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The First Amendment: A Wartime Casualty?

Analysis

By David Hudson
freedomforum.org

02.15.02

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The terrorist strikes of Sept. 11 led to many casualties, including thousands at the World Trade Center in New York City. Those concerned with civil liberties worry that constitutional freedoms may be the latest victim of the attacks and the resulting war on terrorism.

Perhaps the most obvious threat to civil liberties in the wake of Sept. 11 was Congress' quick passage of the so-called USA Patriot Act — a behemoth 342-page law that provides great powers to law enforcement officials.

To some, this new law epitomizes the assault on our nation's civil liberties. The law allows the government to search a person's home without immediately listing the object of the search. The law also allows the attorney general to deport individuals who engage in any nonviolent activity on behalf of any group deemed a terrorist organization.

Georgetown law professor David Cole writes: "This provision in effect resurrects the philosophy of McCarthyism, simply substituting 'terrorist' for 'communist.' "1

A related provision allows the attorney general to detain and lock up aliens whom he suspects of association with terrorists. The federal government has already detained more than 1,200 people. Cole says, "Never in our history has the government engaged in such a blanket practice of secret incarceration."2

Other provisions expand wiretapping capabilities for federal law enforcement officials. Still other parts of the law allow the police to obtain information about private Internet communications under a relaxed standard of review. The statute also allows the government to obtain private information, including student records, without judicial review.

"This new law is clearly the latest in a long tradition of government overreaction in times of crisis," said civil liberties attorney and author Ronald Weich in a telephone interview. "It is part of the same strain of thinking that led to earlier overreactions in times of war and should be a cause of concern for all Americans."

Critics say the USA Patriot Act is not the only example of intolerance to First Amendment freedoms. The news media have been restricted in accessing the war effort in Afghanistan. Educators have been punished for a range of activities, from allegedly making anti-Islamic comments to criticizing the American war effort. A public high school student in Ohio was suspended for posting a pro-war poster on his locker. Attorney General John Ashcroft has said that critics of the war effort "give aid and comfort to the enemy."

History and the First Amendment

Justice Oliver Wendell Holmes once wrote that a "page of history is worth a volume of logic."3 The American tradition suggests that civil liberties take a backseat during times of war. "History shows us that in times of crisis, the suppression of dissension occurs," said Erwin Chemerinsky, a constitutional law professor at the University of Southern California, in a telephone interview.

Sanford Levinson, a law professor at the University of Texas, writes: "It is difficult to read our constitutional history … without believing that the Constitution is often reduced at best to a whisper during times of war."4

The First Amendment is no exception. Attorney Michael Linfield, author of Freedom Under Fire: U.S. Civil Liberties in Times of War, writes: "Rather than being an exception, war-era violations of civil liberties in the United States are the accepted norm for our government."5

Revolutionary War and America's early years

During times of conflict, federal and state officials often have passed laws or engaged in practices that violate civil liberties.

For example, during the Revolutionary War, the state of New Hampshire passed a law defining treason as believing in the authority of the king of England. Many local officials harassed those loyal to the Crown (called loyalists) and required citizens to take loyalty oaths supporting the colonists’ efforts for independence.

Only seven years after the ratification of the Bill of Rights in 1791, the federal government passed four laws designed to punish internal dissent during a time of conflict with France. The fourth and final law was the infamous Sedition Act of 1798. This law made it a crime to "write, print, utter or publish … any false, scandalous, and malicious" statements against the government, Congress or president of the United States.

The Federalist Party used the law to attempt to silence leading Democratic-Republican politicians and editors. Federalists used the Sedition Act, or related common-law sedition laws, to arrest Benjamin Bache, editor of the Philadelphia Aurora, and John Daly Burk, editor of the Times Piece. Prosecutors also charged Republican Matthew Lyon for his critical comments against President John Adams. Lyon allegedly referred to the president's "unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice."

The Civil War

The Civil War witnessed a similar assault on press freedoms and civil liberty. President Abraham Lincoln seized the telegraph lines, suspended habeas corpus and issued an order prohibiting the printing of war news about military movements without approval. People were arrested for wearing Confederate buttons and for singing Confederate songs.6

Government officials shut down the Chicago Times for excessively criticizing the Lincoln administration. Editors were arrested, papers closed and correspondents were banned from the fields of battle.7 A military governor with the approval of Secretary of War Edwin Stanton destroyed the office of the Washington, D.C., newspaper, the Sunday Chronicle.

Prominent Democratic politician Clement L. Vallandingham was arrested for making an anti-war political speech at a party rally in Mount Vernon, Ohio. After his conviction by a military tribunal, he was sentenced to prison. However, President Lincoln changed the punishment to banishment to the Confederate states.

Several congressmen attempted to expel Ohio Rep. Alexander Long from Congress for an unpatriotic speech made on the House floor. One congressman stated: "A man is free to speak so long as he speaks for the nation … [but not] … against the nation on this floor."8

World War I

The First Amendment and other civil liberties suffered greatly during World War I. Paul Murphy writes in his book World War I and the Origin of Civil Liberties: "A deliberately planned program of federal suppression was underway and was about to be expanded, in the form of opinion molding, Americanization, homogenization, the coercing of patriotic support, and the rooting out of disloyalty."9

Congress became concerned with internal dissent, particularly with those whom they suspected of sympathizing with the Germans and the Russians. It passed the Espionage Act of 1917, which has been described as an "overt assault upon First Amendment freedoms."10

The law criminalized attempting to cause insubordination to the war effort, willfully attempting to cause insurrection and obstructing the recruiting or enlistment of potential volunteers. Another section of the law gave the postmaster general the power to ban from the mail any material "advocating or urging treason, insurrection, or forcible resistance to any law of the United States."

Congress passed an amendment to the Espionage Act — called the Sedition Act of 1918 — which further infringed on First Amendment freedoms. The law prohibited:

    Uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language intended to cause contempt, scorn … as regards the form of government of the United States or Constitution, or the flag or the uniform of the Army or Navy … urging any curtailment of the war with intent to hinder its prosecution; advocating, teaching, defending, or acts supporting or favoring the cause of any country at war with the United States, or opposing the cause of the United States.

Famed labor organizer and Socialist Eugene Debs was prosecuted under this law for a speech in Canton, Ohio, criticizing the war effort. Rose Pastor Stokes was prosecuted, in part, for writing to a newspaper: "I am for the people and the government is for the profiteers."

Excess patriotic zeal resulted in a draconian crackdown on free expression, including:

  • Authorities in Pittsburgh banned music by the German composer Ludwig van Beethoven during the course of the war.

  • The Los Angeles Board of Education prohibited all discussions of peace.

  • An Ohio farmer, John White, was imprisoned for stating that soldiers in American camps were "dying off like flies" and that the "murder of innocent women and children by German soldiers was no worse than what the United States' soldiers did in the Philippines."

  • A Minnesota man was arrested under a state espionage law for criticizing women knitting socks for soldiers, saying: "No soldier ever sees these socks."

  • Twenty-seven South Dakota farmers were convicted for sending a petition to the government objecting to the draft and calling the conflict a "capitalist war."11
World War II and Korean War

The pattern of government overreaction continued during the second World War and the Korean War. During this time, the government committed perhaps the greatest civil liberties violation in the history of the country since slavery — the internment of 110,000 Japanese-Americans in concentration camps.12

The day after the attack on Pearl Harbor, President Franklin D. Roosevelt gave FBI Director J. Edgar Hoover emergency authority to censor all news and control all communications in and out of the country.

Before the start of World War II, Congress passed the country's first peacetime sedition law, called the Alien Registration Act of 1940. Title I of this law was called the Smith Act after its sponsor, Rep. Howard W. Smith of Virginia.

The law prohibited advocating or teaching the "propriety of overthrowing or destroying any government in the United States by force or violence" and the printing or publishing of any material advocating or teaching the violent overthrow of the country.

The act was used to harass and punish members of the Communist Party. In its 1951 decision Dennis v. United States,13 the U.S. Supreme Court upheld the conviction of 12 people for Communist Party activity. The court wrote: "To those who would paralyze our Government in the face of impending threat by encasing it in a semantic straitjacket we must reply that all concepts are relative."14

Vietnam War

The government also infringed on civil liberties during the course of the Vietnam War. Many historians characterize this era as one in which citizens actively demonstrated for social change and brought about civil rights and civil liberties advances. Unfortunately, the period was also marked by repression.

Linfield writes: "While the civil rights movement did make great strides and the Supreme Court did extend the legal framework of civil liberties, this era was one of a massive, continual and conscious program of war-time repression by the federal, state and local governments."15

The violence that erupted when police clashed with protesters outside the 1968 Democratic National Convention in Chicago showed that tolerance for dissent was running quite low. In 1965, the Georgia Legislature refused to allow civil rights activist Julian Bond to take his elected seat in the state House because he made comments critical of the war effort. Bond stated in a press release: "I think it is sort of hypocritical for us to maintain that we are fighting for liberty in other places and we are not guaranteeing liberty to citizens inside the continental United States."16

In the famous Pentagon Papers case, the government sought to prohibit The New York Times and The Washington Post from publishing a series of articles about some highly classified documents about the U.S. government and the Vietnam War.

Then-Attorney General John Mitchell sought injunctions to prohibit the newspapers from publishing such information. The case eventually reached the U.S. Supreme Court, which in 1971 ruled 6-3 in favor of the press. In his opinion, Justice Hugo Black wrote: "Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell."17

First Amendment fears for the future

History shows that fears of a fragile First Amendment during times of crisis are well founded. The famous adage "History repeats itself" appears to be true in the aftermath of Sept. 11. For example, the traditional separation between church and state has been ignored in some public schools where administrators have posted of religious messages and lead of students in prayer. The First Amendment right of free association has been severely compromised, particularly for those connected with Muslim organizations that the government believes supports anti-American causes.

Experts warn that anonymous speech on the Internet, once a staple of the democratic new medium, could become a thing of the past.18 The Internet has already been blamed for other tragedies, such as the Columbine High School shooting in Littleton, Colo., and the Oklahoma City bombing. Terrorists do communicate using anonymous online speech — but so do many millions of innocent Americans.

Government officials will likely restrict access to information that they consider related to the war on terrorism. For example, several civil liberties groups have filed a lawsuit, Center for National Security Studies v. Department of Justice, contending that the government must turn over information regarding the more than 1,000 detainees since Sept. 11.

The suit alleges that the groups and the public have both a common law and a First Amendment right of access to "records concerning judicial proceedings."

Experts disagree on what effect the war on terrorism will have on First Amendment freedoms. Some constitutional experts say the most egregious affronts to the Constitution have occurred in the Fourth Amendment arena. But many believe that freedom of speech will be curtailed.

"I am very worried that there will be more efforts to suppress speech if the war on terrorism drags on," says Chemerinsky.

Perhaps Nat Hentoff says it best: "This will be one of our severest tests yet to rescue the Constitution from our government."19

______________________________________
1David Cole, "National Security State," The Nation (Dec. 17, 2001).
2Id.
3New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).
4Sanford Levinson, "What is the Constitution's Role in Wartime? Why Free Speech and Other Rights Are Not As Safe As You Might Think," Findlaw (Oct. 17, 2001).
5Michael Linfield, Freedom Under Fire: U.S. Civil Liberties in Times of War (Boston: South End Press, 1990), p. 2.
6Id., p. 27.
7Ted Galen Carpenter, The Captive Press: Foreign Policy Crises and the First Amendment (Washington D.C.: Cato Institute, 1995), p. 17.
8Michael Kent Curtis, Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History (Durham, NC: Duke University Press, 2000), p. 343.
9Paul Murphy, World War I and the Origin of Civil Liberties (New York: W. W. Norton & Company, Inc., 1979), p. 69.
10Id., p. 79.
11Id., pp. 128-132.
12Korematsu v. United States, 323 U.S. 214 (1944).
13341 U.S. 494 (1951).
14Id. at 508.
15Linfield, p. 114.
16David Hudson, "NAACP's Julian Bond speaks on First Amendment and his Supreme Court triumph," freedomforum.org (Aug. 23, 2001).
17New York Times v. U.S., 403 U.S. 711 (1971).
18Julie Hilden, "The Death of Anonymous Speech on the Internet? How September 11 May Alter Our First Amendment Rights Online," Findlaw (Nov. 29, 2001).
19Nat Hentoff, "Why Should We Care? It's Only the Constitution," The Progressive (December 2001), p. 27.

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