ACLU: Freedom Under Attack

Published on Tuesday, April 2, 2003 by the Baltimore Sun
Freedom Under Attack
by Sally T. Grant, president of the Board of Governors of the American Civil Liberties Union of Maryland.
Copyright © 2003, The Baltimore Sun

THROUGHOUT OUR history, the government has chosen to suppress individual liberties whenever it wages war.

From the government's perspective, free speech and open inquiry are unfriendly companions to war because they are used by dissenters to challenge the government's use of violence as its preferred instrument of foreign policy.

During the Civil War, for example, President Lincoln arrested 13,000 draft resisters and Southern sympathizers in open defiance of a Supreme Court ruling while several pro-Southern newspapers were shut down and their editors jailed.

World War I brought Woodrow Wilson's use of the Espionage and Sedition Acts to censor the foreign-language press and bar it from publishing anti-war sentiments. About 2,000 people were prosecuted under the act, including Charles Schenck, who served 10 years in prison for distributing pamphlets claiming that the military draft was illegal.

Cold War anti-communist hysteria in the 1950s saw Americans jailed simply for studying the works of Marx and Lenin.

And now, during these troubled times, we see history repeating itself. Well before President Bush moved troops into Iraq, his administration chose fear as its political currency.

After Sept. 11, Attorney General John Ashcroft warned against questioning his unprecedented moves to expand his power, telling a Senate committee, "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve." White House spokesman Ari Fleischer infamously warned Americans to "watch what they say."

The warnings intensified as Mr. Bush embarked on war, with Republican leaders accusing Senate Minority Leader Tom Daschle of virtual treason for suggesting that war represented a presidential failure of diplomacy.

Though history is repeating itself today, this time it is doing so with a new and more dangerous twist: Many of the government's First Amendment violations are deliberately hidden from the public. Largely unreported in the press, these infringements are happening with a "velvet glove" rather than with the billy clubbing of war protesters that we saw in the 1960s.

Dissent has been squelched under the USA Patriot Act, which overrides existing privacy laws to authorize FBI visits to libraries and bookstores to investigate the reading habits of citizens, while the librarians and bookstore owners are barred from revealing the search.

Robust debate has been stifled whenever the government uses its new, unprecedented powers to monitor confidential attorney-client conversations, conduct secret military tribunals for accused terrorists, tap phones, read private e-mail and investigate individuals' medical and financial records.

Mr. Ashcroft chilled speech when he discarded long-standing restrictions on domestic spying by law enforcement so that now the FBI can freely infiltrate mosques, churches and synagogues, even if it has no evidence that a crime might be committed -- practices that CBS 60 Minutes' Andy Rooney has warned are "how dictatorships get started."

When dissent is suppressed, this country suffers an immeasurable loss. Public expression of sincere and deeply felt disagreement with government policies is one of the highest forms of patriotism and the lifeblood of a democracy.

So the time has come for freedom-loving Americans to pick up the torch. The ACLU, which was founded during World War I to defend citizens facing deportation for opposing that war, is enlisting volunteer attorneys to represent political dissenters. In the noblest tradition of the profession, these lawyers will defend the free speech rights of even those with whom they disagree. The Constitution will be their client.

As they pick up the torch, they can take heart from an unlikely source -- a U.S. Supreme Court decision issued during the dark days of World War II. Penned by Justice Robert Jackson, it upheld the right of Jehovah's Witness children not to salute the flag on religious grounds and affirmed the role of dissent in our democracy.

"Freedom to differ is not limited to things that do not matter much," said the court. "That would be a mere shadow of freedom. The test of [freedom's] substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein."