Reno: Chilling Effect and the PATRIOT Act

by Rachel Rogers

Sept. 11, 2001 marked the beginning of a new era for the United States government. Shortly after the terrorist attacks in New York, a bill was passed to create preventative measures against similar activity.

President George W. Bush passed the Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism Act in response to the Sept. 11 attacks. The Act, better known as the USA PATRIOT Act, was 342 pages in its entirety and became a bill Oct. 26, 2011—three days after its introduction to Congress.

The USA PATRIOT Act allows government police agencies to access any tangible item without proving “probable cause,” section 215 of the act states. The act allows for surveillance of personal information such as medical, financial, education, and library records.

Domestic terrorism was redefined in the USA PATRIOT Act to include intimidation or coercion of civilians and government policy. The definition also prohibits conduct affecting the government by mass destruction, assassination or kidnapping, the act stated. Punishment is prison for 10 years to life.

Citizen concern about the USA PATRIOT Act going “too far” increased 30 percent from 2002 to 2003, a Gallup poll reported.

“Many provisions of the PATRIOT Act are absolutely a First Amendment threat,” said deputy legal director of the American Civil Liberties Union, Jameel Jaffer. “Often there is a greater chill on free expression not from direct censorship, but from government monitoring.”

Jaffer said section 215 of the USA PATRIOT Act prevents valuable speech from occurring. An act of self-censorship is known as a chilling effect.

The chilling effect occurs when people choose not to speak or to speak less out of fear of the law. Speech is lessened by the threat of punishment for expressing the wrong ideas.

For example, bookstore owner Eleazar Smith fought a California city ordinance which stated no books containing “obscene or indecent” content could be sold. The Supreme Court found for Smith because the First Amendment allows for freedom of expression and the ordinance caused bookstores to restrict what they sold out of fear.

“For if the bookseller is criminally liable without knowledge of the contents…he will tend to restrict the books he sells to those he has inspected,” Justice Brennan said.

Self-censorship triggers the chilling effect, endangering First Amendment rights to the freedom of speech.

key-playersAgain, the chilling effect occurred in a case between United States Attorney General Janet Reno and the ACLU. Congress passed the Communications Decency Act in 1996. The CDA of 1996 made displaying and transmitting “patently offensive” content “as measured by contemporary community standards, sexual or excretory activities or organs” to minors illegal.

The Court unanimously voted in favor of the ACLU, one of the reasons being the chilling effect.

“The vagueness of such a content-based regulation,” Justice John Paul Stevens said, “coupled with its increased deterrent effect as a criminal statute raise special First Amendment concerns because of its obvious chilling effect on free speech.”

Congress intended to make the internet a safer place for minors yet the CDA of 1996 was rendered unconstitutional because of its vague, content-based regulation—likely to cause a chilling effect.

There are similar facets of the USA PATRIOT ACT that could create a chilling effect. Section 213 through 215 of the act outline types of invasive surveillance government police agencies can employ upon suspicion of terrorist activity.

A commentary about the effects of the USA PATRIOT Act and Latino communities written by Rhonda Rios Kravitz, exemplifies the weight of surveillance.

“The FBI… has the authority to check routinely on the reading habits of library users, including intellectuals and Chicana/Latino/a activists and civil rights leaders,” Kravitz said. “However, the right to read without fear of government surveillance is a fundamental right of our democracy. Freedom of the press cannot exist without the freedom to read.”

A library book or an internet search may be enough evidence for government surveillance. While the USA PATRIOT Act is not intended to censor citizens, the fear of surveillance may create a chilling effect.

Free expression without fear of the government is essential for discovering truth and for maintaining a stable community, said First Amendment Theorist, Thomas Emerson. To maintain free speech, citizens should not limit what they read or discuss.

If content-based censorship, like the CDA of 1996, is ruled unconstitutional, then an act allowing government to surveil citizens based on the content of their discussion or readings should also be ruled unconstitutional for fear of diminishing citizen’s First Amendment right to freedom of speech.

Works Cited:

Rhonda, R. K. (2003). Libraries, the FBI, and the USA patriot act: A chilling history.Latino Studies, 1(3), 445-451. Retrieved from http://198.29.3.5:2048/login?url=http://search.proquest.com/docview/222634316?accountid=1149
USA PATRIOT Act overview: https://www.justice.gov/archive/ll/highlights.htm
Commentary on USA PATRIOT Act: https://gjs.appstate.edu/media-coverage-crime-and-criminal-justice/usa-patriot-act
Facts about USA PATRIOT Acthttp://www.cnn.com/2015/05/22/politics/patriot-act-debate-explainer-nsa/
First Amendment perspective: http://www.firstamendmentcenter.org/patriot-act
Reno v. ACLU: https://supreme.justia.com/cases/federal/us/521/844/
Smith v. California: https://supreme.justia.com/cases/federal/us/361/147/case.html
USA PATRIOT Act text: https://www.aclu.org/other/text-usa-patriot-act
Overview of the Act: https://www.congress.gov/bill/107th-congress/house-bill/3162
Gallup poll: http://www.gallup.com/poll/9205/public-little-concerned-about-patriot-act.aspx
Sensenbrenner’s letter about USA PATRIOT ACT: http://sensenbrenner.house.gov/news/documentsingle.aspx?DocumentID=337001
Janet Reno: http://time.com/4560375/attorney-general-janet-reno-death/
Janet Reno: http://time.com/4561331/janet-reno-remembrance/,

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