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"The average man doesn't want to be free," H. L. Mencken asserted. "He
simply wants to be safe."
>From The American Prospect (epn.org)
Taking Liberties
The New Assault on Freedom
Wendy Kaminer
Free speech is a bourgeois prejudice,” Lenin explained to Emma Goldman in
1920. If only it were so. With the approval of the bourgeois press and
public, Goldman had been deported to Russia in 1919, after serving two
years in prison for criticizing the U.S. government during wartime and
opposing mandatory conscription. The American bourgeoisie—intolerant of
free speech—strongly supported the prosecution, imprisonment, and exile of
pacifists, anarchists, socialists, and other dissidents who opposed
America’s entry into the First World War.
In wartime, the federal government criminalized mere rhetorical
exhortations and expressions of unpopular ideals. The Espionage Act,
enacted in 1917, prohibited willful interference with recruitment,
enlistment, or service in the military, which was broadly construed to
include political advocacy. In most instances, the Supreme Court upheld
these draconian wartime restrictions on speech. But the Espionage Act cases
also helped to transform Justice Oliver Wendell Holmes into a free speech
advocate, and he, in turn, once converted, helped shape the freedoms that
antiwar protesters eventually enjoyed in the 1960s. Since the 1920s, the
Court has greatly expanded rights of political advocacy and has
successfully invoked the Con stitution to protect individuals against
arbitrary government power.
Progress has hardly been steady; leftists were prosecuted in the 1950s,
under the Smith Act, for advocating overthrow of the government or merely
associating with other rhetorical enemies of the state. The rights
revolution proceeded sporadically; it did, however, proceed, as the Court
began enforcing the Bill of Rights and applying it to exercises of state as
well as federal power.
But while new guarantee
"The average man doesn't want to be free," H. L. Mencken asserted. "He
simply wants to be safe."
>From The American Prospect (epn.org)
Taking Liberties
The New Assault on Freedom
Wendy Kaminer
Free speech is a bourgeois prejudice,” Lenin explained to Emma Goldman in
1920. If only it were so. With the approval of the bourgeois press and
public, Goldman had been deported to Russia in 1919, after serving two
years in prison for criticizing the U.S. government during wartime and
opposing mandatory conscription. The American bourgeoisie—intolerant of
free speech—strongly supported the prosecution, imprisonment, and exile of
pacifists, anarchists, socialists, and other dissidents who opposed
America’s entry into the First World War.
In wartime, the federal government criminalized mere rhetorical
exhortations and expressions of unpopular ideals. The Espionage Act,
enacted in 1917, prohibited willful interference with recruitment,
enlistment, or service in the military, which was broadly construed to
include political advocacy. In most instances, the Supreme Court upheld
these draconian wartime restrictions on speech. But the Espionage Act cases
also helped to transform Justice Oliver Wendell Holmes into a free speech
advocate, and he, in turn, once converted, helped shape the freedoms that
antiwar protesters eventually enjoyed in the 1960s. Since the 1920s, the
Court has greatly expanded rights of political advocacy and has
successfully invoked the Con stitution to protect individuals against
arbitrary government power.
Progress has hardly been steady; leftists were prosecuted in the 1950s,
under the Smith Act, for advocating overthrow of the government or merely
associating with other rhetorical enemies of the state. The rights
revolution proceeded sporadically; it did, however, proceed, as the Court
began enforcing the Bill of Rights and applying it to exercises of state as
well as federal power.
But while new guarantees of liberty emerged out of the repression of World
War I, so did the modern American security state. J. Edgar Hoover got his
start persecuting anarchists and other idealists, like Emma Goldman, and
for much of this century, descendants and defenders of World War I
dissidents have been battling Hooverism, with some success. Women and
members of racial, ethnic, and religious minorities have gained
unprecedented legal rights since mid-century, and on balance you are
probably better off being arrested today than in 1960, before the issuance
of landmark Supreme Court decisions protecting the Fourth, Fifth, and Sixth
Amendment rights of criminal suspects. Looking back, we are better off
today than we were 50 years ago. What’s worrisome is looking ahead.
Left and right, freedom is falling out of fashion. Advocates of free
markets will exclaim that freedom has been out of fashion for decades, and
it’s true that economic liberties have been sacrificed to the public
interest in safe, humane, nondiscriminatory workplaces. Civil libertarians,
who tend to be liberal, usually applaud the trade-off, since most are not
sanguine about the virtues of economic liberty. Economic inequality, which
unfettered liberty ensures, is a bar to the equal enjoyment of rights—that
is the dilemma confronting liberal rights advocates. So, the ACLU (of which
I’m an active member) does not go to court to protect the rights of
employers to hire and fire whomever they choose. Instead, it tends to value
civil rights and civil liberties equally, despite the fact that they
sometimes conflict. (If you’re looking for a consistent commitment to
preserving all forms of individual liberty, join the Cato Institute.)
But if liberal civil libertarians lack ideological purity, they started and
sustained the expansion of individual liberty that has distinguished most
of this century. Today, however, they constitute only a small minority.
Eager to punish hate speech, prove their toughness on crime, or express
their horror at illegal drugs or internet smut, many liberals today cannot
be trusted to defend the Bill of Rights. Some feminists, outraged by
pornography or the rights of rape suspects, foolishly dismiss it as a tool
of male oppression. Among liberal political theorists, communitarianism is
more fashionable than any commitment to individual rights. Liberal
politicians have generally sped toward the center, following the lead of
Bill Clinton, who has been uncharacteristically constant in his hostility
toward civil liberties.
Meanwhile, conservatives have chosen the imposition of moral absolutes over
autonomy and individual choice—except when they’re talking about guns, or
the freedom to discriminate. The NRA’s respect for the liberty of gun
owners has made it sensitive to Fourth Amendment violations. (The Fourth
Amendment is a formidable bar to gun control.) But in its anxiety to appear
tough on crime, since it is soft on guns, the NRA has fashioned a
regressive criminal justice agenda, and it lacks a broad commitment to
individual rights. NRA leaders seem to believe that once you ensure the
right to own a gun, all other rights will inevitably follow.
But while guns are proliferating, rights are dwindling. The political
climate that marked the early 1900s may loom in our future as well as our
past; the 1990s have been marked by renewed restrictions on civil
liberties—notably free speech and privacy—and by assaults on the rights of
criminal suspects, people convicted of crimes, immigrants (including those
guilty of nothing more than wishing to enter this country), and poor
people. Many of the worst violations of liberty have been implemented by
federal legislation, either championed or conspicuously unopposed by the
Clinton administration. Many freedoms, particularly those secured by the
Fourth Amendment, have fallen as sacrifices to the war on drugs. Local
legislation, like anti-gang laws, threatens basic liberties of movement and
association; de facto police practices, like racial profiling on the
highways, add to de jure abuses of power. Abusive prosecutorial practices
(which marked the Starr investigation) are distressingly common, although
usually hidden from public view. Meanwhile, technology makes surveillance
easy and practically commonplace. A comprehensive review of repressive or
unduly intrusive laws and practices could spawn a small encyclopedia. (This
article will simply highlight a few.) We don’t yet inhabit a police state,
but you don’t have to be paranoid to imagine one taking shape.
Court Stripping
Federal courts, which have been essential in expanding and preserving
individual rights, are being stripped of their power to review the actions
of federal law enforcement agencies, state courts, and state prisons. Court
stripping, regularly decried by civil libertarians, represents a wholesale
assault on liberty and due process, not to mention the constitutional
system of checks and balances: if courts lose jurisdiction to hear cases
involving constitutional violations, they lose the power to police Congress
and enforce the Bill of Rights.
Congressional efforts to limit the power of the federal courts are not new.
The 1960s, 1970s, and 1980s saw efforts to strip the courts of jurisdiction
in busing, abortion, and school prayer cases—all of which involve
fundamental constitutional rights. All of these efforts failed. Barry
Goldwater dismissed one proposal by Jesse Helms to disallow federal review
of school prayer cases as the equivalent of “outlawing the Supreme Court.”
“Did you really write this bill?” Goldwater reportedly asked Helms. “If I
wrote it, I would be ashamed.”
But Goldwater’s conservatism is an anachronism today, and so is his sense
of shame. In the past several years, Congress has eroded judicial authority
by passing laws that eliminate or greatly limit judicial review and by
refusing to confirm appointments to the federal bench. (You don’t have to
deprive the courts of jurisdiction to hear cases if you simply deprive them
of judges.)
Some of the most grievous limitations on jurisdiction were contained in
counter-terrorism and immigration reform laws enacted in 1996. These laws
practically suspended the writ of habeas corpus in many criminal cases,
depriving federal courts of considerable power to review state court
convictions, especially in capital cases; and they gave federal officials
virtually unchecked power to prosecute and deport legal residents and turn
away people trying to enter the country.
Under the 1996 immigration law, Immigration and Naturalization Service
(INS) officials may summarily deport people seeking political asylum. INS
decisions about asylum used to be subject to challenge in federal court.
Now individual border patrol agents have the power to make instant,
unilateral life and death decisions about whether someone seeking entry is
likely to be subject to death, torture, or imprisonment on returning home.
Human rights advocates have pointed out that the new law is particularly
insensitive to torture victims, who are often too traumatized by their
experiences to recount them readily to INS officials. (The INS has been
summarily expelling an estimated 1,200 people each week.)
Immigration officials have also been rounding up legal residents convicted
of relatively minor offenses. Immigrants convicted of serious, violent
crimes have long been subject to deportation, but now offenses like drunk
driving and shoplifting, even if committed years ago, may make a long-term
resident with an American family deportable, at the whim of INS agents. The
new law gives immigration judges no discretion to consider factors like
family ties and a generally law-abiding history that mitigate against
deportation.
Court stripping creates classes of dictatorial bureaucrats who are
accountable only to themselves—a hallmark of police states. The 1996
counter-terrorism bill also empowers the attorney general to try suspected
terrorists, or people suspected of associating with terrorists, on the
basis of classified evidence. In other words, federal officials can
prosecute and deport people without telling them exactly why, and without
giving them an opportunity to face their accusers and deny or counter the
charges against them. Currently, according to a report in the New York
Times, more than two dozen people are facing deportation or exclusion on
the basis of secret evidence offered by secret accusers. Many of these
people are accused only of associating with terrorists. All of those
accused are Arab, Arab-American, or Muslim.
Terrorism Meets Nativism
As these cases illustrate, the Clinton administration has used its power
under the 1996 immigration law to attack fundamental political rights of
speech and association in the name of protecting us from dangerous
foreigners. Emma Goldman might feel depressingly at home in America today.
But ignoring the First Amendment was much easier 80 years ago—the Supreme
Court had not yet given it life. Today, the government must bypass the
federal courts, which enforce the First Amendment, in order to have their
way with it. And bypassing the courts is precisely what the administration
claims the 1996 immigration law empowered it to do.
Consider the Clinton administration’s action in the nearly ten-year-old
case of Reno v. American-Arab Anti-Discrimination Committee. This case
began in the late 1980s when the Bush administration tried to deport a
group of seven Palestinians and one Kenyan, legally residing in California,
for engaging in protected, political advocacy on behalf of the
Palestinians. A series of federal court rulings have enjoined the
deportations on First Amendment grounds. The government is now seeking
review in the Supreme Court, arguing that the 1996 immigration law deprived
the federal courts of the power to hear the constitutional claims in this
case and enforce the First Amendment.
The Supreme Court has yet to rule on the constitutionality of the
court-stripping measures contained in the 1996 immigration and
antiterrorism legislation. Several constitutional challenges have been
wending their way through the federal court system, however, and the Second
and Ninth Circuit Courts of Appeals have struck down provisions denying
judicial review to legal as well as illegal immigrants facing deportation.
The administration, apparently eager to continue summary deportations, is
expected to seek Supreme Court review of these decisions.
Where did Congress and the administration find the chutzpah to decide that
the executive branch of government should not be held to account by the
federal judiciary when it arguably violates fundamental constitutional
rights? In part, they exploited public obliviousness to questions of checks
and balances. Few voters have likely thought through the complexities of
the separation of powers between the three branches of government since
they were in high school. In part, politicians, especially on the right,
tap into deep popular resentment of “activist” federal judges who enforce
some unpopular rights claimed by unpopular individuals (like criminal
defendants). And, in part, court-stripping legislation was presented as a
form of terrorism control.
New fears of terrorism combined with old-fashioned nativism lent public
support to immigration and counter-terrorism laws, which were enacted in
the wake of the Oklahoma City bombings. An Associated Press poll conducted
shortly after the bombing found strong majority support for preemptive
government action against suspected or “potential” terrorists. According to
an AP story of May 4, 1995, 63 percent of people surveyed favored giving
the FBI power to infiltrate and spy on potential terrorist groups, without
evidence of a crime. Generally, 54 percent believed that the government
should try to stop terrorists, even if it intruded on some people’s rights.
Of course, it’s hard to imagine many people saying that the government
should not try to stop terrorism, even at the cost of some unspecified
rights. The majority’s response to the AP poll presumes that
counter-terrorism measures will succeed. Only a minority of people surveyed
(19 percent) said that government violations of rights were fruitless
because officials could not stop determined terrorists. (Twenty-one percent
found violations of rights unacceptable.)
Whose Liberties?
But the AP poll begs the question: How can the government successfully
identify and prevent terrorist activity? Does public safety require the
violation of the rights of “some people”? And whose rights are they anyway?
Usually when people support law enforcement measures that violate some
people’s rights, they mean other people’s rights, not their own. What makes
a civil libertarian is the capacity to imagine yourself as the accused, not
the accuser.
It’s no coincidence that repressive law enforcement measures often begin by
targeting unpopular groups in society—groups with which majorities of
voters are least likely to identify and most likely to consider “other
people.” If the majority of voters feared being arrested more than they
feared being victimized by crime, the rights of criminal suspects and
prison inmates would be secure. (As I’ve often said, if a conservative is a
liberal who’s been mugged, a liberal is a conservative once arrested.)
But the majority of voters, it seems, do not expect that they or their
family members will ever be subject to abusive arrests and prosecutions and
wrongly convicted of crimes. Instead, fear of being victimized and fury
over violent crime prevail. The belief that we should treat people accused
or convicted of crimes the way we would like to be treated in similar
circumstances is easily defeated by the contrary impulse to treat violent
criminals the way they have treated their victims. So there is strong
majority support for the death penalty (although it weakens when people are
presented with the alternative of life without parole) and a drive to
expedite executions. Congress and the President seemed in tune with popular
opinion when they enacted the Antiterrorism and Effective Death Penalty Act
of 1996, which eviscerated the writ of habeas corpus and the power of
federal courts to review the constitutionality of convictions by state,
especially in capital cases. Included in the 1996 Counter-Terrorism Act, it
is sure to have virtually no ameliorative effect on terrorism: most death
penalty cases involve indigent defendants convicted of decidedly
nonpolitical, often impulsive, random homicides.
State prison officials have also been relieved of considerable federal
oversight. The Prison Litigation Reform Act (PLRA), passed in 1995, ensured
that in most cases involving prisoner’s rights the federal courts would no
longer be able to use consent decrees—the most common and effective
vehicles for correcting unconstitutionally brutal conditions in state
prisons. Like most court-stripping measures, the PLRA does not deprive
people of their constitutional rights in theory; it simply deprives them of
their remedies when rights are violated. The stated purpose of this law was
to curb frivolous suits by prisoners; its primary effect will be to
facilitate their brutalization.
Still, the PLRA was a popular law, perhaps because many people believe that
prisons are like motels with good gym facilities and color TVs, or because
prisoners are not generally considered deserving of human rights. This
tendency to dismiss any group of people as less than human can eventually
threaten everyone’s freedom: repressive regimes depend on the belief that
people have to deserve or earn their rights. Americans are supposed to
believe that rights are inalienable. Of course, people sentenced to prison
are necessarily deprived of some very basic freedoms and rights, but they
should surely retain the rights to be treated humanely.
You don’t have to be imprisoned, however, to lose many fundamental rights.
You could simply lose all your money. It’s not only a free press that
belongs to those who own one, as A. J. Leibling famously remarked. Abortion
rights and the rights to a fair trial, for example, are much more readily
available to rich people than poor. Thanks to recent congressional efforts
to defund and de-fang the Legal Services Corporation, poor people have even
fewer enforceable constitutional rights against the government. Funding
restrictions bar legal services programs that receive any federal aid from
challenging the constitutionality of welfare reform legislation, even if
the challenges themselves are privately funded. Legal services lawyers are
also prohibited from bringing class actions, which enforce people’s rights
on a grand scale, and they are not allowed to lobby (in other words,
advocate for their clients’ rights before legislatures).
These restrictions on legal services (which the ACLU has asked the Supreme
Court to review) are not exactly court stripping, but they do have a
similar effect: they decrease the accountability of executive and
legislative actions. Instead of stripping the courts’ power to hear cases
involving the rights of poor people, Congress simply stripped advocates for
the poor of the power to bring cases. You don’t have to regard the
restrictions on legal services lawyers as a form of political repression in
order to recognize it as another way of immunizing elected officials and
bureaucrats from constitutional limitations on their behavior.
The fight to maintain liberty is, from one perspective, a fight to prevent
agents of the state from exercising arbitrary, unaccountable power. Unlike
the cops, say, of NYPD Blue, real-life law enforcement agents do not have
an unerring instinct for only abusing the rights of guys who turn out to be
guilty. In Maryland, on Interstate 95, for example, state troopers have
targeted innocent African-American motorists for “random” searches as part
of the war against drugs, for the de facto offense of driving while being
black. The searches are not mere inconveniences: people are pulled over and
asked, with varying degrees of belligerency, to “consent” to thorough
searches of their cars and everything in them. If they decline, they are
not free to leave; they are forced to wait on the side of the road for the
arrival of drug dogs, who sniff and paw through their belongings and
sometimes urinate in their cars.
Because it affects so many innocent people, and because it is clearly
discriminatory, racial profiling is difficult to defend. So police are apt
to deny that they engage in it when they are threatened with legal action.
Courts do maintain their power to enforce the Fourth and 14th Amendments in
cases like these, after all. In 1993, without acknowledging guilt, the
Maryland State Police settled a lawsuit brought by the ACLU of Maryland on
behalf of an African-American attorney, Robert L. Wilkins, who was stopped
and searched while driving on I-95 with his family. In 1996 the ACLU went
back to court, charging the Maryland State Police with continued
discriminatory enforcement; relying on the state’s own computerized records
(now maintained under court order), the ACLU found that 75 percent of
motorists searched by police are black, while 20 percent of motorists
searched are white; but 75 percent of traffic violators on I-95 are white
and only 17.5 percent are black. The great majority of these searches do
not uncover evidence of crime, and statewide in Maryland, equal percentages
of black and white motorists (about 28 percent each) are caught with
illegal drugs.
Imagine the outcry if middle-class white motorists were routinely subjected
to degrading, highly intimidating, intrusive, and fruitless random drug
searches like those conducted by the Maryland State Police. Many of them
would not consider charges of “Gestapo” tactics mere hyperbole. The
Maryland case is not only about racism; it is about police practices that
violate the basic freedom to venture out in public and travel without
risking arrest.
Loitering and Liberty
The right to stand still in public is also under attack. Anti-loitering
laws are being extolled by cities across the country as effective anti-gang
measures. A case now before the Supreme Court, Chicago v. Morales, will
determine whether the freedom to engage in conversation on a public street
must be sacrificed to a war against gangs. Morales involves a challenge to
a Chicago ordinance providing that “whenever a police officer observes a
person whom he reasonably believes to be a criminal street-gang member
loitering in any public place with one or more persons, he shall order all
persons to disperse and remove themselves from the area.” People who
disobey the order are subject to arrest.
The Illinois Supreme Court held that the ordinance was impermissibly vague
on its face: it does not adequately define loitering so as to provide
people with notice that their activities (or inactivities) are prohibited.
Loitering turns out to be a bit like impeachment: it means whatever a
police officer says it means. The Illinois court also held that the
ordinance constituted an unreasonable and arbitrary interference with civil
liberty. It abridges First Amendment rights of speech and association, as
well as Fourth Amendment rights not to be arrested without reason; indeed,
ordinances like these are aimed at empowering police to arrest people who
do not appear to be engaged in any illegal activities. As the city of
Chicago acknowledged, the ordinance is supposed to “stop crime before it
occurs.”
It should hardly need to be stressed that in a free society, the police
enjoy the power to arrest you only after you have committed a crime, not
before. Laws like the one at issue in the Morales case do not just invite
discriminatory enforcement; they endorse it, encouraging police to rely on
their own biases (or suspicions) when applying the law. (While the
anti-loitering law was in effect in Chicago, police arrested more than
43,000 people. Most were African American and Hispanic; many did not belong
to gangs.) It’s worth noting that the Supreme Court struck down
broad-ranging anti-loitering laws during the civil rights movement, when
they were used by police to disperse people protesting segregation. It
would be a sad irony indeed if three decades later, the Court effectively
reversed itself and upheld loitering laws used primarily against black and
Hispanic youth.
The Supreme Court’s previous decisions on anti-loitering and vagrancy laws
are no less compelling today. In the 1965 case of Shuttlesworth v. City of
Birmingham, the Court invalidated the arrest of a civil rights activist,
Fred Shuttlesworth, for standing in a small group of people outside an
all-white department store. Shuttlesworth was arrested under a law that
prohibited standing on a street or sidewalk “after having been requested by
any police officer to move on.” Taken literally, Justice Potter Stewart
observed, this meant that “a person may stand on a public sidewalk in
Birmingham only at the whim of any police officer of that City. The
constitutional vice of so broad a provision needs no demonstration. . . .
That kind of law bears the hallmark of a police state.”
Shuttlesworth’s arrest was invalidated, but the statute at issue in his
case was saved by the narrow construction of it offered by the Alabama
courts. A few years later, however, the Court struck down Jacksonville,
Florida’s anti-loitering and vagrancy laws, ending an era in policing that
anti-gang ordinances threaten to revive. In the 1972 Florida case
Papachristou v. City of Jacksonville, the Court warned that because they
encompassed innocent pastimes (like talking to your friends), these laws
invested police with unfettered discretion. “Where the list of crime is so
all-inclusive and generalized . . . those convicted may be punished for no
more than vindicating affronts to police authority,” Justice William
Douglas wrote for the majority.
Chicago’s anti-loitering ordinance would not survive Justice Douglas’s
vision of civil liberty—and it did not survive in the Illinois courts. The
Morales case will tell us if the Supreme Court still sees the preeminent
value of liberty. The rights at stake in Morales are not marginal. They
define citizenship in a free society. Or, as Douglas remarked, they are
“historically part of the amenities of life as we have known them . . . .
They have dignified the right of dissent and have honored the right to be
non-conformists and the right to defy submissiveness. They have encouraged
lives of high spirits rather than hushed, suffocating silence.”
Ceding Liberty to Purity
The trouble is that many people are becoming accustomed to submitting to
authority in the hope of remaining safe. Most of us trudge sheeplike
through airports, readily complying with all the demands of low-level
security personnel, who are themselves applying, without question, the
dictates of their superiors. All of us display our government-issued photo
IDs before boarding a plane. Terrorists no doubt have access to fake
licenses and passports, but the photo ID requirement enables airlines to
catch passengers using other people’s discount tickets. An unlucky few,
especially those with Middle Eastern names, are subjected to thorough
searches of their belongings, and, on occasion, stripped and subjected to
full body searches. Meanwhile, effective security measures, like full
luggage matching, which would ensure that everyone who checks a piece of
luggage boards the plane, have yet to be implemented.
Intrusive, faux security measures at the nation’s airports may eventually
be challenged in court. If court-stripping efforts are ultimately
invalidated by the Supreme Court, the federal courts will retain the power
to preserve individual liberty (although there is no telling how they’ll
exercise it). But the court system itself cannot withstand a concerted
legislative attack on its power. In the end, Congress can bypass the courts
by amending the Constitution, as it has lately been endeavoring to do.
In interpreting and enforcing the Bill of Rights, the courts have usurped
the political power of majorities, former Nixon aide Charles Colson has
written, with some accuracy. The courts have indeed denied majorities the
power to repress minority rights. In my view, the federal courts have kept
faith with the Constitution. In Colson’s view they have broken a covenant
with God: their usurpation of political power “compels evangelical
Christians and, indeed, all believers to ask sobering questions of the
current political order and our allegiance to it.”
A war against the courts and the Constitution is already underway. Stymied
by the Supreme Court’s approach to religious liberty, the religious right
has lobbied hard for a constitutional amendment allowing school prayer. (A
prayer amendment was defeated in the House last spring.) Chafing at the
rights afforded criminal suspects, Congress has proposed a Victims’ Rights
Amendment, to qualify the rights of the accused and to undermine the
fundamental purpose of the Bill of Rights—preventing abuses of government
power by imbuing people prosecuted by the Supreme Court with enumerated
rights. Unhappy with a recent Supreme Court decision upholding the First
Amendment right to burn a flag as a form of political protest, Congress
nearly passed a constitutional amendment qualifying the First Amendment and
criminalizing flag desecration. It is likely to come before the Senate
again next session and may well pass.
The flag desecration amendment is the equivalent of the World War I
Sedition Act, which criminalized “scurrilous” or “abusive” speech against
the government (except that unlike a censorious law, a censorious
constitutional amendment is quite unlikely to be repealed). Burning a flag
is political dissent, as the Supreme Court has recognized, but the
prohibition of flag desecration is often extolled by its advocates as a
means of establishing and preserving community. They even characterize it
as an effort to instill tolerance for community values, as some Muslim
fundamentalists characterized the Fatwa against Salman Rushdie as an effort
to achieve religious tolerance.
“National unity” can only be achieved through persuasion, not coercion,
Chief Justice Robert Jackson stressed in a 1943 case, upholding the right
of Jehovah’s Witnesses not to salute the flag. Writing during World War II,
when the consequences of coercive nationalism were horrifyingly clear,
Jackson (later the Nuremberg prosecutor), observed that “those who begin
coercive elimination of dissent soon find themselves exterminating
dissenters. Compulsory unification of opinion achieves only the unanimity
of the graveyard.” At the risk of seeming trite, Jackson added, it seemed
necessary to say that the First Amendment “was designed to avoid these ends
by avoiding these beginnings.” The flag desecration amendment will take us
back to the beginning of this century, when dissent was punishable by
imprisonment.
The flag amendment, which has been championed by the right, testifies to
the corruption of contemporary conservatism, which is supposed to respect
individual liberty. Indeed, when opposing affirmative action and other
civil rights initiatives, conservatives like to point out that the
Constitution protects individual rights, not group rights. Yet, they
insist, the community’s right not to be offended by a flag burning trumps
the individual’s right to engage in offensive political speech, however
peaceful. That, of course, is the philosophy of political correctness,
usually advanced by the left.
Abandoned by liberals and conservatives alike, liberty languishes. Outside
the ACLU or the Cato Institute (or the militia movement) few people even
talk about liberty anymore. When did you last hear a mainstream political
candidate promise to make the preservation of freedom a priority?
“The average man doesn’t want to be free,” H. L. Mencken asserted. “He
simply wants to be safe.” Mencken was exaggerating: the average man
(whoever he may be) probably wants both safety and freedom but can be
persuaded to sacrifice the latter to the former. Individual rights are
routinely characterized as threats to our collective security, which is why
restricting the rights of criminal suspects, pornographers, flag burners,
and immigrants, young African-American and Hispanic males, and millions of
air travelers enjoys public support.
But most of the repressive laws and practices recently thrust upon us make
us less free without making us more safe. Racial profiling on the highway
will not decrease the violent trafficking in illegal drugs or problematic
drug use (although decriminalization might). Depriving federal courts of
the power to ameliorate inhumane conditions in state prisons will not deter
people from committing crimes increasing fear of prison life; instead it
may well increase the likelihood that those released from increasingly
violent prisons will commit new, violent offenses. Some repressive police
practices may prevent crime, of course: you can decrease street crime if
you eliminate the right to venture out in the street. But if some criminals
are easily controlled in police states, others, like abusive law
enforcement agents, are unleashed.
Recent restrictions on individual liberty are not, however, simply aimed at
making us more secure; they’re supposed to make us more pure. What’s
striking about repression in America today is the moralism that drives it.
On the left, champions of political correctness at war with the First
Amendment aim to rid individuals of bad attitudes toward select,
historically victimized groups. On the right, aspiring theocrats want us to
be ruled not by our own consciences or individual proclivities but by their
understanding of Scripture. The underlying assault on the federal courts is
a jihad, as Charles Colson’s rhetoric makes clear.
For much of this century, we progressed toward freedom, however
erratically. Now freedom is condemned as a rejection of God. The message is
familiar. Moralism, combined with an intolerant religiosity, is an American
perennial, as Mencken gleefully observed. But if the current wave of
repression is not unprecedented, it is, at the very least, depressing. You
need the passion of Emma Goldman, or the misanthropy of Mencken, to feel
inspired by it.
------------------------------------------------------------------------
Wendy Kaminer, a public policy fellow at Radcliffe College, is a
commentator on National Public Radio’s Morning Edition, and the president
of the National Coalition Against Censorship. Her latest book is True Love
Waits, a collection of essays.
------------------------------------------------------------------------
Copyright © 1999 by The American Prospect, Inc. Preferred Citation: Wendy
Kaminer, "Taking Liberties: The New Assault on Freedom," The American
Prospect no. 42, January - February 1999. Readers may redistribute this
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