It’s no surprise that the Trump administration would like to find a way to stop the leaks coming from the White House. But avoiding embarrassment is no grounds for government censorship, and the latest leak-plugging effort we’ve heard of violates the First Amendment.
The Washington Post has that senior White House staff members were pressured to sign nondisclosure agreements prohibiting them from revealing any non-public information they learn of at work. The draft NDA supposedly requires them to stay silent, not just while they are employed at the White House, but even after they leave — and to pay damages into the federal treasury if they speak out. In other words, it aims to muzzle them forever.
Such a broad agreement is unenforceable because the First Amendment protects federal employees’ right to speak in a private capacity about matters of public concern — and certainly the functioning of a presidential administration raises many issues that are of public concern.
Indeed, White House have talked and written books about their time working for presidents, covering everything from decision-making processes and substantive policy debates to interagency turf battles and personal vendettas. Putting a gag order on these officials would leave the public in the dark about how the government works, preventing the kind of informed debate that is critical to democratic accountability.
To be sure, the government can restrict its employees from sharing certain information, such as properly classified material. But even then, laws restricting the sharing of classified information should allow room for whistleblowers to reveal evidence of government illegality or misconduct.
The ACLU has previously attempted to shed light on the federal government’s restrictive prepublication review system, which requires certain past and present federal employees to submit any works for security review before publishing them. That system gives government officials too much power to censor messages they don’t like.
The White House NDA, as reported, is far too broad to pass First Amendment muster. It purports to bar the discussion of basic details about the inner workings of the White House, even if the government has no legitimate interest in keeping that information secret. This would prevent the public from learning about many issues of critical public importance, including what decisions get made and who is making them.
It is ironic that the very existence of this unconstitutional tool meant to plug White House leaks was exposed by the press. But these NDAs can be harmful even if the White House never attempts to enforce them, because of the potential chilling effects they could have. Former aides could self-censor to avoid the risk of a legal fight, depriving us all of relevant information and opinions that could affect public debate. The First Amendment protects government employees’ free speech rights to avoid that very outcome.
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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 -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
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.