% IssueDate = "09/20/02" IssueCategory = "Events" %>
The Most Far-Reaching Gag Order in 1st Amendment's History
Free Speech is Integral to the Legislative Process, says ACLU
As we do every year during Banned Books Week, the ACLU calls on Americans to be active and vocal in the defense of the First Amendment, which guarantees free expression and a free press.
This year, as we commemorate the first anniversary of the September 11 attacks, we face unprecedented government restrictions on free speech. The message of Banned Books Week - to cherish and defend the First Amendment - has never been more timely or crucial.
For since the terrorist attacks of September 11, 2001, the government has not merely issued vague warnings against subversive speech. In October, in the wake of the attacks, Congress passed a law that allows the government to monitor confidential attorney-client conversations and conduct secret military tribunals for accused terrorists, and which gives the government unprecedented power to tap phones, read private email, and investigate individuals' medical and financial records.
This measure, the USA Patriot Act, was virtually smuggled into law, approved in a hasty and secretive manner that was at odds with the spirit of free, open discussion that is a part of the normal legislative process. It includes a host of alarming and unconstitutional anti-speech provisions. Perhaps the most disturbing of these is what Village Voice columnist Nat Hentoff has called "the most far-reaching gag order in the First Amendment's history."
This part of the Act overrides existing state and federal privacy laws, allowing the FBI to investigate which books have been bought or borrowed by anyone it suspects of being a terrorist - an extremely broad and vague determination. Further, it prevents librarians and booksellers from revealing that such a search has taken place, and it bars the press from reporting on such searches.
Under the Patriot Act, the FBI has the authority to get an order from the Foreign Intelligence Surveillance Court, a secret body, to seek "any tangible things (including books, records, papers, documents, and other items)," a list that presumably includes email records, as long as it can claim that these items are part of an anti-terrorism investigation.
The law states, moreover, "No person shall disclose to any other person . . . that the Federal Bureau of Investigation has sought or obtained" these records.
But the Attorney General was not satisfied with the new powers granted by the Patriot Act. In May, Ashcroft decided to rewrite longstanding restrictions on domestic spying by law enforcement. Under the new guidelines, the FBI can freely infiltrate mosques, churches, synagogues, and other houses of worship, listen in on online chat rooms, and read message boards, even if it has no evidence that a crime might be committed.
As Andy Rooney has said, Ashcroft's new guidelines have put the "fear of God" into reporters, creating a repressive climate where "you're a bad American if you ask a question." Rooney, a CBS News correspondent, noted that Ashcroft's rules are "how dictatorships get started."
It is not surprising that the government has used the September 11 attacks as an excuse to restrict Americans' freedom and expand its power. Throughout history, in times of war, our nation's government has done just that.
In 1861, for example, during the Civil War, Abraham Lincoln arrested 13,000 draft resisters and Southern sympathizers, in defiance of a Supreme Court ruling. Several newspapers were shut down for expressing pro-South views, and editors were among those jailed for supporting the South.
During World War I, Woodrow Wilson's Espionage and Sedition Act allowed the government to censor the foreign language press and bar it from publishing anti-war sentiments. The foreign-language press, which served the nation's massive community of European immigrants, was an important voice for dissent, including support of socialism and anarchism. Among the 2,000 people prosecuted under the Act was Charles Schenck, who served ten years in prison for writing and distributing a pamphlet claiming that the military draft was illegal. The Supreme Court upheld his conviction.
Later, during the anti-Communist hysteria of the Cold War, Americans were jailed simply for studying the works of Marx and Lenin. These convictions too were upheld by the Supreme Court.
The First Amendment violations now taking place are more subtle than in decades past and have not been widely reported in the press. Indeed, one of the dangers of the present anti-speech campaign is that most Americans are unaware of it. But all Americans are harmed by the government's infringements of First Amendment rights, and all are hurt by an atmosphere that squelches dissent and chills debate.
Democracy can thrive only when the government acts openly and when the people feel safe to read and express themselves freely. The current anti-speech campaign, which is being waged in the name of national security, poses as great a danger to America as does any threat of terrorism.
All who cherish our First Amendment rights must be vigilant and speak out against any and all government restrictions on these pre-cious liberties. Banned Books Week is a time to celebrate reading and all forms of expression, and to renew our efforts to protect the free expression of everyone in America.