The Bipartisan Policy Center published a report last week called, “,” which strongly endorsed First Amendment principles in rejecting censorship as an appropriate tactic for addressing violent extremist content on the Internet. The report evaluated the many methods governments around the world use to censor the Internet – including filtering or blacklisting online content, taking down websites (either through legal means, cyber attacks or appealing to private sector providers), and prosecuting Internet content producers – and rejected them all as both ineffective in stopping the spread of undesirable ideas, and an affront to American values: “For the United States, the cost-benefit analysis would be even clearer: with its long and cherished tradition of free speech, the creation of a nationwide system of censorship is virtually inconceivable.” But the BPC’s positive recommendations are potentially undermined by its continuing embrace of a radicalization theory that draws too close a causal connection between “radical” ideas and violent action.
The BPC recognized, as the ACLU has long argued, that the American tradition of protecting free speech is the strength of our democracy, and that “Using the same kinds of methods that are used by dictatorships – however different the reasons and context – would undermine America’s leadership by vindicating the practices of rogue regimes and inspiring others to follow their example.” (Full disclosure: the BPC interviewed ACLU staff while conducting research for the report). Indeed, in a follow-up editorial, the BPC’s Co-Chairs Thomas H. Kean and Lee H. Hamilton, and the report’s author, Peter Neumann, even paraphrase an old ACLU axiom in ing that instead of censorship the government should be empowering the free marketplace of ideas online: “the best way to defeat ‘bad ideas’ is to promote good ones.”
While we appreciate that the BPC report has endorsed the ACLU’s views opposing government censorship and promoting free expression, it is important to note that when the ACLU was founded in 1920, its interpretation of the scope of the First Amendment’s speech protections were considered dangerously “radical.” The ACLU was the target of intense investigation by the FBI and broad slanderous attacks by legislative committees investigating “radicalism,” including in Congress and in New York State. Justice Department agents raided ACLU offices and placed its leaders and members under intense surveillance. Government agents that by defending pacifists and labor organizers accused under wartime criminalizing anti-war and anti-government speech, ACLU lawyers were aiding America’s enemies and helping to spread radical foreign ideas within the United States.
The Supreme Court gradually came around to the ACLU’s viewpoint over many years, and the robust speech protections we now enjoy under the First Amendment became not just accepted, but expected. As the BPC report indicates, “even critics of what may be called ‘free speech absolutism’ concede ‘the First Amendment is so central to our self-conception’ that it has come to define what being American means.” This evolution in the courts’ and public’s understanding of the scope of free speech protections is a perfect example of how “radical” ideas often bring about social progress. (Other dangerously “radical” notions at the time included women’s suffrage and the 40-hour work week).
So, while we appreciate the BPC’s recognition of the importance of protecting free speech, we remain concerned that the concept of “radicalization” that it promotes – and which the government has too often adopted – draws too direct a causal link between the exposure to, or adoption of certain beliefs and the commission of violent terrorist acts. Empirical studies of terrorists do not support such a simplistic or direct causal connection (see for example this , especially the “Factor Tree for Root Causes of Terrorism” on page xx and the “Factor Tree for Individual Willingness to Engage in Terrorism” on page xxv). The BPC report identifies a few anecdotes regarding individuals who used the Internet and were later charged with terrorism offenses to justify this approach, but its analysis completely ignores the myriad other factors that may have played a more dominant role in those cases, as well as the many cases in which violent acts were not precipitated by exposure to similar online content. Most significantly, it fails to explain why the vast majority of people who are exposed to the same materials online, and even adopt similar beliefs as a result, do not become violent criminals or terrorists.
This radicalization theory is problematic from a civil liberties perspective because it makes the same mistakes that the Overman and Lusk Committees made almost a century ago: it identifies extreme ideas, rather than violent behavior as the problem that needs to be addressed. If certain ideas are the problem, the solution invariably includes suppressing those ideas, in one way or another. The BPC deserves commendation for rejecting censorship and for recommending that government efforts in this area should focus on activating and supporting a free and open marketplace of opinion on the Internet. But, because it muddies the important distinction between expressing extreme views and engaging in criminal conspiracies, its third recommendation that the government “exploit” cyberspace to gain intelligence and gather evidence could be interpreted to justify surveillance or investigations based on ideology rather than individualized evidence of wrongdoing. This concern is far from hypothetical: the FBI has a sordid history of using its powers to suppress political speech, one that is being as the FBI’s investigative authorities have been expanded since 9/11. This new Department of Justice for a radicalization study raises similar concerns.
Indeed, government surveillance of the Internet the free exchange of ideas in ways that would undermine the BPC’s first two recommendations almost as severely as censorship, a point made during BPC’s press conference by a University of Wisconsin professor who raised concerns about inappropriate inferences intelligence agencies might make about terrorism researchers who view extremist content online (see the third video on this at 16:02). A look at modern FBI counter-terrorism training materials doesn’t inspire confidence that the government is properly distinguishing between political rhetoric and illegal action. As ACLU executive director Anthony Romero said in the BPC quoted in this section of its report, the government can and should use its robust powers to investigate criminal conspiracies and terrorist threats occurring online, but it must do so using time-tested procedures based on probable cause of wrongdoing and appropriate judicial oversight.
Finally, we fully agree with the BPC’s conclusion that “current procedures and oversight mechanisms [for government electronic surveillance programs] are not sufficient, adequate, or consistent.” Public oversight is essential to ensuring democratic control over executive branch activities, but even as Congress is again an extension to the Foreign Intelligence Surveillance Act Amendments, we know little about how these authorities are being used or the number of innocent Americans whose electronic communications are being inappropriately intercepted and stored in government databases. The BPC report reminds us that as we protect our nation, we must be careful to protect our values, as the two are not in opposition: “Having appropriate rules, oversight, and review mechanisms will not be an obstacle to making full use of the Internet in countering homegrown terrorism, but will enable a more systematic exploitation of this resource.” As Senator Barry Goldwater put it, “extremism in defense of liberty is no vice!”
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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 -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.