Last week, at a symposium held at American University, the ACLU unveiled a new report, entitled “Reclaiming Our Rights: Declaration of First Amendment Rights and Grievances.” I’m proud to be able to note that one of my First Amendment students, Wash. U. 3L Sophie Alcorn, was one of the two principal authors of the report. The report lists a series of First Amendment grievances against the current government, and argue that we need to pay particular attention to First Amendment liberties, especially those related to the processes of self-government. The specific grievances, taken from the declaration, are as follows:
To prove this, let facts be submitted to a candid world that the United States
• Ignores its representative mandate by governing in the shadows.
• Maintains a surveillance society through warrantless wiretapping, opening mail, and spying.
• Secretly uses private parties to spy and seeks immunity to cover their illegalities.
• Silences dissent.
• Prevents citizens from petitioning their elected offi cials.
• Profiles individuals and denies freedom of movement based on association.
• Falsifies information to deny liberty.
• Overclassifies, reclassifi es, and impedes the lawful declassifi cation of documents.
• Prevents soldiers from communicating with their families and prosecutes their lawful speech.
• Silences whistle blowers.
• Censors the press, broadcast media, and Internet based on content.
• Prosecutes the press for revealing illegal programs.
• Obstructs oversight by elected officials.
• To preserve secrecy, places secret holds on bipartisan open government legislation.
• Funds religious programs.
• Furthers its ideological agenda by censoring the scientific community.
These are serious and wide-ranging allegations, and I have not studied all of them in detail. Moreover, the report is intended as a political advocacy document rather than a work of scholarship. But as I have argued elsewhere, I think the second and third allegations, that current law permits the government to “[m]aintain a surveillance society through warrantless wiretapping, opening mail, and spying” and “[s]ecretly use private parties to spy” are correct. Surveillance of our intellectual activities, either directly by the government or with the assistance of private sector intermediaries like ISPs and search engine companies is deeply corrosive to the intellectual liberty upon which a free and self-governing society must rest.
More generally, this is a very important document that is worth reading even if one disagrees with its allegations or conclusions. (If you do agree with the allegations, it might make for very depressing reading). In a time when the mantra of security is raised as a justification for surveillance and other inroads into intellectual and political liberties, it’s essential that we talk about what those liberties are, why they are important, and to what extent (if at all) the needs of security justify their abridgement or restriction.