Amending the 1st Amendment

During oral arguments today in front of the Supreme Court, UACL lawyer Kelly McCarthy raised an interesting issue, which might have "flown under the radar screens" of many spectators in the court. She said that the President's Executive Order presents an undue burden to exercising first amendment rights. There are a couple of reasons that this is true.
First, the Administration has said that the warrantless searches authorized by the EO will largely be triggered by information retrieved through "chatter scanners." Basically, the idea is that these chatter scanners pick up specific words that the intelligence community has "red-flagged" as indicators of terrorist activity. When one of these scanners locates a call that has a medium to high density, frequency, or quantity of these "red-flag" words, the DoJ considers a wiretap. Due to this method of operation, many individuals, especially those here at the UACL, are afraid to use language that might initiate a tap. UACL lawyers have to be especially careful, because, due to the nature of our lawsuit regarding the EO, we use a lot of the "red flag" words in legal discussions. Ms. Perino said, when announcing the attack on Sumatra, that the initial threat had been intercepted by a chatter scanning program that caught several references to "ANSWER", "Malamar", and "Sumatra" in the same conversations. One can imagine that, as representatives of ANSWER, UACL lawyers probably mention those words more than anyone else, anywhere. Further, there is an even greater "chilling effect" on our use of certain words because a wiretap by the DoJ would be especially dangerous for the UACL, as we are suing the DoJ. Details of our case could easily be garnered using an unwarranted wiretap, simply by claiming that the DoJ picked up "chatter" originating from the UACL. This represents an abridgment of the right to free speech, as protected in the first amendment to the Constitution.

Second, the EO "abridg[es]... the right of the people to freely assemble," as protected in the first amendment. The EO authorizes surveillance of entire groups, not specific individuals. That creates a disincentive to join a certain group, out of the fear of being searched. Dana Perino acknowledged that all ANSWER communications are subject to surveillance because of the actions of one of its members. There are certainly member of ANSWER, a nationwide group, that have no animosity towards the United States, and certainly didn't have any knowledge of, or actively participate in, the attack on the US consulate in Sumatra. In this county, we don't believe in guilt by association. Just because a coworker of mine doesn't like the way America handles itself overseas, doesn't mean the government should be able to spy on me because of it. That's why the founding fathers put the protection of speech first, it's that important.

-Michael Soneff