A federal judge in New York recently halted enforcement of a controversial section of an anti-terrorism bill that the court found harms First Amendment rights. Plaintiffs to the case included noted activists, journalists and a member of Icelandic parliament who argued the law had a chilling effect.
The National Defense Authorization Act includes a provision that would allow the Obama administration to detain individuals who "substantially supported" Taliban, al-Qaida or "associated forces." In its decision, the U.S. District Court for the Southern District of New York issued an injunction to prevent enforcement of this section.
The government argued that the NDAA creates no powers not already available under the Authorization for Use of Military Force, the statute enacted by Congress in the wake of the Sept. 11 attacks, which is still in force. The court disagreed — the NDAA is different because its language is broader than the AUMF and applies to activities unrelated to 9/11, it said.
The act was found by the court to have a chilling effect on speech.
"When you say 'support', you're talking about advocacy," said plaintiff's counsel Bruce Afran in an interview. "The primary way to provide support is to advocate for an idea. [Y]ou're inherently bringing First Amendment activity into the scope of the law," he said.
Plaintiffs testified in a hearing that the vague wording of the law had a chilling effect on their speech and activities. For instance, Chris Hedges, a Pulitzer Prize winning journalist and activist, is a former New York Times foreign correspondent who has reported on 17 terrorist-classified organizations. He said he now avoids reporting from sources who support violence or terrorism because he fears detention.
Another journalist-activist, and founder of the website "US Day of Rage", Alexa O'Brien, testified about government surveillance of her activism and an attempt to tie it to Islamic fundamentalism. Hedges also was placed on a terrorist watch list, according to Afran.
"Once you start defining activists and journalists as supporting terrorists you go down the road to creating an authoritarian and tyrannical state," plaintiffs' co-counsel Carl Mayer said in an interview.
The decision is unusual because it is rare for a court to enjoin enforcement of a law on constitutional grounds; courts are required to avoid the result when possible. Also, plaintiffs must show both that their challenge to the law is likely to prevail ultimately, and that they will be irreparably harmed if enforcement of the law is not halted — a difficult task.
The result is similar to a recent case in which a New York federal appellate court found that reporters could sue for the harm caused by warrantless eavesdropping into their phone conversations under the Foreign Intelligence Surveillance Act of 1978. In that case, the chilling effect of the government's surveillance was also found to harm reporters' First Amendment rights.
The court in this case acknowledged the extremity of an injunction but considered itself forced. It found no legally permissible interpretation of the statute. The government's case was weakened by its repeated refusal to state that the plaintiffs' activities could not be targeted by the NDAA.
"The Government was unable or unwilling to represent that [plaintiffs'] conduct was not encompassed within [the bill]. Plaintiffs have therefore put forward uncontroverted proof of infringement on their First Amendment rights," the court said.
In addition to not defining the statute's scope, the government called no witnesses in support of its case.
For attorneys Mayer and Afran, the decision is well in line with constitutional norms.
"It was clear from the beginning that this was unconstitutional on free speech grounds. It's very nice to have a federal judge agree with you," Mayer said.
The government declined to comment on the case.