9/11 Attacks and the First Amendment, Case Study Example

Abstract: The First Amendment to the United States Constitution guarantees some of the most cherished and foundational rights enjoyed by the American citizenry: free speech, freedom of expression, and freedom of assembly, itself a form of expression. And yet, the meaning of these rights has had to be worked out through a great number of landmark court cases. The Supreme Court has had to consistently balance the need to protect individual rights to self-expression and free speech with the need to maintain public order and protect the peace and well-being of other citizens.

Small wonder, then, that the Supreme Court has not always ruled in favor of freedom of expression: in Schenck v. United States (1919) and Whitney v. California (1927), the Court upheld statutes that restricted certain kinds of politicized, anti-government speech that would today be protected. Indeed, in later cases, such as Brandenburg v. Ohio (1969) and Tinker v. Des Moines Independent School District (1969), the Court ruled for freedom of expression, protecting dissent. And yet, all of these issues have arguably never been more pertinent than in the wake of the September 11^th, 2001 terrorist attacks. In the wake of that dreadful event, Congress passed the Patriot Act (2001), which has since become controversial for many of its provisions, including the deportation of illegal aliens, government surveillance of Internet and telephonic communications, subpoenas of records from booksellers and libraries, and—perhaps the most worrisome of all—a definition of ‘domestic terrorism’ that is so broad that it could be used against an entire range of political protestors. In light of the Court’s own precedents, the case that will be here advanced is that the Patriot Act constitutes a very real danger to the civil liberties of freedom of speech, expression, and assembly guaranteed in the First Amendment. In order to secure the provisions of the First Amendment, the Patriot Act must be overturned.

Background: The free speech rights guaranteed in the First Amendment to the United States Constitution have been subject to a great deal of interpretation in the courts. Schenck v. United States (1919) is one of the first landmark Supreme Court cases pertaining to these First Amendment rights (Wilson, Dilulio, and Bose 113). In this historic case, socialist Charles Schenck was convicted “under the Espionage Act of 1917” of attempting to obstruct military recruitment: he mailed literature to potential Great War (WWI) draftees, in an attempt to convince them to both “’assert their rights’” and to sign a petition against the draft (Eastland 1). However, the Court upheld the Espionage Act, and therefore Schenk’s conviction (1). This case established the doctrine of the “clear-and-present-danger” test: speech could be limited if it posed a clear and present danger (Wilson, Dilulio, and Bose 113).

Another important case that defined much of the court’s rulings on First Amendment free speech and free expression issues for decades was Whitney v. California (1927) (Eastland 20). As Eastland explains, California was one of twenty states that passed so-called “criminal syndicalism” laws, criminalizing any action taken to “defend, advocate, or establish an organization committed to violent means of effecting change in government or in industrial ownership or control” (20). The prime target was a group known as the Industrial Workers of the World (IWW) (20). Though not a member of the IWW, Whitney was briefly a member of the Communist Labor Party (CLP) of California, which shared many similar goals with the IWW; this was the basis for her arrest and conviction (20). The Supreme Court upheld her conviction, but Justice Brandeis proffered a concurring opinion, also endorsed by Justice Holmes: although neither justice dissented from the result, both were unwilling to endorse the idea that the right to join a politically-dissident organization seeking to foment a “proletarian revolution” at some point in the future was not protected (20). Brandeis’s main point was that Whitney herself, and the organizations in question, posed no real danger to the state; for similar reasons, California’s governor pardoned the defendant at a later date (20).

While Schenk has left a lasting legacy with the clear and present danger doctrine, Whitney’s greatest legacy has been the dissenting opinion of Justice Brandeis: decades after Whitney, in many respects the rulings of the Court began to shift in the direction of protecting freedom of speech and expression, essentially vindicating Brandeis’s vision. In Brandenburg v. Ohio (1969), Ohioan Ku Klux Klan leader Clarence Brandenburg made incendiary, racist remarks in a televised address at a Klan rally (Eastland 192). He was charged with “advocating racial strife”, and convicted under the Ohio Criminal Syndicalism Statute of 1919 (192). Brandenburg appealed, lost in Ohio, and then appealed to the Supreme Court (192). The Supreme Court struck down the conviction, breaking with the precedent established by Whitney: instead, the court ruled that subversive speech could only be punished in the event that it “’is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’” (192).

In the very same year, the Court’s ruling in Tinker v. Des Moines Independent School District (1969) delivered another powerful defense of freedom of speech and expression (Scheb 54). In this case, students won the right to wear armbands protesting the draft for the unpopular Vietnam War, in contravention of a school policy that forbade such symbolic protests (Eastland 185-186). The Supreme Court ruled that the wearing of the armbands constituted “the type of symbolic act that is within the Free Speech Clause of the First Amendment…” and that because this symbolic expression was non-disruptive and had no potential to be, it should be protected (186). Moreover, the Court recognized that both teachers and students have free speech rights, and it would be unreasonable to expect that either group forfeited these rights in the context of the educational institution (186). This case has cast a very long shadow indeed, with its robust protection of symbolic expression that is not disruptive or any threat to public order, and has the effect of promoting and expressing personal views (Scheb 54-55).

In 1971, the right to free expression, particularly symbolic expression, was upheld in Cohen v. California (Kersch 328). In this case, Paul Robert Cohen wore a jacket with an inflammatory anti-draft slogan into the Los Angeles County Courthouse, and was prosecuted for violating a state law which prohibited “’maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person… by… offensive conduct’” (328). Cohen won his case in the Supreme Court, overturning California’s statute (328). Justice John Marshall Harlan delivered the Court’s opinion, which explained that the First Amendment right of free expression “is designed and intended to remove governmental restraints from the arena of public discussion,” with the aim of promoting “a more capable citizenry and more perfect polity” (328).

In fact, following Brandenburg v. Ohio, the Supreme Court has consistently defended the doctrine that only in cases of “imminent lawless action” can expressions of speech be abridged and prosecuted (Scheb 54). Although the Court’s ruling on Chaplinsky v. New Hampshire (1942) established the so-called “fighting words” doctrine, i.e. that “personally abusive epithets” directed at another person are not protected free speech, the Court has consistently ruled that so long as speech does not constitute a threat to public order it must be protected (Scheb 55). Put another way, the Supreme Court has consistently upheld the citizen’s right to free expression, except for those cases in which it constitutes a legitimate threat or menace to public order. The Court has been very consistent in this vein, notably with the Brandenburg and Cohen decisions, to rule that the government may not use the preservation of the peace as an excuse for suppressing civil liberties and free speech.

Argument: In the wake of the terrorist attacks of September 11^th, 2001, the United States Congress responded by passing the controversial Patriot Act in late October of that same year (Kersch 163). Although the Act contained a number of different provisions, the authorization of the Central Intelligence Agency (CIA) to engage in a program of domestic spying and expanded surveillance is of the greatest concern with regard to First Amendment rights (164). As Finan explains, under Section 215, the so-called “business records” section, records from libraries and booksellers could be subpoenaed for the purposes of gathering intelligence on consumers—and the orders could not be challenged in court (283-284). Worse, booksellers and librarians would be unable to even reveal said orders to civil liberties organizations, such as the American Civil Liberties Union (ACLU) (284).

Other provisions of the Patriot Act, such as “detention and deportation of any immigrant who even verbally supports a terrorist organization” (Section 412), are also very problematic from a constitutional perspective, particularly with regard to the First Amendment (Abele 51). As Abele explains, the Supreme Court has consistently “ruled that the First Amendment precludes ‘guilt by association’ ‘because it penalizes individuals who support only a group’s lawful ends’” (51). In fact, sections 120 and 121 of both Patriot I (2001) and Patriot II (2006) manage to exacerbate the problem: they define terrorism in terms so vague that they could well be applied to “any political protestor, from anti-war demonstrators to anti-abortion protestors” (51).

As Harris and Tichenor explain, the ACLU has opposed the Patriot Act for all of these reasons and more besides (396). One key ACLU concern is the treatment, or rather mistreatment, of illegal aliens: ACLU spokeswoman Strossen has charged that the Department of Justice has been “’indiscriminate and haphazard’” in “round up… immigrants as terror suspects”, effectively turning these immigrants into proxies for terrorists (Ball 73). Other key ACLU concerns include the aforementioned Section 215, as well as the expansive and inclusive definition of domestic terrorism (Harris and Tichenor 396). As the group has explained, law enforcement agencies have been granted greatly expanded powers of surveillance: they can now “conduct secret searches,” and utilize considerable capacities of phone and Internet surveillance to access personal records (396). Though the access of personal records relates more to the Fourth Amendment (searches and seizures), it is also of concern from a First Amendment perspective, particularly because of the way in which sections 120 and 121 of Patriot II define domestic terrorism (396). If the government can define “domestic terrorism” so broadly that it includes many political protestors and the like, and law enforcement agencies have such expanded powers of surveillance, then what is left of the First Amendment and its provisions for free speech and free expression? If dissent is dangerous and law enforcement can access personal information with minimal judicial oversight, as they in fact can, then what place is there for truly free speech? In what sense can it be said to truly still exist?

What, then, is the place of the First Amendment in America in the post-9/11 context? Put another way, what ought to be its place? The answer is simple: it ought to be as it always has, a guarantee of personal, free expression. To be sure, governmental and law enforcement agencies need tools with which to ascertain legitimate terrorist activity and apprehend those responsible, but this must not come at the expense of civil liberties. To a considerable extent, both the Brandenburg and Cohen decisions point the way: the government must protect civil liberties, and not infringe on them in the name of protecting public order. Again, this is not to say that public order should not be protected: rather, it is a balance between the two that can only be struck by staying true to the constitutional principles on which this nation was founded.

Works Cited

Abele, Robert P. A User’s Guide to the USA Patriot Act and Beyond. Lanham, MD: University Press of America, Inc., 2005. Print.

Ball, Howard. U.S.A. Patriot Act of 2001. Santa Barbara, CA: ABC-CLIO, Inc., 2004. Print.

Eastland, Terry, ed. Freedom of Expression in the Supreme Court: The Defining Cases. Lanham, MD: Rowman & Littlefield, 2000. Print.

Finan, Christopher M. From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America. Boston, MA: Beacon Press, 2007. Print.

Harris, Richard A., and Daniel J. Tichenor, eds. A History of the U.S. Political System: Ideas, Interests, and Institutions. Santa Barbara, CA: ABC-CLIO, Inc., 2010. Print.

Kersch, Kenneth I. Freedom of Speech: Rights and Liberties Under the Law. Santa Barbara, CA: ABC-CLIO, Inc., 2003. Print.

Scheb, John M. Criminal Law & Procedure. 6^th ed. Belmont, CA: Thomson Higher Education.

Wilson, James Q., John J. Dilulio, and Meena Bose. American Government: Institutions and Policies. 13^th ed. Boston, MA: Wadsworth, 2013. Print.