Photograph via flickr by getdarwin
By Josh Dratel
Despite many detailed popular histories, academic dissertations, and ponderous legal treatises devoted to the subject, it remains a mystery to me how, in 1789, the creators of a government respected, protected, and even institutionalized political dissent, elevating it to first among equals within the Bill of Rights. It is mysterious to me because before and ever since, governments have made a steady and concerted effort to suppress it.
Indeed, as soon thereafter as 1798, with the Alien and Sedition Acts, human and government short-sightedness regained control, and political dissent was again branded traitorous and punishable. That thread of stifling dissent through force of law has run throughout U.S. history, most aggressively during times of war or economic instability.
[T]he legal system has been utilized to curtail speech in order to spare the powerful the reality and consequences of their actions (and inaction).
Yet, the First Amendment—which protects and promotes expression, ideas, principles, values, and tolerance—was deemed so important it appears first in the Bill of Rights, even before the physical self-protection embodied in the Second Amendment. How then could it be treated so carelessly earlier this month that only three congressmen—Ron Paul and two other Republicans—voted against H.R. 347, innocuously denominated the “Federal Restricted Buildings and Grounds Improvement Act of 2011,” which amends section 1752 of the U.S. federal criminal code to lower the standard for criminal liability for those who, “with intent to impede or disrupt the orderly conduct of Government business, or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted buildings or grounds[,]” when such conduct does in fact “impede or disrupt” such government or official functions?
As the ACLU has correctly noted, this amendment does not create any new violations of law. However, the amendment does make those existing violations demonstrably easier to prove by eliminating the requirement that the conduct be performed “willfully,” thereby predicating criminal liability on action conducted “knowingly.” In federal criminal jurisprudence, the “willful” standard—defined by judges in instructing juries as “intentionally, deliberately, and purposefully” —has always been regarded as a more subjective, and therefore more stringent, level of intent than the more objective “knowingly” standard.
Combined with the elastic description of illegal conduct—“disorderly or disruptive,” and which “impedes or disrupts the orderly conduct of Government business or official functions”—’1752’s reduced standard of necessary intent confers dangerous discretion upon law enforcement and political leaders. In addition, the statute proscribes any conspiracy to perform such acts, thereby substantially expanding the breadth of the statute, and those it could ensnare.
The statute applies to “restricted buildings,” which include the White House and vice-presidential grounds, places where persons under Secret Service protection appear, and buildings qualifying because of their connection to “an event designated as a special event of national significance[,]” which conveniently includes the two major parties’ political nominating conventions later this summer.
Despite the technical language and limitations, the purpose of increasing the reach of ’1752 is manifest. In the wake of the Occupy Wall Street protests around the country (and the globe), the goal is obvious: to eliminate protest. Politicians, law enforcement officials, and commentators dutifully paid lip service to the First Amendment in theory, all the while in practice looking impatiently at their watches, ready to shout at the earliest opportunity, “Time’s up! Now disperse and shut up!” And then to compel that directive with disproportionate force, mass arrests, and ample quantities of pepper spray, while simultaneously actively denying the media the right to report such tactics.
The methodology of suppressing dissent is multifaceted but transparent: converting public space to private property (for example, Zuccotti Park in New York, the controversial site of OWS, was created in the 1960s as the result of an agreement by the developer of that lot and the one across the street, now One Liberty Plaza, to allocate park space in return for permission to exceed the zoning limitations on the height of the building); by requiring permission (through onerous and arbitrary permit requirements) to engage in constitutionally protected protest; and, through legislation like ’1752, to declare constitutionally protected speech “illegal” by declaring certain locations off limits.
Consequently, by rendering inaccessible those places in which politicians congregate, and broadly circumscribing where and when dissent may be expressed, the legal system has been utilized to curtail speech in order to spare the powerful the reality and consequences of their actions (and inaction). After all, how can they concentrate on meeting the increasingly exorbitant and extreme demands of their deep-pocket financial contributors with all that racket going on outside?
No doubt objections to ’1752 may be dismissed because the statute itself has been in existence for years, and may be of limited effect. Yet that myopia ignores the adverse impact the persistent incremental erosion of First Amendment freedoms, caused by ’1752 and its ilk, have had on the right and capacity to dissent. That process of gradual yet steady dilution of First Amendment protections represents a legal/constitutional variant of the “tyranny of small decisions,” coined by economist Alfred Kahn in a 1966 article, in which individual decisions, ostensibly rational in isolation, together combine to undesired consequences contrary to the common good.
Also, as David Cole and James X. Dempsey have pointed out in their book, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security, even after there is recognition at a certain point that suppression of speech has gone too far, we never return to the status prior to such infringement. Instead, those reductions of freedom of expression are simply institutionalized and normalized in the law and culture going forward, thereby reducing the circumference within which oppositional political speech can flourish.
Moreover, the state of permanent war in which we now reside makes it that much easier for government to maintain the sense of jeopardy and emergency that are employed to justify limitations on dissent. Geoffrey R. Stone’s Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism demonstrates vividly how the First Amendment, and those who seek to exercise the freedoms it embodies, suffer in time of war.
Inexorably we are moving toward a state in which political dissent is regulated entirely by the government, confined to only those places, times, and nature dictated by the government, and enforced by law—rather than, as the First Amendment prescribes, prohibited by the Constitution. Over time, of course, as more statutes are enacted and regulations formulated, they will—if upheld by the courts—further increase in number and breadth, with the space in which dissent can operate correspondingly narrowed in scope, substance, and effect. At that point, while many will no doubt privately lament the evaporation of First Amendment protection, and fewer will rue not speaking out sooner to preserve those lost freedoms, almost no one will have the courage to dissent in an environment barren of legal tolerance for it.
Joshua L. Dratel is a criminal defense attorney in New York City with Dratel & Mysliwiec, P.C., and has been defense counsel in a number of terrorism prosecutions in the U.S. courts. He was the first civilian lawyer to represent a defendant, the Australian David Hicks, in the Guantanamo military commissions. He is also chair of the National Security Committee of the National Association of Criminal Defense Lawyers. The views in the article represent the author’s opinions, and do not necessarily reflect the view of NACDL.