Free Speech

Free Speech and Government Surveillance

Some interesting words from Justice Douglas.

|The Volokh Conspiracy |

Governmental infiltration of political groups can obviously deter people from joining groups that they think might be infiltrated, and deter them from speaking freely within those groups. The Court in Laird v. Tatum (1972) rejected the argument (largely on procedural grounds) as a basis for challenging such surveillance in federal court, but Justice Douglas dissented, arguing in part:

This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment.

Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage.

The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government.

There can be no influence more paralyzing of that objective than Army surveillance. When an intelligence officer looks over every nonconformist's shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is in the image which Jefferson and Madison designed, but more in the Russian image ….

Here, though, is a different approach, from Justice Douglas's dissent in Dennis v. United States (1951), where Justice Douglas argued against criminal punishment of Communist Party leaders, partly on the grounds that their fomenting of revolution would fail precisely because of surveillance:

If we are to proceed on the basis of judicial notice, it is impossible for me to say that the Communists in this country are so potent or so strategically deployed that they must be suppressed for their speech. I could not so hold unless I were willing to conclude that the activities in recent years of committees of Congress, of the Attorney General, of labor unions, of state legislatures, and of Loyalty Boards were so futile as to leave the country on the edge of grave peril. To believe that petitioners and their following are placed in such critical positions as to endanger the Nation is to believe the incredible.

It is safe to say that the followers of the creed of Soviet Communism are known to the F.B.I.; that in case of war with Russia they will be picked up overnight as were all prospective saboteurs at the commencement of World War II; that the invisible army of petitioners is the best known, the most beset, and the least thriving of any fifth column in history. Only those held by fear and panic could think otherwise.

This is my view if we are to act on the basis of judicial notice. But the mere statement of the opposing views indicates how important it is that we know the facts before we act. Neither prejudice nor hate nor senseless fear should be the basis of this solemn act. Free speech— the glory of our system of government—should not be sacrificed on anything less than plain and objective proof of danger that the evil advocated is imminent. On this record no one can say that petitioners and their converts are in such a strategic position as to have even the slightest chance of achieving their aims.

So surveillance can deter speech—but it can also protect speech, by becoming the "less restrictive alternative" that lets us tolerate speech that promotes violence (and revolution or sabotage) while still having confidence that we can largely stop the actual violence. Both of Justice Douglas's analyses, it seems to me, are right, at least to a point and in certain circumstances. But reading them together shows how complicated such questions can be.

NEXT: A Michigan Man Underpaid His Property Taxes By $8.41. The County Seized His Property, Sold It—and Kept the Profits.

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  1. While there is always a danger of the govt (read Executive branch), or misusing it’s vast and incredible technical assets, I think we’re moving in the right direction.

    We have the congressional intelligence oversight committees, the FISA court, FOIA, and other private groups/persons who monitor privacy issues (e.g. Prof. Volokh, https://epic.org/privacy/privacy_resources_faq.html).

    We’re not perfect but, again, I think we’re moving in the right direction and must always be vigilant of govt overreach.

    1. “but, again, I think we’re moving in the right direction”

      But we have a million miles to go before we are on the right side of the line. Moving in the right direction doesn’t necessarily mean much at this point.

      1. Curious. . . what else would you like to see happen?

        1. Back to no domestic surveillance by the intelligence agencies. If they need domestic surveillance, they should have to go to the FBI with enough information for the FBI to get a regular warrant from a regular court. If they can’t do that tough titties.

          I would like to see them stop trying to kill or get back doors into consumer encryption.

          I would like to see SCOTUS kill 9/10ths of the 4A warrant exceptions they have created.

      2. I’d be happier with uncorruptible logged access so elected officials can review from time to time. And uncorruptible with whatever the latest MD5 type stuff, at several storage sites, so officials up to no good can’t edit the logs.

        I understand in an emergency they can bypass FISA, but still need to get permission later. This should not extend to unlogged access.

  2. The two views are really the same: Whatever I think helps the enemies of the United States best is what I believe in at the time.

    Douglas was very consistent.

    1. A robust interpretation of the First Amendment does tend to do that.

    2. Bob would you be ok with a Kamala Harris administration labeling any Trump affiliates as Russian agents (and enemies of the USA in their view) and summoning the forces of the surveillance state over their activities as a result?

      Be more consistent.
      Conservatives should remain wary of the intelligence community (given all the depraved things they have done historically, eg: CIA in Laos) and not revert to the obsequious boot-licking of the Bush era.

      1. “would you be ok with a Kamala Harris administration labeling any Trump affiliates as Russian agents (and enemies of the USA in their view) and summoning the forces of the surveillance state over their activities as a result?”

        It already happened. There was surveillance of the Trump campaign under Obama.

        Currently a CIA/State coup in progress as well.

        The 1950 Communists and the late 1960s New Left radicals were actual enemies. I can’t change history.

        1. “I can’t change history.”

          Right. But why not try to understand it? First thing, accept that there are rules for interpreting history which can be useful to keep folks from reading present-minded stuff into the past. Here is an exercise. Tell us what Justice Douglas would have thought of the FISA court.
          Warning. It’s a trick question.

        2. Another question. Is particularized surveillance distinguishable in principle from universal surveillance? Is it better or worse if government singles out targets, or just targets everyone?

        3. …and we got COINTELPRO, which may or may not have helped end 60s radicalism, but more likely it was that the radicals gained power.

        4. It already happened. There was surveillance of the Trump campaign under Obama.

          Boy, you’d think that if this had happened, some evidence of it would have been revealed. Pretty impressive that they’ve managed to maintain this secret even though Trump has been running the FBI/CIA/etc. since January 2017.

          Currently a CIA/State coup in progress as well.

          I’m not sure who looks dumber: people who use the term “coup” to describe a lawful constitutional process, or — no, wait, nobody looks dumber than that.

    3. I wouldn’t put it that way. There was very good reason for skepticism of the way the federal government treated internal dissent during the Cold War.

      But there’s part of your point that I would agree with. Which is, Prof. Volokh is giving Douglas too much credit by harmonizing his two dissents. Justice Douglas wasn’t that smart. He literally didn’t care what he had said a couple of decades earlier, and certainly didn’t care whether his two dissents were reconcilable. Douglas didn’t do the whole legal doctrine thing. He just decided if he liked the litigants on one side or the other and decided the case that way.

  3. I am uncomfortable with both the government knowing nothing and everything about what dissidents and terrorists are doing.

    I’m also worried just like in eras past the pendulum will swing to far when we find out that the FBI and CIA were spying and plotting the downfall of a duly elected American President, but obviously there will have to be dire consequences, despite their failure.

  4. Professor, I wonder, how do you reconcile these views?

    Maybe one could distinguish between the threats posed to Free expression by the different types of surveillance .

    Wiretapping, and similar methods, might completely deter people from joining an organization as they dont want their private thoughts-especially on controversial subjects- revealed to the government or the public writ large. But maybe if this wiretapping is minimal and undetected the speech be undeterred?

    And what of govt infiltrators and agitators who seek to tarnish the organizations reputation and bring them bad publicity? Is this a risk one voluntarily incurs by speaking in the public square? Or is it any even more invidious form of surveillance that deprives one of the ability exert some degree of control over their public image?

    Other than distinguishing between the types of surveillance in this manner, Im not sure how you conceptualize Douglas’ position. But id be curious to hear

    1. But maybe if this wiretapping is minimal and undetected the speech be undeterred?

      How about if it is maximal, and expected by everyone, all the time?

  5. It’s always situational.

    In Reed v. Reed, 404 U.S. 71 (1971), the Court invalidated a statute that discriminated against women as being named administrators of estates. The decision relied on the fact that for years women had in fact been serving as administrators. This rationale would have dictated continuing discrimination against women if the situation had been otherwise. If in fact women had hardly ever been administrators, the Court would have discounted that rationale to get to the desired result.

  6. Good for you professor for finding those two passages that illustrate the difficulty of the problem.

    But it is more than law and policy. Technology improves at breakneck speed as we approach the singularity. A surveillance camera only costs a few dollars today, and is small in size and weight. In the near future, we can expect them to become so inexpensive and so small that trillions of them can be released to the breeze like grains of dust. Their passwords will leak so that everyone, not just government can watch them. They will not be re-callable, even if declared illegal.

    The rights of privacy and ownership of information need to be rethought and restated in words that are not rapidly mooted by changing technology.

    1. anorlunda, that’s an impressive nightmare. I wish I had confidence it could not come true.

  7. Those who already walk submissively will say there is no cause for alarm.

    Brutal

  8. Does this web site really need video ads that take up half the screen and sometimes are unpausable and unclosable, running a video about mangled faces from acid attacks?

    I’m sure the “sometimes” uncloseable bug is purely accidental and not an intentional way to sneak through scamlike advertising behavior.

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