Free Speech Groups Support Patriot Act Challenge

On November 3, 2003, free speech groups representing booksellers, librarians, publishers, writers and others filed a brief that strongly supports a legal challenge to the constitutionality of the provision of the USA Patriot Act that gives the FBI virtually unlimited access to personal, organization and business records, including bookstore and library records. The U.S. Justice Department has filed a motion to dismiss the case. “The Patriot Act authorizes the FBI to engage in fishing expeditions in bookstore and library records and then bars booksellers and librarians from protesting even after the fact. Such an unprecedented extension of prosecutorial power demands immediate court review,” Chris Finan, president of the American Booksellers Foundation for Free Expression (ABFFE), said today.

The American Civil Liberties Union filed the federal lawsuit in Detroit in July on behalf of six non-profit organizations that provide a wide range of religious, medical, social, and educational services to various communities around the country. The plaintiffs allege that they are likely targets of investigation under Section 215 of the Patriot Act, which gives the FBI access to the records of almost any person, organization or business in the course of an investigation of terrorism or espionage. In a brief filed today opposing the government’s motion to dismiss, one plaintiff, the Muslim Community Association of Ann Arbor, says that attendance at prayer services and association events as well as donations have dropped dramatically as a result of fear that the government might try to obtain its records.

The book and library community has also expressed alarm about Section 215 because FBI agents do not need to prove they have “probable cause” before searching bookstore or library records: they can get access to the records of anyone whom they believe to have information that may be relevant to a terrorism investigation, including people who are not suspected of committing a crime or of having any knowledge of a crime. The request for an order authorizing the search is heard by a secret court in a closed proceeding, making it impossible for a bookseller or librarian to have the opportunity to object on First Amendment grounds prior to the execution of the order. Because the order contains a gag provision forbidding a bookseller or librarian from alerting anyone to the fact that a search has occurred, it would be difficult to protest the search even after the fact.

Recently, Attorney General John Ashcroft attempted to ease concerns about Section 215 by announcing that the FBI has not used it. However, critics continue to worry about the potential for abuse in the future. The amicus brief quotes a spokesman for the Justice Department upholding the necessity for the provision. Once the government decides someone is a terrorist, the spokesman explained, “We would want to know what they’re reading.”

In addition to ABFFE, the groups signing the amicus brief are the Association of American Publishers, the Association of American University Presses, the Center for First Amendment Rights, the Comic Book Legal Defense Fund, the Electronic Frontier Foundation, Feminists for Free Expression, the First Amendment Project, the Freedom to Read Foundation and PEN American Center.

Click here to view the amicus brief, which was written by Dan Mach and Theresa Chmara of Jenner & Block.


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