Unconstitutional! but hold that thought…

Yes! A judge has just said (again) that NSLs are unconstitutional!! Well, duh, we knew that. But it’s good to have it on record, and with a civics lesson built right in.

Specifically, the automatic and unlimited gag order, and the indiscriminate way in which they’ve been handed out, offers the FBI an opportunity to suppress speech based on its content – broadly and indefinitely. That’s a violation of the first amendment. Later in the decision the judge apologizes for stating the obvious, but points out that our system of government is built on a separation and balance of powers. Congress may decide benightedly to hand its authority over to the executive, but they can’t make laws that do the same with the powers of the judicial branch. That’s a violation of the doctrine of the separation of powers, so NSLs are unconstitutional on those grounds. (The law, passed by Congress, says the executive doesn’t have to pay attention to those men in black dresses. Well … that’s not within their authority. Whoops!)

The decision (built around a John Doe – but not the John Doe of the library case, because the government dropped their gag order to avoid losing in court) – has been stayed pending appeal. So if you get an NSL, don’t tell anyone.

Meanwhile, in another matter, the Justice Department just told the FCC that they oppose net neutrality. Their pals at AT&T might suffer and that would hurt consumers because … uh … let’s see …. oh yeah! If AT&T couldn’t charge more, they couldn’t use that money to develop the Internet to its full potential and that would be bad for us. Screw libraries and universities, what do they contribute? Bunch of troublemakers.

About Barbara Fister

I'm an academic librarian at Gustavus Adolphus College in St. Peter, Minnesota. Like all librarians at our small, liberal arts institution I am involved in reference, collection development, and shared management of the library. My area of specialization is instruction, with research interests also in media literacy, popular literacy, publishing, and assessment.

2 thoughts on “Unconstitutional! but hold that thought…

  1. In regards to “(The law, passed by Congress, says the executive doesn’t have to pay attention to those men in black dresses. Well … that’s not within their authority. Whoops!)”

    Actually, they MAY have the authority to do just that. Take a look at Wikipedia, “By exercising these powers in concert, Congress may effectively eliminate any judicial review of certain federal legislative or executive actions and of certain state actions.”

    http://en.wikipedia.org/wiki/Jurisdiction_stripping

    This is something I first heard of when I was in law school.

  2. Perhaps in some cases, but not when it comes to the first amendment. In the decision itself, the argument starts on page 64 with the header, “Congress cannot legislate a standard of review at odds with first amendment jurisprudence.” It goes on to find that actions that affect fundamental rights can’t be exempted from judicial review. The current law – that says basically “trust us unless you have evidence to believe we’re acting in bad faith” and that insists on nondisclosure that does not tailor its area of concern narrowly enough – is unconstitutional because it shuts off individuals from any discussion of whole areas of concern without basic rights being subject to the usual checks provided by the balance of powers.

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