Free Speech In an Age of Terror

The never-ending battle

By Harvey Silverglate

A widely misunderstood and under-appreciated aspect of the First Amendment's free speech guaranty was reaffirmed earlier this month by a federal jury in Idaho. At the same time, however, the principle was being undermined by some of the nation's premier charitable foundations. The issue? Protection of speech that advocates violence, including violence against the very system of constitutional government that brings us the First Amendment.

In terms of the never-ending battle for free speech, it's always the hardest sell -- protecting speech that's often violent, subversive, revolutionary. And yet it's precisely the kind of speech where the First Amendment plays its most important role.

After seven days of deliberations, the jury acquitted Sami Omar Al-Hussayen, a 34-year-old Muslim Saudi graduate student at the University of Idaho, of charges that he provided "expert advice or assistance" to terrorist organizations by operating websites and e-mail discussion groups that advocated what lead prosecutor Kim Lindquist termed "extreme jihad."

Boise federal prosecutors had brought the case under a controversial provision of the US Patriot Act that broadened a Clinton-era prohibition against lending assistance to causes designated by the federal government as "foreign terrorist organizations." To support their contention that Al-Hussayen had assisted a terrorist conspiracy, prosecutors pulled several examples of inflammatory speech from Al-Hussayen's otherwise mundane collection of Muslim-themed websites and discussion groups. These included his redistribution of four fatwas issued by radical clerics offering religious justifications for "martyrdom attacks" and his hyperlinks to a Hamas-affiliated website.

But the prosecutors ran up against the First Amendment. As US District Judge Edward Lodge instructed the jury, the Constitution protects expression of beliefs "even if those beliefs advocate the use of force or violation of law, unless the speech is directed to inciting or producing imminent lawless action."

Civil liberties and legal communities widely viewed this case as a terrorism-era test of the free speech protections first articulated in a McCarthy-era Supreme Court opinion; that ruling protected the right of public university professor Paul Sweezy, a self-styled "classical Marxist," to argue that the capitalist system would collapse when confronted by violence on the part of those seeking to create a "truly human society."

This protection was broadened and clarified in 1969 when the court, in a case involving pro-violence rhetoric at a Klan rally, held that speech-restrictive legislation had to be limited to "advocacy [that] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

In this age of terrorism, it is not "classical Marxists" but fundamentalist religious radicals -- and those who disseminate their sermons and writings -- who are increasingly targeted by such viewpoint-based prosecutions. And like the anti-Communist purges of the '50s, these government actions are inspiring similar private sector purges.

The media reported last month that nine prominent universities, including Harvard and most of the rest of the Ivy League, plus Stanford, MIT, and the University of Chicago, have protested new language in Ford Foundation grant applications that requires the applicant to neither "promote or engage in violence, terrorism, bigotry, or the destruction of any state," nor "make subgrants to any entity that engaged in these activities." The universities are rightly concerned that signing such a condition would force them to eliminate political dissidents and, as a consequence, free-wheeling discussion of controversial views -- from the nation's campuses.

Ironically, these universities helped pave the way for both the Ford Foundation restrictions they protest and the government's current attack on disfavored advocacy. In recent decades, each of these universities (as well as numerous others) has adopted speech codes that punish students and faculty for engaging in "hate speech."

These codes sharply curtail discussion of race, gender, and other hot-button issues by characterizing expression of certain views as acts of "harassment" that create a "hostile environment" for women and minorities. Such blurring of the line between protected advocacy and illegal acts undermines the very free speech principles that the universities now defend.

This blurring is becoming more common in an era in which US Attorney General John Ashcroft has equated criticism of American anti-terrorism initiatives with giving aid and comfort to the enemy. Even the American Civil Liberties Union, which prides itself on its support for even the most offensive and unpopular speech, did not immediately reject Ford's demand when it was asked to sign a version of the antiterror and antibigotry pledge as a condition for receipt of $2.3 million in Ford grants. The ACLU, which actively opposed the government's prosecution of Al-Hussayen, is reportedly working on crafting a policy covering private foundations and other organizations that curb such advocacy.

Meanwhile, other foundations are joining Ford in adding similar restrictions to their grants: some, like Rockefeller, mimic Ford by targeting a broad range of constitutionally protected advocacy, while others, such as MacArthur, target more narrowly defined and illegal activity rather than mere advocacy.

Explaining his own vote to acquit Al-Hussayen, juror John Steger told the Boise Spokesman-Review: "The part that surprised me was when I read the First Amendment instructions. I was surprised to learn that people could say whatever they want -- providing it would not cause imminent action." Juror Steger is surely not alone at being surprised at the breadth and vitality of American freedom of speech. One can only hope that this vitality will survive the war on terror.

June 28, 2004
Copyright © Globe Newspaper Co.

Harvey Silverglate, a Boston criminal defense and civil liberties lawyer, is co-author of The Shadow University: The Betrayal of Liberty on America's Campuses. He is co-founder of the Foundation for Individual Rights in Education (FIRE), an organization dedicated to preserving liberty on college campuses.

Read also "Crossing the threshold," by Harvey Silverglate and Carl Takei. After the terrorism emergency has ended, will the American people still have the institutional wherewithal to restore the lost structures of liberty? Here are excerpts:

The hue and cry raised over the Patriot Act has distracted most of us from the Bush administration's far more dangerous assault on another class of liberties, which might be called "threshold rights." After all, the Patriot Act can be rolled back if the people decide that the government has overreached or the emergency has receded, and some provisions of the act have automatic expiration dates. But threshold rights -- fair elections, open and publicly accountable government, judicial review of executive action, the right of the accused to a public jury trial, separation of powers among the three branches of government, and the rights to free expression and free association -- are structural, and therefore changes to them are more enduring.

Threshold rights enable civil society to know what government is doing and to rein in abuses. Think of it this way: temporary restrictions on some forms of privacy enable the government to know what you are doing, which is troubling enough. Threshold rights enable you to know what the government is doing, and that's why they form the core of democratic society. The degree to which a society protects threshold rights speaks to whether it is free and open, and whether self-correction can occur without violence. If the press is free, the electorate has open elections, and the courts are performing their sworn duty, even a president who tries to assume the powers of an emperor can be dealt with.

Attacks on threshold rights supposedly justified by the "war on terrorism" are particularly menacing because this war has no foreseeable end, and the dangers are indisputably real. Nor will the war be contained geographically; as Ashcroft warned the House Judiciary Committee in June 2003, he now considers the streets of the nation to be "a war zone." On Ashcroft's domestic battlefield, threshold liberties are indeed under grave attack, and none with more alarming success, at least thus far, than the right to judicial oversight of the executive branch, specifically the writ of habeas corpus — the oldest and most fundamental right of free citizens in the Anglo-American legal tradition. . . .

Once threshold rights are stripped away, the only thing that stands between any of us and arbitrary imprisonment is the good will of the president, the attorney general, and the secretary of defense. Even if one trusts the judgment of the current occupants of these offices, to leave such power in their hands (and those of their successors) would violate the clear intent of the drafters of the Constitution. As Supreme Court justice Felix Frankfurter once wrote: "The historic phrase 'a government of laws and not of men' epitomized the distinguishing character of our political society.... [F]rom their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power, however disguised."

Read entire "Crossing the threshold," in the Boston Phoenix.

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