Why Bother with Freedom of Speech in Times of Crisis?
by Dr. Jan Garrett
The following is a slightly edited version of a contribution to a panel discussion on "Civil Liberties in Wartime" presented at the Unitarian-Universalist Church of Bowling Green, Kentucky, December 2, 2001. Other participants in the panel were Dr. Charles Bussey and Dr. Patricia Minter of the History Department at Western Kentucky University. For a Unitarian view of free speech and citizenship in the War of 1812, see these contemporary remarks by William Ellery Channing. Modified January 11, 2002; link modification: December 5, 2011
In the midst of the War of Independence, while the rebel colonies that would soon become the United States were fighting the strongest military power of the time, England, several of them adopted Bills of Rights codifying political liberties. These Bills of Rights would later be the basis for the Bill of Rights in the U.S. Constitution. (Leonard Levy, Origins of the Bill of Rights, Yale Univ. Press, pp. 9- 11). In a situation far more perilous for American lives and well-being than the current one, the founders deepened their commitment to political liberties.
By contrast, our current President and Attorney General have issued executive orders and, together with the Congress, including the vast majority of the "liberals," passed the so-called U.S.A. PATRIOT Act, the net effect of which is to severely restrict the liberties of our international guests and threaten those of citizens themselves.
I composed most of the following reflections a month ago. Much has happened or been revealed in that month that I shall not be able to address. My focus is on the liberties of citizens but I do not mean to ignore our international guests who have so far born the burden of the government's attack on procedural rights. Attorney General Ashcroft's executive order of October 26 "completely removes from the protective penumbra of the Constitution all noncitizens including those among the more than 1000 persons detained in the post-September 11 dragnet." (The Nation, December 3, 2001, p. 3)
As Abraham Lincoln noted long ago, liberty is indivisible. While it does not follow that noncitizen residents or visitors must have exactly the same legal rights as citizens, if they do not have basic procedural rights--if for example they can be quietly rounded up and, as the President's recent directive specifies, tried by closed-door, that is, secret, military tribunals--this cannot fail to affect the liberties of citizens themselves.
* * * * * My focus will be on the question whether ordinary citizens--those not in power in the government--should have a legal right to freedom of speech concerning essential matters during times of crisis, in particular, whether they have a right to criticize a decision to go to war or continue a war or how the war is being conducted. While this right still remains in effect, there are some in powerful places who would eliminate it, so I propose to use it to discuss whether it is important to preserve it.
The Arguments for Silencing Free Speech in Times of Crisis
1. THE TOTAL MOBILIZATION ARGUMENT. In times of crisis or national emergency all means and resources must be mobilized to defeat the enemy. Critics of national leadership undermine the harmony that we need in order to achieve victory over the enemy. Differences of opinion fracture the unity we need and divert the energies of our leaders to answering the objections of the critics. (This is an argument from the priority of efficiency. In technical terms, such arguments are consequentialist arguments. This one is either a utilitarian or a collective egoist consequentialist argument.)
2. NO NEUTRALS. In times of crisis you cannot be neutral. You are either for the government and victory over the enemy or obstacle, or against the government and for defeat. (This seems to be an argument from virtue, that is, it assumes that patriotism is a virtue and that patriotism requires uncritical support of the government.)
3. GOVERNMENT KNOWS BEST. The government has information that ordinary citizens lack. It cannot divulge this information because that would help the enemy. Therefore government officials are in a position to make better decisions than ordinary citizens. (The implicit corollary we are expected to draw is that it is better for the country in such situations not to take guidance from opinions of ordinary citizens. Their civil liberties thus lack practical importance.)
4. The key premise in the fourth argument is that SACRIFICE OF POLITICAL LIBERTIES IS A SMALL PRICE TO PAY. Our material well-being or standard of living is in jeopardy in times of crisis. The enemies of our society and way of life wish to destroy this. If we have to give up our political liberties in order to preserve our economy, why, surely it is a small price to pay. (This argument assumes that economic values outweigh political liberties. This argument rank-orders values and places political liberties low among them.)
The Arguments Against Silencing Free Speech in Times of Crisis
Let us consider these arguments in reverse order.
SMALL PRICE ARGUMENT. If we allow this sort of enemy to define what is important for us, we have already become slaves to him. Moreover, there is no evidence that giving up our political liberties is going to help the economy. If anything, freedom of speech is vital when we have a new situation with new problems. Creative ideas are needed that can be floated and tested in the public dialogue before being tried out. In a crisis it becomes clearer than in peacetime that the economy is not independent of what happens in the political arena. If the economy is to function better some tasks are perhaps not best handled by the private economy (for example, security personnel at airports). Unless we can debate that issue, our decisions are likely to be arbitrary and unintelligent.
The Small Price argument assumes, moreover, that economic values should automatically trump political values such as civic freedom. This is not only not obvious, it is seriously misguided.
THE GOVERNMENT EXPERTISE ARGUMENT. Suppose we start by assuming that the government has important information that the public does not possess. It still does not follow that the government will make wise and just decisions. Such decisions require moral or political premises as well as factual or information premises. If we cannot be sure that the moral or political premises on which the government is operating are correct, we cannot be sure that its judgments will be correct.
Moreover, even if the government has correct information, it may not possess the expertise needed to interpret this information adequately. There is much knowledge in the educated public-- e.g., in the universities--that may not be accessible to an administration that does not seek it out, that, in fact, may distrust independent scholars in the universities. This is also true of an administration that gets advice from an old-boy network connected to the Central Intelligence Agency. A governing team that functions adequately, or at least not catastrophically, when there are no international crises and most attention is spent on the home front, may operate abysmally when international crises must be addressed, simply because it is unable to interpret available facts.
Finally, even if the government has some correct information and is able to make sense out of that information, the information may not be complete or diverse enough to produce a balanced and wise choice.
So far my response has assumed that the government really is operating in the interests of the society as a whole and out of respect for human rights internationally. But governments sometimes act only in the interests of elites that influence policies through financial contributions only the rich can make. Even when governments have broader allegiances, they sometimes act only in the self-interests of their states, so that the proper interests of other peoples are not given due weight. Under these circumstances, the "expertise" argument may be merely an excuse to eliminate dissent that would be likely to expose injustice.
The NO NEUTRALS argument rests on the fallacy of false dichotomy. It allows only two alternatives to be considered, when there are three or more. Citizens potentially have a wide range of political options, even in wartime. One can give a government critical support. One can support it insofar as it does one thing but not insofar as it does another. One could, for example, support the current U. S. administration insofar as it tries reasonably to prevent further terrorist acts on U. S. soil and uses international police methods to apprehend members of terrorist networks behind the September 11 attacks, but oppose the bombing war in Afghanistan as well as a law that criminalizes peaceful expression by visitors and resident aliens in the U. S.
An attempt to do away with the middle ground in a debate is an attempt to win the debate without having to give reasons that might justify winning it. And such an attempt suggests that if one were required to give good reasons one might very well lose the debate.
If the "no neutrals" argument is a virtue ethics argument involving the virtue of patriotism, we have to ask what patriotism means. I presume it refers to appropriate loyalty to country. But the best way to be loyal to your country may not always involve cheering for its current leaders. Even if we should speak civilly of them because of the offices that they hold, they may need to hear cogent criticisms that, if followed, could prevent the country from violating human rights on a large scale and preserve it from mistakes affecting its reputation and its true long-term interests.
The TOTAL MOBILIZATION argument, which I consider now, seeks to turn the entire society into a crisis-overcoming machine or a war-winning machine. A machine is supposed to function smoothly to achieve its goal. According to the logic of machines, the machine's parts do not function as ends in themselves. If they have any inherent worth, any dignity, it has been suspended for the duration of their absorption into the machine. They are cogs, and the independent choices and reasoning of the cogs are considered to be of no value. If total mobilization is permanent, respect for human dignity has been eradicated permanently.
But to call for total mobilization is to abdicate the very basis of a republic of free citizens, which is to respect the citizens as choosers and thinkers, as free moral and political agents. A nation that turns itself into a war machine, as the ancient Spartans did, leaves nobody to live out the reason for having a republic in the first place. It also creates a machine that contains nobody to ask reflectively how or whether the machine should be used.
The total mobilization argument also assumes that there are no networks among the political, economically, and socially privileged elements of the society that might use the lack of dissent for their private ends: to increase their own privilege, evade accountability for their own actions, and eliminate their less well situated political rivals.
The total mobilization argument ignores the lessons of history. It is precisely in times of crisis that the liberties that stand between citizenship and slavery are under most serious threat. It was during the war-ravaged first century B.C. that the Roman Republic, victorious in war over its non-Roman adversaries, was transformed into an imperial tyranny. In one emergency after another, the Romans became accustomed to putting absolute power into the hands of a dictator. With the triumph of Augustus after a bloody civil war, they were saddled with a permanent dictatorship.
Total mobilization allows the leaders to continually redefine the situation as a crisis, because they permit no dissent to this definition. The question of whether there really is a crisis is ruled out of order. In effect, the state of warfare is permanent; the population is always drafted into service. If leaders can without dissent define a country as at war, and war implies total mobilization behind the leaders, then they can eliminate dissent whenever they wish. Their power becomes absolute.
A Political Argument Based on Reversibility
The previous argument against total mobilization made a metaphysical or faith-based assumption that not everybody will share, i.e., the inherent worth and dignity of every human being. But there is a political version of this assumption that any reasonable person, it seems to me, must grant. This version states that whatever liberties we would wish for ourselves, we must be prepared to grant to others. Thus, for example, if we agree with the current administration and think that it has been doing a fine job, we may be tempted to think that its critics should be silenced. But even so we should use our imagination and ask ourselves about a reversal of the present situation, one in which we ourselves are not aligned with the current administration and sense that it is leading the country on a path that is ultimately detrimental to justice and national interest. Would we wish our point of view then to be silenced? If the answer is no, then we have to stand up for the rights of critics now.
Some defenders of the current undeclared war on Afghanistan say that it meets the criteria for a just war. It is interesting that the principles of just war, reasonably interpreted, rule out total mobilization. Under standard just war theory, for instance, there is no right to go to war without right intention, and right intention is aimed toward a just and lasting peace. A belligerent is not permitted to switch intention to, say, conquest or seizure of resources from the adversary. But there can be no safeguard against perversion of even a just war if domestic criticism of the war-making government is not permitted. The critics may be mistaken. Fine, let the government show by reasons that they are mistaken. If the government cannot do so, then let it adjust its policies or stand down. Just War Theory and Civil Liberties
Moreover, there is no just war without observance of the principle of proportionality of means and end. What this means is that the costs of the war to all the people and populations affected must not be excessive given the end sought. The end of course must be realistic and attainable. It means that these costs must be periodically recalculated as the war goes on. If the costs, say, to noncombatants in, or the neighbors of, the country being attacked are higher than anticipated, then the war-making power must reconsider its approach. But if dissent has been stifled, then the very persons who might prevail upon a war-making government to rethink its approach will be prevented from speaking out. The belligerent government will likely continue in its costly, ineffective, and morally indefensible policy.