Gag order

Boston Phoenix -- News/Features | 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.

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.

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.

A number of Jehovah’s Witness children, whose patriotism was not in doubt, refused to pledge because it violated the Biblical injunction against idol worship. In the 1943 case West Virginia Board of Education v. Barnette, Justice Robert Jackson, writing for a 6-3 majority, noted that the strength of the nation lay in "individual freedom of mind" rather than "officially disciplined uniformity for which history indicates a disappointing and disastrous end." As if responding to Ashcroft’s insistence that the administration’s wartime policies were beyond question, Justice Jackson warned that much misery has been caused throughout history by efforts "to coerce uniformity of sentiment in support of some end thought essential." Jackson concluded that "compulsory unification of opinion achieves only the unanimity of the graveyard."

A similar issue arose in the aftermath of the Korean War. We had defeated one deadly totalitarian system — Nazism — only to find ourselves in mortal conflict with another — Communism. State and federal loyalty oaths and investigations became the rage. In Sweezy v. New Hampshire (1957), the court ended the New Hampshire legislature’s investigation into the supposedly "subversive" views of professor Paul Sweezy, who had been held in contempt for his refusal to reveal, among other things, what he taught at the state university. His interrogators claimed that his teaching was subversive of New Hampshire’s democratic form of government. That era saw a host of similar, equally unsuccessful attempts to impose loyalty oaths on public employees.

The Vietnam War produced its own cases. While the court dealt harshly with people who actually interfered with the war effort — those who burned draft cards or urged others to do so, thereby disrupting the Selective Service System, for example — it assiduously protected those who questioned the war in even the strongest terms. Cohen v. California (1971), for example, authored by the great conservative justice John Marshall Harlan, protected the right of a young Californian to enter a courthouse with the slogan fuck the draft written on his jacket. The court recognized the difference between criticizing wartime policies and taking affirmative steps to interfere with then. Criticism does not aid the enemy; rather, it assures the health — and ultimately the security — of the nation.

while Ashcroft is free to use his bully pulpit to disagree with the administration’s detractors, his efforts to scare and silence them by labeling them disloyal actually detracts from our security. It seems, well, a bit unpatriotic. For, as the Supreme Court has long recognized, complacency and false certainty are the problem, while dissent and criticism are the solution.

Harvey Silverglate is the co-author of The Shadow University: The Betrayal of Liberty on America’s Campuses (HarperPerennial, 1999) and a partner in the law firm of Silverglate & Good."