Jack Balkin’s post on the NSA wiretapping case is superb.
Although the court reaches the right result– that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused. The first amendment holding is novel although plausible, but it is not supported by very good arguments. The basic idea is that when the government spys on its citizens, they are likely to avoid making controversial statements or join controversial organizations. Fair enough. But the problem is that the program was secret. It was the disclosure of the program that created the chilling effect. And even if we put that problem to one side, it is not clear whether a program that is otherwise legal under the Fourth Amendment and federal law ipso facto violates the First Amendment simply because people are chilled by its existence.
And another fine post by Marty Lederman:
it’s very unfortunate that Judge Taylor principally rested her judgment on the constitutional claims — under the First and Fourth Amendments — rather than on the much stronger statutory claim. The Fourth Amendment claim is a serious one, as I have argued, but Jack’s right: Judge Taylor did not contend sufficiently with the strongest government arguments on the "special needs" doctrine. Her decision would have been much stronger had she thoroughly explained why the program violates FISA, and why the government’s Article II argument is wrong. (Question: Did the government actually argue (in the alternative) that FISA is unconstitutional? If so, could someone please provide a link to the brief(s)?)