I was the guest speaker at the Harvard Law Review’s annual banquet over the weekend. I used the opportunity to consider whether the First Amendment served us well during the “war on terror,” and whether we should feel confident it will serve us well during this new age—the age of social media, surveillance, and ascendant authoritarianism. Thanks to the HLR’s editors, and especially to Hassaan Shahawy and Priscila Coronado, for inviting me to speak—it was a real honor. (And thanks also to Jack Goldsmith, whom the HLR’s editors somehow convinced to serve as “toastmaster.”) The text of my remarks is below.
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The last time I attended a Harvard Law Review banquet was in the year 2000, the year after I graduated from law school. It was a very different time. America was invincible. History had ended. “Law and economics” occupied the cultural space that Taylor Swift occupies now. The internet, which was still new, was going to democratize knowledge, end censorship, supercharge social justice movements, and topple repressive regimes. We thought the days of despots and strongmen were numbered. The arc of the moral universe was bending toward justice.
Needless to say, the September 2001 terrorist attacks were unimaginable to us. So was pretty much everything that came after. Nobody would have believed, in the year 2000, that we were on the threshold of two decades of war, that the 21st century might belong to authoritarians, and that human rights and democracy would prove to be as brittle as they’ve proven to be. Looking back now, it seems almost as if 9/11 cast us out of one universe and into another.
I’m tempted to say that “9/11 changed everything.” Maybe it did change everything. Still, to say it changed everything gives an aura of inevitability to all that happened afterwards. Of course, nothing was inevitable. Our political leaders and institutions could have responded in many different ways. As a society, we could have made other choices. It wasn’t inevitable that we’d go to war in Iraq, or even in Afghanistan. It wasn’t preordained that we’d jettison the human rights principles we’d previously championed.
How did we make the decisions we did? Our society, perhaps more than any other, puts faith in a well-informed public, unfettered political debate, and a free press. These features of our system are a large part of what we mean by the phrase “self-government.” We’ve enacted laws, built institutions, and cultivated norms meant to safeguard these features. Preeminent among these is the First Amendment.
What I’d like to talk about this evening is whether the First Amendment served us well over these last two decades, and whether we should feel confident it will serve us well in this new age, the age of social media, surveillance, and ascendant authoritarianism.
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I wonder what comes to mind for all of you, when I say “the First Amendment.” When I graduated from law school, I associated the First Amendment with tolerance, the pursuit of truth, democratic vitality, and social justice. The First Amendment, as I thought of it, allowed the newspapers to print the Pentagon Papers, protected artists who’d been called to testify before the House Un-American Activities Committee, and empowered the NAACP to withhold its membership lists from southern states that were trying to intimidate racial justice activists.
That the First Amendment protected speech of all kinds was a feature, not a bug. The reality of social progress was proof that the First Amendment was doing the work we needed it to do.
I doubt many of you think about the First Amendment now in the way I did then. Even my own views have become more complicated. The First Amendment flashpoints of the past few years have been very different from the ones that were front of mind twenty years ago. When I invoke the First Amendment now, perhaps what comes to mind is not the Jehovah’s Witnesses who don’t want their kids to have to recite the pledge of allegiance, or the anonymous pamphleteer who wants to oppose a new school tax—but vaccine skeptics who undermined public health policies during a worldwide pandemic, or neo-Nazis who rioted in Charlottesville, or cable news hosts who inveigh against immigrants and racial minorities. Maybe the notion of a “marketplace of ideas” sounds naïve to some of you, or even fraudulent.
And as to social progress, well, whatever your politics, it would be difficult to look back on the past few years, or even the past few weeks, and feel entirely confident about our collective capacity to understand one another, negotiate differences, learn from mistakes, figure things out, do better.
The project that led me to the ACLU twenty years ago didn’t, on its face, have much to do with the First Amendment. This was just six or eight weeks after the 9/11 attacks. I’d been out of law school for a little while—I’d clerked for two years and then I’d joined a law firm in New York City. There was still smoke rising from the site where the twin towers had been, and ash in the air, and hundreds of missing-person posters affixed to walls and lampposts on every street-corner.
The Bush administration’s immediate response to 9/11 was to round up the usual suspects. The INS—the immigration service—carried out raids in immigrant communities around the city—in Coney Island, Bay Ridge, and Jackson Heights—arresting immigrants whom the FBI said were connected somehow to the terrorist attacks. Ultimately the INS detained more than a thousand men. They were South or Central Asian, African, and Arab; cab drivers, bodega workers, gas station attendants, hospital orderlies. Most of them were undocumented, like half a million other people in the city. What distinguished them is that they were Muslim, or had been mistaken for Muslim, which is something that happened quite frequently.
I started working with the ACLU as a volunteer. We’d go out to the detention centers in New Jersey and try to figure out who was being held there. The special-interest detainees—that’s what the government called them—were being held without charge, and they’d had no contact at all with their families or lawyers. The Attorney General was intimating on national television that they were somehow responsible for the attacks. The FBI was saying it could detain them indefinitely. Many of the men were terrified they were going to spend the rest of their lives in American prisons.
We advocated for them with the wardens and the FBI, and we connected them with lawyers who could help them file habeas petitions. If you’re very lucky, you’ll have the chance at some point in your professional lives to use your skills in similar ways—for me, it was eye-opening and also incredibly rewarding. But I wish we could have done more. Lower courts were reluctant to second-guess the FBI’s decision to hold the men without charge. The DC Circuit upheld the Justice Department’s refusal to release a list of the men who’d been arrested. Two appeals courts split on the question of whether the men’s deportation hearings should be open to the public. Many of the men languished in detention for months, a few of them for more than a year. Eventually all of them were quietly deported, none of them charged with anything having to do with terrorism, most of them charged with no crime at all.
That episode turned out to be a harbinger. The arbitrary and discriminatory nature of the arrests, the government’s calculated effort to avoid judicial review, the indifference of the courts—all of these themes would surface again. And so, especially, would questions about the control of information—questions about which stories could be told publicly, which information the government had an obligation to share with the press and public, and which government proceedings the press and public had a right to observe. It turned out that these questions, all of which implicate the First Amendment in one way or another, were at the center of what the Bush administration called the “war on terror.”
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In the two decades after 9/11, that shape-shifting war against an ever-evolving enemy generated an immense amount of litigation in American courts. A great deal of it pitted national security interests against free speech.
Some of this litigation was quite literally about the right to speak. One set of cases I litigated at the ACLU involved gag orders—non-disclosure orders—imposed by the FBI on people served with national security subpoenas. The question was whether the First Amendment protected their right to tell others—including lawyers, courts, and members of Congress—that the FBI had demanded information from them.
But other cases engaged other aspects of the First Amendment. A slew of cases raised the question whether the First Amendment limits government surveillance that chills the freedoms of speech and association. There was also an avalanche of litigation over access to information. There was the question whether the First Amendment afforded the public a right to observe military tribunals at Guantanamo Bay. There was the question whether the public had a right of access to the evidence that prisoners filed in connection with habeas petitions, including, in particular, to videos documenting abuse and torture. There was, as I already mentioned, the question whether the public had a right of access to deportation proceedings.
Looking back now, one thing that’s striking to me is how many of these national security cases turned on what the government could learn about ordinary citizens, or what ordinary citizens could learn about the government. Questions about the control of information—about speech, secrecy, selective disclosure, and surveillance—turned out to be central.
But I suppose it shouldn’t really be surprising that the war on terror raised so many of these questions. After all, war has always been a crucible for free speech. It’s in large part through national security cases that the First Amendment has been given life. It was in a case involving an Espionage Act prosecution after the first World War that Justice Holmes conjured the marketplace of ideas, a metaphor that continues, for better or worse, to shape the way we think about free speech today. It was in another Espionage Act case, a few years later, that Justice Brandeis wrote that “the fitting remedy for evil counsels is good ones”—that the remedy for bad speech is more speech—a principle that provides the starting point for today’s debate about misinformation. And it’s the Pentagon Papers case, more than any other, that still delineates the outer boundaries of press freedom in this country. Clashes between the demands of national security and the demands of self-government have forged the First Amendment as we think of it today.
Did this war-forged First Amendment serve us well in relation to the war on terror?
Yes and no. There was no serious effort by government, even in the days immediately after 9/11, to directly censor the press. There was no wave of prosecutions for pure political speech, as there was during, for example, the First World War. The American free speech landscape over the past two decades has looked nothing like, say, the Russian free speech landscape now, with media organizations shut down, reporters arrested, hundreds of protesters thrown in prison, and ordinary citizens subject to prosecution for having the temerity to discredit the war effort.
But it’s also true that the First Amendment failed us in significant ways. In one important case, the Supreme Court held that the First Amendment wouldn’t bar the government from prosecuting human rights lawyers who worked with designated terrorist groups. The case marked a major retreat from precedent and cast a chill over the activities of human rights, humanitarian, and media organizations, all of which engage with blacklisted groups for entirely legitimate reasons.
The First Amendment also provided little protection against government surveillance that implicated the freedoms of speech and association. The Supreme Court acknowledged that unregulated surveillance could deter people from exercising First Amendment rights—from attending political protests, for example, or participating in political debate. But this deterrent effect, in the Supreme Court’s view, didn’t amount to an injury for purposes of Article III. This is what the Court said, 5-4, in Amnesty v. Clapper, a case I argued before the Court ten years ago, and unsurprisingly it’s what lower courts have said since. When the National Security Agency tracked Americans’ communications, monitored their movements, and cast a massive dragnet over their international phone calls and emails, the First Amendment was essentially a bystander.
And consider the right of access. In the last year of the Bush administration, a district court in DC dismissed in two sentences the argument that the First Amendment afforded the public a right of access to military hearings in which former CIA captives testified about their torture at the hands of CIA interrogators. In that case, as in many others, the courts allowed the executive branch to use the mere invocation of national security to justify withholding information the public needed to know, including information about the most profound human rights abuses.
And, finally, what about press freedom? Again, the government didn’t try to directly censor the press—this is one important respect in which the First Amendment served us well. Still, successive administrations imposed new restrictions on the right of government employees to share information with reporters. They also went to extraordinary lengths to learn the identities of reporters’ sources, and prosecuted many whistleblowers for sharing classified information with the press and public. The courts didn’t view the First Amendment as an obstacle to any of that.
In the Pentagon Papers case, Justice Stewart observed that the checks and balances that operate elsewhere don’t operate in the spheres of national defense and international affairs. In these spheres, the power of the president is vast as well as unregulated. The only effective restraint on presidential power, Justice Stewart wrote, lies in “an enlightened citizenry—in an informed and critical public opinion which alone can  protect the values of democratic government.”
But this is where the First Amendment failed us. The government withheld information we needed to know. Whistleblowers were deterred by the threat of draconian penalties. Public debate about the most consequential questions was impoverished and distorted by secrecy and selective disclosure. Often, what we knew about government policy was what the government wanted us to know, and no more. Narrative authority—the power to describe the world, to stipulate the facts—was taken away from the press and the public, and given over to the executive.
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I said the First Amendment failed us, but what I really mean, of course, is that the courts failed us. The courts failed to enforce First Amendment rights that had already been recognized, and failed to consider the possibility that changing conditions required core First Amendment rights to be given life in new ways.
The courts’ failure in this respect transcends the national security context. In recent decades, the courts have allowed the First Amendment freedoms most vital to self-government to become hollowed out. Even as they’ve extended new First Amendment protection to campaign donors, data-miners, and commercial advertisers, they’ve allowed the rights of protesters, journalists, and whistleblowers to wither. The First Amendment is increasingly serving private interests rather than democratic ones. It’s becoming alienated from the values it was meant to serve—including truth-seeking, official accountability, and, most of all, self-government.
And yet the rights neglected or abandoned by the courts are both more necessary and more vulnerable than they’ve ever been. Authoritarianism is ascendant all over the world. Repressive regimes are becoming more repressive. Democracies are becoming less democratic. Autocrats have become bolder and no longer hesitate to reach across borders. Using German spyware, the Ethiopian government monitored a political opponent living in Maryland. The Russian president ordered the poisoning of dissidents in London. The Saudi Crown Prince had a Washington Post journalist murdered in an embassy in Istanbul.
The ascendancy of authoritarianism abroad would pose a real threat to our freedoms even if authoritarianism had no constituency here at home. But it does have a constituency here, as we’ve seen. Our last president adopted many of the tactics of authoritarians the world over, and in many quarters he was celebrated for it.
Now Trump is gone, but authoritarian and demagogic impulses aren’t. Around the country, state legislatures have enacted bills intended to control public discourse, shrink the space available for dissent, and centralize narrative power in the hands of government officials. There are bills that restrict how public-school teachers can talk about race, gender, and sexuality; bills that prohibit boycotts of Israel, or of fossil fuel companies. Over the past five years, almost 40 states have enacted new legislation restricting protest rights, imposing extreme penalties for protest-related offenses, or reducing penalties for violence directed at protesters.
New communications technologies pose other risks to First Amendment values. A case we’re litigating at the Knight Institute involves a Trump-era rule that requires millions of foreign citizens who apply for US visas to register their social media handles with the State Department. The registration requirement facilitates the government’s ongoing surveillance of visa holders after they enter the United States. What should the First Amendment have to say about surveillance of this kind—surveillance many of us might ordinarily associate with repressive regimes, rather than open societies?
And what should the First Amendment have to say about the far-reaching influence that a small number of technology companies now have over public discourse online? “The very purpose of the First Amendment,” Justice Robert Jackson wrote, “is to foreclose the government from assuming a guardianship of the public mind.” But should the First Amendment be indifferent to the accumulation of narrative power in the hands of private actors? And, perhaps more pressing, should the First Amendment be hostile to government efforts to limit this power?
Earlier I said the First Amendment is becoming alienated from the values it was meant to serve. Even if you agree with me, you might wonder what exactly it would require, at a doctrinal level, to reverse this trend. I mean, it’s all well and good to say that the First Amendment should serve self-government, but self-government is an abstract concept; it’s not going to decide specific cases. Still, reminding ourselves of the values the First Amendment was meant to serve might at least help us approach conversations about the First Amendment in a different way.
In everyday conversation, we tend to talk about the First Amendment as if it were something fixed, something we’ve inherited. First Amendment advocates often say they’re “defending” the First Amendment, or “protecting” the First Amendment—phrases that suggest, again, that the First Amendment is something stable—something that’s already been won and that now needs only to be preserved. But if we want the First Amendment to serve democratic interests rather than private ones—if we want it be a check on power, rather than a tool of it—then First Amendment doctrine has to be attentive to new forms of power, and new ways in which power is being exercised. It needs to be attentive to evolving technology, new business models, and changing social practices.
I asked you, earlier, what comes to mind for all of you when I invoke “the First Amendment.” Let me leave you with one modest suggestion: At this moment, when our democracy seems fragile, and the First Amendment isn’t doing the work we need it to do, it would be better for all of us to think of the First Amendment not just as something to be defended but as something to be built, not just as something to be protected but as something to be reclaimed, or even reimagined.
Thanks again to all of you, and enjoy the rest of your evening.