Presidential History

No More Asking for Permission To Speak

We have entrusted the Constitution to all three branches of the federal government for safekeeping. But typically, they fail to do so.


In 1798, when John Adams was president of the United States, the feds enacted four pieces of legislation called the Alien and Sedition Acts. One of these laws made it a federal crime to publish any false, scandalous or malicious writing—even if true—about the president or the federal government, notwithstanding the guarantee of free speech in the First Amendment.

daveblume / photo on flickr

The feds used these laws to torment their adversaries in the press and even successfully prosecuted a congressman who heavily criticized the president. Then-Vice President Thomas Jefferson vowed that if he became president, these abominable laws would expire. He did, and they did, but this became a lesson for future generations: The guarantees of personal freedom in the Constitution are only as valuable and reliable as is the fidelity to the Constitution of those to whom we have entrusted it for safekeeping.

We have entrusted the Constitution to all three branches of the federal government for safekeeping. But typically, they fail to do so. Presidents have repeatedly assaulted the freedom of speech many times throughout our history, and Congresses have looked the other way. Abraham Lincoln arrested Northerners who challenged the Civil War. Woodrow Wilson arrested Americans who challenged World War I. FDR arrested Americans he thought might not support World War II. LBJ and Richard Nixon used the FBI to harass hundreds whose anti-Vietnam protests frustrated them.

In our own post 9/11 era, the chief instrument of repression of personal freedom has been the government's signature anti-terror legislation: the Patriot Act. It was born in secrecy, as members of the House of Representatives were given 15 minutes to read its 300 pages before voting on it in October 2001, and it operates in silence, as those who suffer under it cannot speak about it.

The Patriot Act permits FBI agents to write their own search warrants and gives those warrants the patriotic and harmless-sounding name of national security letters (NSLs). This authorization is in direct violation of the Fourth Amendment to the U.S. Constitution, which says that the people shall be secure in their persons, houses, papers and effects from unreasonable searches and seizures, and that that security can only be violated by a search warrant issued by a neutral judge and based upon probable cause of crime.

The probable cause requirement compels the feds to acquire evidence of criminal behavior about the person whose records they seek, so as to prevent politically motivated invasions of privacy and fishing expeditions like those that were common in the colonial era. Judges are free, of course, to sign the requested warrant, to modify it and sign it, or to reject it if it lacks the underlying probable cause.

The very concept of a search warrant authorized by law enforcement and not by the courts is directly and profoundly antithetical to the Constitution—no matter what the warrant is called. Yet, that's what Congress and President Bush made lawful when they gave us the Patriot Act.

When FBI agents serve the warrants they've written for themselves—the NSLs as they call them—they tell the recipient of the warrant that he or she will commit a felony if he or she tells anyone—a lawyer, a judge, a spouse, a priest in confessional—of the receipt of the warrant. The NSLs are typically not served on the person whose records the FBI wants; rather, they are served on the custodians of those records, such as computer servers, the Post Office, hospitals, banks, delivery services, telephone providers, etc.

Because of the Patriot Act's mandated silence, the person whose records the FBI seeks often never knows his or her records have been seized. Since October 2001, FBI agents and other federal agents have served more than 350,000 search warrants with which they have authorized themselves to conduct a search. Each time they have done so, they have warned the recipient of the warrant to remain silent or be prosecuted for telling the truth about the government.

Occasionally, recipients have not remained silent. They have understood their natural and constitutionally protected right to the freedom of speech and their moral and fiduciary duty to their customer or client, and they have moved in federal court either to suppress the warrant or for the right to tell the customer or client whose records are being sought that the FBI has come calling. Isn't that odd in America—asking a judge for permission to tell the truth about the government?

What's even more odd is that the same section of the Patriot Act that criminalizes speaking freely about the receipt of an agent-written search warrant also authorizes the FBI to give the recipient of the warrant permission to speak about it. How un-American is that—asking the FBI for permission to tell the truth about the government?

Last week in San Francisco, U.S. District Court Judge Susan Illston held that the section of the Patriot Act that prohibits telling anyone about the receipt of an FBI agent-written search warrant and the section that requires asking and receiving the permission of the FBI before talking about the receipt of one profoundly and directly infringe upon the freedom of speech guaranteed by the First Amendment. And the government knows that.

We all know that the whole purpose of the First Amendment is to encourage open, wide, robust debate about and transparency from the government. Our right to exercise the freedom of speech comes from our humanity, not from the government. The Constitution recognizes that we can only lose that right by consent or after a jury trial that results in conviction and incarceration.

But we can also lose it by the tyranny of the majority, as Congress and the president in 1798 and 2001 have demonstrated.

NEXT: Big Bullies

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  1. This is another of their new forever laws.
    Welcome to the dark side.

  2. Overbearing government is overbearing.

    News at 11.

    1. OT, but equally “surprising”
      CA likely to prohibit fracking:
      “A fracking moratorium in CA?”
      Cheap fuel? Anathema!…..ium-in-ca/

  3. John Adams: First Prog!

    1. I thought it was Hamilton who was that era’s embodiment of evil.

  4. synonyms antonyms how do they work?

  5. Oh, and fuck LE.

    I love JPD

  6. When Feinstein responded to Ted Cruz the other day, she referenced the fact that the First and Fourth amendments have restrictions, and it’s up to the courts to sort out constitutionality (paraphrasing). That cop out is part of our problem, I think. DiFi forgets that she took an oath to uphold the Constitution, too.

  7. My grandfather did time for protesting Wilson’s war. Woodrow was a vicious rat bastard.


  8. “We have entrusted the Constitution to all three branches of the federal government for safekeeping. ”

    And the People, who were supposed to vote out those who betray the constitution. Roughly half the People no longer believe in self government or the constitution. They vote accordingly.

  9. This article is seditious. You are not to discuss it unless the FBI gives you permission. Since you are not allowed to discuss it, you can’t ask the FBI for permission.

    And, that is how we save America.

  10. If you think Francisco`s story is terrific…, a month-back my boy frends sister basically easily made $8566 workin a 10 hour week in their apartment and the’re buddy’s sister`s neighbour was doing this for 5 months and made more than $8566 in there spare time on line. use the steps at this website,

  11. I’ve become a bit of a Napolitano fan on Reason, when I see a variety of articles I tend to read his first and most thoroughly. He has about eight books in the istore, any recommendations?

    I’m leaning toward Theodore and Woodrow, but Nation of Sheep looks good.

    1. I really enjoyed his “Constitutional Chaos” (or something like that. Its been awhile.)

  12. There is no right of privacy in records about you held by others. If you don’t want the government snooping through your library use records then don’t use the tax-payer supplied library. Buy your own books with cash at a used book store. Just as there is no privacy while in public, there is no privacy with records you share with Amazon, the library, or anywhere else.

    1. My tech footprint has become enormous. I’ll get labeled a dissident on the first day of the final totalitarian government that ends the great experiment that is the United States. Governments have always longed to intimately watch and track their citizens. But we now live with technology such that the next totalitarian government could be our last, and the noose simply too tight. Perhaps I read too much sci-fi, but I don’t find it unimaginable.

      1. “too much sci-fi”? Is that like too much money, or too much love? But seriously, you have a point. The other half of that equation though, is that the same technology can help liberate people, and keep the government from becoming such a totalitarian monster in the first place. For instance, the world wide web, twitter, and cheap cell phones can be a pretty good counter to state approved media.
        Not saying that such things can’t be blocked, of course (see China), but they can help keep a free people free.
        Of course, in the end it comes down to what it always has and always will: the people are responsible for their own freedom, and if they pass on the job of safeguarding it to another party, especially the government, then they should not be surprised to find that it has been stolen from them.

        OT except that its Sci-Fi, I am currently reading Anathem by Neal Stephenson, two thumbs up!

        1. Anathem is fantastic, have it on ipad now as well. A nice weekend read is The Dog Stars, nothing like Stephenson, but if you enjoyed things like Lucifers’ Hammer and The Earth Abides, you’ll find The Dog Stars interesting study of human nature. Also Oryx and Crake for new reads. For a Cold War flashback and hard sci-fi mind bender I just reread Eon.

          I’ve gone back to rereading for lack of being drawn to anything new, any recommendations?

          And yes we have Ender’s Game, the movie

        2. And look at how well that attempted blocking worked for China. The so-called Great Firewall breached in less than 8-hours.

          Our government only wishes they were that competent.

  13. til I saw the paycheck which was of $9582, I have faith …that…my mom in-law woz like they say actualy making money in there spare time from there pretty old laptop.. there best friend has been doing this 4 less than fourteen months and resantly cleared the loans on there house and bourt a great Car. we looked here,

  14. my classmate’s mom makes $75/hr on the internet. She has been out of a job for 7 months but last month her payment was $21295 just working on the internet for a few hours. Read more on this web site

  15. what Francisco answered I cannot believe that anyone able to earn $5877 in one month on the computer. did you look at this web page

  16. uptil I looked at the check of $6418, I didn’t believe that my sister was realie earning money parttime on their apple labtop.. there mums best friend started doing this for only fifteen months and just took care of the dept on there home and got Smart ForTwo. we looked here,

  17. Love my job, since i have been transportation in $82h? I sit reception, music enjoying whereas I add front of my new iMac that I got currently that i am creating it online?

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