Towards an Understanding of Litigation as Expression: Lessons from Guantánamo

Abstract

Civil rights litigation has been recognized for over fifty years as core First Amendment activity, but governments often censor indirectly that which they cannot censor outright. In the War on Terrorism, the U.S. government has imposed indirect burdens on First Amendment freedoms and access to courts. This Article explores prior Supreme Court jurisprudence interpreting litigation as political expression and asks to what extent this doctrine can survive today. The Article focuses on the chilling effects of the Terrorist Surveillance Program (“TSP”), a warrantless wiretapping program imposed shortly after 9/11. Prior literature on the TSP has focused largely on individual rights protected by the Fourth, Fifth, and Sixth Amendments, but this Article highlights the First Amendment values at stake and, in particular, examines the First Amendment implications of wiretapping lawyers. Rather than utilize existing First Amendment theory to interpret the effects of the TSP, however, this Article turns the inquiry around. Drawing on a case study of twenty-three Guantánamo lawyers who believe they were targeted for surveillance, the Article explores the First Amendment theory of litigation as expression. The Article concludes that attorneys’ communications in support of litigation reflect fundamental First Amendment values tied to political expression, but implementing protection for lawyers’ communications presents significant doctrinal challenges, particularly with respect to defining the scope of litigation to be recognized as political and the type of communications to be included within the constitutional protection. The Article proposes a five-factor test to assist courts with identifying litigation that qualifies as political expression and proposes future research on the implications of recognizing First Amendment values in lawyers’ work.