Why hasn't the war against terrorism produced any great First Amendment cases?

Why hasn't the war against terrorism produced any great First Amendment cases?

Why hasn't the war against terrorism produced any great First Amendment cases?

The law, lawyers, and the court.
Nov. 26 2010 2:52 PM

War and Speech

Why hasn't the war against terrorism produced any great First Amendment cases?

War protest. Click image to expand.
Antiwar protesters in Los Angeles in April 2010

It is one of the truisms of First Amendment law that great wars make for great cases. Well, maybe not great cases exactly. OK, so the Supreme Court has actually handed down some of its very worst opinions in wartime, when speech and protest are often seen as inherently dangerous, when newspapers report news that the government would rather suppress, and when perceived enemies of the state lurk everywhere. Thus, during the Civil War the government shut down the Chicago Times for criticizing President Lincoln. World War I brought us the Espionage Act of 1917, and the high court brought us Schenck v. United States and Debs v. United States (both 1919 cases upholding the convictions of Socialists under the act). World War II brought us the Smith Act, and in 1951 the Supreme Court handed down Dennis v. United States (upholding the convictions of 12 Communist Party members convicted under the act). Vietnam was a cornucopia of free-speech litigiousness: It brought us United States v. O'Brien (upholding the criminal prohibition on burning your draft card, despite the First Amendment) and Cohen v. California (wearing a jacket that says, "Fuck the Draft" is protected free speech). Vietnam also brought us New York Times v. United States (allowing for the continued publication of the Pentagon Papers).

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

And that's just the tip of the iceberg. Governments always abridge wartime speech, protesters invariably complain, and the Supreme Court gets it right or wrong, but the whole dance clarifies and crystallizes the line between government suppression of speech, the freedom of the press, and the public's right to push back.

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Yet here we are, almost 10 years into the war on terror, and there has not been a single consequential free-speech case before the high court. Indeed to the extent that the Supreme Court has decided a free-speech case connected to the Iraq/Afghanistan wars at all, it was last term's Holder v. Humanitarian Law Project—a case that had less to do with speech and protest and the press and more to do with Americans who sought to help the opposing side obtain humanitarian aid and dig better wells.

There seems to be no one answer to why there hasn't been a single important First Amendment protest case in the last decade. It's certainly not that the court is reluctant to rule on First Amendment issues altogether. The Supreme Court has taken up a surprising number of speech cases recently. But right now the court is more interested in crush videos, gay marriage bans, anti-Hillary Clinton movies, violent video games, corporate speech, and funeral protests than in the rights of people to criticize government wars. * What does this say about the war on terror? And what does it say about what Americans care about most?

One answer may be that we aren't seeing more war protest cases because there haven't really been a lot of war protests, at least in the United States. During World War I and Vietnam, there were loud and even violent antiwar demonstrations. Interestingly enough, during the war on terror, the speech-suppression cases have often taken the form of attendees at Bush rallies being ejected for wearing impolitic T-shirts. So for instance, last month the Supreme Court declined to hear the appeal of Leslie Weise and Alex Young, bounced from a George W. Bush speech in 2005 in Denver because they arrived in a car with a bumper sticker that read "No More Blood for Oil." They sued the volunteers who ejected them, but the federal district court turned their claims away. "President Bush had the right, at his own speech, to ensure that only his message was conveyed," wrote the district court judge, balancing the messaging rights of the president against the rights of the protesters. The 10th Circuit Court then ruled that the First Amendment does not "prohibit the government from excluding" people from presidential events "based on their viewpoint." Both Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor dissented from the Supreme Court's decision not to hear the case. But it speaks volumes that this bumper sticker challenge might have been the O'Brien or Cohen of the war on terror until it went away in a puff of exhaust.

Maybe the reason we don't have any thrilling new free-speech cases is that Congress has finally learned its wartime lesson. Maybe all the silence is a function of the fact that Congress isn't passing the kinds of speech and sedition laws it passed in previous wars.

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But that can't be right either. With the Patriot Act, the FISA reauthorization, and the various unlawful surveillance programs tied to the war on terror, it cannot be said that the government has been softer on war critics than it has been in previous wars. The difference this time is that some of the surveillance reforms were secret, unknown even to Congress and the public. And if the public do not know they are being monitored, investigated, or targeted, the likelihood of protest decreases. If authorities pass secret laws and monitor you by way of secret subpoenas and wiretaps, you may never have an opportunity to challenge the program. Unlike long-ago eras of mass arrest and detention of suspected communists, we live in a time in which the FBI might just listen in and investigate and place you on a terror watch list without your knowledge or consent. An FBI Inspector General report released in September confirmed that in addition to Greenpeace and PETA, the FBI had targeted the Thomas Merton Center, several antiwar groups, and a Quaker peace activist for surveillance and investigation. There's really no need to arrest and jail a PETA activist if you can simply listen in on her phone calls.

That's what makes the single free-speech case the court has heard during this "war" so worrisome.  It's not about protest at all. The "material support" provision of the Patriot Act—the law upheld in Holder v. Humanitarian Law Project—is, according to Erwin Chemerinsky, the dean of U.C.-Irvine school of law, such a dangerous precedent because it punishes speech—such as advice on the use of international law for peaceful resolution of disputes or gaining humanitarian aid—without any showing that it is likely to lead to harm.

But if Americans aren't all that interested in testing the new speech restrictions of the post-9/11 legal regime, they seem awfully keen on pushing the envelope in different First Amendment areas. This may not be an era of free and spirited criticism of government action, but we do seem to be pressing on the limits of attacking one another. The past year has seen something of an explosion in free-speech cases at the high court, including a case last year striking down a law targeting so-called crush videos; the famous Citizens United case finding a right to corporate free speech in the elections context; and a case involving the First Amendment rights of people who signed their names to an anti-gay ballot initiative. This term the court has doubled down on novel speech issues, having heard one major case about the free-speech rights of military funeral protesters (hardly a war-protest case, by the way: the protesters are against gay rights, not war) and the constitutionality of a California ban on violent video games.

I am not opposed to any of the above forms of speech. But it's rather amazing that almost 10 years into a major war, the court has heard a raft of cases about people who want to say violent or offensive things about other people and zero cases from people who wish to protest their government's violent war. We may have finally entered an age in which feature-length political attack-ads and games about dismembering young women feel more urgent and real to us than the wars we are fighting overseas.

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It's also worth noting that almost all of the above cases have more to do with the rights of the entertainment industry and corporate free speech than with individual rights or speakers. Justices Stephen Breyer, Sam Alito, and Clarence Thomas have all made it very clear now that for First Amendment purposes, they believe that the Internet and modern media change everything. They all feel, for different reasons, that the ways in which we speak to each other in America have changed enough to warrant serious rethinking. It will be ironic if changes in the media have made war protest less interesting to us than virtual violence and outrage.

Chemerinsky also notes that we have come a long way from the government's repressive efforts to silence any of its individual critics, as we saw during the Civil War or World War I, and that the government, in declining to go after the New York Times for leaking the NSA story or Wikileaks for its revelations, has steered clear of the kind of media prosecutions we saw in the Pentagon Papers case. In other words, maybe the government has finally learned its First Amendment lesson after all these years.

Chemerinsky suspects that this is the case. Sort of. As he explained it to me, we have moved away from the time in which governments chiefly target speech in wartime:

I wonder if there isn't a lesson that each war brings its own, new form of repression. In the Civil War it was the suspension of habeas corpus. In World War I, it was the prosecution for critics of the war and the draft. In World War II, it was the internment of Japanese-Americans. During the Cold War, it was punishing membership and advocacy. During this war, it has been the detentions and torture. The country does learn from its mistakes, but then it makes new ones.

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In other words, when it comes to antiwar speech we may have reached something like perfect—though that seems the wrong adjective somehow—equilibrium: Americans don't much care to protest. The government cares very little if we do. And the courts don't much care about what happens either way. That we find ourselves in an open-ended war on "terror" that will never end but it never becomes quite real to us suggests that maybe the antiwar movement won't really be taken seriously in the courts until they start to protest in video game format.

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Correction, Nov. 29, 2010: This article originally misspelled Hillary Clinton's first name. (Return to the corrected sentence.)