The following article is from Free
Inquiry magazine, Volume 24, Number 4.
Soon after the 9/11 attacks, when the Bush administration
was summarily imprisoning immigrants who had no apparent connection to terrorism
and asserting virtually unaccountable power to spy on citizens and noncitizens
alike, Attorney General Ashcroft famously sneered at the fears of civil
libertarians. We were scaring people with “phantoms of lost liberty,” he
His metaphor was inadvertently appropriate. When the
Federal Bureau of Investigation subpoenaed records of an antiwar protest at
Drake University in February of this year, the ghost of Richard Nixon seemed to
hover over us, taking names and serial numbers of Americans who had the temerity
to protest what they regarded as an unjust and unnecessary war.
Federal subpoenas were served on Drake University, the
National Lawyers Guild, which had organized the event, and four individual
activists, including the leader of the Catholic Peace Ministry and a member of
the Catholic Worker House. The subpoenas apparently sought information on the
people who attended the antiwar forum, called “Stop the Occupation! Bring the
Iowa Guard Home!” Why were they issued? Federal officials claimed they were
investigating an effort by one person to scale a security fence the day after
the event. Given this very flimsy excuse
for seeking information about people engaged in legal
political advocacy, it was not entirely surprising that the U.S. attorney
general retreated and withdrew the subpoenas when the National Lawyer’s Guild
prepared to challenge them in court. But the message to anti-war protesters and
other dissidents was clear: exercise your First Amendment rights and you won’t
simply be haunted by phantoms of prosecutors past; you’ll be targeted by their
Meanwhile, Rhode Island Governor Donald Carcieri may have
been visited recently by the ghost of Woodrow Wilson, who enthusiastically
signed the infamous Sedition Act of 1919; it prohibited “disloyal, profane,
scurrilous, or abusive language about the form of government of the United
States, or the Constitution of the United States, or the military or naval
forces of the United States.” In February 2004, Carcieri proposed a homeland
security act for Rhode Island that would have expanded upon state laws enacted
in 1919 that criminalized mere advocacy of anarchy. As the Rhode Island American
Civil Liberties Union observed, these laws are “incredibly archaic”: the
criminalization of mere advocacy was declared unconstitutional by the Supreme
Court decades ago.
But the governor of Rhode Island was undeterred. His
proposal would have resurrected provisions making it a crime to “teach or
advocate anarchy” or the violent overthrow of the government or to affiliate
“with any organization teaching and advocating disbelief in or opposition to
the government.” To these clearly unconstitutional provisions, Carcieri would
have added language making it a crime to teach or advocate “acts of
How would Carcieri define terrorism? The governor borrowed
the very vague, expansive definition of terrorism included in the U.S.A. Patriot
Act: domestic terrorism is there defined as acts dangerous to human life that
violate state or federal penal law and appear intended to intimidate or coerce a
civilian population or to influence government policy by intimidation or
coercion. As many civil libertarians have observed, this definition of terrorism
could easily be applied to any political demonstration at which a single act of
violence or even disorderly conduct occurs: in other words, someone who upends
or throws a garbage can during a protest march could be guilty of terrorism and
sentenced to life in prison. Many protest movements or marches could be viewed
as efforts to influence government policy by intimidation or coercion.
(Civil-rights activists in the 1950s and ’60s could have been considered
terrorists under a law like the Patriot
Act.) Many protests, marches, and
movements involve acts of civil disobedience that could be construed by
political opponents as dangerous to human life.
We don’t know what the Supreme Court might or will say
about the Patriot Act’s controversial definition of terrorism, but we do know
that the Court would have to rewrite First Amendment law in order to uphold
prohibitions on the mere teaching and advocacy of unpopular, subversive, or
arguably dangerous political ideas. The Court would have to take us back to the World War I years, when Emma Goldman was deported for
opposing the draft and criticizing the government during wartime, and Eugene
Debs was sentenced to a ten-year prison term for making an antiwar speech in
which he told people they were “fit for something better than slavery and
The governor of Rhode Island was dragged back to the future
by immediate and vociferous criticism of his bill, which he hastily withdrew.
It’s too soon to tell if he and other elected officials will stay there.
Wendy Kaminer is a lawyer and social critic. Her latest
book is Free for ALL: Defending Liberty in America Today.
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