Defending the First Amendment
Air Date: November 19, 2016
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. We continue today our ongoing 60th Anniversary series. Democracy and Free Speech are the subject, and we’re honored to welcome the Founding Director of the Knight First Amendment Institute at Columbia University, Jameel Jaffer.
The mandate of the Knight Institute is to preserve First Amendment rights in the digital age, through research, education, and litigation in favor of protecting freedom of expression and the press, including the legal defense of whistleblowers.
Previously, Jaffer served as the Deputy Legal Director at the ACLU, and led its Center for Democracy focused on national security, human rights, free speech, privacy and technology. Jameel, congratulations on your new post.
JAFFER: Thank you.
HEFFNER: What I wanted to start here with, is something rather timely, this question of what is permissible in the digital age with respect to leaks, with respect to journalistic endeavor, with respect to the law?
Is WikiLeaks at this juncture, as Edward Snowden himself has identified, injuring its own cause? It’s enabling the kind of reckless behavior that those who are critical of these kinds of leaks point to, as why it should be unlawful, or why, what,
JAFFER: Right, right,
HEFFNER: Snowden did is traitorous.
JAFFER: I would separate two questions as, as I think you did in your, in your question, the question of the law and the question of, uh, what, whether what WikiLeaks is doing is injuring its own, its own cause, which I think is a separate question for the legal question.
Uh, you know on the, on the second question, I have not agreed with every disclosure that WikiLeaks has, uh, facilitated or made. Uh, you know even from the beginning I had reservations of some of, about some of their disclosures.
But, you know the truth is I have reservations about many things that are published in the national newspapers, and that’s a very different thing than to say they don’t have a right to publish them.
So that’s why I say that the question, the legal question is a separate one and it’s important to keep it, to keep it distinct. Um. I, the, no the legal question, the truth is there’s a lot of uncertainty about um, how the law will apply to situations like this. I mean there are these precedents like the Daniel Ellsberg precedent or many other, you know, precedents that have some baring on, um, um on the WikiLeaks situation.
But many things have changed since those precedents were set um, uh, for one thing, WikiLeaks is a transnational organization in a way that some of the other media organizations weren’t, fifty years ago. For another thing, the scale of the leaks is, is different.
Uh, uh, the nature of the abuses being disclosed varies from one context to the, to the next. And that may be important because, you know, in, um, uh, once the law in this area is settled, it may matter whether any particular disclosure was made in the public interest, and…
HEFFNER: And by that…
JAFFER: This is one of the things that Snowden has said, that he would, he would actually come back to face trial in the United States if he could make the argument to a, a jury of his peers, that his disclosures were, were in the public interest.
Um, um, and and so, one day, if WikiLeaks faced that kind of prosecution, would it be able to claim that its disclosures were in the, you know had been in the public interest. It’s an important question. So, I realize that that was just a long way of not answering your question,
JAFFER: But I think that there are two separate questions and both of them are hard.
HEFFNER: Well let’s interrogate each one. Right? So from the outset I think, I wanted to clarify for our viewers, when you’re referring to the substance of the disclosure you’re saying, is it public corruption, or is it social snark, innuendo about relationships of private people?
HEFFNER: And that seems to be the point…
JAFFER: Right, and I think that those are certainly two considerations, you know what, or one consideration. What, what’s the nature of the disclosure in that sense? Um, I’m not sure that I would limit the universe of legitimate disclosures to public corruption, right?
I think the most significant thing about Snowden’s disclosures, was not that he disclosed legal abuses in the sense of, uh, individual executive actors going beyond what the law permitted.
The, the main, uh, significance of Snowden’s disclosures, um, was that, he disclosed the extent of what the law permitted. Um, you know I’ve said this before, but I, and other people have said it long before me, but but, but the scandal here was what was legal, not what was illegal.
The scandal was that the NSA was allowed to do all of this. And that’s what, that’s what Snowden disclosed. And I think that was, you know I, I um, I think that those disclosures were in the public interest, Snowden’s disclosures. So that’s why I say that public corruption isn’t broad enough to describe the universe of disclosures that, uh, I would argue should be protected by the, the First Amendment.
But, uh more generally, I think that you’re, you know you’re right, that you have to distinguish between disclosures that are in the public interest and, disclosures that are in the public interest an uh uh, and the disclosures outweigh, the public interest outweighs the private interests that are compromised, and disclosures where the balance you know, um, comes out the other way.
HEFFNER: And there’s a differentiation we can draw between behavior that would be inconsistent with the law, and behavior that is personally uncivil, if you look at the example of the Podesta emails, or other correspondence.
And I’m sure if you looked at RNC incoming mail, you would see the same kinds of examples…
HEFFNER: Of political maneuvering, um, uncivil behavior in the language folks are using in correspondence. But, but let’s talk about that second dimension of this issue, which is how, in the digital age, we’re going to define the parameters of what is permissible. And that is this idea of a transnational organization.
What I find interesting about this is, as Justice Breyer has pointed out, it is, it is an unknown, it is a great unknown, but it’s more important than ever to understand how we can set international law, not just in terms of human rights violations, but in terms of this kind of discussion of the First Amendment.
Where do you see the possibility to bring together the globe, to manage what would be free speech or speech that crosses the line, but what are the…
HEFFNER: Channels through which there can be international consensus around this?
JAFFER: Yeah, yeah yeah. International consensus may be too much to hope for or to expect in the short term. Right? Um, I mean the truth is that the United States has been a leader on free speech issues in particular for, um, for many decades, and not everybody sees uh, free speech in the same way that we do, that we do here.
Um, the courts in other major democracies don’t necessarily, uh, don’t uh, protect speech in the way that American courts do. Um, and in many of those democracies, citizens are quite happy with the balance that their courts have struck.
You know so, I’m not sure that consensus is, you know, is reachable in, in, in the near term. But, I do think at the margin, um, we have free speech advocates here in the United States have an obligation to, um, push the boundaries elsewhere.
And um, that’s not so much a kind of colonial project as a recognition that our rights are intertwined now, right, that the, free speech, speech doesn’t end at the border. It travels, you know in both directions, um, across the border, and the restrictions that governments elsewhere place on, uh, on speech have an effect on both what we can say and what we can hear.
And I think that companies like Google and Facebook and Twitter are quickly finding out that it matters what, you may be based in the United States but it matters what European governments, what Asian governments, um, think, because they can place restrictions on what their own citizens can see, and less directly, they can place restrictions, therefore on what you can broadcast.
So, um, you know I think those lines, the borders, the, there’s no bright line at the border any more if, you know, there probably never was, but but, that, that line has become much blurrier over the last um, you know over the last 20, 30, 40 years.
HEFFNER: And we don’t necessarily have a consensus in this country either, that, half the country views Edward Snowden as a villain, half as hero. Um, generally there is a split. It’s not a unanimous verdict on uh, a whistleblower.
Um, you wrote in a recent lecture, the Peter Zenger Lecture, ‘A First Amendment in the Digital Age” um, “Our age will give rise to many novel and vexing questions relating to the scope and substance of First Amendment freedoms. One reason for this is that the Supreme Court’s seminal cases relating to the freedoms of speech and the press, the cases that shape our public spaces and public discourse today were decided a half century ago.”
And then you continue, ‘they were decided before the advent of social media.’
HEFFNER: And before, the very visible connection that we see, not only in terms of freedom of speech in the US to freedom of speech elsewhere, but freedom of speech here to freedom of, for freedom of domestic tranquility.
HEFFNER: And those who view Snowden as either criminal or a traitor, or…
HEFFNER: Um, wrong, do most often because they view him, and the President said the same thing upon awareness of the disclosure, as a threat to national security.
HEFFNER: So we saw here in New York and New Jersey, that in the case of the Chelsea bomber…
HEFFNER: There was a very expeditious law enforcement effort that ought to be applauded.
HEFFNER: It was made possible because…
HEFFNER: We‘ve installed cameras on the streets.
JAFFER: Right. Right.
HEFFNER: We have no certainty of privacy as soon as we leave our apartment, uh, in the case of a major city, whether you’re in St. Louis…
HEFFNER: San Bernardino, those were some spaces that were affected in this way. So when you talk about the advent of these technologies as being critical in determining what the law is, what the jurisprudence is, how does, how does the law factor in these real life consequences of privacy versus security?
JAFFER: Yeah. I mean I think, so a few things. One is that the law inevitably lags behind the technology. Right? The, the techno- technological change is much quicker than, um, legal change.
And and, so the courts are always playing, always playing catch up. And really, you know it may be unrealistic to think that it, it’s possible for the courts to sort of catch up to, to technology. Really what the courts have to do is set markers. They have to um, um, make statements that affect technologies that they can’t even predict at the time they, you know, write those opinions.
They have to set markers in terms of our values, in terms of the tradeoffs that we’re willing to make as a society, in terms of the meaning of, in, constitutional protections. Um, they set these markers and then technology gets ahead of the markers. But the markers have a continuing, ideally, have a kind of continuing effect on the development of the technology and the direction uh, in which we sort of head.
That, that’s uh, I think that’s the most you can hope for from the courts. I think we’re starting to see that., um, um, with, with some of the technologies that you mentioned. The, the, there was a case in uh, US versus Jones, a 2012 case, um, uh, in which the, the court held, it was a split decision but the court was, um, uh, was in agreement that location tracking, the installation of GPS devices on individuals’ cars, and continuous tracking of an individual over an extended period of time was a, a sufficiently invasive search that it required probable cause and a warrant.
And I you know, that, that is uh, depending on how you interpret the opinion, that is perhaps a little bit of pushback on the idea that once you step into the public sphere, everything is fair game, that you have no, no reasonable expectation of privacy left.
Um, because here the location of this person was in fact you know, in the public domain in some sense. They could have tailed, they could have tailed his car. The police could have tailed his car for that extended period of time and collected the same information. But the courts said, you know what, this GPS tracking is much more intrusive, as a practical matter, much more intrusive than was the police could ordinarily do, uh, certainly what they could ordinarily do cost-effectively.
Uh, and the court sort of drew a line. And I think that that’s an instance of the court seeing the development, not just the development thus far of this kind of privacy intrusive technology, but the direction in which that technology was headed, um, and putting down a marker, um, um, for privacy…
Basically reclaiming a little bit of the privacy that the court had given away in, in previous cases. So you see it a little bit. That’s a Fourth Amendment case. It’s not a First Amendment case. It’s closely connected to First Amendment rights.
Um, but so far there have not been a lot of cases in which, uh, certainly the Supreme Court has grappled with the First Amendment implications of new technology, the free speech or uh, freedom of expressions implications of new technology.
And all of this technology does have a very real effect on those rights, the right of speech, right of association, uh, rights of the press. Um, you know this is not a new idea. It’s something that you can find in the case law going back, most certainly at least, at least 50 years, um, uh a recognition of the implications of government surveillance for the freedoms of speech and the press and association.
Um, in fact there’s this line of cases from the 1960’s and 70’s in which the courts drew lines around certain kinds of government surveillance, subpoenas issued to the NAACP saying that you can’t issue a subpoena, you can’t force the NAACP to give up its membership list, unless you have a very good reason for, for demanding that it do so…
Because, that kind of demand, that form of, you know it’s a form of surveillance, that kind of demand um, will inevitably have a chilling effect on the constitutionally protected right of association….
And you know, you can see that line all the way through the 1960’s and 70’s. The Supreme Court you know, dropped it in the 1980’s and 90’s uh, but with I think more widespread recognition of the implications of new technology, and the changing supreme court, we may see that line of cases, I think, revived, um, revived in future decisions.
HEFFNER: When Columbia University and the Knight Foundation, Lee Bollinger and Alberto Ibarguen, staunch defenders of human rights and the First Amendment announced your appointment in the institute, they pointed to the necessity in this shifting paradigm of protecting speech in the digital age.
HEFFNER: How do you see your work in the context of the surveillance, the secrecy, and privacy dimensions? How do you see this Institute, um, fulfilling its promise…
HEFFNER: In a way that protects these digital spaces, in a way maybe they’re not protected right now?
JAFFER: Mm-hmm. Mm-hmm, you know I mean I think that it’s important to recognize that these, these same technologies that I have thus far been describing as a threat, also have a lot of promise. You know they’re they’re um, social media platforms for example have enabled speech in a way that, you know we couldn’t even have envisioned a generation ago.
And you know in many ways that’s an amazing thing. And you know I’d say the same thing with search engines or uh, uh, uh, you know video um, sophisticated, the kind of sophisticated video technology that you were talking about when you were talking about he resolution of these investigations into terrorist, uh, into terrorist attacks.
You know all of those technologies can be used for surveillance but they can also be used for many other things and many of those things are positive. Uh, uh, so I think it’s, you know it’s a mistake, it would be a mistake to, um, to approach all of that with, um, without a recognition of the possibility a well as the, the dangers.
HEFFNER: Now what’s gonna be important here, as it is with the ACLU is, you know when you take on a client or a cause, you have to support the integrity of that person or that organization…
HEFFNER: And back it. In the case of Snowden, the ACLU signed up, on board. Um, Manning too…
HEFFNER: How are you going to, and this goes back to the original question, right?
HEFFNER: How are you going to define the parameters of what is the kind of case that you will embrace? Because the WikiLeaks organization might not fit into your pedigree…
HEFFNER: For what is acceptable in terms of defending those digital spaces.
JAFFER: Sure, right right.
HEFFNER: And as I understand it Jameel, one of the imperatives here, is to put resources behind the defense of folks who may indulge in those leaks who otherwise wouldn’t have legal protection.
JAFFER: Yeah well I, I think that, you know, our mandate is um, our mandate is to defend and expand First Amendment rights, you know the freedom of speech and the freedom of association, the freedom of the press.
And we will pick our cases so that, you know over time, we, we’ll be picking cases that, in our view, shape the law in a way that um, expands those, expands those rights.
HEFFNER: Wait, I just want to clarify, how so? Expands, how would you like the right to expand?
JAFFER: Well I’ll give you, I’ll give you an example. I mean there, there are cases right now involving the right of individuals to film um, government activity, especially, film the police, right? So, um, these are cases that, obviously are very prominent right now because of the Black Lives Matter movement, and all the incidents that led to the Black Lives Matter movement.
But that question of, how far that right of individuals to film the police, or to record government, record and broadcast government activity, how far that right goes, I think is a crucial one, um, um, and I expect that we will fight for the expansion of that, of that right.
There are other cases involving um, other contexts in which, what’s at issue is government transparency in a more traditional sense, what the government has to disclose to us about government activity, about the reasons for that activity. And there too I think that we will push some of the limits that have been set over the last 10 or 20 years.
The area I know best is national security. That’s what I’ve been working on for the last 14 years. And there are, um, as everybody knows, um, many contexts in that sphere in which lines have, the lines that have been set, result in the public having uh, little or no information about the government’s policy and the reasons underlying that policy.
Um and there too, I expect that we will push these, you know we will try to push those, push those limits. With whistleblowers, um, we’ve talked a little bit about this already, but I think that the use of the Espionage Act to go after people who have disclosed information, not to foreign intelligence services, but rather disclosed information in the public interest, to the American press…
Uh, because they believe that what they are disclosing was uh uh uh, reflected abuse or reflected overreach, um, I think that a statue that fails to distinguish between those two sets of people should be viewed as constitutionally suspect at the very, at the very least.
Now drawing those lines is not an easy thing. And you’re right that in any individual case, we may not have the perfect set of facts. You know the the, this is a, it’s not news to anybody that in first, that in First Amendment cases especially, sometimes the clients are not the clients that you would have uh, you would have dreamt up if it were sort of within your controls to dream up the, the ideal client.
Uh, First Amendment cases are often cases that involve in some sense, bad facts. Right? Um, because the First Amendment was meant to protect people at the margins. It was meant to protect the people who were controversial, who everybody else disagreed with, who everybody else though were, were uh, uh, were offensive or, you know those are the cases that have, um, uh, always shaped, um, the First Amendment, and always influenced the development of First Amendment doctrine.
And and, you know we’re we’re going to be, among other things, First Amendment litigators, and I expect that we will take cases in which, you know not everybody will like our plaintiffs.
HEFFNER: [LAUGHTER] Isn’t it more difficult than ever, Jameel, to disentangle the potential of foreign espionage, in the case of cyber attacks from Russia…
HEFFNER: There is increasingly scrutiny that ought to be placed on prospective clients to ensure that they are not, working with the enemy is a cliché notion, but that they do not have ulterior motive. Isn’t that a, a reality of…
HEFFNER: Of the cyber war that is, that is not just haunting us…
JAFFER: Yeah, yeah…
HEFFNER: But it is a reality that we are not aware of when we go on our Gmail and our day-to-day digital footprints. We don’t see it, but it’s happening.
JAFFER: Yeah I mean I think, I think that that’s right. I mean I think that there’s a certain amount of diligence that you know, any lawyer would want to do, um, given the murkiness that surrounds espionage and, um, and national security leaks.
You know so yeah, I think that’s right. The one thing I’ll say is that, you know our clients, uh, in some cases might not be whistleblowers. They may be the people who are publishing what whistleblowers provide.
And there I’m not so sure that motive actually matters. You know I think that when the New York Times gets information from um, from a leaker, the question that the New York Times should ask, or certainly the principle question that the New York Times should ask is, is the disclosure of this information, in the public interest.
And the motivations of the person who provided them the information, um, I think that those should be viewed as secondary.
HEFFNER: And finally, you do heed a notion of balance in your answer about what this definition means today, an idea that, we’re not going to acquiesce to national security necessarily, or to speech. Um, as you look to the Supreme Court as the law of the land, um, what is your hope in this upcoming term, that the court might say, and we’re running out of time, but in, again, redefining speech in a way that is more effective. If it’s not gonna be espionage…
HEFFNER: What is the channel through which the court can determine, there is permissible challenge to speech?
JAFFER: Yeah, I mean I think that there will be a set of cases involving government whistleblowers. It may take several years before they get up to the Supreme Court, but that will be about the significance of the public interest in those kinds of prosecutions.
Um, there will be a set of cases involving government surveillance, uh, which will have First Amendment implications. And my hope is that the court will actually engage with those implications rather than pretend that they don’t exist which is sort of what the court has been doing for the last 20 years.
But I think that those are two areas where you will see the development of First Amendment law relating to um, issues that are distinct to our digital age.
HEFFNER: Jameel, congratulations again on the Institute and thank you for being with me today.
JAFFER: Thanks for inviting me.
HEFFNER: And thanks to you in the audience. I hope you join us again next time for a thoughtful excursion into the world of ideas. Until then, keep an open mind. Please visit The Open Mind website at Thirteen.org/Openmind to view this program online or to access over 1,500 other interviews. And do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.