Sen. Ron Wyden (D-OR) deserves significant credit for placing a hold today on a draft intelligence spending bill that would place enormous new obstacles in the path of journalists trying to report on government illegality, fraud and waste in the intelligence community. Although it is true that national security sometimes requires secrecy, restrictions on freedom of the press would do little to benefit the national security while significantly insulating government wrongdoing from public scrutiny.
The bill, the , is usually not controversial, but last summer Sen. Dianne Feinstein (D-CA) incorporated a new section that would, among other things, bar reporters from conducting background briefings with anyone other than senior intelligence officials or agency flacks, and could effectively bar former government officials cleared at a top-secret level from talking to the press for a year after leaving government (even if the conversations have nothing to do with classified information). That former CIA officer providing background on operations in Afghanistan? Totally muzzled. The CNN consultant talking about possible security breaches in the Petraeus case? Off the air. We wrote about the numerous problems with the legislation here.
The bill arose in response to numerous media reports last year regarding national security “leaks” about sensitive government operations like the Stuxnet virus and the president’s targeted killing program. Republicans accused the administration of selectively leaking to make the president look good on national security before the election, but Feinstein also expressed support for new legislation on the leaks issue. This is the result.
To be clear, the “leaks” bill has nothing to do with espionage. It has nothing to do with government officials disclosing classified information to foreign powers out of ideological sympathy or in hopes of personal gain. It has everything to do with making life tough on journalists, and on stifling the dozens of conversations that occur every day between the press and members of the intelligence community (most of which have little or nothing to do with truly classified information), except for those with the most senior officials. In other words, it has to do with enforcing message discipline by only allowing reporters to gather information from those who will toe the party line.
Specifically, the Feinstein bill introduced last summer would, among other things:
- Prohibit all “background” or “off-the-record” briefings with intelligence community staff save for communications with the director, deputy director or designated public affairs officer of the agency in question. This restriction would apply even when reporters have already acquired classified information and are seeking to determine any risk in disclosure.
- Along with a total prohibition on all current employees with security clearances, bar any past government employee who has had a top-secret clearance in the past three years from entering into a contract or “other binding agreement” (which could include virtually any informal arrangement) with the media. This would bar those who are most equipped to comment on sensitive national security matters from providing guidance to the public, and would apply even when there is no danger whatsoever of a classified leak.
- Potentially make it easier for the Department of Justice to directly target reporters with subpoenas in “leak” investigations. Already, the Obama administration has pursued more criminal leak prosecutions than any other; an expansion in federal subpoena authority would only accelerate that trend.
- Provide intelligence agencies with additional leverage (namely loss of pension benefits) to dissuade whistleblowers from disclosing government fraud, waste, mismanagement or illegality.
There is no question that some government information may be properly classified. However, in a vibrant democracy with a free press, the benefit of the doubt must always be on the side of public disclosure. The reason is simple: government has every incentive to bury harmful information as “classified,” and no incentive other than pure altruism to disclose by itself. Were it not for investigative journalism—dependent on so-called “leaks”—the public (and Congress) would never have learned about the the torture of prisoners in secret prisons, the warrantless surveillance of American citizens by the National Security Agency, missteps in the Iraq War and, yes, the dalliances of David Petraeus.
The 2013 intelligence authorization bill would build a veritable Berlin Wall between the press and the intelligence community, cannot be fixed and must be opposed in its entirety. Please support Wyden’s principled stand, and urge members to remove the leaks language from the final bill.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
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Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
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Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
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Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.