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Civil Liberties Issues

First Amendment: Freedom of Speech, Religion, and Assembly

At various times in US history, the government’s law enforcement branches have used their prosecutorial discretion to target citizens who voice their dissent. The law enforcement targeting of citizens who exercise their First Amendment rights to freedom of speech, freedom of the press, freedom of assembly, and freedom of religion since 9-11 is certainly no exception.

Freedom of speech

The USA PATRIOT Act threatens freedom of speech from many different angles. There are three sections of the Patriot Act that are threatening to free speech in particular: section 802, which defines “domestic terrorism”; section 805, which defines “material support”; and section 215, which deals with surveillance. These sections also threaten freedom of assembly, freedom of association, and freedom of religion.

Section 802 of the PATRIOT Act broadly defines domestic terrorism. There are a number of problems with this definition. The American Civil Liberties Union summarizes the definition of domestic terrorism as the following

A person engages in domestic terrorism if they do an act "dangerous to human life" that is a violation of the criminal laws of a state or the United States, if the act appears to be intended to: (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping.

This broad definition allows for inconsistencies in the application of the law. For example, radical animal rights and environmental organizations (e.g., the American Liberation Front and the Environmental Liberation Front) have been targeted and labeled as domestic terrorist groups. These groups’ political acts are destructive to property, but have not caused a single death. However, individuals and groups motivated by political ideology to kill an innocent victim by flying a plane into an IRS building, assassinate a doctor during church services, or murder dozens of schoolchildren at a summer camp are not described or treated as terrorists. By using such a vague definition for “domestic terrorism,” the PATRIOT Act chills Americans’ freedom of speech and assembly, since it is entirely unclear whether First Amendment-protected activism may be categorized as terrorism.

Section 215 of the USA PATRIOT Act permits the FBI to seek records from bookstores and libraries of books that a person has purchased or read, or of his or her activities on a library's computer. This section allows the government to violate individuals’ privacy simply for exercising their First Amendment rights to read, recommend, or discuss a book, to write an email, or to participate in a chat room. It also denies booksellers and library personnel their free speech rights by preventing them from to informing anyone, including the subject of the search, about the request. For more information, go to the Reader Privacy website.

Section 805 of the USA PATRIOT Act deals with “material support.” Material support, like terrorism, has a very broad definition:

“Material support” is defined in the statute to include almost any kind of support for blacklisted groups, including humanitarian aid, training, expert advice, “services” in almost any form, and political advocacy.

In June 2010, the Supreme Court ruled against free speech in a case challenging the legitimacy of the material support statute. In Holder v. Humanitarian Law Project, the government accused HLP, a non-profit organization that advocates for human rights and peaceful resolution of armed conflicts by consulting with local groups around the world (and which has consultative status with the United Nations), of material support for terrorism. As the Center for Constitutional Rights explains,

The decision marks the first time that the Supreme Court has held that the First Amendment permits Congress to make pure speech advocating lawful, nonviolent activity-human rights advocacy and peacemaking-a crime. Doing so can land a citizen in prison for 15 years, all in the name of “fighting terrorism.” 

The Court's ruling leaves it unclear whether publishing an op-ed or submitting an amicus brief in court arguing that a group does not belong on the list is a criminal act is prohibited. What is clear is that the Court's decision is likely to cast a broad chill over political speech and the activities of humanitarian groups and journalists.

The Justice Department also frequently uses Section 805 of the USA PATRIOT Act, "Material Support for Terrorism," to imply that a person has some link to terrorism. In several cases, including that of the Lackawanna Six, it has made threats in order to obtain guilty pleas. Georgetown Law Professor David Cole's May 5, 2004, testimony before the Senate Committee on the Judiciary explains that in many cases, those who have been charged with "material support" have done nothing more sinister than exercise their First Amendment right to freedom of speech or freedom of association.

Freedom of religion

In addition to targeting Americans who exercise their First Amendment rights, the government has also been practicing religious profiling. The First Amendment guarantees free exercise of religion but some policies since 9/11 may have the effect of chilling religious exercise.

In spring 2004, the FBI detained Oregon lawyer Brandon Mayfield under the material witness statute based on a fingerprint that allegedly linked Mayfield to the Madrid train bombings of March 2004. In May, the FBI admitted they had made a mistake. Mayfield believes that he was targeted because of his Islamic faith. The FBI did not conduct as thorough a check as the agency should have, and maybe would have, if Mayfield were not Muslim.

The FBI, Joint Terrorism Task Force, and local police departments have interviewed and harassed members of mosques. For examples, read the Council on American-Islamic Relations October Plan Report (PDF).

Freedom of the press

The Department of Homeland Security (DHS) has also developed new policies to target foreign journalists who come to the US on business.

Freedom of assembly

The past decade has seen a high rate of FBI and CIA infiltration and interest into a number of different political anti-war activist groups. Groups, and individuals from these groups, are constantly under watch regardless of their political ideology and how they fit into the national security narrative. Raids on activists' homes have happened all around the country leading to arrests, invasions of privacy, and violations of freedoms of assembly and speech.

New FBI regulations also increase the amount of information that agents and spies are able to obtain on a group or individual. This includes but is not limited to going undercover to infiltrate an organization, going through trash, following the person or group for extended periods of time, taking pictures, and doing extensive background checks—all without a warrant or even suspicion of criminal activity.

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