rests what strikes me as the heart of the substantive First Amendment analysis — and it’s a nugget that merits more discussion than it’s likely to get.
First, some background (which I guess means I’m burying the nugget, too). The the opinion involves a federal statute that lets the government issue special subpoenas (called “National Security Letters”) while prohibiting the recipient — usually a phone company or an Internet Service Provider — from disclosing the existence of the NSL.
This is one of the issues I discussed in my Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005). Publicizing the existence of this sort of government surveillance can seriously interfere with the investigation, for instance by informing criminals and terrorists that they’re under suspicion and that certain phones, bank accounts, or tactics are no longer safe to use.
But such publicity can also substantially inform public debate about government action and possible government abuse. Concrete and timely examples of alleged abuse — whether or not the alleged abuse rises to the level of illegality or unconstitutionality — may be necessary to persuade the public or opinion leaders to press for changes in government policies: A general complaint that some unspecified abuse is happening somewhere will naturally leave most listeners skeptical. And even if the revelation of the surveillance is only delayed for some months or years, rather than being prohibited forever, such a delay may make it much harder to get timely political action, especially since people tend to be much less interested in alleged abuses years ago than in alleged abuses that are happening right now.
So should the speech be protected because it’s valuable to public debate, despite the potential harm to law enforcement or even national security? Or should law enforcement and national security prevail despite the potential harm to informed public debate on the merits of the surveillance tactics? That’s the tough question that the Crime-Facilitating Speech article tries to deal with, as to this question and as to others, and that the Second Circuit was asked to confront.
Now at first the Second Circuit’s decision seems like a victory for free speech maximalists, because the court holds both reads the statute narrowly and concludes that even in its narrowed version it is procedurally flawed. As our first post on the subject said, the court held that,
[We] rule that [the relevant provisions] are unconstitutional to the extent that [1] they impose a nondisclosure requirement without placing on the Government the burden of initiating judicial review of that requirement, and [2] rule that subsections 3511(b)(2) and (b)(3) are unconstitutional to the extent that, upon such review, a governmental official