‘Perilous Times’ for First Amendment Rights

Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism
Geoffrey R. Stone
W.W. Norton & Company. 730 Pages. $35.In the more than 300 years of our country’s history, Americans have fought to secure and maintain the rights granted citizens in the First Amendment to the Constitution: the right to know what the government is up to, the right to doubt its actions and policies, and the right to speak out against them. Of course, the rights to gain access to the government’s information and to speak out against what is learned are interdependent. It is not possible to criticize accurately what one doesn’t know. And it is in this way that the press and the citizenry it serves depend on each other in the self-governing society that the Framers intended for our country.

But rarely have these rights seemed in more danger than in today’s post 9/11 era. The Bush administration has taken unprecedented steps to hide the way it operates from the American people who gave it authority to govern. News organizations are experiencing the slow erosion of legal protections that their predecessors worked diligently to build over three centuries, and these changed circumstances, at times, are preventing them from keeping as close and watchful an eye on government actions as citizens should demand they do.

During past periods of national distress, Americans have witnessed that those who dared to question governmental leaders have been labeled unpatriotic or disloyal to their country, and this is now happening again. Regrettably, these have been times in our history, too, when ordinary Americans and the mainstream press have acquiesced too often in the government’s restrictions and been party to the persecution, imprisonment or deportation of dissenters, even if only by their silence.

If we have learned nothing else from these earlier aggressive restrictions on the rights guaranteed by the First Amendment, we should have been taught by history’s lessons that threats to our Constitutional principles—the building blocks of our democracy—should never be tolerated.

Wartime Reporting

Those lessons are masterfully sketched out by legal scholar Geoffrey R. Stone in his book, “Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism.” At the same time, two recent reports have been released about the escalating threats to freedom of information and the press. One report bears the name of U.S. Representative Henry A. Waxman (D-Calif.), who issued it as the ranking minority member on the House Committee on Government Reform; the other was published by the Reporters Committee for Freedom of the Press.

All of these writings—taken by themselves or considered together—make a strong case for why U.S. citizens and members of the press need to engage more vigorously in a struggle to renew the promise of our fundamental civil liberties if we are to maintain a self-governing democratic system and avoid the tragic mistakes of past wartime eras.

In his book’s final chapter, Stone warns Americans that threats to their civil liberties are in greater jeopardy today than they have been in perhaps any other military conflict. The reason: In past wars, there was an expected end to the nation’s sacrifice. In the undeclared (by Congress) war on terror, no end point has been defined, nor is one visible. President George W. Bush stated his belief that the “war on terror” will be perpetual; it’s a fight in which we will always be engaged.

In the tradition of wartime Presidents, Bush is exercising his constitutional powers in the most expansive way possible. Stone provides a context for this President’s actions when he takes readers on an illuminating tour of past wartime Presidents’ efforts to suppress information and dissent. As he does so, one thing becomes clear: Bush’s stance is not all that different from his predecessors. However history also teaches us that suppression of knowledge and debate during periods of national distress does far more damage to America’s institutions and her people than allowing access to government information and tolerating dissent. But as Stone cautions, the Bush administration’s “obsession with secrecy” about the government’s decisions and actions both in this country and in the war in Iraq is crippling “informed public discourse,” and this restraint in the oversight of the executive branch by the public and the press undermines “the vitality of democratic governance.”

Throughout our nation’s history, citizens and noncitizens have paid a heavy price for attempting to exercise their rights to know what governmental leaders were up to and expressing doubts about their policies. If he wanted to use it, Bush has the benefit of these 300 years of American history to warn him that the price of secrecy and retribution toward its citizenry is far too high to pay if democracy is to be protected and thrive. What follows is a sample of some valuable lessons from Stone’s book:

• The government’s criminal prosecution of newspaper editors and citizen critics for criticizing the policies of President John Adams as he prepared to go to war with France in the 1790’s led to the ultimate demise of his own party, the Federalists.
• There is also the legal wisdom of Abraham Lincoln, a tolerant leader at a time of great dissent during the Civil War. Even as his critics publicly called him a widow-maker and a butcher, Lincoln ordered a general, who unilaterally shut down a Chicago newspaper for lambasting the President, to revoke his order.
• Suspicions about one’s loyalty to America because of their religion or race (such as what confronts Muslim-Americans today) defined Franklin D. Roosevelt’s wartime policies with respect to Japanese Americans. His decision to intern almost 120,000 Americans because of their Japanese heritage just months after the attack on Pearl Harbor was arguably the lowest point of his presidential career. But anti-Japanese sentiment had infected the country to such an extent that fellow citizens—apparently ignorant of any possible threat to their freedoms as a consequence of Roosevelt’s repressive measures against dissent—profited when these Japanese Americans in California had to abandon their businesses and homes.
• Another wartime President, Richard M. Nixon, saw himself destroyed by the press and the public due in some measure to his secretive policies and disgust for journalists and for citizens who protested against the U.S. military involvement in Vietnam.

Reporters could also benefit from reading “Perilous Times” and, in doing so, learn not to repeat the mistakes of their predecessors. Here are a few examples for them from Stone’s book:

• During the cold war, journalists not only acquiesced with an alarming frequency in the government’s restrictions on free speech, but also often trumpeted on front pages and in opinion columns baseless charges brought by the government. The press, for example, played a large part in elevating the dangerous and reckless Senator Joseph McCarthy to hero status when he embarked on a rampage against accused Communist sympathizers that left a trail of destroyed lives and careers.
• At times, the more spectacular the charges were, the more headlines newspapers gave the accusers. Congressman Martin Dies was regularly given top billing even as he made “wildly irresponsible” charges of disloyalty against hundreds of newspapers, civic groups such as the Boy Scouts, and First Lady Eleanor Roosevelt in the years leading up to World War II.

Nor is the executive the only branch of government that Stone targets for examination. In scrutinizing Congress, he mentions some civil liberties champions, including the conservative Democratic Senator Millard Tydings of Maryland. His prescient and courageous, blistering criticism of Senator McCarthy and his ruinous tactics resulted in Tydings’ defeat for reelection in 1950. But dark spots in Congress’s conduct abound as it frequently failed to protect the civil liberties of its constituents by limply approving such repressive measures as the Sedition Act of 1918, which essentially criminalized any speech critical of the government. Stone also points to the manner in which Congress “readily acquiesced” in the Bush administration’s demand for the USA Patriot Act. The law allows American law enforcement broad spying powers over its own citizens, as was the habit during McCarthyism and other dark periods of our history.

Finally, Stone discusses in detail how First Amendment rights have been interpreted by the courts over time, but he also examines the present-day judiciary, which now seems impotent in its inability to adhere to its Constitutional duty to ensure the President doesn’t abuse his authority. More interesting are his accounts of a few heroic judges who would not be bowed by the executive branch as it brought criminal charges against Americans for expressing their political views. Their actions stand in stark contrast—and call into question—other judges’ adherence to Constitutional principles, such as the judge who presided over the trial of Rose Pastor Stokes, the editor of the socialist Jewish Daily News. Stokes was convicted under the Espionage Act of 1917 for saying “I am for the people and the government is for the profiteers.”

As Stone puts it, what is needed today are not judges who will be “swayed by wartime hysteria,” but who are willing to risk their reputations to challenge the government when its officials overstep their bounds in the arena of Constitutional protections.

The Waxman Report and Homefront Confidential

RELATED ARTICLE
“Documenting Government Secrecy”
– Sarah HagedornInstances of overstepping the bounds of Constitutional rights and protections is precisely what is detailed in two disturbing reports about the Bush administration’s corrosive treatment of civil liberties during the war on terror. Each speaks to the critical need to reverse these trends.

One report was prepared by the staff of the federal House Committee on Government Reform at the request of ranking minority member Henry A. Waxman and so it bears his name. Its findings present a strong case of an “unprecedented assault on open government” by the Bush administration. Though at times it is laced with partisan language, the 81-page document, “Secrecy in the Bush Administration” echoes Stone’s conclusion and that of other presidential scholars who have found that this administration is extraordinarily secretive.

Waxman’s report examines three areas affected by Bush’s secrecy policies. They include:

• Public access to federal records
• Congressional access to federal records, and
• Laws restricting public access to government records.

Regarding citizens’ access to federal government records, the report focused on attempts to undermine the principles behind the Freedom of Information Act (FOIA). FOIA was passed by Congress and enacted into law in 1966 to provide Americans with broad access to government documents. But now government officials are reversing the presumption of public disclosure and abusing the use of exemptions permitting some records to remain secret. FOIA—which many journalists rely on to do reporting on actions taken and decisions made by government officials and agencies—is in grave danger of being rendered obsolete, the report concludes.

The report also details many ways the Bush administration has stymied Congress’s efforts to exercise its oversight authority. Administration officials have ignored congressional requests for documents and have continued to challenge the legal authority of the General Accountability Office, the investigative arm of Congress.

Also examined in the report are the numerous legal changes the Bush administration has sought since September 11, 2001 to give law enforcement broad and unchecked powers that amount to creating an ability for government to “spy” legally on American citizens. Also the administration has convinced the courts to keep their investigations and prosecutions of suspected terrorists and their supporters hidden from public view.

In “Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public’s Right to Know,” the Waxman report findings are taken a step further. This report—prepared by the Reporters Committee for Freedom of the Press— spells out in extensive detail the ways in which the Bush administration’s policies directly impede citizens (including journalists) access to what has heretofore been regarded as public information. In a clever take on the White House color-coded terror threat, the report’s authors categorize threats to press freedoms with their own color chart, with the risks ranging from severe to guarded.

These categories of threats include reporters’ danger in covering the Afghan and Iraqi Wars (high risk); their access to terrorism and immigration proceedings (severe risk); coverage of domestic issues now curtailed by the USA Patriot Act and other legal changes (guarded risk); reporters’ privilege (high risk); freedom of information (severe risk), and the rollback in state openness (elevated risk).

While some of these dilemmas are being publicly debated, such as their restricted access to court filings in terror cases or the alarming aggressiveness on the part of the Bush administration to force reporters to reveal their sources, others receive far less public attention and virtually no debate. For example, the USA Patriot Act permits law enforcement not only to search newsrooms and seize a reporter’s notes, but also enables officials to listen in on a reporter’s home phone calls or seize packages he might receive from sources. It also allows the Federal Bureau of Investigation (FBI) to seek a court order requiring a reporter to produce “any tangible thing”—documents and records are included in this definition—that is sought in a terrorism investigation.

The FBI has not been shy about exercising its power in this area. In a little-publicized incident, the agency obtained court orders to seize a package of documents being sent to Associated Press reporter John Solomon and obtain his home phone records to uncover his sources on a terrorism story.

Bush’s policies have the potential to affect all reporters, from White House bureau chiefs to those covering their first beat for a small weekly. Each of us has to navigate the steep challenges that now exist in gaining access to information as lower-level government officials keep in line with the tone of secrecy set by the White House. For instance, a new law in Alaska allows officials to close legislative meetings if they believe that public safety would be negatively affected, while in Oklahoma there is new legislation that allows the state’s Department of Homeland Security to be exempt from open records and meetings laws.

Every journalist should read Waxman’s report and “Homefront Confi-dential,” and their facts and messages should be taught in every journalism classroom and reviewed in every newsroom. Because these policies are having such a profound effect on journalism, it is essential that those working in the field today and those intent on becoming journalists recognize these present-day threats to the news media’s ability to play its essential role in our democracy—that of being the citizens’ watchdog whose job it is to hold government officials accountable for their actions and decisions.

As Stone’s book and the reports illustrate, keeping secure citizens’ access to information is vital to maintaining a self-governing society and preserving our democratic system. In our centuries-old system of checks and balances on government power, judges must be skeptical of the executive branch’s rationale for secrecy and legislators must question and, if necessary, vote against measures that strip their constituents of hard-fought civil liberties. Citizens also have a duty to exercise their Constitutional rights. When any of these pieces of this interdependent system break down—as history regrettably teaches us—we experience an erosion of our self-governing society.

Journalists, too, have a responsibility to relentlessly seek the best information about government operations on every level, from local coverage of the town hall clerk to the highest White House official, and to consistently report what they find and its impact on citizens and our society. Of course, for reporters to do this requires that editors send the clear signal—and offer the necessary support—to make the coverage of government secrecy a priority in their newsrooms. Key questions for newsroom leaders to ask include:

• What is your state or city spending to classify documents or challenge their disclosure in court when a reporter seeks information?
• How will your state’s congressional members vote when the renewal of the USA Patriot Act comes before them? And why?
• Do military families in your state oppose news coverage of coffins from Iraq and Afghanistan returning to Dover Air Force Base in Delaware, as the Bush administration claims they do?
• Are judges in your area issuing opinions to justify why they are closing hearings or sealing case files, as they are required to do? If so, on what basis are they doing this?

Opportunities for stories related to these topics are unfortunately all too numerous. And there is yet another reason why every editor and reporter ought to be paying attention to these issues: The public’s enduring right to know, to doubt, and to speak depend on it.

Maggie Mulvihill, a 2005 Nieman Fellow, is investigative editor at the Boston Herald. During her Nieman year she is examining the role of courts in barring access to public information and restrictions of press freedom since the 9/11 attacks.