Free Speech Groups Support ACLU's Challenge to Patriot Act

On Monday, November 3, a coalition of free speech groups led by the American Booksellers Foundation for Free Expression (ABFFE) filed an amicus brief in support of the American Civil Liberties Union's (ACLU) legal challenge to Section 215 of the USA Patriot Act. The ACLU filed its lawsuit in July 2003 in Detroit federal court on behalf of six nonprofit organizations that provide a wide range of religious, medical, social, and educational services to various communities around the country. The ACLU and the groups supporting the challenge contend that Section 215 of the Patriot Act violates citizens' constitutional rights.

"Filing an amicus brief was a 'no-brainer' for us," said ABFFE President Chris Finan. "Such an unprecedented extension of prosecutorial power demands immediate court review."

A month ago, the Justice Department filed a motion to dismiss the ACLU lawsuit, arguing that the suit had no standing because Section 215 had not been used and, therefore, no one had been affected by it. In addition, the motion claimed that there was no merit to ACLU's constitutional claim since individuals have no right to the privacy of records held by a third party.

On November 3, the ACLU filed a reply brief seeking a denial of the Justice Department's motion to dismiss. Section 215 has already demonstrated a "chilling effect" on free expression because of the implications of what it could do, said Jameel Jaffer, staff attorney for ACLU.

The Muslim Community Association of Ann Arbor (MCA), lead plaintiff in the ACLU lawsuit, said in an affidavit that "attendance at prayer services, educational forums, and social events has substantially dropped" and donations to the group are almost half of what they were before 2001. The group noted that some members have curtailed their political speech, and one member asked that all records pertaining to himself and his family be deleted from MCA's database.

Bridge Refugee and Sponsorship Services, a church-sponsored group that aids refugees, is also a plaintiff in the ACLU challenge. According to Mary Lieberman, executive director of the Tennessee-based Bridge, the Patriot Act has had a significant impact on how the group interacts with its clients. Lieberman said that Bridge employees do not actively seek out information from refugees, but oftentimes personal information is offered. In the past, any information was recorded, and "kept in the vein of, you have a history you should be proud of," she told BTW.

Due to Section 215 that longstanding policy has been changed to minimize the chance that personal information will be disclosed to government investigators on fishing expeditions for information about clients from Iraq and Iran. "[Section 215] has made us very concerned about the information we keep in our files," Lieberman said. Prior to passage of the Patriot Act, Bridge generally kept all records on everyone to whom they offered assistance, "but on the advice of our attorney and with the consent of our Board, we changed our policies so that it was mandatory: You may not keep records past three years," explained Lieberman. "The fact that I wouldn't have a right to file a motion to quash. For people who have grown up thinking they have rights, this breach … is outrageous!"

In their amicus brief, the free speech groups expressed similar outrage. "Section 215 of the Patriot Act provides the government with an unchecked and unprecedented power to obtain materials protected by the First Amendment whenever the government wants," the brief states. "Section 215 requires no showing of relevance or need to obtain the requested material and provides no means of challenging an order once issued."

The groups contend that Section 215 violates the First Amendment in two respects: "First, [it] authorizes the production of First Amendment materials without any governmental showing that the information would actually further a terrorism investigation…. Second, Section 215's automatic gag rule violates the First Amendment because it unjustifiably imposes a blanket ban of secrecy upon recipients of orders in the absence of any showing of need by the government for such secrecy.

"Because Section 215 authorizes the production of bookstore and library records, it threatens the core constitutional rights of amici and their patrons…. If the Court dismisses the plaintiffs' complaint, the government's ability to obtain confidential, private information about a bookstore or library patron's reading practices likely will have a dangerously broad chilling effect on the exercise of basic First Amendment liberties. Patrons will curtail their expressive activity if they fear that their reading habits might be scrutinized by the government and possibly, as is evidently the case here, form the basis of a criminal investigation."

The Department of Justice must submit its reply to the ACLU's brief on November 21, and there will be a hearing in federal court in Detroit on December 3.

In addition to ABFFE, the groups signing the amicus brief are the Association of American Publishers, the Association of American University Presses, the Center for First Amendment rights, the Comic Book Legal Defense Fund, the Electronic Frontier Foundation, Feminists for Free Expression, the First Amendment Project, the Freedom to Read Foundation and PEN American Center. To read the brief in full, click here.

Two additional amicus briefs were filed on November 3 in support of the ACLU lawsuit: the first by organizations "devoted to assisting individuals in transition," such as immigrants: the American Friends Service Committee, the Asian Law Caucus, Episcopal Migration Ministries, Immigration and Refuge Services of America, International Institute of San Francisco, Lawyers' Committee for Civil Rights, and Oregon Action; the second by the National Association for the Advancement of Colored People, the Asian American Legal Defense and Education Fund, and the Japanese American Citizens League. -- David Grogan