The First Amendment on Thin Ice?

The First Amendment—the freedoms of speech, assembly, religion, petition, and the press—is fundamental to our civic life. Without it, there would be nothing to stop the government from banning a religion, or arresting people for discussing a proposed policy, or outlawing the work of an organization like the Project On Government Oversight (POGO). Actions like this would be so dramatic, and seem so dystopian, that they easily capture our imagination.

But the problems of a world without the First Amendment could manifest in much subtler, but equally dangerous, ways. A great strength of the First Amendment is that its protections extend beyond the most obvious attempts to violate the rights it enumerates. Troublingly, it doesn’t take much to imagine a world without these broad protections. In fact, the Supreme Court’s First Amendment jurisprudence over the latter half of the 20^th century tackled the more subtle, pernicious ways our government has sought to limit speech and assembly.

The First Amendment generally prohibits government activities that could dissuade people from exercising their rights, even if those activities don’t formally restrict their ability to do so. Judicial scrutiny of activities that have such a “chilling effect” is a crucial check on government power. Picture this: you’re a member of a group protesting segregation through boycotts and sit-ins, and the government, which is no fan of the group’s actions, passes a law that says organizations like yours must disclose their member lists. Would you think twice about continuing your membership?

If you think you might, the Supreme Court has agreed, and has said the government can’t enforce laws like that. In a landmark 1958 decision, it unanimously struck down an Alabama law requiring the NAACP to hand over its membership lists. Justice John Marshall Harlan II wrote, “compelled disclosure… is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate.” What constitutes a chilling effect continues to be a crucial question. In recent years, The Constitution Project has argued that law enforcement’s use—or even the simple threat of use—of military-style equipment or powerful tools like facial recognition, selective scrutiny of advocacy organizations, and overbroad surveillance proposals could all have chilling effects on First Amendment rights.

Or, imagine you’re a federal employee who wants to speak out against a government policy that you have observed is being mismanaged or abused, but you might get fired or miss out on perks that less critical colleagues might receive. Would you be less likely to voice your concerns? While whistleblowing may not seem like a constitutional issue, the courts have ruled that government employees’ First Amendment right to criticize the government can be outweighed only by compelling government interests, such as safeguarding classified information. That said, the Supreme Court has held that government employees aren’t protected by the First Amendment when they are performing their specific job duties, calling into question when whistleblowers are actually protected.  

But assume you do decide to blow the whistle. You take your information to a reporter, on the condition of anonymity, but then law enforcement opens an investigation to identify the source of the “leak.” Would you make another disclosure? Here, too, the question of what constitutes a chilling effect is very much unresolved. POGO has warned that overzealous investigations can intimidate whistleblowers and prevent others from coming forward. Recent years have brought a decided uptick in investigations into whistleblowers and the journalists who help amplify their disclosures.

Don’t we want government employees to feel empowered to speak up? And don’t we want members of the public to feel safe joining groups to protest government actions with which they disagree? We need to be vigilant about practices that ostensibly have no bearing on free speech, but which could actually water down our ability to meaningfully exercise First Amendment rights.

If we aren’t, we may find the line between imagination and reality is not as solid as we think.