Freedom flees in terror from Sept. 11 disaster

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org

09.19.01

Last Tuesday's terrors were so calamitous that they threaten to shake us loose from our constitutional mooring. A civil liberties catastrophe looms as citizens surrender to fear, fury and frustration and as lawmakers throw money and shards of the Bill of Rights at the specter of terrorism.

Some of our elected leaders predict a gloomy future for freedom.

"We're in a new world where we have to rebalance freedom and security," said House Democratic Minority Leader Richard A. Gephardt, D-Mo. "We're not going to have all the openness and freedom we have had."

Senate Minority Leader Trent Lott, R-Miss., repeated the warning: "When you're in this type of conflict, when you're at war, civil liberties are treated differently."

Even staunch First Amendment advocates, haunted by the suffering and devastation in New York City, near Washington, D.C., and the Pennsylvania countryside, are tempted to temporize in the face of insistent calls to suspend or re-examine our commitment to civil liberties.

The First Amendment fallout commenced within hours of the airplanes crashing into their targets. Tuesday afternoon, FBI agents fanned out to persuade Internet firms and service providers to hook up e-mail sniffing software to monitor private citizens' e-mail. While the desire to marshal all resources in such circumstances is understandable, there are serious consequences for private speech and public discourse when ordinary citizens fear that law enforcement officials with broad powers to investigate and detain are listening in.

Expressive activity was curtailed in a variety of places. A high school official reprimanded a student who distributed a flier asking her classmates to pray. Officials at the Baltimore Museum of Art took down a Christopher Wool painting containing the word "Terrorist" (later, they promised to provide "new interpretation" for the painting when it is reinstalled). New York police and members of the National Guard confiscated film from journalists and tourists.

If only that were the worst of it.

Government officials and policymakers immediately called for measures that would chill public discourse, disrupt reporting by the press, and interrupt the flow of information to the public. They want an expansion of law enforcement powers to spy on telephone and Internet traffic, to restrict the use of Internet encryption products that thwart online monitoring of private email, to slow down and divert funds from the declassification of secrets, and to force public libraries to reveal information about patrons' use of their computers.

In Congress, prospects brightened for several troubling measures, including:

• The Cyber Security Information Act, which among other things would blow a gaping hole in the Freedom of Information Act.

• Anti-leaks legislation, dubbed the "official secrets acts" by those who are deeply concerned about its impact on speech and the press and the flow of critical information to the public.

• The Flag Desecration Act, which would for the first time in the history of our nation amend the First Amendment to prohibit burning the flag as a form of political dissent.

To compound the threat, there are disturbing examples of private or self-imposed restrictions on expression. Web pages shut down or removed content, a radio network circulated a list of songs that would be problematic to play, an employer confiscated American flags from the desks of workers, and a wire service withheld news footage after Palestinian threats against a photographer.

It would be foolish to dismiss such events — public or private — as mere nibbling at the edges of our rights. In fact, each nibble diminishes our commitment to freedom and the principles that distinguish our way of life from all others.

In such an atmosphere, voices of dissent grow silent, probing questions by the press are viewed as unpatriotic and subversive, and whistleblowers inside government with vital information are quieted. In such an atmosphere, propaganda, rumor and paranoia fester and infect. In such an atmosphere, citizens are denied their place as full partners in their own governance.

By suspending some of our most precious principles, the risk becomes not just terrorists whose hearts have grown rancid with hate but also a citizenry whose hearts are filled with fear.

There are things we can and should be doing rather than joining the stampede to ditch our rights. As columnist Thomas Friedman put it: "We have to fight the terrorists as if there were no rules and preserve our open society as if there were no terrorists."

First, we must remember that we've gone down this road too many times before. We have suspended freedom of speech, press and assembly during wartime and other crises, to the point of sending prominent Americans to jail for long terms for uttering unpatriotic words. And always we've looked back in wonderment that we could have been so stupid, that we could have so easily cast aside our democratic heritage.

We must demand of ourselves that a distinction is made — in public discourse as well as public policy — between what is merely inconvenient and what strikes at the heart of our most important freedoms.

We must demand of those proposing a degradation of our freedom that they provide an immediate and convincing argument that such an approach represents a real solution rather than a false hope.

Finally, before we begin to contemplate forfeiture of any of our essential liberties, we must thoroughly examine the lapses in public policy and operations that have become so cruelly evident in the wake of the disaster. Lapses in intelligence collection and analysis; in basic security measures at airports; in granting and monitoring of visas; in national, state and local emergency preparedness.

As much as we wish to be safe forever from the horrors of last week, we simply cannot protect freedom by forsaking freedom. As much as we want relief from this time of national duress, we simply cannot make ourselves more secure by making fundamental freedoms less secure.

The words of Samuel Adams, in a different time and context, present a challenge to our natural impulse to sacrifice freedom in the face of terrorism:

"Contemplate the mangled bodies of your countrymen, and then say, What should be the reward of such sacrifices? … If ye love wealth better than liberty, the tranquillity of servitude than the animating contest of freedom — go from us in peace. Crouch down and lick the hands which feed you. May your chains sit lightly upon you."

What an affront to the courage and heroism shown by those who gave their lives in rescue efforts or in forcing hijackers into a crash if we give in easily to fear or panic.

Fire from the skies and hatred from afar last Tuesday caused human carnage and suffering at an unthinkable level. They dealt terrifying blows to our financial institutions, our transportation and communications systems, our political and military nerve centers, and to a nation's sense of self and security.

Do we really want to add constitutional freedoms to that sorrowful list of casualties?