Tyranny in the Name of Freedom

[Guest guest]

http://www.nytimes.com/2004/08/12/opinion/12lith.html?th

 

August 12, 2004

GUEST COLUMNIST

 

Tyranny in the Name of Freedom

By DAHLIA LITHWICK

 

So it has come down to this: You are at liberty to

exercise your First Amendment right to assemble and to

protest, so long as you do so from behind chain-link

fences and razor wire, or miles from the audience you

seek to address.

 

The largely ignored " free-speech zone " at the

Democratic convention in Boston last month was an

affront to the spirit of the Constitution. The

situation will be only slightly better when the

Republicans gather this month in New York, where

indiscriminate searches and the use of glorified veal

cages for protesters have been limited by a federal

judge. So far, the only protesters with access to the

area next to Madison Square Garden are some

anti-abortion Christians. High-fiving delegates

evidently fosters little risk of violence.

 

It's easy to forget that as passionate and violent as

opposition to the Iraq war may be, it pales in

comparison with the often bloody dissent of the

Vietnam era, when much of the city of Washington was

nevertheless a free-speech zone.

 

It's tempting to say the difference this time lies in

the perils of the post-9/11 world, but that argument

assumes some meaningful link between domestic

political protest and terrorism. There is no such

link, except in the eyes of the Bush administration,

which conflates the two both as a matter of law and of

policy.

 

It started with Attorney General John Ashcroft's

declaration, shortly after 9/11: " To those who scare

peace-loving people with phantoms of lost liberty, my

message is this: Your tactics only aid terrorists. "

This was an early attempt to couple disagreeing on

civil liberties with abetting terrorists. And while

I'm not reflexively opposed to the entire Patriot Act,

two provisions do serve more to quell protest than

terrorism.

 

One section invented a broad new crime called

" domestic terrorism " - punishing activities that

" involve acts dangerous to human life " if a person's

intent is to " influence the policy of a government by

intimidation or coercion. " If that sounds as if it's

directed more toward effigy-burning, or Greenpeace

activity, than international terror, it's because it

is. International terror was already illegal.

 

A second provision, already deemed unconstitutional in

one federal court, was used to prosecute Sami Omar

al-Hussayen, a Muslim graduate student at the

University of Idaho who was charged with using the

Internet to offer " expert advice or assistance " to

terrorists by posting fatwahs and hyperlinks to a

Hamas Web site. He was acquitted by a jury this

summer, partly because the judge warned jurors that

speech - even speech advocating the use of force or

the breaking of laws - is constitutionally protected,

unless directed toward inciting imminent lawless

action.

 

An even more pernicious use of the federal law

enforcement power to quash protest has been observed

at presidential speeches, where the Bush team has used

the Secret Service at public events to create

" free-speech zones " that keep dissenters away from the

president.

 

In 2002 Brett Bursey, a South Carolinian, was arrested

for holding a " No War for Oil " sign near a hangar

where Bush was speaking. The West Virginia police

reported that the Secret Service had directed them to

arrest a couple sporting anti-Bush T-shirts at a

public speech this year. And an account by Justin Rood

in Salon last week revealed that at a recent rally in

Duluth, Minn., Secret Service checkpoints were

festooned with photos of men posing some ostensible

physical danger to the president: one was a professor

active in the Green Party, another a pacifist homeless

activist. Both had plans to protest the war during Mr.

Bush's visit.

 

Michael Moore's cookie-wielding Fresno peace activists

look almost dangerous in comparison. Without evidence

that pacifist protesters plan to violate their own

credos and bludgeon the president with their

Birkenstocks, the use of the Secret Service to silence

them is an abuse of executive power.

 

Enormous national events will inevitably be terror

targets. So will the president. But before we single

out the anarchists and the environmentalists and the

puppet-guys for diminished constitutional protections

- before we herd them into what are speech-free zones

- we might question whether they represent the real

danger. If we don't recognize the distinction between

passionate political speech and terrorism now, it may

be too late to protest later.

 

Dahlia Lithwick, a senior editor at Slate, will be a

guest columnist during August. Thomas L. Friedman is

on leave until October, writing a book. Maureen Dowd

is on vacation.

 

Copyright 2004 The New York Times Company