VI. The First Amendment
The First Amendment provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. – U.S. CONST. Amend. I.
This Amendment, the very first which the American people required to be made to the new Constitution, was adopted, as was the Fourth, with Entick v. Carrington, and the actions of the star chamber in mind. As the Court wrote in Marcus v. Search Warrants, 367 U.S. 717 (1961):
Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure….
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This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression. Marcus, 367 U.S. at 724, 729
As Justice Brennan wrote for the Court in Dombrowski v. Pfister, 380 U.S. 479 (1965), the appellant organizations had been subjected to repeated announcements of their subversiveness which frightened off potential members and contributors, and had been harmed irreparably, requiring injunctive relief. The Louisiana law against which they complained, moreover, had a chilling effect on protected expression because, so long as the statute was available, the threat of prosecution for protected expression remained real and substantial.
Judge Wright, in Zweibon, noted that the tapping of an organization’s office phone will provide the membership roster of that organization, as forbidden by Bates v. City of Little Rock, 361 U.S. 516 (1960); thereby causing members to leave that organization, and thereby chilling the organization’s First Amendment rights and causing the loss of membership. Zweibon, 516 F.2d at 634.
A governmental action to regulate speech may be justified only upon showing of a compelling governmental interest; and that the means chosen to further that interest are the least restrictive of freedom of belief and association that could be chosen. Clark v. Library of Congress, 750 F.2d 89, 94 (D.C. Cir. 1984).
It must be noted that FISA explicitly admonishes that “…no United States person may be considered … an agent of a foreign power solely upon the basis of activities protected by the First Amendment to the Constitution of the United States.” 50 U.S.C. §1805(a)(3)(A). See also United States v. Falvey, 540 F. Supp. at 1310.
Finally, as Justice Powell wrote for the Court in the Keith case:
National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of ‘ordinary’ crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. ‘Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power,’ (citation omitted). History abundantly documents the tendency of Government –however benevolent and benign its motives – to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their politicalbeliefs. U.S. v. U.S. District Court, 407 U.S. at 313-314.
The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.
