The PEN Pod: Tough Questions with Suzanne Nossel
Every Friday, we discuss tricky questions about free speech and expression as they pertain to the ongoing pandemic with our CEO Suzanne Nossel, author of the forthcoming Dare to Speak: Defending Free Speech for All, in our weekly PEN Pod segment “Tough Questions.” In this week’s episode, we talk about an update to our lawsuit against President Trump, bipartisan support for an amendment restricting FBI surveillance of web browsing data, and our just-released Freedom to Write Index. Listen below for our full conversation (our interview with Suzanne is up until the 11-minute mark).
I want to start with our lawsuit against the Trump administration. For those who don’t know, we sued the president in 2018 on behalf of journalists who’ve been targeted by President Trump. This spring, a judge gave our lawsuit the green light to go ahead, but then the government fired back with a filing this week. What are they up to?
They’re seeking to lodge what’s called an interlocutory appeal, which basically means this was a preliminary judgment that the court made to reject the government’s motion to dismiss. The government was essentially saying, “This lawsuit is invalid.” And they argued a couple of things—one, that we did not have the right as PEN America to bring this lawsuit, that our harm wasn’t direct enough from the president’s violations of the First Amendment, threats, and acts of retaliation against journalists and media organizations. They said we didn’t have the right to bring the suit, that the suit was meritless, and that even if the suit was successful, that the court wouldn’t have the power to enact relief, or to make a judgment that would be effective on the president. So they made a series of arguments about why this case should have been thrown out entirely from the get-go. And the court actually accepted some of their arguments, but rejected a number of them, importantly, and allowed us to go forward with the essence of our claim—that the president has retaliated against individuals for their exercise of free expression rights by doing things like revoking White House passes and security clearances.
“We think this judge reached the right decision about allowing the essence of our claims to go forward and that the case must proceed. We certainly hope that this argument that the president is above the law is not going to prevail. It didn’t prevail in Round One, and it shouldn’t prevail now.”
The next step normally would be to enter into “discovery” in relation to our claims, and for us to be able to find out more about, for example, the motivations and how precisely these actions were taken and why, and what the government has done now this week was jump in and say, “Wait, wait, wait. We want this preliminary decision to allow the lawsuit to go forward to be reviewed by an appellate court before anything else happens, because we think there are big question marks about the judge’s decision in essence.” So they’re sort of saying, “She got this wrong, and an appellate court ought to be given a chance to weigh in before the suit goes forward.” Essentially, they’re sustaining their argument that the president is really above the law, that he can’t be held accountable, that a court doesn’t have the power to impose relief or execute a judgment against the president, should he lose the case. So it’s essentially a repeat of the arguments that they’ve been making, and they now want a chance to make them in front of an appellate court before anything else happens in the suit.
We’re obviously pushing back. We think this judge reached the right decision about allowing the essence of our claims to go forward and that the case must proceed. We certainly hope that this argument that the president is above the law is not going to prevail. It didn’t prevail in Round One, and it shouldn’t prevail now.
Congress is set to vote on an amendment next week that could prohibit the FBI from demanding Americans’ web browsing data without a warrant. And interestingly, there’s been bipartisan support here to actually defend civil liberties and push back against this. What’s going on here?
This is kind of the regular re-authorization of the national security surveillance authorities that were put into place originally after 9/11, in the Patriot Act, and then have been renewed and extended, and in some cases, modified progressively over time. This is something we, as a free expression organization, have concerns with, because it’s the authority that allowed the dragnet surveillance of metadata without any kind of warrant requirement or individualized suspicion requirements, allowing the government to just vacuum up immense amounts of data about who people are communicating with—whether it’s foreigners or people here within the United States.
“This [question of surveillance] is something we, as a free expression organization, have concerns with, because it’s the authority that allowed the dragnet surveillance of metadata without any kind of warrant requirement or individualized suspicion requirements, allowing the government to just vacuum up immense amounts of data about who people are communicating with—whether it’s foreigners or people here within the United States.”
And so, a number of years ago, we were very active in doing a series of surveys about the impact of that dragnet surveillance on creativity and free expression, and documenting that really was having a chilling effect—specifically on writers, who recognize that if their communications could get into the hands of the government without their knowing, that they had to be extra careful in terms of who they emailed with, what kinds of topics they research, etc. So this has been a longstanding debate, and the tables have been turned a little bit over the last year or two in that historically, it was more of the Democrats trying to defend civil liberties and call back some of these overreaching surveillance authorities.
The thing that has turned that dynamic around, really, is the case of Carter Page, a Trump campaign aide who was investigated for allegations that he was collaborating—or suspicion that he was collaborating—with the Russians in the run-up to the 2016 election. There were then concerns raised about the FBI’s surveillance of Page, and there was an inspector general report that the Department of Justice put out, laying out a series of flaws in the authorities that allowed the FBI to tap Page’s communications and surveil him extensively, and they found the FBI had really overreached. There were errors in the applications that had been made. So that actually has turned this into much more of a bipartisan issue, where you now have Republicans saying, “Wait, wait, wait. We realized these authorities can be used against people on our side, and we need to make sure there are adequate protections.”
And so, there are a series of amendments that have been debated. Unfortunately, the one that would have provided for a protection of web browsing actually failed this week, by just one vote. It needed 60 votes to move forward. It had 59. There were a few senators who were not in town, not present, to vote on it. That is a real shame, because I think that would have been an important protection for all of us against surveillance of our web browsing, without any individualized suspicion or a warrant.
“It seemed to me that getting those names out and having an annual count—a census, effectively—of who precisely is in that category, who was held, why, and by what governments would be a very important advocacy tool and piece of data and documentation for. . . all those who have a concern with freedom of expression.”
Earlier this week, PEN America released the first-ever Freedom to Write Index, a report documenting the number of writers detained or imprisoned worldwide during the calendar year of 2019. Tell me why this is such an important piece of research to come out right now.
When I first came to PEN America, we had this organizational emphasis on the plight of the imperiled writer, and people who pay the highest price for expressing themselves and end up going to jail and facing long sentences in some cases. It seemed to me that getting those names out and having an annual count—a census, effectively—of who precisely is in that category, who was held, why, and by what governments would be a very important advocacy tool and piece of data and documentation for journalists, policymakers, United Nations officials—all those who have a concern with freedom of expression. That definitive count did not exist.
There was no single database. There were case lists that were maintained by PEN International, and we did our own case pages on our website, but there was no definitive catalog of these names. There is a similar list that the Committee to Protect Journalists puts out every year for journalists, and always, on publication, it generates a lot of attention toward the problem. And you can document trends and see which countries are doing worse, in terms of being a jailer of writers; which countries have improved; whether the overall count is going up or down; is progress being made; are things getting worse.
I’m proud that we finally were able to pull this together and put out a detailed account of who these people are, and what the forces are that are behind their persecution. Some of it’s similar to journalists, in that there may be grounds of national security given, or somebody who’s accused of advocating separatism, but there are also a number of issues that relate more to the role of writers and intellectuals in society. For example, writers who challenge government-enforced historical narratives and want to tell the truth—for example, about the Stalin era, in a way that Vladimir Putin considers inconvenient.
We also have writers in the database who are keeping alive languages and ethnicities. For example, the government of China targets Uyghur writers because they are a force for vitality and community that the government of China sees as threatening. So they don’t want these writers who empower, enliven, and enrich the lives of Uyghur people. To be able to do that in ways that keeps the culture alive, in their minds, poses a challenge to Beijing’s authority. So it’s a fascinating panoply of cases, and I hope, a really seminal resource that we’ll be able to republish every year going forward.
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