A Federal District Judge Holds the Amended Patriot Act Unconstitutional

By MICHAEL C. DORF

Wednesday, Sep. 12, 2007

In 2004, federal district judge Victor Marrero ruled that an important provision of the USA Patriot Act was unconstitutional. That provision expanded the authority of the FBI to obtain personal records from telephone companies and Internet Service Providers (ISPs) by issuing "National Security Letters" (NSLs), which do not require prior judicial approval and were not subject to judicial review. Judge Marrero ruled that the Act violated the Fourth Amendment as an excessive intrusion on privacy. He also ruled that the Act violated the First Amendment because the recipient of a NSL was barred, under the Act, from ever disclosing that fact to the target or anyone else.

While Judge Marrero's 2004 ruling was pending on appeal, Congress reauthorized and amended the Patriot Act, providing for limited judicial review of NSLs and replacing the blanket prohibition on disclosure of a NSL with more circumscribed limits. Nonetheless, last week Judge Marrero invalidated the new disclosure limits. Although the plaintiffs did not raise Fourth Amendment objections to the amended provisions, they objected on First Amendment and separation-of-powers grounds. In last week's ruling in Doe v. Gonzales, Judge Marrero accepted the heart of the plaintiffs' argument.

As I shall explain in this column, Judge Marrero's latest ruling is questionable in important respects. The First Amendment precedents on which he relies are not entirely on point and his separation-of-powers analysis does not--or at least should not--add anything to his First Amendment arguments.

Nonetheless, at its core, the opinion makes sense insofar as it provides heightened free speech protection as an indirect means of protecting a right to personal privacy. Although the U.S. Supreme Court has indicated that analysis of individual rights should proceed under one constitutional provision at a time, the more holistic approach implicit in Judge Marrero's ruling is preferable.

The Free Speech and Separation-of-Powers Grounds for the Ruling

As a result of amendments to the Patriot Act, the current version of Section 2709 of Title 18 of the U.S. Code forbids the recipient of a NSL from disclosing the fact of receipt if the Attorney General or his designee certifies that such disclosure "may result" in "a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person."

Thus, Judge Marrero concluded last week, this provision operates as a "prior restraint," the most dangerous sort of speech restriction known to First Amendment doctrine. Indeed, prior licensing of the press was the principal evil that the framers of the First Amendment had in mind.

Accordingly, Judge Marrero determined that Section 2709 must satisfy the strictest standard of judicial scrutiny. However, because (among other things) Section 2709 confers too much discretion on the Attorney General or his designee, Judge Marrero held that it violates the strictures of prior cases that require clear standards to cabin the discretion of speech licensors.

In addition, Judge Marrero ruled that Section 3511 of Title 18--which governs judicial review of NSLs--violates the constitutional principle of separation of powers because Congress lacks the authority to substitute a lower standard of review for the standard required by the First Amendment.

The Weaknesses in Judge Marrero's Analysis

Neither of Judge Marrero's conclusions is unassailable. Indeed, the separation of powers argument seems particularly weak. Judge Marrero is correct that Congress cannot authorize judicial review under a lower standard than the First Amendment prescribes, but that is not because of separation of powers; it's because of the First Amendment.

Judge Marrero is thus wrong when he states that the separation of powers problem arises independent of the First Amendment. If one were to assume that the First Amendment did not require the standard of review that Judge Marrero believes it does, then Congress would be free to prescribe its own standard. After all, Congress routinely prescribes rules--such as the Federal Rules of Evidence--that govern how federal courts evaluate presentations made to them, and such rules do not violate separation of powers.

Accordingly, the "separation of powers" argument is entirely dependent on the First Amendment argument. If there is no First Amendment violation, then there is no separation of powers violation either.

So is there a First Amendment violation? Judge Marrero thought so, and his opinion makes a plausible argument that Section 2709 operates as a prior restraint. However, the precedents he cites in support of his analysis do not seem quite on point.

Those cases involved schemes for licensing parades, concerts, films, sexually explicit publications, and other speech events with no obvious national security implications. By contrast, if a NSL has properly issued to collect data about a given target, it will usually be true that disclosure to the target will undermine the investigation. Hence, there is a plausible argument that where NSLs are concerned, the First Amendment permits a more restrictive approach.

Using the First Amendment to Protect the Fourth Amendment?

Note, however, that the crucial qualifier here is that a NSL has properly issued. The law permits NSLs to be issued without any showing that the person who is the target of the NSL is himself of herself likely to be a terrorist. The authority to issue NSLs could thus easily be abused or mistakenly invoked.

In Judge Marrero's 2004 decision, he held the original version of the Patriot Act invalid under the Fourth Amendment because it provided no opportunity for judicial review of a NSL. The reauthorized version does provide for judicial review, and for that reason, it was not directly challenged on Fourth Amendment grounds.

However, even if the current version of the law does not violate the Fourth Amendment, it still implicates privacy concerns. One might well think that the best way to protect those privacy concerns is to ensure that abuses and misuses come to light by permitting NSL targets to learn about the NSLs. One might also think that abuses and misuses are unlikely to come to light unless the government bears the burden of showing concrete threats to national security from disclosure.

In other words, we might understand Judge Marrero's ruling as using the First Amendment to protect values we most commonly associate with the Fourth Amendment. And indeed, there is language in the opinion that appears to say this is just what he is doing.

The Zurcher Problem: Can One Amendment Be Used to Bolster Rights Under Another?

Unfortunately, Judge Marrero's effort to enlist the First Amendment in the service of the Fourth Amendment may run afoul of the U.S. Supreme Court's 1978 ruling in Zurcher v. Stanford Daily. In that case, a newspaper argued that to protect freedom of the press, the police must satisfy a heightened standard in order to obtain evidence about third parties in its files. The Court rejected the argument, concluding that the press is entitled to no greater privacy than anybody else. The First Amendment, the Court said, cannot be used to bolster the Fourth Amendment rights of the press.

It is only a small extension of Zurcher to say that, conversely, the Fourth Amendment cannot be used to bolster the First Amendment rights of telephone companies, ISPs and other recipients of NSLs. If the federal appeals courts or the Supreme Court were to extend Zurcher in this fashion, then the best basis for supporting Judge Marrero's conclusion--that Fourth Amendment values should inform First Amendment analysis--would be unavailable.

The Rights in the Bill of Rights Operate Holistically, Not As "Isolated Points"

Extending Zurcher in this way would be unfortunate. The Bill of Rights consists of separately enumerated provisions, but its framers wrote them to operate holistically against both the specific threats to liberty that were salient to them from their own recent experience in the American Revolution, and those that they thought more generally worrisome for any free republic.

As Justice Harlan, dissenting (on jurisdictional rather than substantive grounds) noted in a different context in the 1961 case of Poe v. Ullman, "liberty is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."

If Judge Marrero is right in his conclusion that the current version of Section 2709 inadequately protects the ability of NSL recipients to speak on that subject, it is because of the interconnection between the recipients' speech and the targets' privacy. It would be a shame if Zurcher were interpreted to block a sensibly holistic approach to the Bill of Rights.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.

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