Four years ago, President Obama’s campaign platform didn’t include sweeping promises about promoting free speech. He wasn’t elected because he swore to vigorously defend the First Amendment, and to protect speakers no matter the content of their speech.
In contrast, the President did campaign on a platform of government transparency. As a transparency advocate, I can confidently say that, by almost any measure, the President failed to live up to those lofty guarantees.
But what about free expression — a value so roundly cherished in the United States that a promise to support it would almost seem unnecessary? Without a clear benchmark or unambiguous campaign commitment on the issue, it’s not so simple to assess his record. But sadly, like his commitment to transparency, the President’s commitment to free speech was often collateral damage in his pursuit of other policy objectives.
This was most evident in the administration’s actions in two areas: intellectual property and national security.
The administration’s often misguided attempts at combating online copyright infringement frequently resulted in harm to protected expression. For example, in 2010, working in close cooperation with industry trade groups like the Motion Picture Association of America and the Recording Industry Association of America, the administration began seizing the domains of websites that government officials deemed to contain infringing material. Except that wasn’t always the case: in at least two instances, the government seized — and refused to return — domain names without any apparent connection to copyright-infringing material. The seizures resulted in complete censorship of the sites for over a year.
The same is true of the administration’s heavy-handed treatment of Megaupload, an online file-hosting service. In January 2012, the Department of Justice seized Megaupload’s domains and servers, froze its assets, and attempted to have the site’s founder, Kim Dotcom, extradited to the United States to face criminal charges. While the site undoubtedly hosted some infringing content, there was also a vast amount of non-infringing content stored on the site’s servers — family photos and videos, personal documents, and other protected expression. All this unquestionably protected speech was swept up in the name of combating online copyright infringement.
While the administration’s pursuit of intellectual property enforcement caused collateral damage to protected expression, the administration’s biggest tests — and, subsequently, biggest failures — in its commitment to free speech occurred in the national security arena.
National security concerns caused the Administration to investigate and charge government whistleblowers under the Espionage Act and led to the questionable prosecution of alleged terrorists for “crimes” as innocuous as translating YouTube videos and writing vulgar and hateful poetry.
Yet nowhere were the administration’s First Amendment failings more evident than in its handling of Wikileaks. After Wikileaks published thousands of confidential (and, in some cases, classified) State Department diplomatic cables, the administration embarked on an unprecedented intimidation campaign. In particular, the Department of Justice’s long-running grand jury investigation of Wikileaks and its founder, Julian Assange, stands as a press-chilling stain on the administration’s First Amendment record. The message the administration sent through its investigation is clear: if you publish classified information — and, in particular, classified information that portrays the government in an unflattering light — we may prosecute you. Classified information is published almost daily in the country’s most reputable newspapers and magazines. Punishing the publication of truthful information about the government, absent a clear and present danger posed by the information’s disclosure, is intolerable under the First Amendment. Yet this was precisely the administration’s extraordinary approach. Indeed, the most enduring legacy of the Obama administration’s commitment to free speech may be the long shadow in cast upon national security reporting.
There were bright spots, however. The administration made promoting free expression abroad a focal point of Secretary of State Hillary Clinton’s international agenda. For example, in a thinly veiled jab at China, Secretary Clinton stated, “Countries that want to be open for business but closed to free expression will find that this approach comes at cost[.]” Secretary Clinton similarly called on regimes in the Middle East to ease restrictions on free expression.
But these are the easy cases — it’s not politically difficult to champion the rights of those living beneath repressive regimes. The true test of an administration’s commitment to free expression can only come in relation to the closer cases — those that strike near home or that implicate other policy goals. Seen through this lens, over the past four years, the Obama administration often abdicated its responsibility to protect free expression in pursuit of more politically expedient goals.
Mark Rumold is the Open Government Legal Fellow at Electronic Frontier Foundation (EFF)