Freedom flees in terror from Sept. 11
disaster
Ombudsman
By Paul
McMasters
First Amendment Ombudsman
First
Amendment Center
pmcmasters@freedomforum.org
09.19.01
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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?
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