Jenner & Block

Berman Addresses First Amendment Rights During Wartime

Partner Debbie L. Berman and a veteran panel of judges, activists, and journalists led the panel discussion “The First Amendment:  What Are Reasonable Restrictions in Time of War?” at Columbia College Chicago on Thursday.  The forum was sponsored by the Chicago Headline Club, the Chicago Press Veterans Organization,  the International Press Club of Chicago, the Illinois Library Association and Columbia, and especially addressed wartime restrictions on civil liberties in the United States since September 11, 2001.

The Hon. William J. Bauer moderated the panel.  Besides Ms. Berman, the panel included Jerry Crimmins, Senior Reporter for the Chicago Daily Law Bulletin; Judge Michael J. Howlett, currently a visiting professor of law at Loyola University Chicago; Judith F. Krug, Director of the American Library Association’s Office for Intellectual Freedom to Read Foundation; and Edwin C. Yohnka, Director of Communications for the American Civil Liberties Union of Illinois.

Among other things, the panel discussed how National Security Letters (NSL’s) have changed the landscape of civil liberties since September 11.  NSL’s are a request from the FBI demanding potentially sensitive and constitutionally protected information without judicial oversight.  Before 2001 passage of the Patriot Act, the FBI could use the NSL authority only against suspected terrorists and spies, said Mr. Yohnka, but the power of NSL’s has now been expanded greatly during the war on terror.

“With the recent cases of NSL’s being delivered, only one side of the debate on civil liberties during wartime is being heard,” said Ms. Berman, a member of Jenner & Block’s Media and First Amendment Practice and Co-Chair of the Firm’s Trade Secrets and Unfair Competition Practice.  “When you take judicial review out of the equation to facilitate efforts to fight terrorism, you disrupt this system of checks and balances that’s been put in place.” 

Ms. Berman mentioned one casualty of September 11 in specific:  recent infringements by the government to curtail freedom of the press, including restrictions on reporters trying to cover the return of coffins from Iraq.  Jenner & Block Partner Daniel Mach filed a lawsuit in a District of Columbia federal district court on behalf of journalism professor Ralph Begleiter over this issue, under the Freedom of Information Act.  

She also noted that the intimidation factor of a police officer or federal agent demanding information that normally would require a search warrant is high.  Examples of the types of information that could be obtained, she said, include records of web site visits from Internet Service Providers or library materials borrowed.

"To those who don't know the details and context of how our Constitution's First Amendment works, it could be scary if a figure in authority comes to one's door and demands information that is normally seen as private and confidential," Ms. Berman said.  "Not everyone who is faced with that question knows whether or not the official's request is legitimate one or not, and these requests are becoming more and more frequent in our current climate."