Page:ACLU v. NSA Opinion (August 17, 2006), US District Court, East-Michigan.djvu/32

 "Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure."

* * * * "This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression. Marcus, 367 U.S. at 724, 729"

As Justice Brennan wrote for the Court in Dombrowski v. Pfister, (1965), the appellant organizations had been subjected to repeated announcements of their subversiveness which frightened off potential members and contributors, and had been harmed irreparably, requiring injunctive relief. The Louisiana law against which they complained, moreover, had a chilling effect on protected expression because, so long as the statute was available, the threat of prosecution for protected expression remained real and substantial.

Judge Wright, in Zweibon, noted that the tapping of an organization's office phone will provide the membership roster of that organization, as forbidden by Bates v. City of Little Rock, (1960); thereby causing members to leave that organization, and thereby chilling the organization's First Amendment rights and causing the loss of membership. Zweibon, 516 F.2d at 634.

A governmental action to regulate speech may be justified only upon showing of a compelling governmental interest; and that the means chosen to further that interest are the least restrictive of freedom of belief and association that could be chosen. Clark v. Library of Congress, 750 F.2d 89, 94 (D.C. Cir. 1984).

It must be noted that FISA explicitly admonishes that "...no United States person may be [*33]