A Stitch in Haste

[T]he World War I cases ... put the gloss of "clear and present danger" on the First Amendment. Whether the war power -- the greatest leveler of them all -- is adequate to sustain that doctrine is debatable. The dissents in [those cases] show how easily "clear and present danger" is manipulated to crush what Brandeis called "[t]he fundamental right of free men to strive for better conditions through new legislation and new institutions' by argument and discourse even in time of war.
--Brandenburg v. Ohio, 395 U.S. 444 (1969) (Douglas, J. concurring)

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.
--New York Times v. United States ("The Pentagon Papers Case"), 403 U.S. 713 (1971) (Black, J., concurring)

"I understand very much the role that the press plays in our society, the protection under the First Amendment we want to promote and respect . . . but it can't be the case that that right trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity.
--Attorney General Alberto Gonzales, 21 May 2006

Oh yes it most certainly can be the case. Very easily. Pretty much every Supreme Court case ever to address the issue has made that clear. Unless the actions at issue would put American soldiers (or civilians, presumptively) in immediate and proximate danger of harm, then the First Amendment trumps all else -- including the Administration's Article II "dictator in time of war" gobbledygook.

Telling the Kaiser precisely when and where the doughboys are going to attack may not be protected speech. But telling law-abiding American citizens that their government is spying on them without probable cause is protected, at least from prior restraint (i.e., censorship before the fact) and, one must conclude from Brandenburg, from criminal prosecution after the fact.

Trying to skirt around FISA is one thing. Trying to skirt around the Fourth Amendment is not much harder these days. But if Gonzales or Bush or their apologists think that they can steamroll over the First Amendment with their outrageous and obnoxious legal theories, then they are gravely mistaken.

More thoughts from Crime & Federalism, Glenn Greenwald, ACS Blog.