RESEARCH

DOMESTIC SURVEILLANCE AFTER 9/11

2013

After the public disclosure of warrantless surveillance under the Terrorist Surveillance Program in 2005, dozens of lawsuits were filed against the United States government and cooperating telecommunication carriers on behalf of citizens who were illegally wiretapped as part of mass, domestic, warrantless surveillance programs.

Although many of these cases made claims of Fourth Amendment violations of privacy, several cases are notable because they claimed government violation of First Amendment rights protecting expression, assembly, religion, press and petition. The plaintiffs asked the Court for relief from government surveillance that posed a prior restrain on their communications and associations due to their individual fears that their actions might result in future punishment, fine or civil liability. When government action restrains communication through fear of retribution, it is known as a “chilling effect.” Although the chilling effect is well established as a general principle of law, its application to surveillance cases is a novel concept because it departs from the traditional physical claim of privacy invasion under the Fourth Amendment, instead focusing on the intellectual claim of freedoms of communication and association under the First Amendment.

Although there is a rich history of case law relating to government surveillance—claims that ultimately led to the passage of the Foreign Intelligence Surveillance Act in the late seventies—claims have not historically addressed the First Amendment implications of surveillance. It is simplistic to consider the cases filed against the Terrorist Surveillance Program in whole as they are very different in that some make claims against the government, some make claims against cooperating telecommunication carriers and some make claims against both parties. Also, the nature of the claims vary from state privacy act claims, to federal statutory claims to constitutional claims of privacy and free speech violations. Although the First Amendment claims were made in conjunction with other claims, it is important to look at these claims as unique from related claims against the Terrorist Surveillance Program as they represent a new thread of jurisprudence in the constitutionality of mass government surveillance.

Hughes, S.S. (2013) US Domestic Surveillance after 9/11: An Analysis of the Chilling Effect on First Amendment Rights in Cases Filed against the Terrorist Surveillance Program. Canadian Journal of Law and Society 27(3), 399-425. University of Toronto Press.

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THE FIRST AMENDMENT IMPLICATIONS OF ELECTRONIC SURVEILLANCE

2008

The United States government has monitored domestic telecommunications networks since the early twentieth century, but recent technological advancements have resulted in intelligence agencies having increased capabilities for monitoring content of communication, as well as the actual routing information for telephone calls. The monitoring of content through government surveillance is studied in this research from both a theoretical and legal perspective, tracing the history of United States surveillance, the development of the theory behind the marketplace of ideas, the evolution of domestic surveillance law and the potential impact a changing legal structure will have on citizen’s ability to express opinions without experiencing government censorship or punishment.

This research presents a First Amendment analysis of the changing legal structure of electronic surveillance, establishing a nexus between First Amendment rights to free speech and association and Fourth Amendment rights to privacy. This nexus is weighed against a historical balancing of concerns for protecting national security and concerns for protecting civil liberties. Contemporary court filings in response to government surveillance programs are evaluated to 9 explore the existence of a chilling effect on speech in the marketplace that might result from government monitoring of citizen’s private communications.

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THE KEYS TO FLORIDA’S FOURTH ESTATE: UNLOCKING THE SOURCE OF ACCESS EDUCATION IN THE SUNSHINE STATE

2005

Freedom of the press is a basic American value, albeit one that has a rationale in the role of the press as a government watchdog. When the press fails to act in its responsibility to inform the public on government activities, press freedom has the potential to be called into question. Comprehensive government oversight by the journalism profession can be weakened by deficits in education and training. This study attempts to understand how journalists are educated in accessing open government records and meetings. Over 700 surveys were mailed to working broadcast journalists in television newsrooms across the state of Florida. Eighty-three useable surveys were returned, yielding a response rate of 11.9%. The survey instrument measured levels of satisfaction with formal education and professional training, as well as other valuable sources of access knowledge. The results suggest that broadcast journalists value the Sunshine Laws as a critical component to good journalism, yet they ix feel that current education and training is inadequate. Where access training and education have been provided, respondents generally report satisfaction with the offering. However, the survey results also indicate that respondents have an overwhelming desire for more formal education and more employer-sponsored training in the skills necessary to access open government records and meetings. To ensure that journalists continue unimpeded in their role as government watchdog, these deficiencies in access education must be addressed.

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RESEARCH

Publications and Creative Works

*refereed

*Hughes, S.S. (2013) US Domestic Surveillance after 9/11: An Analysis of the Chilling Effect on First Amendment Rights in Cases Filed against the Terrorist Surveillance Program. Canadian Journal of Law and Society 27(3), 399-425. University of Toronto Press.

*Hughes, S.S. (2009). Breathing space in the marketplace of ideas: The First Amendment implications of electronic surveillance [electronic version]. American Civil Liberties Review, 3.

Hughes, S.S. (2009). The Way It Is: The State of Journalism in Maine [Documentary Film]. United States: Independent.

Communication and Journalism Department. (2009). Mobile Maine News. Retrieved December 7, 2009, from http://www.mobilemainenews.com

Pemberton, S.S.. (Producer). (2003). Government In The Sunshine [Video Guide to Open Government]. Gainesville, FL: The Brechner Center for Freedom of Information.

Professional Presentations

*refereed

*Hughes, S.S. (2011, September). U.S. Domestic Surveillance after 9/11: An analysis of the chilling effect on First Amendment rights in cases filed against the Terrorist Surveillance Program. Paper presented at The Expanding Surveillance Net: Ten Years after 9/11 Research Workshop, Queen's University, Kingstown, Ontario, Canada.

*Hughes, S.S. (2011, May). Lighting the back alleys of the Internet: Constitutional concerns in U.S. initiatives to wiretap the Internet. Paper presented at Cyber-surveillance in Everyday Life: An International Workshop, University of Toronto.

Hughes, S.S. (2011, May). Surveillance Studies Summer Seminar. Specialty: Connections between U.S. Legal Policy on Surveillance and public perception (Chilling Effect). Research participant at Surveillance Studies Center, Queen’s University, Kingston, Ontario, Canada.

Hughes, S.S. (2011, April). Wordpress as a distribution system for student-citizen collaboration as part of panel: New Technologies to Enhance Student Learning sponsored by the Interactive Media and Emerging Technologies group. Panel presentation, featuring Mobile Maine News, presented at Broadcast Education Association in Las Vegas, Nevada.

*Hughes, S.S. (2011, March). The Chilling Effect of Aviation Security. Paper presented at Mobilities in Motion Conference at Drexel University in Philadelphia, Pennsylvania.

Hughes, S.S. (2010, June). Creating a document driven newsroom. Invited speaker for the Society of Professional Journalists’ Reporter’s Institute at the Poynter Center, St. Petersburg, Florida.

*Hughes, S.S. (2010, April). The emergence of a marketplace model in 20th century U.S. Supreme Court decisions on electronic surveillance. Paper presented at Surveillance and Society Conference in London, England.

Hughes, S.S. (2009, April). Notes from a newbie, ethics and how to get hired or not. Paper presented at Broadcast Education Association Conference in Las Vegas, Nevada.

Hughes, S.S. (2008, October). Surveillance state: How have modern surveillance practices moved society towards a surveillance society characterized by Jeremy Bentham's Panopticon and George Orwell's Nineteen-Eighty-Four? Paper presented at Utopian Studies Conference in Portland, Maine.

*Hughes, S. (November 2007). Global Panopticon: Looking at human rights in light of U.S.

and international laws. Paper presented at National Communication Association Annual

Conference in Chicago, Illinois.

*Hughes, S. (August 2007). Modern day dystopia. Paper presented at the Association of

Educators in Journalism and Mass Communication Annual Conference, Washington, D.C.

*Hughes, S. (February 2007). Teacher loyalty oaths: Subversive to the government or

subversive to the constitution? Paper presented at the Association of Educators in Journalism

and Mass Communication Midwinter Conference, Reno, Nevada.

*Hughes, S. (February 2007). Global Panopticon: Looking at human rights in light of U.S.

and international laws. Poster session presented at the Association of Educators in

Journalism and Mass Communication Midwinter Conference, Reno, Nevada.

*Pemberton, S. (March 2004). Working in the sunshine: How journalists are educated in

public access. Paper presented and awarded 3rd place at the Broadcast Education

Association, Las Vegas, Nevada.

Pemberton, S. (April 2003). Public broadcasting in a digital age: How digital television is

changing the model of public broadcasting in America. Paper presented and awarded 2nd

place at the Graduate and Professional Student Forum, University of Florida, Gainesville,

Florida.

*Pemberton, S. (March 2003). Changes in policy at the Environmental Protection Agency:

How national security concerns are limiting the public’s right-to-know. Paper presented in

the Law Division, Association of Educators in Journalism and Mass Communication, Little

Rock, Arkansas.