Patriot Act and First Amendment

More wrangling with regard to the Patriot act provision regarding gag orders aimed at libraries.

The Supreme Court was asked Monday to let libraries speak out about FBI demands for their records in a case involving the Patriot Act anti-terrorism law.

he American Civil Liberties Union filed the emergency appeal, on behalf of an anonymous client, but the paperwork is censored and gives few details.

he ACLU has argued that a gag order prevents its client, apparently librarians in Connecticut, from participating in a debate over whether Congress should reauthorize the Patriot Act.

This is obviously a difficult issue. The balance between the constitutionally protected right to free speech and the ability of the government to investigate acts that could be indicative of terrorist activity. The protection of people's right to life is part of the balance.

SCOTUSblog has further analysis of what is happening in the courts.

Chafing under that "gag order" after it got a "Letter" from the FBI, the Connecticut group, joined by others, sued the federal government in federal court. The lawsuit claimed that the provision was a "prior restraint" on First Amendment free-speech rights. U.S. District Judge Janet C. Hall of Bridgeport, Conn., on Sept. 9 barred enforcement of the "gag" provision against "John Doe," saying that groups like it were the only entities who possess specific facts "about the reach of broad, federal investigatory authority" and yet are barred from "discussing their experience with the public."

The Second Circuit, however, has blocked Judge Hall's order while it reviews the constitutional questions at stake. With the case on an expedited schedule there, the final brief is due on Monday. "John Doe" and its backers, however, took the dispute on to Justice Ginsburg, asking her to lift the stay so that the Connecticut library group could join in the public debate over whether Congress should renew the provision at issue. They told Ginsburg that "John Doe" only wants to identify itself, and does not want to talk about what the FBI demanded, or even when it received that demand.

Ginsburg turned them down. "In view of the character of the constitutional issue presented and the expedited schedule ordered by the Court of Appeals, I deny the application..." She issued a seven-page opinion, six pages of which were background. The final page gives her reasons.

Ginsburg called the challengers' argument "cogent," but said she was leaving the stay in place because of "several countervailing considerations."

Here, in summary, are those reasons:
1. The stay issued by the Circuit Court is an interim order only, and that argues against interference.
2. Respect for the Circuit Court's assessment of the situation was "especially warranted" since the Circuit Court is moving rapidly to decide the case on the merits. She said she expected a hearing and a ruling shortly.
3. Judge Hall's order struck down an act of Congress, as it applied to "John Doe," and that "warrants cautious review."
4. "John Doe" has been identified in the legal papers in the case as a member of the American Library Association, and that trade group is free to speak out on the "gag order" and to note that one of its members has received one of the FBI "Letters."

It appears that Ginsburg is being careful in allowing for the case to be heard and not just taking a knee jerk reaction, which is what appears to have happened at the lower court level. At this time, it doesn't appear that the case will be coming to the Supreme Court.

Disturbing is that there is no apparent time limitation to these gag orders. Without any clear limitation to these gag orders, the suppression of free speech is quite obvious. This is from the ALA web-site:

The amicus brief emphasized that the New York Times had already identified the plaintiff organization in a September 21 article as Library Connection, a nonprofit cooperative of 26 public and academic libraries with a central office in Windsor, Connecticut. "The speculation highlights the absurdity of the permanent gag order and puts an ALA member in an untenable bind," the brief stated. "With this report in the public domain, the gag order both serves an even less important interest and causes even greater First Amendment harm that this court must remedy."”

Permanent gag orders would strike me as suspect. The results of this case will be interesting.