Many groups have claimed that the NSA’s surveillance program is an unconstitutional violation of privacy. But a different type of challenge is growing teeth. Led by civil liberties group the Electronic Frontier Foundation, more than 20 organizations, with interests ranging from marijuana to guns, are currently suing the federal government. They believe the NSA surveillance program has a chilling effect on speech, thus violating the First Amendment.
It’s difficult to prove this, though. There’s no way to quantify the students who don’t join their college’s “legalize marijuana” club, or the number of Arab-Americans who avoid political topics via email. Absences are murky to measure. But the PEN American Center, a group that defends free expression and human rights, managed to get a sense of its scope. Of the more than 500 writers they surveyed, one in six said they had avoided writing or speaking about a certain topic, and almost one in four reported that they had self-censored via e-mail or on the phone.
In the survey, which was conducted online by the public opinion research firm the FDR Group, writers expressed wariness about researching and writing on national security, the Middle East, the drug wars, liberal organizing like the Occupy movement, and child abuse and child pornography. Sixteen percent of survey respondents said they refrained from conducting Internet searches or visiting websites on topics that may be considered controversial or suspect.
A democratic surveillance state
Writers weren’t afraid that some subversive Googling would bring federal agents to their doorstep, like artists in the former Soviet Union or today’s Saudi Arabia. We aren’t living in a totalitarian surveillance state, the report points out, but rather, a new and democratic kind.
“I think people were afraid that something would put them on a watch list, impede their ability to travel,” Suzanne Nossel, the executive director of the PEN American Center, told America Tonight. “Writers who have an immigration status that gets reviewed periodically on some occasions expressed concern.”
One PEN member described undergoing two special security searches on the U.S.-Mexico border last summer, and discovering that he or she (the respondents were anonymous) was on a government list. The member believes it’s because of an essay he or she wrote about finding a poem on a Libyan Jihad website, and seeing how its message “might be a comfort to jihadists.”
Another survey responder described shelving a book idea after the NSA revelations came out. The writer wanted to research how prepared America was for a nuclear attack during the Cold War, as well as the contingency plans the government had in place. “I decided to put the idea aside because, after all, what would be the perception if I Googled ‘nuclear blast,’ ‘bomb shelters,’ ‘radiation,’ ‘secret plans,’ ‘weaponry,’ and so on?” the writer said. “And are librarians required to report requests for materials about fallout and national emergencies and so on? I don’t know.”
By far the greatest concern, however, was about communicating with sources abroad. Thirty-nine percent reported they thought it was “very likely” that a phone call made to a region of the world known to be hostile to the U.S. would be recorded.
“Some of those precautions remind me of my days as Moscow Bureau Chief of [a major news outlet] under Communism, when to communicate with dissidents and refuseniks we had to avoid substantive phone conversations, meet in person in public, etc.,” said one survey respondent, who identified himself as an author who writes on civil liberties. “It’s not a good feeling to have reporters’ work in your own country’s capital resemble ours in Moscow in the bad old days.”
Freedom makes strange bedfellows
Americans aren’t particularly perturbed by the NSA’s collection of millions of phone records. Half of the U.S. approves of the program, according to a July Pew poll. But most of the time, the question is phrased as one of security versus privacy, and a majority of Americans favor the former.
Still, Americans care a whole lot about freedom. In fact, if any value could be called the country’s core, freedom of speech would probably win. And – “the uber-users of free expression,” as Nossel puts it -- the authors, the journalists – are especially concerned about the NSA’s reach. Sixty-six percent of PEN’s survey respondents disapprove of the NSA’s surveillance apparatus.
Before she took the helm of the PEN American Center, Nossel served as the deputy assistant secretary of state for international organizations, and was tasked with representing America’s value of freedom of speech at the United Nations.
“The U.S. has been on a leader on those issues, and the First Amendment has been the most protective in the world in terms of the amount of speech it allows,” she said. “We’re less willing than anyone else to restrict speech based on its content. It’s a value the U.S. invokes frequently, and has invoked rightly in promoting free speech around the world.”
Freedom of speech is also a powerfully bipartisan rallying cry. In June, the American Civil Liberties Union filed suit against the NSA, claiming the mass collection of phone records undermined both privacy and freedom of association. In September, the NRA filed a legal brief in support, expressing its concern that the NSA could track its members, potential members and supporters, “potentially chilling their willingness to communicate with the NRA.”
Co-founder of pro-guns group Calguns
But freedom of association is not an absolute right. In 1984, the Supreme Court ruled that Minnesota could force Jaycees, an all-male civic organization, to allow women as members. The state’s interest in combating gender discrimination, the court argued, justified that infringement into Jaycees’ First Amendment rights. As Justice William Brennan put it, restrictions can be adopted to “serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”
In its lawsuit, the Electronic Frontier Foundation claims that vacuuming up Americans' phone records, and therefore their associations, is “massively overbroad.” The PEN American Center filed a brief in support this week, as did a group of five Democratic members of the Senate Intelligence Committee, and plaintiffs in the case range from Greenpeace to the pro-gun group the Calguns Foundation.
When America Tonight asked Calguns co-founder Gene Hoffman how many people had been deterred from joining his group because of the activities of the NSA, he replied: “In some ways, it doesn’t matter how many members it is.”
“Once it’s one person, it’s unconstitutional,” Hoffman told America Tonight correspondent Michael Okwu. “Because that person hasn’t been able to express their political activism. Those people’s speech, their right to assemble, has absolutely been chilled.”
The PEN American Center survey offers a more concrete way to quantify the people impacted than Hoffman could muster -- and the numbers are much higher than one. “I think we’re all proud to live in a free society,” says Nossel. “The question becomes, when the government adapts their practices, takes advantage of new technologies that some think are perfectly justified, what impact does that have on the freedoms that we cherish?”