Safeguard Freedom of Speech

Free speech has been under attack during the Trump administration. The Knight First Amendment Institute at Columbia University suggests five ways the Biden administration can protect these constitutional rights.

Jameel Jaffer
January 13, 2021

When President-elect Joe Biden is sworn into office this month, his administration will have a long to-do list for those first 100 days. Columbia News asked faculty members from across the University to identify the most pressing issues facing the country and offer possible solutions. 

The Biden administration will confront a host of monumental challenges relating to the freedoms of speech and the press. The massive influence that technology platforms exert over the flow of information and ideas, the aggregation of vast amounts of personal data in government and private hands, the proliferation of spyware and its exploitation by authoritarian and other rights-abusing regimes, algorithmic discrimination, the scourge of disinformation—each of these presents urgent questions relating to our system of free expression. Addressing these questions will require sustained attention by the new administration, Congress, and the courts.

But there are steps the incoming Biden administration can take on its own, in its earliest days, to reverse, roll back, revise, or improve a range of executive branch practices and policies that are now undermining First Amendment protections and, in many cases, weakening our democracy. Here are five actions that the new administration should put at, or near, the top of its list.

1. Narrow or withdraw policies that unconstitutionally restrict public servants from participating in policy debates.

Over the last four years, several federal agencies imposed or expanded speech restrictions on their employees. Some policies explicitly prohibit employees from speaking on matters of public concern even in their personal capacities. These policies violate the free speech rights of the employees and deprive the public of access to critical information and insights. The Biden administration should narrow or withdraw these policies.

2. Routinely publish White House visitor logs.

Reversing a policy adopted by the Obama administration, the Trump administration refused to publish logs disclosing the identity of visitors to the White House and fought in court against their release under the Freedom of Information Act. The public is entitled to know who has access to the administration and its decision makers. President-elect Biden has already announced that he will resurrect the Obama administration’s policy.

3. Publish the Office of Legal Counsel’s final legal opinions regularly.

The Justice Department’s Office of Legal Counsel (OLC) issues legal opinions that bind executive agencies. The OLC’s determinations are far-reaching, effectively determining federal policy and practice in areas ranging from government surveillance and covert operations to health care and social security. Although the Freedom of Information Act requires the OLC to proactively publish final opinions and statements of law and policy, the OLC in fact releases its opinions very selectively and most never see the light of day—which means that the OLC is slowly creating an immense body of secret law. The Biden administration should immediately order the OLC to publish its final, written opinions on an ongoing basis, redacting the opinions only as necessary to protect classified information or other material exempt from disclosure under FOIA. It should also instruct the OLC to conduct a systematic review of all unpublished prior written opinions, with the presumption that all such opinions should be released.

4. Rescind social media registration requirements for visa applicants.

Since May 2019, virtually all applicants for U.S. visas have been required to register with the State Department the social media handles they’ve used over the previous five years. The information the government collects through the registration requirement can be retained indefinitely in federal government files and disseminated to state, local, and foreign governments. The registration requirement imposes unjustifiable burdens on the rights of visa applicants, as well as on the rights of U.S. citizens and residents who communicate and associate with them. The Biden administration should rescind the State Department’s social media registration requirement and reject proposals to extend the requirement.

5. Reform the prepublication review system.

The prepublication review system, which requires millions of current and former employees of federal agencies to submit writings for official review and potential censorship before publication, is broken. Submission and review standards are vague and overly broad; long delays are the norm; and censors’ decisions are too often arbitrary, unexplained, or politically driven. The dysfunction of the prepublication review system has far-reaching effects, as the ongoing dispute over former National Security Advisor John Bolton’s book has highlighted. Reform is long overdue. The Biden administration should issue an executive order that narrows submission and review criteria, and establishes new procedural mechanisms to prevent abuse and guarantee timely review.

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Jameel Jaffer is the Executive Director of the Knight First Amendment Institute at Columbia University. Under his leadership, the Institute has filed precedent-setting litigation, undertaken major interdisciplinary research initiatives, and become an influential voice in debates about the freedoms of speech and the press in the digital age. This column is editorially independent of Columbia News.

This article has been adapted from a longer piece by the Knight First Amendment Institute at Columbia University. Read the full article here.