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Behind The Columns

by john garvey, dean

Dean John Garvey The Worst of Times
The simpler and less ambiguous our principles of freedom, the more effective they are when crisis tests the first amendment.

As a member of the ABA Task Force on Terrorism and the Law, I have had cause to reflect anew on first amendment issues. A quick review of the past 100 years leads to one immediate observation: at times of crisis, concern for security has sometimes overwhelmed Americans? devotion to first amendment values.

During World War I we passed the Espionage Act of 1917, which forbade people to "make...false statements with intent to interfere with" the military success of the United States. Schenck v. United States, Frohwerk v. United States, Debs v. United States, and Abrams v. United States, early first amendment cases, upheld convictions under this law. The American version of free speech was born at this time, but it was a dissenting position. During World War II Jehovah?s Witnesses were persecuted for their supposedly anti- American beliefs (Gobitis and Barnette). At the beginning of the Cold War, the era of McCarthyism and a particularly bad time for the first amendment, we prosecuted Communists under the Smith Act, which forbade seditious speech and association (Dennis v. United States, Yates v. United States, Scales v. United States, Noto v. United States).

The 1960s brought a shift. It was the states, rather than the federal government, that clamped down on civil rights and Vietnam War demonstrations, and the Supreme Court leaned more toward liberty than security, in cases like New York Times v. Sullivan. The results were gratifying?progress on civil rights, an end to an unpopular war, and a more robust first amendment.

The year 2001 brought the war on terrorism, which is testing the limits of our liberties once again. Legal philosopher Vincent Blasi says it is precisely for times like these that we should design our freedoms. Our purpose, he writes, "should be to equip the first amendment to do maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent....The first amendment, in other words, should be targeted for the worst of times."

What does that perspective tell us about free speech principles? They should be strong and simple. They should cover the activities most in danger in a crisis, and they should be easy to understand?no three-part balancing tests, no complicated definitions, no (or almost no) exceptions. Here are three examples. First, people should be free to criticize the government. Second, there should be no prior restraints on the press. Third, people should be free to associate in political parties and religious groups.

We have done a pretty good job of observing the first two principles. But I sense some ambivalence about the third.

There have been no attempts to suppress criticism of the Bush administration?s conduct in the war on terrorism. Reporting on the war has sometimes irked the government, but the government has made little or no effort to stop it. Given the ideology of the September 11 terrorists, however, there is reason to fear for Muslims? religious liberty. The President has been careful to distinguish between Muslims generally and the Al Qaeda terrorist network. Similarly, Congress went out of its way in the new anti-terrorism law to say that "the civil rights and civil liberties of all Americans, including [Muslim Americans], must be protected." But Attorney General John Ashcroft sent a different signal when he expressed a desire to let the FBI begin spying again on political and religious groups. Let us be careful, in our concern for domestic security, to identify our enemies one by one. The first amendment was designed for times like these.

John H. Garvey