Why Free Speech And Other Rights Are Not As Safe As You Might Think

Wednesday, Oct. 17, 2001

Does law speak in time of war? And, if so, to whom, and how loudly? No question is more important to a polity that claims to be structured by constitutional norms.

The United States Constitution contains no "emergency power" or general "suspension" clause of the kind found in the Weimar Constitution or the current Indian Constitution. It is difficult to read our constitutional history, however, without believing that the Constitution is often reduced at best to a whisper during times of war.

Suspending Habeas Corpus

The most obvious source of examples to support this proposition is the Lincoln presidency. Indeed, one of Lincoln's first acts was to order suspension of habeas corpus.

The Constitution does allow the suspension of habeas corpus — in the single clause that establishes even a limited authority to abrogate law in wartime. This clause, however, appears in Section 9 of Article I — the Article defining Congress' powers — not in Article II, where the President's powers are defined. That placement strongly suggests that Congress must grant prior authorization when habeas corpus is suspended. In 1861, Lincoln had no such authorization.

Early in his career, Lincoln had spoken of "reverence for the laws" as the "political religion of the nation." He also called on all Americans to "swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others."

How then, did Lincoln defend his unilateral suspension of habeas corpus? He made the claim — a dubious one, as noted above — that the Constitution empowered him to do so. But he also posed a rhetorical question: If "all the laws, but one, [are] to go unexecuted, and the government itself to go to pieces, lest that one be violated?" Lincoln knew most citizens would favor the suspension of habeas corpus over the destruction of the government, given the choice.

The Emancipation Proclamation

Later, with a stroke of the pen Lincoln, in the Emancipation Proclamation, unilaterally ordered one of the most extensive confiscations of "property" in world history. His authority was based on "the power in me vested as Commander-in Chief . . . and as a fit an necessary war measure." One could plausibly view this as a violation of the Constitution's prohibition on the government's taking property without due process or compensation.

Consider the response of one newspaper that supported the Proclamation: "Nobody pretends this act is constitutional, and nobody cares whether it is or not."

Justice Benjamin R. Curtis quoted this newspaper's comment in his pamphlet attacking the Proclamation. Curtis deemed the Proclamation a particular "cause for alarm" in that it showed, he thought, a "tendency to lawlessness" even by public officials. "[P]ublic servants may themselves break the fundamental law of the country . . . in violation of their solemn oath of office; and 'nobody cares,'" Curtis complained, suggesting that Lincoln, with the Proclamation, broke his oath to uphold the Constitution.

I suspect that most of us find Curtis's concerns almost beside the point. Ironically, though, that simply establishes the validity of his basic insight: Even today, nobody cares.

The exigencies of war might have had something to do with the widespread acceptance of the Proclamation — seen as a step in defeating the South. But the sheer moral force of Lincoln's action certainly won him adherents as well.

Debs and Dennis : When Free Speech Yields to War

Of course, it is not only the Lincoln presidency that exemplifies the truth behind Justice Holmes's assertion that ordinary constitutional norms may be relaxed "when a nation is at war."

Indeed, Holmes himself wrote the infamous anti-free speech Debs opinion for the Supreme Court. The opinion allowed Eugene Debs, the leading socialist politician in our history, to be jailed for ten years because he had expressed opposition to World War I.

Years later, in 1951, the Court still viewed speech in wartime (Cold War-time) much the same way. In Dennis v. U.S. , the Court upheld the imprisonment of top leaders of the Communist Party.

The Court's rationale? In part, it based its decision upon the rule suggested by Learned Hand that the ability of the state to punish speech should be the result of multiplying the likelihood of the threatened event by the "gravity" of the evil. The formula, of course, is troubling: A threat that is extremely unlikely to become reality, but is also extremely grave, might still justify suppressing speech.

To be sure, Dennis and Debs seem implicitly to have been overruled by the 1969 Brandenburg decision. There, the Court overturned Ku Klux Klansman Clarence Brandenburg's conviction for calling for "revengeance" against blacks, Jews, and Catholics, on the ground that the conviction violated the First Amendment.

Still, the barest acquaintance with American constitutional history teaches that nothing is necessarily forever. In 1969, Brandenburg was viewed as basically irrelevant; society, in the Sixties, seemed to have triumphed over the Klan.

Would today's Supreme Court be as protective of a vocal supporter of Osama bin Laden? What if the speaker were a Moslem resident alien identified with a radical Islamic fundamental group? And what if the speech were given to other members of the same radical group — calling for participation in a "jihad" against a hated United States?

The "Pentagon Papers" Decision: Less Pro-First Amendment Than It Appears

Consider even the famous "Pentagon Papers" decision in 1971. In that decision, the Supreme Court freed the New York Times from a lower court's injunction against its publication of the classified history of the Vietnam War. The opinion now stands as a famous free speech victory. But is it as much of a victory as it appears?

We do well to recall that three justices (Blackmun, Burger, and Harlan) would have sustained the injunction. Two other justices, Stewart and White — the "swing votes" — gave as the reason for their pro- Times vote the lack of congressional authorization for suppression. Moreover, White left open the possibility that while the injunction — as a prior restraint — was impermissible, the Times could be punishable by damages awarded post-publication.

Only a minority of four justices, therefore, thought that the nation's leading newspapers were completely protected by the First Amendment — in the sense that they would have been protected even if a Congressional statute had specifically directed that the Pentagon Papers could never be published.

Is the famous Pentagon Papers case, then, solid law? Not as solid as one might think. A similar case could conceivably make its way to the Court on an expedited basis this year, and this time, the type of Congressional statute that Justices White and Stewart said was needed might well exist.

Certainly the Bush Administration — which has urged networks not to show the bin Laden video, and decried leaks of classified information — would show little sympathy for a "Pentagon Papers"-like leak. Nor, one might think, would Congress.

Would Korematsu Be Decided Differently Today?

Just as many of us have assumed Brandenburg and the Pentagon Papers case will remain the law, so too many of us have assumed that the notorious Korematsu case will not. But this assumption, too, may be inaccurate.

In 1944's Korematsu case, in a ruling with which many are familiar, the Supreme Court upheld the President's Executive Order 9066. The Order forced relocation and internment of Japanese-Americans–as well as their Japanese-national parents who, though resident aliens, were ineligible to become American citizens under then-existing American naturalization law. In passionate dissent, Justice Roberts termed the internment camps "concentration camps."

In 1988, the United States formally apologized and even paid compensation to those affected. Korematsu, however, remains on the books; the Court has never formally overruled it.

No one familiar with recent defenses of the rationality of "racial" — or, more accurately, national origin/religious — profiling can be confident that Korematsu would not be decided similarly today.

Increasing Court Deference to Compelling State Interests

The years since 1969's Brandenburg pro-First Amendment decision have seen an opposite trend: the flourishing of the doctrine of "compelling state interests."

In practice the point of this doctrine, it seems, is to excuse deviation from what are ordinarily believed to be basic norms, by reference to the unacceptable costs of adhering to these norms. Exemplifying this trend, the Supreme Court's 1981 decision in Haig v. Agee deserves renewed attention — not so much for its ruling as for its reasoning.

Agee was what Laurence Tribe describes as a "singularly unattractive" litigant — "a former C.I.A. employee whose declared purpose in travelling abroad was to expose the identities of C.I.A. agents." Unsurprisingly, the Court had little trouble upholding the national government's power to withhold his passport. Few disagreed with the ruling, and that may be why Haig v. Agee has attracted relatively little comment.

What deserves notice, though, is what the Court wrote along the way: It is, the Court stated, "'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Suppose the Court really meant what it said — for there is no reason to think it did not. Suppose, too, that the Court chooses not to require from the government an explicit and empirical demonstration of a close connection between the power sought, and actual protection of "the security of the Nation." The inevitable conclusion is that all bets are off with regard to the courts offering genuine protection of civil liberties during time of war.

Congressional Protection of Civil Liberties?

If we cannot look to the Court to protect our civil liberties in the coming years, we can at least ask Congress to do so. Perhaps unexpected–some might say unholy–coalitions in Congress between Representatives like Bob Barr and Barney Frank will spring up.

Or perhaps usually opposed groups like the National Rifle Association and the American Civil Liberties Union, who claim to be able to hear a resonant Constitution that speaks during times of war, may see a common interest. One can scarcely be optimistic about these coalitions or groups prevailing, however.

Many readers may find "optimism" the wrong word; they might instead endorse the claims of Attorney General Ashcroft that emergency does indeed call for the maximum exercise of governmental power and concomitantly flexible constitutional interpretation.

Or perhaps they might agree with Alabama Senator Richard Shelby that the United States in effect should emulate Great Britain by passing the equivalent of an "Official Secrets Act." The Act could make it a criminal offense to receive information that the recipient knows to be classified, a proposal that would already be law were it not for a courageous veto by former President Clinton late in his term. (It helped, no doubt, that Clinton was encouraged to exercise the veto by almost every major news organization.)

The Need For Constitutional Debate, Now More Than Ever

The most serious constitutional debates in coming weeks will take place in plain view, as it were — in the nation's editorial and letters-to-the-editor columns, on talk shows, and in Congress.

All Americans have a vital stake in the outcome of these debates and all, therefore, should feel empowered to participate in them. One scarcely needs legal training in order to understand the basic issues posed by "balancing" national security claims against traditional individual liberties. This is not a situation where "experts" can tell us what to do — it is one in which we must look to our own conscience, values and beliefs.

Chief Justice John Marshall famously wrote, in Marbury v. Madison, that it is the province of the Court to say what the law is. I am tempted to add that it is most certainly "the province" of the citizenry in general, and of their representatives in Congress, to say what the law is now, with regard to the issues I have discussed here.

In any event, it is naïve to believe that the Supreme Court will invalidate any government action that receives both congressional and presidential imprimatur as necessary and proper to protect Americans against the terrorist threat. If our liberties are to be protected, it is up to us to protect them.

Sanford Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law and Professor of Government at the University of Texas (Austin). An internationally eminent scholar of constitutional law, Professor Levinson also teaches and writes about professional responsibility, jurisprudence, and political theory. He is author of Constitutional Faith (Princeton 1988) and Written in Stone (Duke 1998).