Category Archives: The Constitution

The First Amendment Protects Journalists From Revealing Sources, Period

A concerning development occurred during the congressional hearings today on Russian Interference in the Election (link goes straight to testimony): Trey Goudy (a member of the House Permanent Select Committee on Intelligence) implied that the FBI had somehow dropped the ball by not going after New York Times and Washington Post journalists for protecting their sources when publishing classified information in the public interest.

It was quite odd watching a room ponder the prospect of charging the press with criminal activity for what is considered standard journalistic First Amendment protected practice (of publishing classified information) as if it were some kind of allowable solution to what’s been going on with the current round of White House leaks.

This issue has already been decided on quite clearly by the Supreme Court in the Pentagon Papers case, United States v. New York Times, 328 F. Supp. 324, 329 (S.D.N.Y. 1971).

This has mostly to do with something Justice Gurfein referred to as a “cantankerous press.”

As Gurfein writes in his decision:

The First Amendment concept of a “free press” must be read in the light of the struggle of free men against prior restraint of publication. From the time of Blackstone it was a tenet of the founding fathers that precensorship was the primary evil to be dealt with in the First Amendment…

The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know…it is not merely the opinion of the editorial writer or of the columnist which is protected by the First Amendment. It is the free flow of information so that the public will be informed about the Government and its actions.

These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of Government than freedom of expression in any form. This has been the genius of our institutions throughout our history. It is one of the marked traits of our national life that distinguish us from other nations under different forms of government.

Here’s Trevor Timm (Freedom of the Press Foundation) explaining this in a brief 1 1/2 minute video. This clip is from the upcoming film “From DeadDrop To SecureDrop.” (Transcription below):




The Supreme Court case that came out of the Pentagon Papers was one of the most important First Amendment cases of the twentieth century. It essentially is affirmed that newspapers in the United States have the constitutional right to publish information – even that the government considers “Top Secret” – that’s in the public interest, and that they cannot be censored, or what courts refer to as “the government can’t issue a ‘prior restraint.’

The opinion was written incredibly fast – from the start of the case where it went from the District court to the Supreme Court took only 13 days, which is incredibly fast. If you ever read the history of Supreme Court opinions, it usually takes years to get there. And so, all nine judges wrote separate opinions, but the core of the case still stands, which is that unless there are extreme extreme circumstances – which we have never seen in this country – that newspapers and journalists have the right to publish classified information. And because of this, we have learned so much more about what our government does behind closed doors.

Often, what they do, that is immoral and wasteful and illegal, we never would have known without this decision.


Friday Feb 17 – 5:30-8 pm – Join EFF and the Internet Archive for an “Apple Pie Potluck and Constitutional Law Teach-In”

A set of nine blank, white picket placards attached to wooden stakes on an isolated background

Apple Pie Potluck and Constitutional Law Teach-In — Friday Feb 17th 5:30-9PM

EFF and other lawyers will lead a conversation about the current issues and threats in constitutional law. Focusing on specific sections and amendments we will talk about current cases on censorship, surveillance, search and seizure, and more.

Workshops on using encryption tools and maybe musical performances will accompany.
If you want to present, perform, or have other ideas, please email us.

When: Friday, February 17th 5:30pm-9pm (program 6-8)
Where: Internet Archive
300 Funston Ave. SF, CA 94118
Potluck-style: Please bring apple pie or other food
Reserve your free ticket here
Streamed via Facebook Live
Donations welcome

Lawyers Attending:

  • Cindy Cohn – Executive Director of EFF
  • Corynne McSherry – Legal Director of EFF
  • Stephanie Lacambra – Staff Attorney at EFF
  • Victoria Baranetsky – First Look Media Technology Legal Fellow for the Reporter’s Committee for Freedom of the Press
  • Geoff King – Lecturer at UC Berkeley, and Non-Residential Fellow at Stanford Center for Internet and Society
  • Bill Fernholz – Lecturer In Residence at Berkeley Law

For those who cannot attend in person, we will stream the event on Facebook Live, so make sure you’re following us on Facebook.

Ed Snowden On How Privacy Rights Work: You Don’t Have To Justify Why You Need Them

Neil deGrasse Tyson and Ed Snowden's Telerobot
Neil deGrasse Tyson and Ed Snowden’s Telerobot

“You don’t have to justify why you need your rights. That’s not how they work. Any intrusion into your rights has to be justified by the government, rather than by you. You don’t have to say why I need this right. They have to say why is absolutely vital to society to take that right away.” – Edward Snowden.

This is from Season 6, Episode 36 of Neil deGrasse Tyson’s awesome Star Talk program. (At 39:57)

NT: Welcome back to StarTalk radio. This is a special edition of StarTalk. We chose to break from our usual format, in favor of a little one on one time.

Edward Snowden, former CIA and NSA officer, now a whistleblower, international fugitive in exile, wheeled into my office via remote controlled robot.

Through this virtual medium, Ed and I were able to speak at length about his scientific pursuits, the technology of encryption and encoding, and why he believes The Constitution trumps all other law.

Because it’s possible to think of him as just somebody who has no clue about due process, legal matters, The Constitution, The Bill of Rights, and it’s easy, at first glance, to just think of him as just some kind of ignorant renegade who has no sensitivity or understanding to American laws, but I learned that that clearly was not the case.

In this final segment, we’re going to listen to part of my exclusive interview with Ed Snowden, and get his take on 4th Amendment protection, and why he feels that having nothing to hide is never a justification for rights violations.

ES: When you’re talking about invading everybody’s private communications. Their associations. The network of who they call on the phone. You’re getting their political affiliation. You’re getting the people who matter the most to them, based on the frequency of the communications. You get indications of their travel. You get the books that they read. You get the things that they buy. You get the people that they love. And you can even  get indications not only of who they are today, but who they want to be. For example, maybe they are looking at applying to a certain college program or method of study or a fellowship. Or they’re looking to get a job at a certain kind of company. These are all intensely private things that have always traditionally been up to the individual to disclose and share with people they trust.

But if the government knows all of that, about all of us, regardless of whether we’ve done anything wrong, it invests them with an extraordinary and unprecedented measure of power. Not only to know about us, but to act upon this information and particularly when these programs are regulated by secret policy rather than public law. What that means is they can disempower the public. The citizens, ya know, in their country, around the world, at the flip of a switch, and that’s something that we’ve never trusted government with before, and there’s no prevailing reason why we should today.

NT: So, you raised a very good point. Now I’ll feel more comfortable about going through airport security because, even though they’ve got my ticket, and they know, and I’ve checked in, and they saw my passport and everything. When you’re going through the detectors, they’re not asking you your name. Your name isn’t attached with that moment. They just want to see if you’re carrying anything. Plus I can choose to drive. I can leave the airport and choose to drive. So that’s a different fact. At least traveling domestically. Right?

ES: There’s a distinction between the voluntary disclosure of information, where you have a choice, whether to engage in it or not, and the involuntary subversion of your intent. Particularly, unlike airports, where everybody knows this is the law. We can vote for officials who would repeal it and whatnot, and secret programs where they impose this sort of surveillance on us without our awareness, without our intent, without our approval, or even without the approval of many members of Congress.

In May, the Second Circuit Court of Appeals, in New York, found that the National Security Agency’s mass surveillance programs, one of which I revealed in June of 2013, was illegal. It had not been authorized by any law, and for the entire period of its operation, ya know, this was not only contrary to law but it was in violation of it. And as a result, this program needs to be changed or ended. Now this happened without the majority of congress knowing that it was occurring at all.

For example, when we talk about the oversight of intelligence agencies, such as the National Security Agency or the Central Intelligence Agency, we have 535 members of congress, all of whom represent a proportional amount of Americans, who are supposed to represent us at the table of government. But rather than having them all understand and be able to influence the direction of these programs. For what are called “covert action programs,” only 8 members of congress, out of 535, are told the truth of what’s going on. This is called the “Gang of 8.” And I think what the court held in May was that you cannot substitute the judgement of 8 individuals, particularly given that these 8 individuals receive more donations from intelligence contracting companies and defense contractors, sort of the military-industrial complex, than any other senators or representatives in the congress, for the judgement of the congress as a whole and the public.

NT: So suppose. This is a very supposey thing. Suppose the public says, “I really care about my security, and I want the government to spy on everybody, so that I can be safe,” and they then turn that law into something legal. You’d have no problem with that, because there was disclosure on it, I presume. Is that correct? In a democracy we would vote for it, possibly.

ES: On the point of disclosure I would argue “yes, that’s much better than what we have today.” But on the point of rightfulness and morality, I could still contest it. And I think the argument there, that anybody who works in sort of the civil liberties space who believes in robust rights. Who believes in The Constitution, would argue that congress actually cannot pass such a law that allows the monitoring of people that allows the sort of the unreasonable search and seizure of individuals in advance of criminal activity because The Constitution forbids it in the 4th Amendment. If they want to do that they would have to amend The Constitution.

But even if they chose to, there’s fundamentally a deeper, I think, moral point here, which is the majority cannot vote away the rights of the minority. You cannot simply say well, “because I feel this way and because I have, ya know, 6 out of my 10 friends who agree with me, I’m going to reduce the circumstances of everybody else in those 4 out of 10. When we talk about the basis of actual human rights. You know, you can change standards. You can change regulations. But when we think about fundamental rights, and these are rights that the U.S. Government itself has actively and aggressively advocated in the past.

For example, the right to privacy is guaranteed not only in the 4th Amendment of our Constitution, or in the associational rights of sort of The First Amendment, but through the Universal Declaration of Human Rights to which the United States and most other countries in the world have agreed to, or the International Covenant on Civil and Political Rights, which again, the U.S. itself, promoted. So, we have treaty obligations which, in the American system, are counted as the supreme law of the land, similar to The Constitution, and then we have mere statutes that are passed in congress. Can a statute  passed in a time of sort of political passions overrule basic fundamental rights that are guaranteed not only in our founding documents, but in our treaties and our obligations that we’ve said are timeless, and even if they were would that be a good thing. I think that’s very much an argument to be had.

And sort of the corollary argument that we hear against this to try to get us to accept invasive surveillance or violations of our rights. Is that “well if you’ve got nothing to hide you’ve got nothing to fear. What are you worried about?”

But that argument is premised on a fundamental misunderstanding of rights. For one, you don’t have to justify why you need your rights. That’s not how they work. Any intrusion into your rights has to be justified by the government, rather than by you. You don’t have to say why I need this right. They have to say why is absolutely vital to society to take that right away. But beyond that, when we think about what people are really saying when they say “oh, I don’t really care about that. I really don’t care about privacy. I’ve got nothing to hide.” Is they’re saying they don’t care about that right.

Saying that “I don’t care about privacy because I’ve got nothing to hide,” is no different than “I don’t care about freedom of speech because I have nothing to say.” You’re asking for a less liberal, more constrained society, simply because that right is not valuable to you in that moment when you’re thinking about it today. But rights don’t have to be used by you individually to be valuable to a society. You can’t have a free press, without freedom of speech, and you can’t have a free society without the right to privacy.


How Ed Snowden Chose the Constitution Over A Non-Disclosure Agreement

Ed Snowden was on Neil deGrasse Tyson’s “Star Talk with Ed Snowden Part 1” on September 18th, and Neil asked him some pretty amazing questions that really clarified the issues surrounding Snowden’s actions when he blew the whistle on the U.S. Government’s surveillance of its domestic population.

Turns out, there’s no such thing as an Oath of Secrecy, for CIA and NSA agents; only a Civil Non-Disclosure Agreement (“SF 312″ — that’s the thing that says ” you shall not disclose secret or classified information”). Then, on your first day on the job, you take an Oath of Service “to defend the Constitution of the United States against all enemies foreign and domestic.”

These were the two documents that Snowden had to weigh against each other, when he made his decision to choose the Constitution over “SF 312.”

There’s a question here of “is this something that’s some sort of minor, one-off departure from regulations? Or is this a fundamental, continuing, and massive violation of the Constitution? When you have the National Security Agency, for example, as the courts said, operating outside of the law. In fact, in violation of the it. And violating the 4th Amendment rights of 330 million Americans, every second of every day. That, I think for most people, would change their calculus. — Ed Snowden

Here’s a transcript from the interview excerpt:

(at 49:23 in)

Neil deGrasse Tyson:

An issue many people have about whistleblowers, such as Ed Snowden, and, of course, Daniel Ellsberg, from back in the 60s and 70s, when the Pentagon Papers were released, is that, they were “under oath” by the government to protect its secrets, and that they directly violated this understanding or trust. I raised this point.

What he said took me to a new place. Because, part of me is saying, “Look, you’re making America a less safe place. These are secrets. Of course, we’re gonna have secrets. And you can’t have all secrets that everybody knows because then you cannot conduct operations that would be in the interest of protecting American lives.

So it was a clear point to me, and presumably, others. But, why did he not get it? Was there some other thought process going on in his head, that I had yet to glean, or perhaps others had yet to see?

Let’s check it out.

NT: Where’s your allegiance? Wasn’t it to the NSA? Didn’t you swear allegiance to be “Secret Agent Man?” I mean…

ES: That’s a really good question, because that is actually a fairly common criticism. Was that, some say, ya know, I broke an oath. But they actually aren’t familiar with the way that the oath and the non-disclosure agreements and so on. How the secrecy agreements work in this community.

I didn’t swear an “Oath to Secrecy.” There’s no such thing, when you join the CIA or the NSA. It doesn’t exist.

There is a government form, called SF 312. A standard form of, ya know, bureaucratic legalese. That’s a civil non-disclosure agreement. That says you should not disclose secret or classified information or whatever. There will be possible civil or criminal penalties, and so on, if this occurs. But then, at the very first day, you walk in to service as a government officer, a staff officer, of the Central Intelligence Agency. You take what’s called the “Oath of Service,” which is not to secrecy, which is not to protect classified information. It’s “to defend the Constitution of the United States against all enemies foreign and domestic.”

So, the question is “What do you do, when your obligations come in conflict. When you have a standard government form on the one hand. The civil agreement. A non-disclosure agreement.

NT: SF 113 or whatever it is…

ES: “SF 312.”

NT: 312, Okay (laughing).

ES: And then you’ve got “The Constitution” on the other. And it also matters, “what is the significance of these breaches?” There’s a question here of “is this something that’s a, some sort of minor, one-off departure from regulations? Or is this a fundamental, continuing, and massive violation of the Constitution? When you have the National Security Agency, for example, as the courts said, operating outside of the law. In fact, in violation of it. And violating the 4th Amendment rights of 330 million Americans, every second of every day. That, I think for most people, would change their calculus.