The First Amendment in a Time That Tries Men’s Souls

These are the times that try men's souls. (1) There is no freedom in a land where fear and hate prevail. Isn't this a time? A time to try the soul of men, Isn't this a terrible time? (2) Whether or not First Amendment rights are especially important during a crisis, they are nonetheless especially at risk then: Government requests to suspend civil liberties are always rationalized by "crisis." In the aftermath of the terrorist attacks of September 11, 2001, not only legal scholars, but all Americans, wondered what the civil liberties fallout would be. A particular area of concern was, and still is, the First Amendment protections, especially of speech and press. It seems, though, that the greatest threat to First Amendment liberties may come from unexpected sources. Even before the calendar changed to September 12, civil libertarians right and left expressed concerns that the terrorist attacks might trigger a broad spectrum of restrictions upon individual liberties. The rights of travel and privacy came to mind at once. But it was not long afterward that people began to worry that censorship of speech and press would be imposed as part of a war effort. Loose lips sink ships, after all. Soon after came worries about restrictions of religious expression by Muslims and fears of governmental religious coercion, where patriotic sentiment could become conflated with religious symbols and expression. Commentators of all political stripes warned against panicky restrictions of speech and press rights, often pointing out the irony of restricting American freedoms in an effort to fight an enemy whose disdain for the United States rests in part upon those very freedoms. And then a surprising thing happened: Nothing. Well, not nothing, but significantly less, in the way of government infringement upon civil liberties, than many of us had feared in the dangerous early period. In the first few weeks after the September attacks, Congress gave a stinging rejection to Attorney General John Ashcroft's initial request for expanded snooping and detention powers. Later, the Bush Administration and Congress would adopt dreadful "antiterrorism" measures, but at the beginning, the federal government was surprisingly restrained. In fact, officials at all levels of government went out of their way to assure the public that the United States would not "hand a victory" to the terrorists by voluntarily restricting the very American freedoms that the terrorists presumably hate and resent. Far from establishing internment camps like those established for Japanese-Americans during World War II, the President immediately cautioned against discrimination against Arabs and Muslims. Nearly every time a public official made a statement in the first few days after the attacks, he or she seemed to feel compelled to add that "this is not a war against Muslims," and that "Islam does not condone violence"--the latter being proclaimed whether the speaker knew anything about Islam or not. Ultimately, of course, there has been plenty to alarm civil libertarians. At the end of October, the Bush Administration quietly erected obstacles to young men immigrating to the U.S. from Arab countries and established new rules making it chillingly easy for government officials to eavesdrop on communications between people suspected of crimes and their attorneys. Revised procedures for detention, interrogation, and trial by secret military tribunals with no right of appeal, and other outrages, followed--although the first charges, brought against Zacarias Moussaoui, the suspected "twentieth terrorist," were actually brought in a regular civilian federal district court. And much more is likely to come in the way of government infringement upon our rights to privacy, counsel, due process of law, and equal protection, as guaranteed by the Fourth, Fifth, Sixth, and Fourteenth Amendments, both through official suspension of legal safeguards or simple disregard of them by police. …