Jeffrey Rosen on “The Deciders”

National Constitution Center

When it comes to surveillance and national-security leaks, what’s protected by the Constitution, what isn’t—and what’s changing?

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Our modern debates over speech and security date back to the Espionage Act of 1917, the law now being invoked to threaten leak prosecutions. Woodrow Wilson called for the law to suppress criticism of World War I. The Supreme Court upheld the conviction of several antiwar critics under the act, including that of the socialist leader Eugene V. Debs. But in a series of influential dissenting opinions, Justices Oliver Wendell Holmes Jr. and Louis Brandeis held a different view. “Opinions that we loathe” should not be suppressed, Holmes wrote in dissent in the 1919 Abrams case, “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

In 1969, the Supreme Court finally adopted the Holmes and Brandeis view that speech can be banned only when it’s intended—and likely—to produce imminent lawless action. Since then, the court has applied that principle to protect the free-speech rights of a dizzying variety of unpopular speakers, including, in the past few years, manufacturers of violent video games, purveyors of antigay hate speech at military funerals, manufacturers of fetish videos depicting crushed animals and, most famously, in Citizens United, corporate expenditures in political campaigns.

Courts have been less willing to strike down domestic-spying programs under the First Amendment or to protect the free-speech rights of leakers. In 2006, a judge rejected a First Amendment challenge to the prosecution of two alleged recipients of leaked national-security information. But when the Justice Department and FBI recently studied whether journalists might be prosecuted under the Espionage Act—such as WikiLeaks founder Julian Assange or Fox News reporter James Rosen—civil libertarians objected that this would violate the First Amendment as well as the Fourth Amendment’s right to privacy.

Courts have been similarly reluctant to entertain First Amendment challenges to government surveillance. In 1972, the Supreme Court rejected a claim that a military-surveillance program that used open-source methods would have a “chilling effect” on political protest and dissent. And last February, the court refused to consider First and Fourth Amendment challenges to the Bush administration’s warrantless surveillance program. A group of academics, journalists, lawyers, and activists who communicate with suspected terrorists abroad argued that covert surveillance violated their rights. But in an Alice in Wonderland 5-4 opinion, the court held that because the program was secret, the plaintiffs couldn’t prove they were being monitored, and therefore their fears were “speculative.”

The truth is that those with the most power over who can speak and who can be heard in the Internet age aren’t judges or prosecutors or even the president. They’re officials at Internet and telecom companies like Google, Facebook, Twitter, Verizon, and AT&T. Call them the Deciders, in tribute to Nicole Wong, the new White House chief privacy officer and former top lawyer at Twitter and Google, whose Google colleagues bestowed that affectionate nickname on her. They’re the ones who decide what controversial speech stays up and what comes down in response to government demands or users’ objections. When President Obama called on Google to remove the inflammatory Innocence of Muslims video from YouTube last year, Google initially resisted before blocking access to the video in some countries.

But as corporate actors, the Deciders aren’t bound by the First Amendment, and in other instances they have suppressed speech that the Supreme Court might protect. Facebook, for example, has cracked down on gender-based hate speech under pressure from women’s groups and advertisers. And while Internet companies must obey the law, their decisions about whether to cooperate with government surveillance requests will determine the future of free speech as much as any prosecutor or judge. Today’s unprecedented centralization of information means that whoever controls the databases holds the real power to decide who can speak and what we can say.

Editor’s Note: This column first appeared on Time Magazine’s website.

Jeffrey Rosen is the president and CEO of the National Constitution Center and the legal affairs editor of The New Republic.

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