New York County Bar Association Urges Ban on Wiretapping
In a New York Appellate Court hearing on this day, a representative of the New York County Bar Association urged the court to “stand as a sentinel” against wiretapping, which it claimed was “widespread.”
The bar group had petitioned the court to invalidate all lower court orders that justified wiretapping. The effort did not succeed, however. One of the judges pointedly criticized the bar group for not offering specific examples of people who had been injured as a result of wiretapping.
The judge who criticized the lack of specific cases was Learned Hand, who is famous for two very different civil liberties opinions. During World War I, he overturned a Post Office ban on the anti-war magazine The Masses, in one of the few pro-free speech and press decisions of the war (July 24, 1917). His decision was soon overturned on appeal, however. Thirty-four years later, taking a very different position on the First Amendment, Hand authored the Circuit Court of Appeals opinion regarding the constitutionality of the Smith Act in the famous case involving the conviction of the top leaders of the Communist Party, in Dennis v. United States, on June 4, 1951.
Among presidents of the U.S., Lyndon Johnson was the only one who publicly stated his opposition to wiretapping. And on two occasions, he ordered and end to wiretapping by federal agencies (June 30, 1965, June 16, 1967). But he did so in the form of letters to heads of agencies and memos, which did not have the legal force of executive orders. Additionally, he always believed in a “national security exception” to any limits on wiretapping. (He also felt there should be a similar exception to the Freedom of Information Act (FOIA; see July 4, 1967). Finally, and even worse, as president LBJ was an eager consumer of information from the FBI which he certainly knew had been obtained through wiretaps. And in the summer of 1964 he directed the FBI to spy on the Mississippi Freedom Democratic Party at the Democratic Party Convention (August 25, 1964) because it was demanding that its racially integrated delegation be seated rather than the segregationist official delegation.
Learn more about warrantless wiretapping today: https://www.aclu.org/blog/tag/warrantless-wiretapping
Read: Gerald Gunther, Learned Hand: The Man and the Judge (1994)
Learn more about wiretapping from the Electronic Frontier Foundation: https://ssd.eff.org/wire/govt/wiretapping-protections
And more about the history of wiretapping: https://www.aclu.org/criminal-law-reform/aclu-history-wiretapping-new-kind-search-and-seizure