The US Supreme Court's failure to defend First Amendment rights during the 'war on terror' has weakened democratic freedoms and strengthened the hand of authoritarian presidents, according to Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University. In a detailed critique, Jaffer argues that the court's record over the past quarter-century has left the nation vulnerable, particularly as the Trump administration deploys tools originally justified by national security concerns.
A Historical Pattern of Judicial Response
Congress ratified the First Amendment in 1791, but the Supreme Court did not fully activate its protections until after World War I. Prosecutions of antiwar protesters led Justices Oliver Wendell Holmes and Louis Brandeis, and subsequently others, to recognize that suppressing disfavored political opinions would undermine rather than strengthen US democracy.
Similarly, Cold War repression prompted the court to enhance protections for freedom of association, while government efforts to conceal ineptitude and criminality during the Vietnam War spurred stronger press freedoms. In each instance, the court responded to wartime repression by developing new legal doctrine that more robustly safeguarded First Amendment freedoms.
The War on Terror's Assault on Rights
Following the September 2001 attacks, the information ecosystem was restructured to serve what the government deemed urgent national security imperatives. The executive branch and Congress introduced new forms of censorship, surveillance, and secrecy, many in deep tension with long-understood First Amendment freedoms. Rather than limiting these policies, the court accommodated them.
The government barred the press from immigration hearings in the first weeks after 9/11. Intelligence agencies increasingly invoked national security to withhold crucial information, and the Justice Department used similar arguments to conceal legal opinions on torture and extrajudicial killing. The Bush administration revived Cold War-era visa denials for foreign scholars and artists critical of US foreign policy. Congress expanded the material-support law to criminalize some forms of speech, and the Patriot Act dramatically broadened surveillance authorities, which Congress extended repeatedly.
A Record of Judicial Avoidance
The Supreme Court declined multiple opportunities to review national security surveillance, gag orders on national security letter recipients, and public access to Foreign Intelligence Surveillance Court opinions. In the quarter-century after 9/11, the court heard about a dozen Second Amendment cases and roughly 70 involving intellectual property law, but only three cases on counterterrorism and free speech—each narrowing First Amendment rights.
In Humanitarian Law Project v Holder, the court allowed criminal penalties for providing human rights training to designated terrorist groups. In Clapper v Amnesty, which Jaffer argued, the court blocked standing for human rights groups challenging mass surveillance. More recently, in TikTok v Garland, the court rejected a First Amendment challenge to a ban on the app, crediting national security arguments even the NSA's general counsel had rejected.
Consequences for Democracy
Jaffer contends this record has handed the Trump administration tools to assault democratic institutions. Whistleblowers and journalists risk Espionage Act prosecution, demonstrators face expanded material support laws, and government secrecy on war and foreign policy has become nearly unchallengeable.
While crises have historically tested First Amendment protections, Jaffer emphasizes the court's failure to fortify these freedoms against future pressures. 'We're suffering the consequences of the court's failure now,' he writes. 'We'll preserve our democracy against Trump's assault – but there's no question that the court's record during the war on terror has strengthened the hand of our authoritarian president and weakened our own.'
