Google on Firm Constitutional Ground in Secrecy Fight With FISA Court

By Wayne Rash  |  Posted 2013-06-19 Print this article Print

Google has a point. To criminalize otherwise legal activities by restricting a person's right to free speech is clearly a violation of the First Amendment. What Google is doing here is to follow the rules and get a declaration from the court that the company is on safe ground.

But quite frankly, Google shouldn't have to do this. If I could find the numbers that Google wants to publish and put them here in my column, I wouldn't be breaking the law. I'm guaranteed freedom to say whatever I wish in terms of such speech as long as I don't violate some specific, narrow guidelines such as revealing the movement of troops in wartime or in the most classic example, shouting "Fire!" in a crowded theater. To pre-emptively forbid the publishing of this information is clearly a case of prior restraint, something that the U.S. Supreme Court has ruled for years is unconstitutional.

The Supreme Court has ruled aggressively against prior restraint for decades, starting with a decision involving a tabloid newspaper in Minnesota. There's no question that the FISA Court will find opposition from the Department of Justice and probably the Department of Defense saying that releasing any information (apparently information that's already unclassified) is a threat to national security. But the national security card has been played before, most notably in the Pentagon Papers scandals during the Vietnam War.

In the Pentagon Papers issue, The New York Times and The Washington Post were publishing documents calling into question the Johnson administration's justifications for bringing about the full-scale war in Southeast Asia. The Court overturned injunctions that ordered the papers not to publish the papers.

So the question now becomes, is Google somehow part of the press that's protected by the First Amendment? It seems to me that the answer has to be that it is. Part of the reason the First Amendment exists is to protect the rights of what at the time were called pamphleteers, who were people that would distribute printed opinions regarding the government, politics and other topics.

Those pamphlets were frequently anonymous, they were distributed widely and their goal was to shine some light on real (or sometimes imagined) problems, changes that needed to be made or actions that should be taken. If this sounds familiar, it's not unlike the role of bloggers on today's Internet.

Google, as you've likely noted by now, publishes many of such blogs. If the FISA Court's prohibition on the release of information regarding data requests, especially when the information doesn't contain classified information, isn't a violation of Google's First Amendment rights, I don't know what it is.


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