I. The Present Situation
On June 21, 2010 the United States Supreme Court decided the case of Holder [the present Attorney General] vs. Humanitarian Law Project [HLP]. In what the New York Times called "its most significant ruling on free speech rights in terrorism cases" the Court upheld a federal law that defined just about any interaction with members of groups designated as "terrorist" by the U.S. government as "material support" for criminal activities. Punishment can include a prison sentence of 15 years. The HLP was attempting to teach members of the Turkish PKK (which is such a designated group) how to deal with some of their grievances through accepted United Nations channels.
More specifically, the law, which is a provision of the misnamed Patriot Act, specifies that it is illegal to provide "training," "personnel," "expert advice or assistance," and "service" to members of designated terrorist groups. Previously, the U.S. Court of Appeals for the Ninth Circuit had found these terms to be "unconstitutionally vague." The Supreme Court disagreed and by a 6 to 3 ruling decided that the law was constitutional after all. Just how radical this decision is can be seen by the fact that it is now illegal to directly assist alleged terrorists to change their behavior so that they cease being terrorists. At times the government’s arguments and the response of the justices got downright silly. Thus, according to U.S. Solicitor General Elena Kagan, who argued the government’s case, and is herself a current nominee for the Supreme Court, it would be a criminal act to teach a member of the PKK to play the harmonica. The clever, but decidedly unwise Supreme Court judge Anthonin Scolia agreed, observing that terrorists who learn to play instruments might form a band and raise money for illicit causes.
Silliness aside, the First Amendment is no longer what it use to be. As the civil rights lawyer David Cole notes, "for the first time ever, the Supreme Court has ruled that the First Amendment permits the criminalization of pure speech advocating lawful, nonviolent activity." In other words, for the present, the First Amendment is an emasculated facade behind which the government operates to severely limit what the Amendment is designed to protect. Actually, this emasculation has been going on for almost a decade and the Court has now confirmed the "legality" of the process. Thus, this part of the Patriot Act has already been used to harass and destroy a number of benign Muslim charities, nonviolent supporters of Palestinian rights, and even the American lawyers of individuals charged with terrorism.
II. The Majority’s Contribution to the Erosion of Fee Speech
While Holder vs. Humanitarian Law Project is part of a contemporary assault on free speech, the periodic attack on this basic right has a history almost as old as the nation itself. There were the Alien and Sedition Acts of 1798, the suppression of a wide range of freedoms, including speech, during the Civil War and World War I, the heinous behavior of Joseph McCarthy in the 1950s, and now the sustained assault embodied in the "Patriot Act." These eruptions of what can be called anti-American behavior on the part of the American government are usually associated with real or imagined emergencies during which the latent authoritarian proclivities of the governing elites range free.
One of the important, though often overlooked, factors that make possible this history of assaults on free speech is that most U.S. citizens either do not care that they occur or welcome them. This accounts for the remarkably sparse media coverage of the June 21 Supreme Court decision and the almost total lack of public concern. Why is this so? In truth, for the majority within a democracy, the legal right guaranteeing freedom of speech is only an abstraction. On a daily basis most citizens are not conscious of either the existence or the need for such a right. After all, it is the democratic majority (as manipulated as they might be) who define accepted norms. The speech of such a majority is by definition normative speech, and as such it is not felt to be in need of protection.
On the other hand, freedom of speech and associated rights do become noticeable and in need of protection when used to publicly discuss and question beyond the community’s commonly accepted norms. Not only do members of the majority not ordinarily do this, but they are often suspicious of the minority who do. The general public may easily be led by its media and government spokes people to see such questioners as unpatriotic troublemakers. As such these minority elements are not viewed as practitioners of rights, but rather as abusers of them. That is why the more the majority feels threatened, the more democratic governments will move, with the acquiescence of the public, to legislate a limit to free speech. In the present case of the Supreme Court decision of June 21, we can assume that the general public already feels uncomfortable due to the often exaggerated claims of those waging the "war on terror." So the suppression of an alleged source of non-normative, potentially unpatriotic behavior (for instance the efforts of the Humanitarian Law Project) is not going to draw a lot of popular concern and opposition.
Finally, lets talk about who defended this horrible law before the Supreme Court. If it had been the corrupt Justice Department of George W. Bush, we would all asking what else can you expect? How very much in character for them to do this. But George W. is no longer in charge. His relatively liberal opponents are. Yet it is apparent that when it comes to the "war on terror" President Obama and the Democratic Congress have decided to carry forward the dangerous legal prohibitions of Bush’s Patriot Act. The Democrats most likely fear that if they do not do so, and there is another terrorist attack on the U.S., they are politically doomed. Thus, the administration has made no attempt to reeducate or reorient public opinion on the question of terrorism. In the absence of such a reorientation the security minded majority continues to view any group designated a terrorist organization by the State Department as "radioactive," and President Obama is trapped into defending reactionary laws like the one that did in HLP. It is a circular scenario.
It would seem that we are stuck with a manipulated and frightened majority who are going to either yawn or applaud as free speech rights are trimmed back. No one in the government will challenge this situation and so the Patriot Act will continue to define free speech rights as long as the "war on terror" shapes normative thinking.
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|Allen L. Jasson|
|William John Cox|