A First Amendment agenda for Biden’s first 100 days
American democracy is struggling — a struggle made worse by four years under a president who launched assaults on press freedom and who undermined trust in public discourse and the very notion of free speech with his endless distortions and lies. Reasserting and strengthening the freedoms of speech, the press and association should be among the Biden administration’s top priorities.
The range of speech-related challenges the new administration will confront is daunting. Many of these challenges involve novel questions at the intersection of free expression and new technologies and will require careful thought and creative solutions from federal agencies, Congress and the courts. But there are steps the administration can take on its own, in its earliest days, to roll back, revise or improve a range of practices and policies that are now undermining First Amendment freedoms and weakening our democracy.
President Biden can begin on day one by rescinding three executive orders that embodied President Trump’s authoritarian impulses: his order threatening social media platforms, a thinly-veiled attempt to punish the platforms for adding fact-checking labels to his deceptive statements; his order barring businesses and individuals from conducting many kinds of diversity training, a ham-handed effort to suppress discussions of race and social justice; and his order imposing sanctions on staff of the International Criminal Court and American scholars and advocates who work with the court, a shameful attempt to interfere with investigations of war crimes. All three of these clearly violate First Amendment prohibitions on government retribution for speech that it disfavors.
He can then take several steps to increase governmental transparency in ways that enhance public understanding of urgent issues and strengthen public confidence in federal agencies and institutions.
He can remove restraints that now prevent many of the public servants with the most to contribute to policy debates from sharing their knowledge and experience. This includes scientists and doctors serving in the Centers for Disease Control and Prevention who were barred or constrained under the Trump administration from participating in public discussions about the COVID-19 crisis and immigration judges who were likewise banned from participating in discussions of immigration policies. It also includes millions of current and former members of the U.S. Armed Forces, intelligence services and more than a dozen other government agencies who are required under policies that long predate the Trump administration to submit writings and other materials presenting their ideas and experiences to government censors before publication.
He can also lift the veil that shrouds so much executive branch decision making. For starters, he can reverse the Trump administration’s practice of withholding the visitor logs that record who meets with White House officials and the president. (We were happy to see that the President-elect’s press secretary tweeted on Friday that his administration would “return to the policy of releasing visitor logs.”) He can expand public access to the growing body of so-called secret law, the legal opinions of the Justice Department’s Office of Legal Counsel, which determine federal policy and practice in areas ranging from government surveillance and covert operations to health care and social security. He can disclaim the use of the Espionage Act to prosecute journalists, sources and publishers and strengthen whistleblower protections that were already weak and frayed even further during the Trump administration.
President Biden should also act decisively to address government policies that threaten the privacy necessary for free thought and freedom of association. He should withdraw current directives that allow Border Patrol and ICE agents to search travelers’ cell phones, laptops and other electronic devices without a warrant and rescind Trump administration rules requiring U.S. visa applicants to disclose their social media handles so that the U.S. government can collect, monitor and share whole histories of protected expressive activity. And he should impose new limits on the surveillance of journalists.
Finally, he must address perhaps the greatest stain on the Trump administration’s press freedom record. He must order the release of the Director of National Intelligence’s report on the murder of Saudi journalist Jamal Khashoggi to end United States complicity in suppressing the truth and signal a new commitment to protect press freedom at home and around the world.
With these concrete actions, President Biden can quickly recalibrate how the American people understand and exercise their First Amendment rights and set the tone for an administration that will play a decisive role in redefining First Amendment values in the digital age. Our democracy is struggling. Its future may well be determined by what we do over the next four years to protect these essential values and rights.
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