-governmental organizations - including the Council on Foundations, which represents 1,750 U.S.-based foundations; the Carter Center, founded by former President Jimmy Carter; the American Friends Service Committee; the Rockefeller Brothers Fund; the conservative Rutherford Institute; and the bipartisan Constitution Project.