Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  A three-part settlement was offered, and Habeeb accepted: damages of $250,000, a decision by Judge Haddon vacating his ruling as erroneous, and a letter of apology from the Justice Department. The last sentence of the letter from Justice to Habeeb might be a fitting epitaph for this era once it ends, once the book can be closed on the latest time in its history that the country has seriously strayed from the path of liberty: “The United States of America regrets the mistake.”63

  CHAPTER SIX

  Silence and Its Opposite

  Every idea is an incitement.

  —Oliver Wendell Holmes

  MIGHTIER THAN THE SWORD

  FIVE DAYS AFTER September 11, amid the country’s tense anxiety, seven young men in Northern Virginia gathered for dinner to talk about their fears of vigilantism against Muslims and to hear from Ali al-Timimi, a cancer researcher who had earned a reputation as an erudite lecturer on Islam. His words that evening were later judged to have crossed an invisible line that had been drawn and redrawn over many decades—the ambiguous boundary between the exercise of liberty and the commission of a crime.

  The First Amendment does not say that Congress (now taken to mean all levels of government) is allowed to make some laws abridging speech, the press, religion, and the right to assemble. It says, “Congress shall make no law,” unqualified language that may tempt absolutists to ask judges and legislators, “What is it about ‘no’ that you don’t understand?”

  Yet the framers were not categorical, and courts and legislatures have never treated any part of the Bill of Rights as absolute. Instead, every provision has been woven into a matrix of exceptions, compromises, escape clauses, waivers, and fuzzy limits that enlarge or reduce the umbrella of protection. The shelter of the First Amendment has been broadened considerably since ratification, especially in the last half of the twentieth century, but it does not shield every statement, symbol, or expressive act. Outside its preserve lies speech whose consequences are deemed so severe that government is granted the authority to punish. Seldom rising above the fleeting moments of history, judges draw those boundaries at what they perceive as the balancing points of liberty against order, individual interests against community welfare, overarching constitutional principle against the particulars of a given circumstance.

  Timimi may have thought he was free to say anything. Born in the United States a year after his parents emigrated from Iraq, he attended an elite private school in Washington, D.C., before moving at age fifteen with his family to Saudi Arabia, where he spent five years in Islamic study. Then he returned to college in the United States. “Many of my best qualities are simply because I am an American,” he told The Washington Post. One of those qualities may have been a belief that he was entitled to state his opinions, even those “counter to the mainstream of American society,” as he described them.1

  When he spoke to the young Muslims that evening, Timimi made three points in his hour-long talk, according to Milton Viorst, a writer whose son had been Timimi’s school chum years before. First, he held “that the 9/11 attacks augured the imminence of the end of days. Muslims, he said, had a duty to repent their sins.” Second, he suggested that “they and their families might best leave America, following the precedent of the Prophet Muhammad,” who in A.D. 622 fled to Medina from persecution in Mecca. “As his third point, Ali reviewed—rashly, as it turned out—the Islamic doctrine of jihad as holy war, and pointed out that his listeners could serve the faith as mujahideen in Kashmir, Chechnya, or Afghanistan.”2

  The government would make much of the fact that Timimi had asked that the phones in the house be unplugged, the blinds pulled down, and the discussion kept secret.

  Speech is our essential liberty, yet Americans’ freedom to speak expands and contracts with the nation’s sense of security. In times of threat, the First Amendment’s shield narrows. In periods of tranquillity and comfort, it broadens as government and citizens tolerate widening dissent. That has been the general pattern of history.

  The American experience since the attacks of September 11, 2001, has seen a mixture of crosscurrents. Unpopular opinion has been stifled sporadically by law enforcement agencies and protected inconsistently by the courts. Nevertheless, vitriolic propaganda has exploded on shout shows and the Internet, and voters have felt free to lambaste politicians at town meetings. Competing impulses of liberty and conformity have coursed through the landscape.

  In wars past, the parameters of acceptable debate have been restricted by both law and culture. The outside enemy has been seen taking up residence within, provoking an edgy vigilance aimed at “others” within the country, meaning foreigners and minorities. They have been the ones most tightly bound by restraints on speech, which have gradually ensnared the larger citizenry.

  The “war on terrorism” has continued in this unworthy tradition, to a degree. Some Muslims in the United States, placed in the government’s crosshairs because of their statements, have ended up in prison. Several U.S. citizens overseas have been killed in drone strikes, most notably Anwar al-Awlaki, an al-Qaeda propagandist whose online appeals in colloquial English were so influential that President Obama ordered his assassination in Yemen without any judicial proceeding. Yet perhaps because this has not been quite the “war” that President Bush called it after 9/11, the violations of free speech have been less egregious than before, as if the country were on a learning curve. During the last century, as courts have blocked one or another form of suppression, authorities have adapted with different methods, usually less overt and less coordinated. As a result, World War II was not quite as tough on the First Amendment as World War I, the Vietnam War was not as severe as World War II, and the impediments placed on dissent following September 11 have not silenced the raucous debate.

  After his evening discussion, Timimi was carried along by the flow of a tortuous legal history. The Supreme Court had begun sketching the modern contours of the First Amendment with ad hoc inadvertence, a case-by-case assessment of how society could be kept both free and orderly. Only sporadically did one or another justice lift his gaze above the parochial political fears of the day to the long, lofty views of sweeping liberty. Grand statements of momentous constitutional principles, first buried in dissents, gradually migrated into majority opinions, but not before citizens had been fined and imprisoned for unorthodox ideas and associations.

  That judicial record tells more about the society than about the Constitution. Especially in the realm of speech, the law is a product of the political mood. Strip away the facade of legal reasoning in the line of early First Amendment cases, peel apart the neat attempts at precision of thought and language, and what often remains is a rationalization of a statute designed to silence the unpopular and the outrageous.

  It is a tribute to America’s capacity for self-correction that oppressive acts look ugly in the cold light of history. From the distance of time, the anxieties behind censorship seem as trivial as a storm at sea appears from a high jetliner. Few justices gain such perspective, however; most stand on the pitching deck, braced against the wind and spray. We confirm them for life to insulate them from the gale, and instead they often hunker down, crouching into the status quo, clinging to a safe narrowness that pinches freedom. The exception is called a “landmark,” not only because it marks a turning point, but because it is so rarely seen.

  “It was abolitionists, in the 1830s, who first argued that Southern states shouldn’t be able to ban antislavery tracts because of the remote possibility they might provoke an insurrection; the Supreme Court took another 130 years to enshrine the underlying principle into law,” writes Jeffrey Rosen. Similarly, he notes, the Court protected the speech of communists and Ku Klux Klan members “only when they were no longer perceived as a serious threat by national majorities.”3

  So the right of free speech is somewhat time-bound, reliant on the moment. Defendants such as Timimi, prosecuted for what they say, might benefit if their trials weren’t so speedy. Decades
later, after passions cool, it can seem ludicrous that their words were once deemed “a clear and present danger.”

  That famous dictum was coined by Oliver Wendell Holmes in his 1919 opinion for a unanimous Court upholding the conviction of Charles Schenck, general secretary of the Socialist Party, which had mailed leaflets calling the draft a despotic method by the rich to force the poor to fight World War I on behalf of Wall Street. The flyers advocated resistance by citizens and soldiers, urged a peaceful petition to repeal conscription, and pleaded with Americans to “assert your rights” and “not submit to intimidation.” Schenck was sentenced to prison under the 1917 Espionage Act, which made it a crime to obstruct military recruitment during war.4

  U.S. participation in the war was hotly controversial, and in Schenck’s leaflets Holmes and his colleagues found “a clear and present danger” to the country’s ability to raise an army. He drew the limits of the First Amendment this way:

  The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.5

  The definitions were left vague. You could not falsely shout “Fire!” so presumably you could if it was true. But if your words created danger, how clear and how present did it have to be to constitute a crime? Holmes and his colleagues tinkered with the question in other opinions, even during the same session of the Court. In several subsequent cases upholding Espionage Act convictions, Holmes loosened the standard. Instead of requiring that speech present “a clear and present danger” before being suppressed, he ruled that it could be silenced if it merely “had a natural tendency to produce the forbidden consequences.”6

  Very soon, also in 1919, Holmes began to turn the danger test around, using it to oppose convictions. Usually, he found himself in the minority as he wrote in dissent that the words being prosecuted posed no clear and present danger. In Abrams v. United States, he argued that the danger had to be “immediate,” and he voted to overturn the conviction of five people who had circulated leaflets urging a general strike to protest American involvement against the Bolsheviks in the Russian civil war.7 The danger must be “imminent,” Justice Louis Brandeis wrote several years later.8

  By 1925, Holmes’s fear of flagrant speech had abated, and he derided the notion that the United States stood precariously on the brink of revolution. When a majority of his colleagues fumed that “a single revolutionary spark may kindle a fire that … may burst into a sweeping and destructive conflagration,” Holmes refused to sign on. The Court was upholding the conviction of Benjamin Gitlow, a young New York legislator and socialist who drew a five- to ten-year sentence for a pamphlet asserting the inevitability of proletarian revolution.

  Holmes agreed with the majority in one respect: Gitlow v. New York expanded rights significantly by extending the First Amendment to the states, thereby opening the door to Supreme Court review of state laws restricting freedom of speech and the press.9 But he saw no “clear and present danger” in Gitlow’s pamphlet. “It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement,” he thundered. “Eloquence may set fire to reason.… If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” For the sake of liberty, Holmes was willing to take risks his colleagues were not.

  Nevertheless, like a weapon whose inventor could not control its use, the clear-and-present-danger test was expanded well beyond the national security purpose Holmes envisioned. One celebrated victim, a Jehovah’s Witness named Walter Chaplinsky, was caught in the constitutional question as he distributed leaflets in 1942 denouncing organized religion. A crowd that gathered in Rochester, New Hampshire, grew agitated and alarmed the police, who led him away. Chaplinsky asked the city marshal to arrest those responsible for the disturbance, but the marshal replied that Chaplinsky should just come along. Angered, the leafleteer allegedly told the officer, “You are a God damned racketeer” and “a damned Fascist, and the whole government of Rochester are Fascists or agents of Fascists.” (Chaplinsky admitted to saying all the words except “God.”)

  The Supreme Court unanimously upheld the broad state law under which Chaplinsky was convicted; it prohibited “any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place.” The justices found that “the appellations ‘damned racketeer’ and ‘damned Fascist’ are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.” No public interest permitted “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”10

  Since then, however, the Court has not affirmed a conviction for using “fighting words” against a public official and in a 1992 case effectively erased the fighting-words doctrine.11 You may now insult police officers, if you’re so inclined, as long as you don’t harass them or interfere with their work.

  More relevant for Timimi was the 1951 case of a dozen Communists, including the party’s general secretary, Eugene Dennis, who had been prosecuted despite serious reservations among government lawyers. Although the Communist Party was tiny and marginalized, it loomed excessively large amid the peculiar sense of fragility that afflicted the United States following World War II. Justice Robert H. Jackson imagined its members “secreted in strategic posts in transportation, communications, industry, government, and especially in labor unions,” and he warned, “Through these placements in positions of power it seeks a leverage over society that will make up in power of coercion what it lacks in power of persuasion.” The Communists’ “strategy of stealth” may preclude the need for force or violence, he said, “because infiltration and deception may be enough.”12

  As evidence of the Communists’ threatening plans, the government used Lenin’s exhortations to Russian workers more than three decades before; Dennis and his colleagues countered that the “classics” were not applicable in America, that their party’s constitution eschewed violence, that the party relied on education—not force—to persuade Americans of socialism’s virtues. The jury didn’t buy it and convicted them. They were sentenced to five years.

  They appealed and lost in the Supreme Court, which upheld the Smith Act of 1940, under which they had been convicted.13 Citing the test of “a clear and present danger,” Chief Justice Frederick Vinson declared, “Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid, and the signal is awaited.” Echoes of this reasoning were heard after 9/11 in the government’s accusations that groups of young Muslims lay dormant in “sleeper cells” waiting for instructions.

  The Dennis indictments suggested how distant the Communists’ abstract words stood from an actual threat. “The defendants were charged, not with attempting to overthrow the government,” observes the constitutional scholar Geoffrey R. Stone, “not with conspiring to overthrow the government, not with advocating the overthrow of government, but with conspiring to advocate the overthrow of government. How does one make sense of ‘clear and present danger’ when the ‘danger’ is so far removed from the defendants’ acts?”14 Forty-five years later, Timimi was indicted, similarl
y, for the indirect crime of “inducing others to conspire” to support terrorism.

  SIMPLY OUT OF FEAR

  A key difference between Timimi and the Communists lay in the fact that something actually happened after Timimi’s talk at dinner. Later that September evening, a few of the men bought a phone card and placed a call to Pakistan and over the next few days applied for visas—although at least one of them already had a plane ticket before hearing Timimi speak. They had been playing paintball in the suburbs of the nation’s capital not merely to let off steam in a combat sport, federal authorities decided, but to hone their skills for the real thing. By September 22, four were on their way to training camps of Pakistan’s Lashkar-e-Taiba (LET; Army of the Pious), the Islamic movement organized two decades before to fight on the pro-American side against the Soviets in Afghanistan. LET was not yet on the terrorist list, but like the American-backed mujahideen who transformed themselves into Afghanistan’s Taliban, it had spun far beyond American influence, spearheading attacks on the Indian presence in disputed Kashmir. (Its operatives were to attack hotels, a train station, and a Jewish center in Mumbai in 2008.)

  The four men first went to lounge on the beach for a long while before going to the camps, where they received weapons training, and returned to the United States after a few weeks. A year and a half later, following what defense attorneys speculated was illegal, warrantless surveillance by the secret National Security Agency, they and seven others were charged with an assortment of conspiracies to fight against India in Kashmir and Russia in Chechnya, possessing firearms in connection with a crime, and providing material support to LET following its designation as a terrorist organization in December 2001. Six pleaded guilty and five contested the charges, with some opting for bench trials rather than depending on jurors from the heavily military neighborhoods near the Pentagon. Judge Leonie M. Brinkema acquitted two, convicted three, and handed out substantial sentences ranging from three years to life.