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Gag order
The First Amendment states that ‘no law’ can abridge freedom of speech. So what part of ‘no’ doesn’t John Ashcroft understand?

BY HARVEY A. SILVERGLATE


ATTORNEY GENERAL JOHN Ashcroft has gone White House spokesman Ari Fleischer one better in the race to equate criticism of the Bush administration’s war policies with a lack of patriotism. In a time of danger — where we now undoubtedly find ourselves — national security can ill afford such sanctimony-tinged myopia.

Fleischer’s admonition that people must watch what they say, made in response to Politically Incorrect host Bill Maher’s remark that "we have been the cowards lobbing cruise missiles from 2000 miles away," was, it turns out, just the first shoe. The second shoe dropped during Ashcroft’s muscular testimony last week before the Senate Judiciary Committee. Making crystal clear his narrow-minded belief that there exists one legitimate view (his) on the balance between liberty and security, the attorney general warned darkly:

"We need honest, reasoned debate, and not fear-mongering. To those who pit Americans against immigrants and citizens against noncitizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends. They encourage people of good will to remain silent in the face of evil."

Our history of seeing nonconformists and critics attacked in times of war, despite its ugliness, has also revealed the quintessential genius of American liberty. Some of the Supreme Court’s most important insights have come at crucial moments in the 20th century, and they should be grasped rather than dishonored by the first administration of the 21st.

Ashcroft’s argument that in the face of domestic terrorism certain civil liberties heretofore taken for granted require rethinking begins with a valid constitutional basis. Indeed, the Bill of Rights sets out liberties that are, by the very language used by the drafters, vague and malleable, so as to allow future generations to take into account current conditions. The Fourth Amendment protects against "unreasonable" searches and seizures, not all incursions into privacy. The Fifth Amendment assures "due process of law" before the government takes "life, liberty, or property," which guarantees simply whatever process is "due" under the circumstances. The Sixth assures "the assistance of counsel for [one’s] defense," which the Supreme Court has interpreted as effective legal assistance in light of the evolving standards of the bar. The Eighth Amendment outlaws "cruel and unusual," rather than all, punishments, leaving each era to determine where to draw the line between the civilized and the barbaric, a line the court has recognized evolves over time.

By conflating disagreement and disloyalty, however, Ashcroft focuses his attack on that portion of the Bill of Rights that is, by its own terms, absolute. The government "shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," states the First Amendment. To paraphrase the late justice Hugo Black, which part of "no" doesn’t the attorney general understand?

True, we are at war. But in the last century, the Supreme Court deemed protecting the right to dissent and to question most important not during peacetime, but in times of war and other crises. September 11 indeed requires rewriting some rules, but the First Amendment should not be among them. Ashcroft, so fond of citing such historical precedents as Abraham Lincoln’s suspending habeas corpus and Franklin Roosevelt’s relocating Japanese-Americans, should look at the wartime First Amendment precedents as well.

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Issue Date: December 13 - 20, 2001

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