Obama’s free speech record

As Barack Obama gets ready to rally his troops at the Democratic National Convention, Mark Rumold says his administration has cast free speech aside in its pursuit of file sharers and whistleblowers

Four years ago, President Obamas campaign platform didnt include sweeping promises about promoting free speech. He wasnt elected because he swore to vigorously defend the First Amendment, and to protect speakers no matter the content of their speech.

In contrast, the President did campaign on a platform of government transparency. As a transparency advocate, I can confidently say that, by almost any measure, the President failed to live up to those lofty guarantees.

But what about free expressiona value so roundly cherished in the United States that a promise to support it would almost seem unnecessary? Without a clear benchmark or unambiguous campaign commitment on the issue, its not so simple to assess his record. But sadly, like his commitment to transparency, the Presidents commitment to free speech was often collateral damage in his pursuit of other policy objectives.

This was most evident in the administrations actions in two areas: intellectual property and national security.

The administrations often misguided attempts at combating online copyright infringement frequently resulted in harm to protected expression. For example, in 2010, working in close cooperation with industry trade groups like the Motion Picture Association of America and the Recording Industry Association of America, the administration began seizing the domains of websites that government officials deemed to contain infringing material. Except that wasnt always the case: in at least two instances, the government seized and refused to return domain names without any apparent connection to copyright-infringing material. The seizures resulted in complete censorship of the sites for over a year.

The same is true of the administrations heavy-handed treatment of Megaupload, an online file-hosting service. In January 2012, the Department of Justice seized Megauploads domains and servers, froze its assets, and attempted to have the sites founder, Kim Dotcom, extradited to the United States to face criminal charges. While the site undoubtedly hosted some infringing content, there was also a vast amount of non-infringing content stored on the sites servers family photos and videos, personal documents, and other protected expression. All this unquestionably protected speech was swept up in the name of combating online copyright infringement.

While the administrations pursuit of intellectual property enforcement caused collateral damage to protected expression, the administrations biggest tests and, subsequently, biggest failures in its commitment to free speech occurred in the national security arena.

National security concerns caused the Administration to investigate and charge government whistleblowers under the Espionage Act and led to the questionable prosecution of alleged terrorists for crimes as innocuous as translating YouTube videos and writing vulgar and hateful poetry.

Yet nowhere were the administrations First Amendment failings more evident than in its handling of Wikileaks. After Wikileaks published thousands of confidential (and, in some cases, classified) State Department diplomatic cables, the administrationembarked on an unprecedentedintimidation campaign. In particular, the Department of Justices long-running grand jury investigation of Wikileaks and its founder, Julian Assange, stands as a press-chilling stain on the administrations First Amendment record. The message the administration sent through its investigation is clear: if you publish classified information and, in particular, classified information that portrays the government in an unflattering light we may prosecute you. Classified information is published almost daily in the countrys most reputable newspapers and magazines. Punishing the publication of truthful information about the government, absent a clear and present danger posed by the informations disclosure, is intolerable under the First Amendment. Yet this was precisely the administrations extraordinary approach. Indeed, the most enduring legacy of the Obama administrations commitment to free speech may be the long shadow in cast upon national security reporting.

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Obama’s free speech record