Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University, made the case in a Guardian opinion essay published September 11, 2026 — the 25th anniversary of the September 11 attacks. Writing in the Guardian’s Comment is Free section, Jaffer argued that the court’s failure to defend First Amendment rights against post-9/11 encroachments contrasts with how earlier courts responded to wartime repression.
Jaffer wrote that prosecutions of antiwar protesters after World War I led Justices Oliver Wendell Holmes and Louis Brandeis — and other justices who followed — to recognize that US democracy would be undermined, not strengthened, by allowing the government to suppress disfavored political opinions. Cold War-era repression led the court to better protect freedom of association, and government efforts to cover up official ineptitude and criminality during the Vietnam War spurred the court to better protect press freedom, according to the essay. “In each of these instances the court responded to wartime repression by developing new legal doctrine that more robustly protected first amendment freedoms,” Jaffer wrote. “Unfortunately, the supreme court hasn’t thus far responded the same way to repressive policies introduced in connection with the ‘war on terror’.”
Jaffer catalogued several post-9/11 policies he said were in tension with First Amendment protections. The government barred the press from immigration hearings in the first weeks after the attacks. Intelligence agencies relied on national security arguments to withhold information about their policies from the public, and the Justice Department invoked the same arguments to withhold legal opinions about torture and extrajudicial killing, Jaffer wrote.
The Bush administration revived a Cold War-era practice of denying visas to foreign scholars, writers, and artists critical of US foreign policy, according to the essay. Congress expanded the law prohibiting the provision of “material support” to blacklisted groups, extending the statute so far that it reached some forms of speech. Congress passed the Patriot Act weeks after the attacks and extended those surveillance authorities repeatedly in subsequent years. The FBI exploited new communications technologies to track journalists’ emails and phone calls, and the Justice Department began using the Espionage Act to prosecute journalists’ sources, according to the essay.
The Supreme Court declined most of the First Amendment challenges presented to it, Jaffer wrote. The court turned down multiple opportunities to consider the constitutionality of national security surveillance and gag orders imposed on recipients of national security letters, he wrote. The court also declined to consider whether the First Amendment guarantees a public right of access to opinions issued by the Foreign Intelligence Surveillance Court, despite urging from the Knight First Amendment Institute, the ACLU, former Solicitor General Ted Olson, and many former intelligence officials. Justices Neil Gorsuch and Sonia Sotomayor dissented from the denial of certiorari, asking: “If these matters are not worthy of our time, what is?”
“Over the course of the quarter century that followed 9/11 — a period during which the court heard about a dozen cases involving the second amendment and about 70 involving intellectual property law — the court agreed to hear only three cases involving conflicts between the government’s counter-terrorism policies and free speech,” Jaffer wrote.
In the three cases it did hear, the court narrowed free-speech and press rights, according to the essay. In Humanitarian Law Project v Holder, a challenge to the material support law, the court held that the government could make it a crime for a human rights organization to provide training in human rights law to groups the government had designated as terrorist organizations. In Clapper v Amnesty, which Jaffer argued, the court decided that human rights groups lacked standing to challenge a mass surveillance law because they could not prove that their own communications would be collected, shielding most national security surveillance from ordinary constitutional review. In TikTok v Garland, the court rejected a First Amendment challenge to a law banning Americans from accessing the short-form video app, crediting national security arguments that even the NSA’s general counsel had rejected, Jaffer wrote. The decision purported to be narrow but significantly undermined Americans’ right to access information and media from abroad, according to the essay.
Jaffer wrote that the court’s record has consequences today. Government whistleblowers who inform the public about abuse or criminality in the military or intelligence agencies, and journalists and publishers who report on those abuses, risk prosecution under the Espionage Act. Those who participate in anti-ICE or pro-Palestinian demonstrations do so under the shadow of the expanded material support laws. Government secrecy about matters relating to war and foreign policy, such as government surveillance in the national security sphere, “has become all but unchallengeable,” Jaffer wrote.
Jaffer concluded that “there’s no question that the court’s record during the war on terror has strengthened the hand of our authoritarian president and weakened our own.” Jaffer directs the Knight First Amendment Institute at Columbia University.