Let's stand up for liberty

The Bill of Rights is only worth the paper it's written on unless those charged with protecting it are willing to stand up and be heard.

American soldiers enlisted in the battle against the forces of al-Qaida and Islamic fundamental extremism may believe they are fighting for the good ol' USA and its abiding commitment to liberty. Yet the truth is, war has never been particularly good for liberty.

In times of crisis, when the country is infused with fear and anxiety, voices calling for restrictions on civil liberties have often prevailed. It is an odd irony that the defining principles undergirding this nation - free speech, privacy, due process, and equal protection are often seen as unaffordable luxuries, even unpatriotic nuisances during times of war or other national stress.

One has to hope that our current conflict will be the exception, and our government won't adopt its routine wartime stance of imposing guilt by association, silencing dissenters, spying on political activists, and running roughshod over due process. But if history is any guide, the Bill of Rights is in for some difficult times.

Even our founding fathers were not immune to this unfortunate impulse. The darkest moment of John Adams' presidency was signing the Alien and Sedition Acts of 1798, laws that made it a crime to "write, print, utter, or publish" anything "false, scandalous, and malicious" against the government. Adams felt, in light of the goings on in France during the French Revolution, the outlandish and irresponsible churnings of the Republican press had to be contained for the good of the country (and his own ego).

Of course, the most notorious examples of presidents assaulting liberties during wartime are Abraham Lincoln's decision to suspend the writ of habeas corpus during the Civil War and the utterly tragic decision by President Roosevelt to commit 120,000 Japanese immigrants and Americans of Japanese descent to internment camps throughout the West during World War II.

Those measures may have seemed necessary then, but with hindsight we view them as mistakes, serious mistakes. The retraction of freedom didn't buy us a bit of extra safety.

These oversteps happen when flag-waving jingoism overtakes public sentiment. Soon, any challenge to government action becomes a sign of disloyalty, and that's when tyrants are given quarter. Men like Woodrow Wilson's attorney general,A. Mitchell Palmer, who was allowed to launch his own personal pogrom against immigrants from Eastern Europe active in the labor movement. Palmer jailed and deported thousands of pacifists whose only crime was their peaceful protest of American involvement in the war.

In 1917 Congress passed the Espionage Act, a law prohibiting the mailing of any publication urging "treason, insurrection, or forcible resistance to any law." It was used as a way to shut down German language newspapers run by German Americans in areas of rural Pennsylvania, Wisconsin, and Minnesota. During that time, 44 papers lost their mailing privileges and 30 more had to agree not to write about the war in order to continue publishing.

In New York at that time, the Postmaster found "unmailable" a left-wing periodical titled The Masses, whose contributors included Carl Sandburg, because its anti-war articles and cartoons "tended to produce a violation" of the Espionage Act.

The judiciary, the one branch of government whose purpose it is to stand up for individual rights against majoritarian pressures, has not acquitted itself well during times of war when we have needed its independence most.

During World War I, courts had virtually no sympathy for claims by publishers prosecuted under the Espionage Act that they were victims of First Amendment violations. For example, in a case where the defendant was charged for suggesting that the capitalists and their war will render Liberty Bonds worthless, the judge told the jury that the First Amendment is no defense "where the honor and safety of the Nation is involved."

And we all know the shameful answer the US. Supreme Court gave to Japanese American Fred Korematsu, a man born in Oakland, California, who challenged the constitutionality of his internment during World War II: "Tough!"

There are some encouraging signs that today's court wouldn't be so willing to go along with every government claim of national need. In his recent book, All the Laws But One: Civil Liberties in Wartime, US. Supreme Court Chief Justice William Rehnquist noted: "It is all too easy to slide from a case of genuine military necessity to one where the threat is not critical and the power either dubious or nonexistent" That's an interesting observation coming from a justice who has so often sided with the government at the expense of civil liberties.

Justice Sandra Day O'Connor wasn't as reassuringly cynical when she said in a speech soon after the Sept. 11 attacks, that America's response may mean "more restrictions on our personal freedom than has ever been the case in our country." She did, however, express the need for caution as we "re-examine some of our laws pertaining to criminal surveillance, wire-- tapping, immigration, and so on."

Editorial pages roll over

But what might be most distressing for editorialists is the way so many newspaper editorial pages have repeatedly rolled over during wartime,buying wholesale the need for speech suppression or rounding up people based on their ethnicity for the sake of national security.

According to Joseph McKerns, associate professor of journalism at Ohio State University, who has researched the editorial reaction of newspapers to the free speech battles during World War I, few editorial boards stood up for civil liberties. Instead, they chose to reflect the xenophobic views of their readership.

"When it came to freedom of association and freedom of speech," said McKerns, "the daily press made a convenient separation, seeing the speech of the political activist as different from what it did."

Much of what appeared in newspapers at that time, McKerns said, was highly anti-immigrant: "Even in framing the news, immigrants, the labor movement, and foreigners were the ones portrayed as a threat rather than merely exercising free speech."

The Bill of Rights, embodying the concepts of individual rights and limited government, is only worth the paper it's written on unless those charged with keeping the government honest to its limits are willing stand up and say so at the most provocative times.

National unity does not mean national goose-stepping. The courts, political activists, and the mainstream press - the primary countervailing forces to executive and legislative power - have a special responsibility in times of war to raise their level of vigilance and not give in to nationalistic pressures.

That is the only way this nation now, at this time of heightened anxiety, is going to keep from repeating its undistinguished wartime history.

Poll after poll may indicate that Americans are willing to give up some civil liberties in exchange for more security against terrorism. But they don't really mean it. What Americans mean is that it would be O.K. for people who don't look like them - people who wear headscarves or who sport untrimmed facial hair to lose some liberty.

That way of thinking cannot be acceptable to the courts or to editorial boards. As editorialists these are our front lines in times of war. The question is, how many of us will stand our ground and how many will desert the field?

NCEW member Robyn E. Blumner is a columnist and editorial writer for the St. Petersburg Times. She is former executive director of the American Civil Liberties Union of Florida. E-mail her at blumner@sptimes.com

Copyright MASTHEAD National Conference of Editorial Writers Winter 2001
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