Media and the First Amendment Since 9/11

**Kusha Navadar** (0:10)
It's The Brian Lehrer Show, I'm Kusha Navadar filling in for Brian today here on WNYC.
We are approaching the 25th anniversary of the September 11th terror attacks in just a few weeks. And here on The Brian Lehrer Show, we'll be reflecting on this anniversary and how much our world has changed over these 25 years. Our next guest looks at one massive way the world has changed since then, and that's the impact of the war on terror, on democracy, and civil liberties both here in the United States and beyond. In the immediate aftermath of 9-11, a lot of us can remember the ways in which First Amendment rights started getting couched in the name of safety and freedom, with the Bush administration's press secretary at the time even telling Americans to watch what they say.
But this level of word policing and surveillance didn't stop with the Bush administration or the attacks on those responsible for 9-11. And our guest today may argue that the world we live in today is still living in response to those attacks. My guest today is Jameel Jaffer. He's the executive director of the Knight First Amendment Institute at Columbia University. Prior to that, he was a litigator at the American Civil Liberties Union, where he argued cases around issues like surveillance, censorship and other human rights and national security issues. He's also a professor at Columbia University, aptly teaching a course called War and Speech Next Spring, which is very apt for today's conversation. Professor Jaffer, welcome to WNYC.

**Jameel Jaffer** (1:42)
Thanks so much.

**Kusha Navadar** (1:43)
Listeners, we want to hear from you. 25 years out, what do you make of the world that 9-11 brought? Were the sacrifices we were told to make for our safety worth it? Did we over-correct? Or do you think we're heading in the right direction? Call or text us at 212-433-WNYC. That's 212-433-9692.
Okay. So Professor Jaffer, whenever we talk about history, there's this question I have of where do you start the clock? When it comes to free speech in the moment we live in now, why do you think it's important to start the clock at 9-11?

**Jameel Jaffer** (2:20)
Yeah, I guess I wouldn't start the clock at 9-11, but I think it's important to recognize how transformative 9-11 and the War on Terror have been for the freedoms of speech and the press. I think that in general, there is, I would say, broad recognition that the War on Terror transformed our society and our democracy in so many different ways, from concentrating power in the executive branch, the growth of the intelligence agencies, new forms of secrecy and surveillance, and the courts basically limited all sorts of individual rights in the name of national security. I think that there's broad recognition of that, but less appreciated is the ways in which the war on terror transformed the First Amendment. But it really did. There were all sorts of new forms of censorship that were introduced after 9-11. There were new surveillance programs, new forms of secrecy, the material support laws were expanded so that they reached pure political speech for the first time, meaning that for the first time, the Supreme Court allowed the government to criminalize certain forms of pure political speech.
The Espionage Act was used by successive administrations, not just the Bush administration, but the Obama administration and the Trump administration as well, to prosecute reporter sources, as well as in the case of the Trump administration, prosecute a publisher, Julian Assange, for doing the kinds of things that reporters do all the time. So the war on terror, yes, transformed our democracy in all sorts of ways, but importantly really did change the freedoms of speech and the press in ways that still affect our lives today.

**Kusha Navadar** (4:34)
I think it's super interesting when I hear you say that those elements are underappreciated. Can you talk about that a little bit more? Because you're making a comparison here between the concentration of power to the executive branch as one of the many things that you're saying folks are generally aware of and cognizant of, but then the First Amendment changes are less appreciated. Tell me more about that.

**Jameel Jaffer** (4:56)
Yeah, well, I think that when we think back on the war on terror now, even that phrase, the phrase comes from something that President George Bush said on September 16th, 2001 He said, he used the phrase war on terrorism for the first time. He said, this crusade, this war on terrorism. And the use of the word crusade got some attention at the time, but the meaning of war on terrorism, I think, became clear only over time.