Loose Lips and Other Slips

It is good news that Total Information Awareness has been blocked, at least for the moment. The great computerized search engine that was to have scrutinized our every blip has been put on hold by Congress. That John Poindexter, convicted of lying to Congress, was to have headed the project seems to have scared even the most loyal of Republican party-liners. Our fear should be only partly assuaged, however, because even in the absence of one big computer roundhouse, the recent and increasing consolidation of intelligence and law enforcement agencies still makes for an interconnected database of sweeping and potentially intrusive dimension.

While agencies' sharing knowledge is important in dangerous times, the consolidation is justly controversial because of concerns about privacy and free speech. Yet when I discuss this with non-lawyer friends, many seem worried in an abstracted fashion, as though surveillance were an inconvenience on the order of a nosy and fussbudgety old neighbor. In many people's minds free speech is a "right" to hurl epithets at politically correct wusses, and to do so with no fear of having your fraternity suspended.

But what is at stake in the First Amendment is the ability to criticize the government, not one's classmates, with no fear of prosecution. It has always been a tricky proposition for the government to distinguish words that subvert, or threaten, or terrorize, from those that are passionately, unpleasantly and publicly disagreeable. Public accountability is how we have at least theoretically monitored that tension based upon an understanding that our institutions comprise an intricate web of checks and balances: a precise law from the legislature, executive action in extreme cases, that action checked by strong and independent judicial oversight.

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