Chapter Two
Patriotism and the First Amendment

In the war against terrorism, the United States is not about to pass another sedition act to make it illegal to criticize the government. But the war against terrorism could affect the First Amendment in other, less obvious ways. The First Amendment protects free expression, but it also protects the right of free assembly and freedom of the press. Civil libertarians are concerned that all three of these liberties could be abridged by homeland security measures.

Patriotism and Dissent

One of the main concerns of civil libertarians about the war against terrorism is the tension between patriotism and free speech. Historically, Americans have rallied around their government in times of war and crisis, and September 11 was no different. In the weeks after the terrorist attacks, the United States experienced a surge in patriotism not seen since World War II, and President Bush's approval rating reached 90 percent.

Civil libertarians consider themselves patriots and do not object to Americans' expressing their love for their country. However, they caution that belligerent or overly aggressive patriotism—also known as jingoism—can lead to attacks on individuals who express a dissenting point of view. "Every war in American history, from the Revolution to the Gulf War, with the exception of World War II, inspired vigorous internal dissent,"³⁰ notes historian Eric Foner, and many such dissenters have historically been vilified, ostracized, and persecuted. Historian Bruce Watson notes that at the end of World War I, for example, "when a man refused to stand for the playing of the 'Star-Spangled Banner' at a May 6 [1919] pageant in Washington, D.C., a sailor shot him three times, and the audience burst into applause."³¹

Fortunately, nothing so violent happened to dissenters in the wake of September 11, but there were several examples of individuals being fired, harassed, or castigated for expressing their opinions. Dan Guthrie, a columnist for the Daily Courier, a local Oregon newspaper, and Tom Gutting, editor of the Texas City Sun, were both fired for writing columns suggesting that President Bush's failure to return to the White House immediately after the September 11 attacks was cowardly. And several ABC affiliates dropped comedian Bill Maher's Politically Incorrect talk show after a controversial comment he made comparing the U.S. bombing of Afghanistan to the September 11 attacks: "We have been the cowards lobbing cruise missiles from 2,000 miles away.…Staying in the airplane when it hits the building, say what you want about it, that's not cowardly."³² Several advertisers pulled their support for Maher's show, and it was later canceled.

Many peace activists protested Operation Enduring Freedom, the October 2001 invasion of Afghanistan, in which U.S. and British forces ousted the governing Taliban, which was believed to have aided al-Qaeda forces, from power. But the element of the war on terrorism that provoked the most dissent, and attacks on dissent, was the U.S. invasion of Iraq in spring 2003. Many celebrities were vilified for their antiwar views, and several country music stations boycotted the Dixie Chicks after they stated that they were ashamed of President Bush. At Wheaton College in Massachusetts, neighbors threw rocks through the windows of students who had hung the American flag upside down in protest against the invasion. After leading peace vigils in the town of Twenty-Nine Palms, California, Reverend Joseph Matoush found a note tacked to his church door that read "Why don't you leave America now."³³ And in March 2003, in a mall outside Albany, New York, lawyer Stephen E. Downs was arrested on trespassing charges after he refused to take off a T-shirt that said "Give peace a chance"—Downs had just purchased the T-shirt in the same mall he was arrested in.

A Chilling Climate for Free Speech

These incidents seem to have been relatively few and far between. And there have been no major incidents of the government censoring speech. Instead, such incidents have involved private citizens or groups rebuking other individuals for their opinions, which in many cases is not a violation of the First Amendment. For example, the advertisers who pulled their support for Bill Maher's talk show were exercising their right to express disagreement with his controversial comments.

Nevertheless, civil libertarians worry that fear of being condemned for expressing one's views has created an atmosphere in which Americans are afraid to question or criticize the war on terrorism. "When we censor ourselves in the name of being good Americans we forsake the freedoms that make us unique,"³⁴ writes Paul McMasters, ombudsman of the First Amendment Center. Historian Eric Foner echoes the idea that free speech can suffer even when the government has not explicitly suppressed dissent: "Self-imposed silence is as debilitating to democracy as censorship,"³⁵ he writes.

Concerns over the right to dissent were exacerbated when President Bush proclaimed on September 20, 2001, "Either you are with us, or you are with the terrorists."³⁶ In the context of his speech, Bush was warning other nations not to aid or harbor terrorists. But the aggressive nature of the statement alarmed civil liberties groups. "The beginnings of a free-speech chill are evident,"³⁷ warned BusinessWeek's Ciro Scotti in a column written shortly after the speech.

The Dangers of Self-Censorship

In an October 2001 column, Mother Jones writer Brooke Shelby Briggs expressed alarm at the reluctance of Americans to criticize government policies after September 11.

"Far more surprising than government attempts to stifle criticism is the seeming willingness of the media, politicians, and activist groups—particularly those on the left—to censor themselves. Some may be backing off to avoid the kind of public crucifixion endured by Politically Incorrect's Bill Maher. Others, however, apparently truly believe that frank and vibrant public discourse is damaging to the country's moral fiber.…

But if ever there's a time to critically examine the legitimacy and ability of a leader, it's when he is leading the nation into an open-ended war and asking citizens to 'make certain sacrifices,' including some of our freedoms. Like a muscle, free speech has to be exercised, or it weakens.…

Dissent … is more than a privilege and a right; it's a responsibility. By abdicating our responsibility to voice opposition, we invite the erosion of the very value system we claim to be protecting."

The ACLU and other groups have also argued that the USA PATRIOT Act contributes to the "chilling" of free speech. The USA PATRIOT Act expands the definition of "terrorism" to include domestic activities (whereas previous definitions had covered only international terrorism). In some respects, the definitions of "domestic terrorism" are rather open-ended. Nancy Chang of the Center for Constitutional Rights points out the USA PATRIOT Act's definition of domestic terrorism includes acts that "appear to be intended … to influence the policy of a government by intimidation or coercion." Chang argues that "because this crime is couched in such vague and expansive terms, it may well be read by federal law enforcement agencies as licensing the investigation and surveillance of political activists and organizations based on their opposition to government policies. It also may be read by prosecutors as licensing the criminalization of legitimate political dissent."³⁸

Other sections of the USA PATRIOT Act authorize the FBI and other agencies to conduct wiretaps and e-mail surveillance of groups that may be engaged in domestic terrorism, and civil libertarians suggest that this authorization could lead to government monitoring of environmental, antiabortion, and other groups that vigorously oppose government policies. Such monitoring could infringe not just on individual privacy, but also on the First Amendment's guarantee of freedom of assembly. Courts have interpreted the First Amendment to mean that the government may not discriminate against individuals based on the viewpoints they hold or the religious or political groups with which they associate. Therefore, argues the ACLU, it is unconstitutional for the government to investigate individuals for expressing their opinions or associating with political advocacy groups. The USA PATRIOT Act, an ACLU facts sheet states, "violates the First Amendment by effectively authorizing the FBI to investigate U.S. persons, including American citizens, based in part on their exercise of First Amendment activity."³⁹

Government Secrecy and Freedom of the Press

Beyond individual freedom of speech, the war on terrorism also raises questions about the First Amendment's guarantee of freedom of the press, and whether that freedom may conflict with homeland security concerns. For journalists and civil libertarians, one of the most unsettling aspects of the war on terrorism is the atmosphere of secrecy that the government has adopted concerning security and counterterrorism measures.

On October 12, 2002, for example, Attorney General John Ashcroft issued a memorandum instructing federal agencies to refuse Freedom of Information Act (FOIA) requests unless clearly required to approve them by law. The FOIA is a law passed in 1966 that grants citizens the right to access any government document unless the document falls into one of nine specific categories of exemption. Prior to Ashcroft's memorandum, the general standard had been to grant FOIA requests to access documents unless doing so would cause "foreseeable harm." Essentially, the standard had been to grant FOIA requests unless there was a clear reason not to do so; now, after Ashcroft's memorandum, the standard is to refuse most FOIA requests. The Critical Infrastructure Information Act of 2002 further weakened FOIA by creating a new category of information—vulnerabilities in vital systems such as energy, transportation, and communication networks—that are exempt from FOIA requests.

Other examples of the government withholding information from the press include President Bush's decree on November 13, 2001, that suspected terrorists may be tried by secret military tribunals rather than civilian courts of law, and the government's refusal to release the names of prisoners captured in the fighting in Afghanistan and being held at U.S. military facilities in Guantánamo Bay, Cuba.

More generally, homeland security officials are hesitant to divulge any information about U.S. vulnerabilities for fear that terrorists might exploit them. Hundreds of thousands of documents—ranging from maps of a city's water mains to the blueprints of government buildings—have been pulled from government websites, and government officials often speak only in the vaguest terms when discussing security measures. Such information could potentially be of use to terrorists, and the First Amendment Center's McMasters agrees that "no reasonable person would argue that the press should be told every government secret."⁴⁰

But some of the information being withheld, such as cities' emergency evacuation plans, is also valuable to the public. Civil libertarians worry that the government is overreacting in curtailing the public's access to government information. "We seem to be shifting to the public's need to know instead of the public's right to know,"⁴¹ says Gary Boss, director of a government watchdog group.

Open government and the free flow of information are two hallmarks of democracy. "The Constitution relies on an informed electorate to provide the ultimate check against arbitrary government,"⁴² states the Lawyers Committee for Human Rights. Excessive government secrecy limits the ability of citizens to monitor, question, and criticize the actions of their elected leaders. Government secrecy also limits the ability of journalists to do their job of providing information to the public. In this sense, government secrecy conflicts with the First Amendment's guarantee of freedom of the press.

Patriotism and Conformity

Writing in the spring 2002 issue of Law and Contemporary Problems, attorney Susan Gellman believes that since September 11 the greatest threat to free speech has not been government censorship, but rather the social pressure against criticizing the war on terrorism.

"It truly cannot be said that government in the United States has responded to the current crisis by grossly restricting our First Amendment rights of speech, press, or religion.…

Government censorship and repression is not the only threat to the freedoms listed in the First Amendment. Think for a moment about what all those freedoms are about: protection of the one who disagrees with the majority, or who is different in some matter of ideology or belief. The Bill of Rights in general, the First Amendment in particular, acts as a safety valve on a majority-rules democracy. The tyranny of the majority can be every bit as oppressive as the tyranny of a monarch.…

When we feel a sense of threat and crisis, we feel an instinctive urge toward unity—closing the ranks, circling the wagons—lest divided we fall. This urge brings out some of the best in us: Witness the countless reports of heroism, neighborliness, and generosity following the September attacks.…

But the impulse toward unity can bring out some scary things, too. Even in peacetime there is pressure to conform to positions and ideas seen by their adherents as pro-social and important, in the name of the greater good.… In time of crisis, though, the whole scale is ratcheted up several notches as the impulse toward unity becomes urgent. It no longer simply seems desirable that we all agree; it feels like unity is crucial to our safety and survival.

The tyranny of the majority makes itself felt through official action of a majoritarian government, but it also operates quite effectively through the more elusive forces of social pressure."

The Press's Role in Helping Americans Evaluate Government Policies

Defenders of open government and freedom of the press are not motivated solely by ideological concerns. From a purely pragmatic perspective, the secrecy surrounding homeland security measures makes it difficult—and in some cases, impossible—for the press to report on, and for the public to evaluate, the government's security efforts. As Ken Paulson, senior vice president for the Freedom Forum, explains,

There's no question that our society views public information in a dramatically different way after Sept. 11. There are legitimate concerns about whether public records may contain details that could abet a terrorist act. Yet if we're not comfortable with a public document which details an airport's security plan, how comfortable are we with no information at all and just an assertion by government officials to the effect of "Security plan? Sure, we've got one."?⁴³

Excessive secrecy may diminish security if people are kept in the dark about what is being done to protect them. Obstacles to the flow of information have frequently been cited as contributing factors in the tragedy of September 11. For example, the FBI, CIA, and other agencies failed to share all their information about al-Qaeda with each other, and Congress and the public failed to demand more information about counterterrorism measures.

Some members of the news media caution that, when it comes to the war on terrorism, journalists themselves have not made enough of an effort to maintain objectivity and ask government officials the "tough questions" about U.S. policies. Many journalists naturally became caught up in the surge of patriotism that followed the September 11 attacks. Some television anchors began wearing red, white, and blue ribbons on their lapels and broadcasting with American flags in the background. Critics say that such shows of patriotism may give a progovernment bias to these programs' reporting. "We don't need our journalists to be waving flags," says columnist Norman Solomon, "we need our journalists not to speak for the U.S. government, but to speak to the crucial mission of journalists to … give us facts, give us information."⁴⁴

Other journalists may fear that they will lose readers or viewers if they appear too critical of the government. But as long-time journalist Av Westin says, "I've always believed our job was to ask questions that need to be asked, regardless of official reaction or public opinion."⁴⁵ Bob Edwards, host of National Public Radio's Morning Edition, echoes the sentiment that journalists have a responsibility to inform the public: "Being popular might be good for business," he says, "but that is not our job. We are supposed to be surrogates for the public—the eyes and ears of citizens who don't have the access we have."⁴⁶

Finally, many journalists are legitimately concerned that in reporting on security issues, they may inadvertently aid terrorists. This case was made forcefully by intelligence analyst Dennis Pluchinsky in a Washington Post article in which he charged the U.S. media with treason for reporting on U.S. vulnerabilities to terrorism and flaws in the government's security initiatives. "The president and Congress should pass laws temporarily restricting the media from publishing any security information that can be used by our enemies,"⁴⁷ he wrote. Free press advocates such as Ken Paulson of the Freedom Forum refute the need for such measures, arguing for journalistic restraint and responsibility rather than government censorship. "A free press can serve as an invaluable watchdog on government actions, without undercutting our national interests," he writes. "Reporters can ask tough questions while wearing flag lapel pins. Professionalism and patriotism can—and must—coexist."⁴⁸

Shifting Attitudes on First Amendment Issues

The tension some journalists feel between supporting their government, on the one hand, and providing unbiased, aggressive reporting, on the other, is mirrored by the public's ambivalence toward many First Amendment issues. Each year, the First Amendment Center, in collaboration with American Journalism Review, conducts a "State of the First Amendment" survey, in which it polls a random sample of a thousand adults on various First Amendment issues. Its 2002 survey, the first taken after the September 11 attacks, uncovered some of the lowest levels of support for the First Amendment since the survey started in 1997. Nearly half of those surveyed said the First Amendment goes "too far" in the freedoms that it guarantees. Forty-two percent said that the press has too much freedom. More than 40 percent of those surveyed said that the press should not be allowed to freely criticize the military, and almost half said that the press had been too aggressive in asking government officials for information about the war on terrorism. Finally, 42 percent said that the government should be able to monitor Muslims, even if that means infringing on religious freedom.

These figures suggest that many Americans are willing to accept curtailment of their First Amendment rights if it furthers the war on terrorism. Yet 40 percent of respondents to the 2002 survey said that they had too little access to information about the war on terrorism, and 48 percent said that there was too little access to government records. "Apparently," note the authors of the 2002 report, "there is a 'disconnect' between public support for a free press and the actions [the public] expects the press to take in furtherance of this privilege."⁴⁹

The Press as a Watchdog of Government

In the summer 2003 issue of Neiman Reports, journalist Paul McMasters argues that the press's role in questioning government policies and informing the public is more important than ever during wartime.

"During times of national stress, when Congress is acquiescent, the courts deferential and the citizenry mute and afraid, the role of the press becomes even more vital. The press have a constitutional franchise not just because they report and deliver the news but because the ways in which they do this provide context, organize and prioritize information, and hold accountable those who are in power and their policies. When the national agenda is set without active participation of the citizenry, informed by an independent press, the democratic process is compromised.

[For example,] as the Bush administration advanced its new policy of preemptive war and carried the nation along into the Iraq war, press coverage failed to fully explore the importance and scope of these developments.…

The press and its advocates must confront the hard reality that the press cannot serve as an instrument of freedom when they become a tool of government."

The findings of the First Amendment Center's 2003 survey showed some signs that, as the war on terrorism becomes a more routine part of American policy, support for civil liberties is on the rebound. Only one-third of respondents said that the First Amendment goes "too far" in the freedom it guarantees, although 42 percent still said that the press has too much freedom. Compared to the previous year, responses that the press had been too aggressive in asking government officials about the war on terrorism dropped 10 percent. However, one-third of respondents said that people should not be allowed to protest U.S. involvement in a war during a period of active military combat, and one-third also said that public school officials should be allowed to prohibit high school students from expressing their opinions about the war on school property.

Underlying all these issues is the question of whether Americans should limit the exercise of their First Amendment rights during times of national crisis. While Americans in general often express ambivalence about freedom of speech and freedom of the press, especially during wartime, civil libertarians wholeheartedly reject the idea that patriotism and the First Amendment are in conflict. For them, defending the most controversial wartime liberties—the freedom to dissent and the freedom of the press to further informed public discourse about the war effort—is in itself an exercise in patriotism.