Stripping Free Speech Rights in the Name of “Protecting America”

One of the defining characteristics of contemporary conservatism is to let irrational fear guide how much freedom Americans should be allowed to exercise and, correspondingly, how much unchecked power the government should have over individual rights and the “national security” apparatus. This phenomenon is always present, but particularly so in the last decade after 9/11. As Jon Turley’s recent piece in the Washington Post says, “In the decade since Sept. 11, 2001, this country has comprehensively reduced civil liberties in the name of an expanded security state.” In that piece, Turley explores reduced civil liberties and expanded powers of the state including assassination programs for American citizens, indefinite detention, stripping of habeas corpus, warrantless searches, secrecy, immunity for war crimes, extraordinary renditions, etc.

But Gary Schmitt of the American Enterprise Institute, in a perfect example of the conservative tradition of letting misplaced, irrational fear trump individual liberty and the rule of law, thinks we ought to add drastically restricting free speech to Turley’s list. “Congress and the president should enact a statute,” he writes, “that straightforwardly makes it illegal to publish or circulate materials that support, praise, or advocate terrorism as long as we are still formally at war with al Qaeda and its allies.” You have to really do a lot of mental work to not be able to see how anathema this is to the First Amendment, or any notion of a free society, for that matter.

Schmitt writes about the recent prosecution of Tarek Mehanna on terrorism charges. The case is a troubling one for free speech, and I wrote about it back in December when the conviction came out. Federal prosecutors claimed that Mehanna traveled to Yemen in 2004 with the hope of training as a terrorist and going on to fight American soldiers in Iraq. He failed to find any training camps, but returned home and allegedly promoted al Qaeda by writing about violent jihad against U.S. foreign policy on the Internet. But Mehanna and his lawyers instead claimed that he traveled to Yemen to receive training to become an Islamic scholar and that his writings on the Internet amounted to free speech.

Interestingly, Schmitt gives a fair account of Mehanna’s charges, admitting that it was questionable as to whether Mehanna’s speech was punishable and that the government’s case “had its weaknesses.” He acknowledges further that prosecuting Mehanna on these charges goes directly against a number of landmark decisions from the Supreme Court. And Mehanna’s lawyers made sure to inform the jury of these First Amendment issues, which included three points of instruction. The first reminded the jury of the right to hold views they regard as appalling. The second emphasized special protection for speech concerning public issues.

And the third, and most important for this case, explained the material support statute Mehanna was charged with, and makes clear: “To constitute a crime, the material support must be provided at the direction of the terrorist group, or in coordination with the terrorist group, or as a service provided directly to the terrorist group at its request. The statute does not prohibit someone from vigorously promoting and supporting the political goals of the group. This is considered independent advocacy, and is protected by the First Amendment.”

So Schmitt recognizes the court basically violated a number of Supreme Court decisions and used the special status of a terrorism case to muscle through a conviction of Mehanna that otherwise would have upheld free speech. But he also suggests Congress and the President change the law, so that anyone accused of advocating or praising terrorism while “we’re at war with al-Qaeda” can be easily convicted. He thinks the status quo on the First Amendment is “more libertarian than necessary under the Constitution and burdens the government unnecessarily in carrying out its duty to protect the lives and property of citizens.” Wouldn’t want to “burden the government” when we can just abridge free speech.

It’s easy to see why taking the Schmitt road – which, as Turley wrote, is the road we’ve been taking ever since 9/11 – is detrimental to freedom and gives the government power that can and will be abused. The ACLU statement on the Mehanna case said “Under the government’s theory of the case, ordinary people–including writers and journalists, academic researchers, translators, and even ordinary web surfers–could be prosecuted for researching or translating controversial and unpopular ideas. If the verdict is not overturned on appeal, the First Amendment will be seriously compromised.” This is obviously of some concern to writers of this website, like me, who rather consistently call the U.S. government a terrorist state and point out that al-Qaeda has grievances with America’s murderous imperial foreign policy. These are seditious words, aren’t they?

But, Schmitt thinks, we are at war and there are terrorists after us and so long as that is the case restrictions on free speech are necessary. He assures us such a new government power would not be abused or misused to crowd out legitimate speech of journalists or dissidents, though. But the same thing was said of, say, Woodrow Wilson’s Espionage Act which got Wilson’s political opponent Eugene V. Debs imprisoned for giving a speech in which he challenged Wilson’s military draft and challenged the war. One woman, Rose Pastor Stokes, was tried, convicted, and sentenced to 10 years in prison under the Espionage Act for writing a letter to the editor of the Kansas City Star that said the government was allied with the war profiteers.

The creeping powers of the state are never quite enough to pacify Schmitt’s and others’ war mentality. The top down control advocated for in the name of unburdening the government with pesky little individual rights has no limit in their mind. Here’s hoping the next decade won’t be so dark for civil liberties as was the last.