I don’t think Americans understand the extent to which the “foreign-intelligence exception” has hollowed out the Fourth Amendment. Most reporting about the current legislative debate is technical and incremental, and misses the forest for the trees. 1/ Here’s what's crucial: What was once an extremely narrow exception to ordinary constitutional principles has become, over time, a justification for warrantless surveillance on a staggering scale—not just of foreigners’ communications but of Americans’ communications too. 2/

Here’s something quite amazing. The OLC wrote a powerful memo explaining why the Attorney General's independence is vital to our constitutional system. It reads as if it had been drafted this morning, in response to today’s political landscape, but …. /1 knightcolumbia.org/documents/jwhw… It was written 40 years ago. Ted Olson, then the head of the OLC, wrote it in Feb 1982 for the then-AG, William French Smith, to describe the “responsibilities of the AG to the Constitution.” /2

Over the past months, @knightcolumbia has obtained hundreds of previously secret Office of Legal Counsel opinions on issues ranging from civil rights to national security. Yesterday we published a long-withheld set of opinions about the War Powers Act. /1 nytimes.com/2022/09/16/us/… We were able to obtain these opinions by taking advantage of a 2016 law that limits the government’s ability to rely on the “deliberative process” privilege to withhold documents that are more than 25 years old. /2

Long awaited opinion from the Fifth Circuit in NetChoice v. Paxton is finally out. Let's see what it says ... techfreedom.org/wp-content/upl… Not a promising opening.

This is actually a really hard set of questions. The government can't constitutionally coerce private publishers to censor speech. (There's a Supreme Court case about that.) But what should count as coercion is a really difficult question to answer.

https://twitter.com/MaryRooke_/status/1570484046853210112

For example, should the First Amendment be understood to prohibit a Senator from grilling a platform representative about the platform's editorial decisions? (@HawleyMO appears to think not.)

The Espionage Act is a much-abused law that casts a long shadow over press freedom in this country, and that impoverishes and distorts public debate about national security, foreign policy, and war. But is the EA being abused here, in Trump’s case? /1 I don’t think so. Even a narrower EA—an EA that accounted for the First Amendment interests of whistleblowers, news organizations, and the public—would apply to the facts here, if the facts are as they’re asserted to be. /2

You wouldn’t know it from all the spin, but the most important thing about the Eleventh Circuit’s decision striking down (most of) Florida’s social-media law is that the court rejected *both* parties’ First Amendment theories. 🧵 Florida was arguing that its law doesn’t implicate the First Amendment at all, because (it said) the platforms don’t engage in protected expression when they moderate or curate user content. /2

The Supreme Court this morning denied cert in Edgar v Haines, a case that @knightcolumbia and @aclu filed three years ago challenging the constitutionality of the prepublication review system. Here’s why this is disappointing, and a big deal. THREAD 🧵 The prepublication review system is a sprawling, byzantine system of prior restraints that restricts the speech of literally *millions* of former public servants. /2

SCOTUS denied cert this morning in our case asserting a First Amendment right of access to opinions of the Foreign Intelligence Surveillance Court. Gorsuch and Sotomayor dissent, asking "If these matters are not worthy of our time, what is?" supremecourt.gov/orders/courtor… A real disappointment, esp since some of us have been litigating this issue for fifteen years. And also because we are right on the merits. Still, was great to work with @PatrickCToomey @MFIAclinic @AlexanderAbdo @DavidColeACLU @HinaShamsi @WangCecillia and Ted Olson on this.

NEW: Through FOIA litigation, @knightcolumbia has obtained hundreds of legal memos written by the Office of Legal Counsel, as well as indices listing unclassified final memos written by OLC during the twelve-year period after the Second World War. /1 justsecurity.org/77441/long-wit… This litigation—which we filed with @accountable_org and a group of prominent historians—is part of a broader project meant to shed light on the workings and influence of an office that has shaped US government policy largely invisibly for decades. /2

Rumsfeld gave the orders that resulted in the abuse and torture of hundreds of prisoners in US custody in Afghanistan, Iraq, and Guantanamo Bay. This should be at the top of every obituary. From a 2002 FBI document. thetorturedatabase.org/document/lette…

My view (which is shared by my @knightcolumbia colleagues): The @OversightBoard's ruling is thoughtful and smart. THREAD The board justifiably criticizes Facebook for the standardlessness of its decision to ban Trump from the platform indefinitely.

The Fourth Circuit will hear argument this afternoon in Edgar v. Haines, a challenge to the prepublication review system—the system that requires millions of former public servants to submit their writing to government censors for prior review. 1/x knightcolumbia.org/cases/edgar-v-… There’s agreement across the political spectrum that the system is fundamentally broken. It’s “racked with pathologies,” as @oonahathaway and @jacklgoldsmith have written. It violates former employees’ First Amendment right to speak as well as the public’s right to hear. 2/x

McMurtry was, among many other amazing things, an eloquent and determined opponent of the McCarran Walter Act's ideological exclusion provisions, under which many prominent critics of US foreign policy were denied visas to speak or teach in the US. /1 nytimes.com/2021/03/26/boo… This is from testimony he gave to Congress in 2005 on behalf of @PENamerica. /2 pen.org/larry-mcmurtry…

Silberman dissent in Global Witness defamation case says NYT v Sullivan, usually considered the foundation of free press in the United States, is a "threat to American Democracy." cadc.uscourts.gov/internet/opini… Leaving the merits of this argument to the side, the capitalization of "American Democracy" is very weird.

The First Amendment has become disconnected from the values it was meant to serve, exhibit 158. nytimes.com/interactive/20… And I mean, seriously, who in their right mind would want their mom to have this technology.

Here's what Biden, Congress, and US business and civic leaders should do in response to the #Khashoggi killing. 🧵

https://twitter.com/JameelJaffer/status/1365371386148102150

First, Biden should release other key docs about the killing—like the still-withheld CIA report, as well as records showing what U.S. intel agencies knew about the Saudi regime’s plans for Khashoggi, when they learned it, and what they did about it. justsecurity.org/63955/intellig…

Facebook’s Oversight Board is going to review Facebook’s decision to deplatform Trump. Here’s what @knightcolumbia submitted to the FOB earlier today. 1/X knightcolumbia.org/documents/subm… The first part of our argument will be familiar to anyone who has heard us talk about Twitter’s decision to ban Trump. 2/X

The new admin has taken important steps to make government more transparent and reaffirm the freedoms of speech and the press. Here are some of them. /X It has said it will publish White House visitor logs. /2 politico.com/news/2021/01/1…

Some quick thoughts about the social media companies suspending Trump’s accounts. /1 nytimes.com/2021/01/07/tec… The platforms should have a heavy bias in favor of leaving political leaders' speech up. Not because platforms owe this to political leaders, but because they owe it to the public. /2

Laura Poitras says the Assange indictment poses a grave threat to press freedom. She's right. 1/x nytimes.com/2020/12/21/opi… It doesn’t matter whether Assange himself is a properly described as a journalist. He’s being charged for acts that are integral to national security journalism. 2/x