Valuing Speech and Open Source Intelligence in the Face of Judicial Deference

By Andrew V. Moshirnia* –

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4 Harv. Nat’l Sec. J. 385 (2013)

In seeking to more effectively wage the war on terror, the United States government has come close to declaring war on speech related to terrorism. The Government has taken steps to silence and punish foreign propagandists, foreign reporters, and even Americans who have produced “coordinated” speech with foreign terrorist organizations. While this latter attempt to chill speech raises serious constitutional concerns, the United States Supreme Court has seen little wrong with this approach. Indeed, the Court contorted existing First Amendment jurisprudence in Holder v. Humanitarian Law Project so as to uphold 18 U.S.C. § 2339B, an expansive material support statute encompassing “coordinated” speech.

These positions, no doubt taken with American safety in mind, not only damage our First Amendment jurisprudence, but also threaten to choke off the supply of open source intelligence, which derives from publicly available sources. This intelligence is especially vital in the modern war on terror taking place on the ground as well as on the Internet. This Article highlights the extraordinary deference shown by the Court in upholding a material support statute criminalizing non-violent speech and examines other governmental actions designed to chill foreign speech. This piece examines the deleterious effects chilling foreign speech will have on domestic security, detailing the importance of open source intelligence. Finally, this Article concludes by investigating the likely effect the Government’s positions will have on Crisis Mapping, an exciting new technology that leverages open source intelligence, social media, and horizontal information sharing, to empower citizens and coordinate humanitarian efforts.

*JD, May 2011, Harvard Law School; PhD—Informational Technology, May 2008, University of Kansas; Law Clerk to the Hon. Richard D. Cudahy, Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.