The Open Mind: Defending the First Amendment – Jameel Jaffer
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The Open Mind: Defending the First Amendment – Jameel Jaffer

HEFFNER: I’m Alexander Heffner,
your host on The Open Mind. We continue today our ongoing
60th Anniversary series. Democracy and Free
Speech are the subject, and we’re honored to
welcome the Founding Director of the Knight
First Amendment Institute at Columbia University,
Jameel Jaffer. The mandate of the Knight
Institute is to preserve First Amendment rights
in the digital age, through
research, education, and litigation in favor
of protecting freedom of expression and the
press, including the legal defense of whistleblowers. Previously, Jaffer
served as the Deputy Legal Director at the ACLU,
and led its Center for Democracy focused
on national security, human rights, free speech,
privacy and technology. Jameel, congratulations
on your new post. JAFFER: Thank you. HEFFNER: What I wanted
to start here with, is something
rather timely, this question of what is
permissible in the digital age with respect to
leaks, with respect to journalistic endeavor,
with respect to the law? Is WikiLeaks at
this juncture, as Edward Snowden
himself has identified, injuring its own cause? It’s enabling the kind
of reckless behavior that those who are critical of
these kinds of leaks point to, as why it should be
unlawful, or why, what, JAFFER: Right, right- HEFFNER: Snowden did
is traitorous. JAFFER: I would separate
two questions as, as I think you
did in your, in your question, the
question of the law and the question of, uh, what,
whether what WikiLeaks is doing is injuring
its own, its own cause, which I think is a separate
question from the legal
question. Uh, you know on the,
on the second question, I have not agreed with
every disclosure that WikiLeaks has, uh,
facilitated or made. Uh, you know even
from the beginning I had reservations of some of,
about some of their disclosures. But, you know the truth
is I have reservations about many things that are
published in the national newspapers, and that’s
a very different thing than to say they don’t have a
right to publish them. So that’s why I say
that the question, the legal question is a
separate one and it’s important to keep it,
to keep it distinct. Um. I, the, no the
legal question, the truth is there’s a lot of
uncertainty about um, how the law will apply
to situations like this. I mean there are these
precedents like the Daniel Ellsberg
precedent or many other, you know, precedents
that have some baring on, um, um on the
WikiLeaks situation. But many things have
changed since those precedents
were set um, uh, for one thing, WikiLeaks
is a transnational organization in a way that
some of the other media organizations weren’t,
fifty years ago. For another thing, the scale of
the leaks is, is different. Uh, uh, the nature of
the abuses being disclosed varies from one context
to the, to the next. And that may be
important because, you know, in, um, uh,
once the law in this area is settled, it may matter
whether any particular disclosure was made in the
public interest, and… HEFFNER: And by that… JAFFER: This is one of the
things that Snowden has said, that he would, he would actually
come back to face trial in the United
States if he could make the argument to a, a
jury of his peers, that his disclosures were, were
in the public interest. Um, um, and
and so, one day, if WikiLeaks faced
that kind of prosecution, would it be able to claim
that its disclosures were in the, you know had been
in the public interest. It’s an
important question. So, I realize that that was just
a long way of not answering your question,
But I think that there are two separate questions
and both of them are hard. HEFFNER: Well let’s interrogate
each one. Right? So from the
outset I think, I wanted to
clarify for our viewers, when you’re referring
to the substance of the disclosure you’re saying,
is it public corruption, or is it social
snark, innuendo about relationships of
private people? JAFFER: Yeah. HEFFNER: And that seems
to be the point… JAFFER: Right, and
I think that those are certainly two
considerations, you know what, or one consideration. What, what’s the nature
of the disclosure in that sense? Um, I’m not sure that I
would limit the universe of legitimate disclosures to
public corruption, right? I think the most
significant thing about Snowden’s disclosures,
was not that he disclosed legal abuses in
the sense of, uh, individual executive
actors going beyond what the law permitted. The, the main, uh,
significance of Snowden’s disclosures, um, was that,
he disclosed the extent of what the law permitted. Um, you know I’ve
said this before, but I, and other people
have said it long before me, but but, but the
scandal here was what was legal, not
what was illegal. The scandal was that
the NSA was allowed to do all of this. And that’s what, that’s
what Snowden disclosed. And I think that
was, you know I, I um, I think that
those disclosures were in the public interest,
Snowden’s disclosures. So that’s why I say
that public corruption isn’t broad enough to
describe the universe of disclosures that, uh,
I would argue should be protected by the,
the First Amendment. But, uh more generally,
I think that you’re, you know you’re
right, that you have to distinguish between
disclosures that are in the public interest
and, disclosures that are in the public
interest an uh uh, and the
disclosures outweigh, the public interest
outweighs the private interests that
are compromised, and disclosures where
the balance you know, um, comes out
the other way. HEFFNER: And there’s a
differentiation we can draw between behavior that would
be inconsistent with the law, and behavior that
is personally uncivil, if you look at the example
of the Podesta emails, or other correspondence. And I’m sure if you looked at
RNC incoming mail, you would see the same
kinds of examples… JAFFER: Mm-hmm… HEFFNER: Of
political maneuvering, um, uncivil behavior
in the language folks are using in
correspondence. But, but let’s talk about
that second dimension of this issue, which is
how, in the digital age, we’re going to define
the parameters of what is permissible. And that is this idea of a
transnational organization. What I find interesting
about this is, as Justice Breyer
has pointed out, it is, it is an unknown,
it is a great unknown, but it’s more important
than ever to understand how we can set
international law, not just in terms of
human rights violations, but in terms of this kind of
discussion of the First
Amendment. Where do you see the
possibility to bring together the globe, to
manage what would be free speech or speech
that crosses the line, but what are the… JAFFER: Mm-hmm. HEFFNER: Channels through
which there can be international
consensus around this? JAFFER: Yeah, yeah yeah. International consensus
may be too much to hope for or to expect
in the short term. Right? Um, I mean the truth is
that the United States has been a leader on
free speech issues in particular for, um,
for many decades, and not everybody sees uh,
free speech in the same way that we do,
that we do here. Um, the courts in other
major democracies don’t necessarily, uh, don’t uh,
protect speech in the way that American courts do. Um, and in many of
those democracies, citizens are quite happy
with the balance that their courts have struck. You know so, I’m not
sure that consensus is, you know, is reachable in,
in, in the near term. But, I do think
at the margin, um, we have free speech
advocates here in the United States have
an obligation to, um, push the
boundaries elsewhere. And um, that’s not so much a
kind of colonial project as a recognition that
our rights are intertwined now, right, that
the, free speech, speech doesn’t
end at the border. It travels, you know
in both directions, um, across the border,
and the restrictions that governments
elsewhere place on, uh, on speech have an
effect on both what we can say and
what we can hear. And I think that companies
like Google and Facebook and Twitter are quickly
finding out that it matters what, you may be
based in the United States but it matters what
European governments, what Asian
governments, um, think, because they can
place restrictions on what their own
citizens can see, and less directly, they
can place restrictions, therefore on what
you can broadcast. So, um, you know I
think those lines, the borders, the, there’s
no bright line at the border any more
if, you know, there probably
never was, but but, that, that line has
become much blurrier over the last um, you know over the
last 20, 30, 40 years. HEFFNER: And we
don’t necessarily have a consensus in this
country either, that, half the country
views Edward Snowden as a villain, half as hero. Um,
generally there is a split. It’s not a unanimous verdict on
uh, a whistleblower. Um, you wrote in
a recent lecture, the Peter Zenger Lecture,
‘A First Amendment in the Digital Age” um, “Our age
will give rise to many novel and vexing questions
relating to the scope and substance of First
Amendment freedoms. One reason for this is
that the Supreme Court’s seminal cases relating to
the freedoms of speech and the press, the cases that
shape our public spaces and public discourse
today were decided a half century ago.” And
then you continue, ‘they were decided before the
advent of social media.’ JAFFER: Mm-hmm. HEFFNER: And before, the
very visible connection that we see, not only in
terms of freedom of speech in the US to freedom
of speech elsewhere, but freedom of speech
here to freedom of, for freedom of
domestic tranquility. JAFFER: Mm-hmm. HEFFNER: And those who
view Snowden as either criminal or a
traitor, or… JAFFER: Mm-hmm… HEFFNER: Um, wrong, do most
often because they view him, and the President said the same
thing upon awareness of the disclosure, as a threat
to national security. JAFFER: Mm-hmm.. HEFFNER: So we saw
here in New York
and New Jersey, that in the case of
the Chelsea bomber… JAFFER: Mm-hmm. HEFFNER: There was a
very expeditious law enforcement effort that
ought to be applauded. It was made possible
because we’ve installed
cameras on the streets, We have no
certainty of privacy as soon as we leave
our apartment, uh, in the case
of a major city, whether you’re in
St. Louis, Orlando, San Bernardino,
those were some spaces that were
affected in this way. So when you talk about
the advent of these technologies as being
critical in determining what the law is, what
the jurisprudence is, how does, how does the law
factor in these real life consequences of
privacy versus security? JAFFER: Yeah. I
mean I think, so a few things. One is that the law inevitably
lags behind the technology.
Right? The, the techno-
technological change is much quicker than,
um, legal change. And and, so the courts
are always playing, always playing catch up. And really, you know it
may be unrealistic to think that it, it’s
possible for the courts to sort of catch up
to, to technology. Really what the courts
have to do is set markers. They have to um, um, make
statements that affect technologies that they
can’t even predict at the time they, you know,
write those opinions. They have to set markers
in terms of our values, in terms of the tradeoffs
that we’re willing to make as a society, in
terms of the meaning of, in, constitutional
protections. Um, they set these markers
and then technology gets ahead of the markers. But the markers
have a continuing, ideally, have a kind of
continuing effect on the development
of the technology and the direction uh, in
which we sort of head. That, that’s uh, I think
that’s the most you can hope for from the courts. I think we’re
starting to see that., um, um, with, with some
of the technologies that you mentioned. The, the, there
was a case in uh, US versus
Jones, a 2012 case, um, uh, in which
the, the court held, it was a split decision
but the court was, um, uh, was in agreement
that location tracking, the installation of GPS
devices on individuals’ cars, and continuous
tracking of an individual over an extended
period of time was a, a sufficiently invasive
search that it required probable cause
and a warrant. And I you know,
that, that is uh, depending on how you
interpret the opinion, that is perhaps a
little bit of pushback on the idea that once you step
into the public sphere, everything is fair
game, that you have no, no reasonable expectation
of privacy left. Um, because here the
location of this person was in fact you know, in the
public domain in some sense. They could have tailed, they
could have tailed his car. The police could have
tailed his car for that extended period of time and
collected the same information. But the courts
said, you know what, this GPS tracking is
much more intrusive, as a practical matter,
much more intrusive than was the police
could ordinarily do, uh, certainly what they could
ordinarily do cost-effectively. Uh, and the court
sort of drew a line. And I think that that’s
an instance of the court seeing the development,
not just the development thus far of this kind
of privacy intrusive technology, but the
direction in which that technology was headed, um,
and putting down a marker, um, um, for privacy…
Basically reclaiming a little bit of the privacy
that the court had given away in, in previous cases.
So you see it a little bit. That’s a Fourth
Amendment case. It’s not a First
Amendment case. It’s closely connected to
First Amendment rights. Um, but so far there have
not been a lot of cases in which, uh, certainly the
Supreme Court has grappled with the First Amendment
implications of new technology, the
free speech or uh, freedom of expressions
implications of new technology. And all of this technology does
have a very real effect on those rights,
the right of speech, right of association,
uh, rights of the press. Um, you know this
is not a new idea. It’s something that you
can find in the case law going back, most
certainly at least, at least 50 years, um,
uh a recognition of the implications of
government surveillance for the freedoms of speech and
the press and association. Um, in fact there’s
this line of cases from the 1960’s and 70’s in
which the courts drew lines around certain kinds of
government surveillance, subpoenas issued to the
NAACP saying that you can’t issue a subpoena,
you can’t force the NAACP to give up its
membership list, unless you have a
very good reason for, for demanding that
it do so… Because, that kind of
demand, that form of, you know it’s a
form of surveillance, that kind of demand um,
will inevitably have a chilling effect on the
constitutionally protected right of association…. And you know, you can
see that line all the way through the
1960’s and 70’s. The Supreme
Court you know, dropped it in the
1980’s and 90’s uh, but with I think more
widespread recognition of the implications
of new technology, and the changing
supreme court, we may see that
line of cases, I think, revived, um, revived in
future decisions. HEFFNER: When Columbia
University and the Knight Foundation, Lee Bollinger
and Alberto Ibarguen, staunch defenders of
human rights and the First Amendment announced
your appointment in the institute, they
pointed to the necessity in this shifting paradigm
of protecting speech in the digital age. How do you
see your work in the context of the surveillance, the
secrecy, and privacy
dimensions? How do you see
this Institute, um, fulfilling its promise in a
way that protects these digital spaces, in a way maybe
they’re not protected right now? JAFFER: Mm-hmm. Mm-hmm, you know I mean I think
that it’s important to recognize that these,
these same technologies that I have thus far been
describing as a threat, also have a
lot of promise. You know
they’re they’re um, social media platforms
for example have enabled speech in a way that, you know
we couldn’t even have envisioned a
generation ago. And you know in many ways that’s
an amazing thing. And you know I’d say the
same thing with search engines or uh, uh,
uh, you know video um, sophisticated, the kind
of sophisticated video technology that you were
talking about when you were talking about he
resolution of these investigations into terrorist,
uh, into terrorist attacks. You know all of those
technologies can be used for surveillance but they can
also be used for many other things and many of those
things are positive. Uh, uh, so I think it’s,
you know it’s a mistake, it would be a
mistake to, um, to approach all
of that with, um, without a recognition of the
possibility a well as the, the dangers. HEFFNER: Now what’s
gonna be important here, as it is with the ACLU is,
you know when you take on a client or a cause,
you have to support the integrity of that person
or that organization… JAFFER: Mm-hmm. HEFFNER: And back it. In the case of Snowden, the ACLU
signed up, on board. Um, Manning too… JAFFER: Mm-hmm. HEFFNER: How are
you going to, and this goes back to the
original question, right? JAFFER: Mm-hmm. HEFFNER: How are you going to
define the parameters of what is the kind of case
that you will embrace? Because the WikiLeaks
organization might not fit into your
pedigree… JAFFER: Mm-hmm. HEFFNER: For what is
acceptable in terms of defending those
digital spaces. JAFFER: Sure,
right right. HEFFNER: And as I
understand it Jameel, one of the
imperatives here, is to put resources behind
the defense of folks who may indulge in those leaks
who otherwise wouldn’t have legal protection. JAFFER: Yeah well
I, I think that, you know, our
mandate is um, our mandate is to defend
and expand First Amendment rights, you know the
freedom of speech and the freedom of association,
the freedom of the press. And we will pick
our cases so that, you know over time, we,
we’ll be picking cases that, in our view, shape
the law in a way that um, expands those,
expands those rights. HEFFNER: Wait, I just want to
clarify, how so? Expands, how would you
like the right to expand? JAFFER: Well
I’ll give you, I’ll give you an example. I mean there, there are
cases right now involving the right of
individuals to film um, government
activity, especially, film the police, right? So, um, these
are cases that, obviously are very
prominent right now because of the Black
Lives Matter movement, and all the incidents that led
to the Black Lives Matter movement. But that question of,
how far that right of individuals to
film the police, or to record government,
record and broadcast government activity,
how far that right goes, I think is a
crucial one, um, um, and I expect that
we will fight for the expansion of
that, of that right. There are other
cases involving um, other contexts in
which, what’s at issue is government transparency in a
more traditional sense, what the government has
to disclose to us about government activity,
about the reasons for that activity. And there too I think
that we will push some of the limits that have been set
over the last 10 or 20 years. The area I know best
is national security. That’s what I’ve been working on
for the last 14 years. And there are, um,
as everybody knows, um, many contexts in that
sphere in which lines have, the lines
that have been set, result in the
public having uh, little or no information
about the government’s policy and the reasons
underlying that policy. Um and there too, I expect
that we will push these, you know we will try to push
those, push those limits. With whistleblowers, um,
we’ve talked a little bit about this already, but
I think that the use of the Espionage Act to go after
people who have disclosed information, not to
foreign intelligence services, but rather
disclosed information in the public interest, to the
American press… Uh, because they believe that
what they are disclosing was uh uh uh, reflected
abuse or reflected overreach, um, I think
that a statue that fails to distinguish between
those two sets of people should be viewed as
constitutionally suspect at the very, at
the very least. Now drawing those lines
is not an easy thing. And you’re right that
in any individual case, we may not have the
perfect set of facts. You know the
the, this is a, it’s not news to
anybody that in first, that in First Amendment
cases especially, sometimes the clients
are not the clients that you would have uh, you
would have dreamt up if it were sort of within your
controls to dream up the, the ideal client. Uh, First Amendment
cases are often cases that involve in some
sense, bad facts. Right? Um, because the First
Amendment was meant to protect people
at the margins. It was meant to protect
the people who were controversial, who
everybody else disagreed with, who everybody
else though were, were uh, uh,
were offensive or, you know those are
the cases that have, um, uh, always shaped,
um, the First Amendment, and always influenced
the development of First Amendment doctrine. And and, you know
we’re we’re going to be, among other things, First
Amendment litigators, and I expect that we
will take cases in which, you know not everybody
will like our plaintiffs. HEFFNER: [LAUGHTER] Isn’t
it more difficult than ever, Jameel, to
disentangle the potential of foreign espionage, in the
case of cyber attacks from
Russia… JAFFER: Mm-hmm… HEFFNER: There is
increasingly scrutiny that ought to be placed
on prospective clients to
ensure that they are not, working with the
enemy is a cliché notion, but that they do not
have ulterior motive. Isn’t that a, a
reality of… JAFFER: Well… HEFFNER: Of the cyber war that
is, that is not just haunting
us… JAFFER: Yeah,
yeah… HEFFNER: But it is a
reality that we are not aware of when we go on our
Gmail and our day-to-day
digital footprints. We don’t see it,
but it’s happening. JAFFER: Yeah I mean I think,
I think that that’s right. I mean I think that
there’s a certain amount of diligence
that you know, any lawyer
would want to do, um, given the murkiness
that surrounds espionage and, um, and
national security leaks. You know so yeah, I
think that’s right. The one thing
I’ll say is that, you know our clients,
uh, in some cases might
not be whistleblowers. They may be the people
who are publishing what whistleblowers provide. And there I’m not so sure that
motive actually matters. You know I think that
when the New York Times gets information from
um, from a leaker, the question that the
New York Times should ask, or certainly the principle
question that the New York Times should ask is, is
the disclosure of this information, in
the public interest. And the motivations of
the person who provided them the information,
um, I think that those should be
viewed as secondary. HEFFNER: And finally,
you do heed a notion of balance in your answer about
what this definition means today, an idea
that, we’re not going to acquiesce to national
security necessarily, or to
speech. Um, as you look to the
Supreme Court as the law of the land, um, what is your
hope in this upcoming term, that the
court might say, and we’re
running out of time, but in, again, redefining speech
in a way that is more effective. If it’s not gonna
be espionage… JAFFER: Mm-hmm. HEFFNER: What is the
channel through which the court can determine, there
is permissible challenge to
speech? JAFFER: Yeah, I mean I think
there will be a set of cases involving
government whistleblowers. It may take several
years before they get up to the Supreme Court,
but that will be about the significance of
the public interest in those kinds of
prosecutions. Um, there will be a set of cases
involving government surveillance, uh, which will
have First Amendment
implications. And my hope is that the court
will actually engage with those implications
rather than pretend that they don’t exist which is
sort of what the court has been doing for
the last 20 years. But I think that those
are two areas where you will see the development of
First Amendment law relating to um, issues that are
distinct to our digital age. HEFFNER: Jameel,
congratulations again on the Institute and thank you
for being with me today. JAFFER: Thanks
for inviting me. HEFFNER: And thanks to
you in the audience. I hope you join us again next
time for a thoughtful excursion into
the world of ideas. Until then,
keep an open mind. Please visit The
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