The Big Chill: the Chilling Effect on First Amendment Freedoms of Speech and Association Caused by Government Surveillance

October 10, 2014

On September 11, 2001, our nation suffered horrific terrorist attacks in New York City and Washington, D.C. that resulted in the tragic deaths of thousands of American citizens. In the wake of these attacks, the United States government responded with the War on Terror, which included military action, intelligence activities, and new laws and regulations intended to promote national security and prevent future attacks. The use of electronic surveillance in gathering information as a potential means to stop terrorism was one facet of the government response to the attacks.
According to Merriam-Webster’s dictionary, the word “dragnet” is defined as “a net that is pulled along the bottom of a river, lake, pond, etc. to search for or collect something” or, alternatively, “a series of actions that are done by the police in order to catch criminals” “Surveillance” is defined as “the act of carefully watching someone or something especially in order to prevent or detect a crime”. All three of these definitions come together nicely to give meaning to the term “dragnet surveillance,” in that it is basically a gigantic, metaphorical net cast over the entire country to collect information for the purpose of preventing or detecting terrorism.
As part of the War on Terror, President Bush authorized the Terrorist Surveillance Program (“the Program”) by executive order in October 2001. This was revealed to a surprised American public by a USA Today article in May 2006. Multiple lawsuits have been filed against both the U.S. government and the telecommunications companies regarding this program. These lawsuits allege, amongst other things, that the Program is an infringement of the First Amendment freedoms of speech and association. In the vast majority of these cases, the discussion is centered around the effects this program has had on individual rights. However, organizations are also affected by the Program.
The First Amendment to the U.S. Constitution states: “Congress shall make no law […] abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble[.]” When most of us imagine violations of this edict, we usually think of a situation in which a government agency or official directly tells us that we cannot say something that we want to say. Although this scenario is the most obvious way to violate these rights, there are more subtle actions that a government might take that can also have the effect of discouraging an individual from making a statement that she would have otherwise made. This concept is known as the “chilling effect” and, depending on the circumstances, it can be just as, if not more, damaging to our rights to free speech and association as an outright prohibition would be.
Anonymity can often be a key aspect of the freedom of association, as illustrated by NAACP v. Alabama, in which the Supreme Court held that it violated the First Amendment to require the NAACP to turn over its membership rosters to the state. This effect is particularly burdensome on advocacy groups and, in fact, the Electronic Frontier Foundation has collected first-hand accounts from twenty-two advocacy organizations that have experienced a chilling effect as the result of the surveillance program in First Unitarian Church of Los Angeles v. NSA. The groups affected represent a variety of different interests, from gun ownership to marijuana legalization to religion to technology, but they all have one thing in common – they have been negatively affected by the revelation of domestic government surveillance. Most of these organizations have experienced a reduction in communications from constituents, as well as increased concerns from members regarding their privacy.
The First Unitarian Church case clearly illustrates the chilling effect that the Program has had on organizations in this country, but it also indirectly reveals indirect negative impacts that domestic surveillance has on individuals. For example, the sharp decrease in communications following the revelation of the Program is indicative of a personal unwillingness to discuss controversial topics now that there is awareness that someone could be listening.

A statement by the leader of Human Rights Watch, a party to the lawsuit, plainly highlights the potential detriment to society of this chilling effect on individuals: “I believe that some individuals may have refrained from reporting humans rights abuses to us and some partners may have refrained from contacting us due to their concerns about security and confidentiality.”