First Amendment Coalition questions ruling

August 6, 2018
Kansas Press Association -- Image

The First Amendment Coalition (FAC) on Friday filed a “friend of court” brief in the Ninth Circuit Court of Appeals, urging that court to reverse a federal district court ruling that jeopardizes important First Amendment protections for journalists who publish sensitive or classified government information.

The lower court dismissed claims by the ACLU that the Federal Bureau of Investigations (FBI) violated the federal Privacy Act by opening a "threat assessment”—the precursor to a criminal investigation—on journalists for the website antiwar.com who published "sensitive" government documents.

The Privacy Act generally prevents such “threat assessments”—or any such collection or maintenance of records—if they are based on the exercise of rights protected by the First Amendment. The ACLU’s lawsuit, filed in 2014, alleges that the FBI’s sole reason for opening a “threat assessment” on antiwar.com was the fact that the website had published an FBI "watch list" and "suspect list”—i.e., publishing activity clearly protected by the First Amendment

In denying  the ACLU’s Privacy Act claim, the lower court found that the FBI’s investigation fit into an exception to the Privacy Act’s First Amendment protections.  Specifically, it found that the FBI could collect and maintain information about antiwar.com because the FBI investigation was an "authorized law enforcement activity.”

However, as FAC points out in its amicus brief, the “authorized law enforcement activity” exception to the Privacy Act’s protections does not apply to the FBI’s investigation of antiwar.com for the simple reason that there was no valid basis to conclude any law enforcement investigation was necessary. The document at issue, an FBI "watch list," was not a classified document. It had already been distributed on the Internet and was available for anyone in the public to find. Therefore, the publication of the same document by antiwar.com presented no conceivable security threat; no investigation should have resulted.  

If the Ninth Circuit upholds the district court's decision, it would set a dangerous precedent that would allow the FBI to open up preliminary criminal investigations for the mere act of publishing documents the government would rather not have published.  This is precisely the kind of government surveillance of journalists, activists and others that Congress sought to prevent with the 1974 passage of the Privacy Act, which followed the revelation of shocking abuses by the FBI, including routine and pervasive surveillance of individuals who had done little more than express or promote political views.

“The publication of sensitive government information is critical for the most influential and important journalism -- the kind of reporting that calls the government to account and exposes wrongdoing, corruption and malfeasance,” said FAC Executive Director David Snyder. “We strongly believe the court will come to the conclusion that this type of investigation into reporters is clearly unlawful.”

Here are links to FAC’s amicus brief and the ACLU’s opening brief on appeal .