Is the First Amendment Protected Activity a Threshold?

In the summer of 2020, Lawfare’s editor in chief Benjamin Wittes found out that he had been the subject of intelligence reports compiled by the Department of Homeland Security’s Office of Intelligence and Analysis. It was a bizarre but troubling revelation, and it raised a lot of questions, not only about the propriety of those reports but also about the practice in general. Who else was I&A compiling intelligence reports about and on what basis? So, Ben filed a FOIA request and subsequently a lawsuit in hopes of getting some answers. He's written about this matter for Lawfare a number of times, including in an update published yesterday.

Lawfare executive editor Natalie Orpett sat down with Ben to talk through it all. They discussed the background of the case, why so-called open source intelligence reports can be so dangerous, and what we've learned about DHS over the course of the litigation.

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