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Back to the Future

by Wendy Kaminer


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 scoffed.

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 living counterparts.

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 terrorism.”

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 cannon fodder.”

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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