What Does the Government Consider “Protected” First Amendment Activities?

The other day, AP’s Matt Lee called out State Department spokesperson Jen Psaki’s suggestion that Edward Snowden is not entitled to free speech.

QUESTION: Okay. Then I just don’t understand. I think this is an incredibly slippery slope that you’re going down here, that the U.S. Government is going down here, if you are coming up and saying to us that you’re trying to prevent an American citizen – albeit one who has been accused of serious crimes – from exercising his right to free speech. You don’t agree with that?

MS. PSAKI: I believe that what I’ve conveyed most proactively here is our concern about those who helped facilitate this event —

QUESTION: Yes.

MS. PSAKI: — and make it into a propaganda platform.

QUESTION: Right. And —

QUESTION: Or a public asylum —

QUESTION: — the propaganda platform aside, free speech covers propaganda. Last time I checked, it covers a lot of things. And I don’t see, unless he’s somehow violated U.S. law by speaking at this – at the Russian – the transit line at the Russian airport, I don’t see why you would be disappointed in the Russians for, one, facilitating it, but also, apparently from what it sounds like, tried to discourage them from – tried to discourage this – them from allowing this event to take place in the – to take place at all.

MS. PSAKI: Well, Matt, this isn’t happening, clearly, because we wouldn’t be talking about it, in a vacuum. And this is an individual, as we all know, who has been accused of felony crimes in the United States. We have expressed strongly our desire to have him returned —

QUESTION: I understand.

MS. PSAKI: — to face those charges. This is all applicable context to these circumstances.

QUESTION: But as you have also said, he is a U.S. citizen.

MS. PSAKI: He is, yes.

QUESTION: He remains a U.S. citizen, and he enjoys certain rights as a U.S. citizen. One of those rights, from your point of view, is that he has the right to come back and face trial for the crimes he’s committed. But the rights that you’re not talking about are his right to free speech, his right to talk with whoever he wants to, freedom to assemble. I don’t understand why those rights are – why you ignore those and simply say that he has – that he’s welcome to come back to the United States to exercise his right to be tried by a jury of his peers. Why is that the only right that he gets, according to this Administration? [my emphasis]

As it happens, I read it about the same time i read this passage, from the government’s opposition to Basaaly Saeed Moalin’s challenge to the FISA-derived evidence against him (see this post for more background).

Moalin claims he was fargeted for FISC-authorized surveillance in violation of FISA’s stipulation that no United States person may be considered a foreign power or an agent of a foreign power solely on the basis of activities protected by the First Amendment. Docket No 92 at 18-19 (citing 50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A)). Although protected First Amendment activities canot form the sole basis for FISC-authorized electronic surveillance or physical search, not all speech-related activities fall within the protection of the First Amendment. See infra at 70.

That is, when faced with limitations on surveillance based on First Amendment activities, the government claimed that not all speech is protected.

(Note, I’m not certain because the page numbers listed in this unclassified motion are to the pagination of the classified motion, but I believe that reference to speech that is not protected is redacted.)

That’s important because of the narrative the government presented in this motion (which is different from what Sean Joyce presented to the House Intelligence Committee — I believe both narratives are in fact badly misleading).

In the materials presented in this case, the government suggests FISA-authorized surveillance on Moalin’s calls with al-Shabaab warlord Aden Ayrow started, out of the blue, in December 2007, several months before al-Shabaab was listed as a Foreign Terrorist Organization. I’m not aware of any evidence it presents that precedes these calls. Yet these early calls show no evidence of criminal behavior.

Thus, the evidence suggests that merely calling someone considered a terrorist but whose group was not yet officially designated as such by the government makes one an agent of a foreign power.

Notably, this surveillance took place before SCOTUS in Holder v. Humanitarian Law Foundation expanded material support to include First Amendment protected activities. But Moalin’s own brief claims (not entirely convincingly, but the claim is defensible for the beginning of the surveillance period) that his independent support for Ayrow was clear First Amendment activity.

The statute includes an additional restriction for electronic surveillance of a “United States person,” as it prohibits finding probable cause for such a target based solely upon First Amendment activities. In making that probable cause determination, the statute directs “[t]hat no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment . . .” §1805(a)(2)(A).

Accordingly, if the target participated in First Amendment activities such as expressing support, urging others to express support, gathering information, distributing information, raising money for political causes, or donating money for political causes, these activities cannot serve as a basis for probable cause for a FISA warrant.

And, Moalin’s brief goes on, even a 2009 FBI report on Moalin (written after the end of the surveillance described in case documents) described his activities with respect to Somalia in terms of that kind of political, even tribal, support.

Here, that limitation on FISA surveillance is relevant because of the information provided in the FIG Assessment. For example, the FIG Assessment notes that Mr. Moalin had “previously expressed support for al-Shabaab[.]” See Exhibit 1, at 1. See also ante, at 5. Such “expression” clearly implicates protected First Amendment conduct. Also, the FIG Assessment adds that Mr. Moalin “likely supported now deceased senior al-Shabaab leader Aden Hashi Ayrow due to Ayrow’s tribal affiliation with the Hawiye tribe/Habr Gedir clan/Ayr subclan rather than his position in al-Shabaab.” Id.

Again, that evaluation does not include an allegation of material support, and the “support” mentioned could very well be limited – especially since the FIG Assessment describes it in benign terms – to protected First Amendment activity. See Humanitarian Law Project v. Holder, ___U.S. ___, 130 S. Ct. 2705, 2710 (2010) (material support does not include independent advocacy, or even mere membership in a proscribed organization).

Ultimately, the government presents no evidence in unredacted court documents about what evidence justified surveilling Moalin before such time as his activities amounted to material support.

Indeed, the Indictment does not allege any material support – in the form of a house and/or financial contributions by Mr. Moalin – to al Shabaab until January 2008 (Count 5) and February 2008 (see Count 3, Overt Act 5, at p. 5), respectively. That, of course, begs the question whether there was any basis, other than protected First Amendment activity, for commencing FISA surveillance on Mr. Moalin. Should the answer be in the negative, the FISA surveillance would be invalid under §1805(a)(2)(A).

Mind you, the entire section after the government discusses speech that is not protected — a section that clearly addresses the FIG conclusions — is redacted. And I think it highly likely that the government accessed already-collected contacts between Moalin and Ayrow sometime months later, using the Section 215 call record database as an index to locate those earlier calls. It’s quite possible, in other words, that the surveillance actually “started” at a time after Moalin had begun giving Ayrow money and after al-Shabaab got listed, making such support illegal material support. It’s quite likely (and other government claims in its brief back this up) that the government used future events to authorize surveillance encompassing communications before those events.

The government, I suspect, retroactively labeled clearly protected speech unprotected speech because that speech would subsequently lead to unprotected speech.

It’s funny how these secret designations work.

But that’s not the claim the government makes in its unclassified case. On its face, it argues that Moalin’s calls two months prior to al-Shabaab’s terrorist designation, which effectively express support for Ayrow’s efforts to defend their tribal lands, constitute probable cause to designate Moalin an agent of a foreign power.

And in any case, the claim is rather interesting, given the Administration’s insinuation that Edward Snowden should be stripped of his right to free speech, whether propaganda or no.

Update: Or I could be wrong. FBI’s Stephanie Douglas just said the investigation started when NSA passed on a San Diego phone number in October 2007 (two months before the wiretap started). And that based on that they started the investigation.

Incidentally, Douglas also dated the earlier investigation of Moalin to a 2003 anonymous tip, with the investigation closed in 2004.

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13 replies
  1. JThomason says:

    That expression captured in the thumbnail for the video is priceless. It says so plainly: “free speech, what a foreign, puzzling notion.”

    Edit: In answer to the question posed: The government probably is OK with citizens exercising their free speech by way of using their dollars under the Citizen’s United money is speech approach to make purchases of automobiles, insurance, coal and nuclear generated energy, and food stuff produced by government subsidized farms. Additionally the repayment of mortgages is protected.

  2. P J Evans says:

    When did failing government and civics classes in HS (and before) become a prerequisite for working as a government spokesperson?

  3. Frank33 says:

    MS. PSAKI: I believe that what I’ve conveyed most proactively here is our concern about those who helped facilitate this event –
    QUESTION: Yes.
    MS. PSAKI: — and make it into a propaganda platform.

    And the US Government can now use taxpayer money to catapult propaganda. Jen had a problem with propaganda after John Kerry swiftboated himself. Snowden is not allowed to catapult propaganda.

    Jen is vice-President of Global Strategy Group. They brag about catapulting propaganda.

    Our team has a keen understanding of the way the media thinks and works. We know what’s newsworthy, and what it takes to generate headlines. And we enjoy strong relationships with hundreds of reporters, editors, producers and bookers at media outlets across the U.S and around the world. Whether your goal is to make front page news or keep your name out of the papers, our media relations experts can help.

  4. C says:

    @Frank33: Good find!

    One of the things that used to mystify me about events like these was just how hollow the claims sounded. As PJEvans noted she comes across like she failed a basic civics course. I used to think that spokespeople like this saw us all as idiots. The more I read about the bubble-culture of DC I realize that they, at least in part, believe their own propaganda. Like DiFi they believe that Snowden is a traitor and just don’t understand that the rest of the world sees it differently.

    …and they think we’re idiots.

  5. joanneleon says:

    That press conference was a real eye opener. Media did a good job.

    Speaking of pressers, Carney just said, when asked about Morsi, that “we believe that those who are being held without charge should be released.”

    Yes, he really said that with a straight face.

  6. Ben Franklin says:

    Marcy; Hearing some disturbing news. It appears Michael Hastings cremated (without family permission) remains have been returned in an urn. I guess there’ll be no independent autopsy.

  7. cregan says:

    A farce of free speech. Snowden should be able to say whatever he pleases. If the government wishes to charge him with something, and proves it, he still has the right to say what he pleases from a cell. Free speech is free speech.

  8. * says:

    Good for Matt Lee for pointing out, as Ban Ki Moon has said, that the state can’t pick and choose your rights.

    In October the government will be facing more informed and pointed questions concerning real rights instead of revoked constitutional boilerplate of purely antiquarian interest like the first amendment. The Human Rights Committee will be asking about:

    – The human right to freedom of association, UDHR Article 20, part of federal common law and of the common law of every state, and ICCPR Article 22, supreme law of the land by Constitution Article VI equivalent to federal statute, with which the US is bound by treaty to comply at all levels of government;

    – Or the human right to freedom of expression, UDHR Article 19, federal and state common law, and ICCPR Article 19, supreme law of the land equivalent to federal statute, with which all levels of the US government are bound to comply;

    along with all our other civil and political rights.

    Best of all, since the US has signed the International Court of Justice statute, the US judiciary must interpret these rights based on international precedents and experts in international law including the Human Rights Committee. These rights may not be perverted or waved away by the US judges that NSA spies on and blackmails. The US government is on the hook.

  9. earlofhuntingdon says:

    What does this government consider “protected” First Amendment speech? Nada. “Unprotected” speech, like “insurgent” or “suspected terrorist” (read all males/people within a blast radius) is as malleable as need be in order to provide after-the-fact-coverage for whatever the government – or, more likely, its outsourced private intel provider – is looking at.

  10. orionATL says:

    while the topic here is the content of a portion of a state department briefing, for me the central story and moral of the briefing is its context not its content.

    consider:

    – a major department of the u.s. government, the u.s. state department, is addressing the citizens it serves. it is addressing them thru a “briefing” before print and electronic media reporters. these reporters are the intermediaries between state dept officials and the citizenry with regard to what the state dept is doing.

    – the person chosen by the state dept to speak to reporters and thus the citizenry is a p.r. specialist, jen pzacki. she is by definition of the profession expected to be skilled in evading, misleading, and lying to the public to the benefit of whomever her employer may be. (incidentally, pzacki is a long-time obama campaign employee.)

    – why are state dept briefings for reporters and the citizenry not conducted by state dept officers familiar with the problem du jour?

    why must reporters, and then citizens,try to understand what the dept of state is doing in their name when it has been filtered and sanitized with an explanation by a professional evader or liar?

    – would it not be better if the state dept, the dod, the whitehouse were disallowed from having press briefings unless an elected or appointed official conducted them?

    – how did this nation end up with such a pathological key information pathway? one designed to kerp citizens from knowing and understanding, rather than helping them know and understand?

    – how does someone like a jen pzacki or a jay carney rationalize to themselves deliberately, calculatedly blocking citizen’s access to accurate info about what their government is doing?

    what fey, foolish loyalty to obama (or bush or clinton) or ruthless, blind careerism could help a pzacki or carney rationalize the deceit they employ and the harm to the nation they do?

  11. jawbone says:

    From Wiki’s bio of Jen Pasaki:

    Career

    Psaki began her career in 2001 with the re-election campaigns of Iowa Democrats Tom Harkin and Tom Vilsack. Psaki then became deputy press secretary for John Kerry’s 2004 presidential campaign. From 2005 to 2006, Psaki served as communications director to U.S. Representative Joseph Crowley and regional press secretary for the Democratic Congressional Campaign Committee.[3]

    Throughout the 2008 presidential campaign of U.S. Senator Barack Obama, Psaki served as traveling press secretary.[3] After Obama won the election, Psaki followed Obama to the White House as Deputy Press Secretary and was promoted to Deputy Communications Director on December 19, 2009.[4][5] Psaki left that position on September 22, 2011 to become senior vice president and managing director at the Washington, D. C. office of public relations firm Global Strategy Group.[6][7]

    In 2012, Psaki returned to political communications as press secretary for President Obama’s 2012 re-election campaign.[8] On February 11, 2013, Psaki became spokesperson for the United States Department of State.[8] Her hiring at the Department of State has fueled speculation that she is likely to replace White House Press Secretary Jay Carney when he leaves the White House.[9]

    Is she on leave from GSG? Or did she just take a few months in the private sector to earn some bigger money? She sure wasn’t gone long from political/government work.

  12. Frank33 says:

    Jen kept repeating “Do The Right Thing”. Remember the Spike Lee film. Jen is slick, stealing a slogan of liberation, to twist into her support of repression by the Secret Government. But Snowden is the one doing the right thing.

    I do think Jen has a “tell”, hair flicks.

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