Forfeiting Liberty: A Collective Sense Of Vulnerability And The Need For Proactive Protection After 9/11

• Author: Ally Hack
• Pages: 469-

Ally Hack= J.D. Candidate, Benjamin N. Cardozo School of Law (June 2004). The author praises Allah and bears witness to His oneness and omnipotence. He wishes to thank his parents, Naseer and Nada, for their valuable role in his education, his wife Susannah for her seemingly infinite adoration, and his siblings, Muhamed, Noor, Nadia, and Yaseen for their abundance of inspiration.

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Introduction

Some time after a nun "covered from head to toe"¹ passed through the airport security checkpoint without the metal detector sounding, it was 17-year-old Enaas Sansour's turn. Then, after a few steps, it was over. Enaas breathed a sigh of relief after she passed through unimpeded. It had only been about four months since terrorists crashed two hijacked airliners into the World Trade Center on September 11, 2001 (9/11), but for the Muslim girl wearing her headscarf, the tragedy may as well have happened the day before.² Enaas's feeling of relief, however, was fleeting as she heard the federal security agent's orders being shouted across the airport: "Hey, you. Stop." Enaas hoped he wasn't yelling at her but knew that he was.³

Enaas Sansour began wearing her Islamic headscarf around the time she turned sixteen-years-old,⁴ adhering to the Islamic principle which generally states, in her words, "[N]o man outside my family would see my hair."⁵ Her hair remained hidden until the male airline security screener at Baltimore-Washington International Airport, with guns toted, forced her to remove her scarf in front of strangers, some of whom were men.⁶

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Approximately 190 miles north, an especially opinionated New Yorker named William Harvey passively disseminates leaflets promoting Osama bin Laden in downtown Manhattan.⁷ Harvey, exercising the privileges of his citizenship, sets bin Laden as a prophet and hero, and accordingly passes out fliers to counter the popular anti-bin Laden attitude prevalent in the United States since 9/11. He declares to onlookers that the 9/11 attacks were "retribution for the United States' treatment of Islamic countries",⁸ drawing angry responses, curses and threats from the multitude gathered around him.

In light of 9/11, one may reasonably expect threats from onlookers and passersby directed at Harvey. One may even reasonably expect Harvey to be arrested, ironically, by the same police force that Harvey expected to protect his right to speak. What came as unexpected, though, was that when Harvey went before Judge Neil Ross of Manhattan Criminal Court, he was charged with and convicted of disorderly conduct.⁹ In a decision lacking judicial independence,¹⁰Judge Ross stated: "[i]t isPage 471the reaction which speech endangers, not the content of the speech, that is the heart of disorderly conduct."¹¹

Since 9/11, the Bush Administration, the Department of Justice (DOJ), and Congress have enacted and implemented "a series of executive orders, regulations, and laws that have seriously undermined civil liberties . . . and indeed democracy itself."¹² The administration has especially scrutinized the Bill of Rights,¹³ and the First Amendment in particular, in an apparent effort to examine the Constitution to see which parts of it may be compromised in the tremulous post-9/11 era.¹⁴

The administration seems to be acting under the assumption that freedom of expression and security are mutually exclusive-that to attain security, free speech must be limited.¹⁵ This note, however, argues the opposite: that free speech plays a critical role in maintaining security.¹⁶ By guaranteeing to a people that they are free to dissent and toPage 472voice their concerns, the government ensures that its people are less likely to be driven to the extremist violence that results from oppression.¹⁷ A political process is more likely to be stable if it treats people with dignity and allows dissidents to not only voice their views, but organize to change the rules.¹⁸ As Justice Brandeis wrote nearly a century ago, "[T]he Framers knew that fear breeds repression; that repression breeds hate; [and] that hate menaces stable government."¹⁹

Conversely, the U.S. has an interest in refusing dissidents a surplus of freedom. A constitutional right does not seem of much value if the document itself is imperiled by threats of terrorism, rendering the Constitution not much more than dried ink on parchment. Should we care about the Bill of Rights and a few lines contained therein called the First Amendment, when citizens are using these same rights and privileges to attack U.S. sovereignty? President Lincoln eloquently posed the question to Congress: "[W]ould not the official oath [between a government and its citizens] be broken, if the government should be overthrown, when it was believed that disregarding the single law would tend to preserve it?"²⁰

Indeed Lincoln's prophetic question may be asked in the context of any of the constitutional rights that have been threatened since 9/11.²¹

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But rather than opening a Pandora's Box of constitutional principles that have been endangered since 9/11, this note confronts the conflict between the statements of Justice Brandeis and President Lincoln as it relates to the First Amendment's guarantee of freedom of expression.

Notwithstanding the abrupt and fierce attacks of 9/11, the nation can and should adhere to the very principles that the terrorists aimed to destroy-the very principles that have advanced this nation to its superpower status.²² Otherwise, the terror missions would have achieved their ends, rendering this a nation that arbitrarily furnishes liberty and justice for some while denying it to others.

Part I of this note discusses the scope of protection afforded to citizens and non-citizens by the First Amendment. Part II analyzes past threats, and the justifications of those threats, to First Amendment liberties throughout U.S. history. This section includes expositions of the Alien and Sedition Acts of 1798, the Japanese Internment cases of the 1940s, McCarthyism in the 1950s, and the anti-war movements of the late 1960s.

Part III compares and contrasts the historical events discussed in Part II with post-9/11 United States. Specifically, this section examines the present effects and potential repercussions of the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" Act (USAPA),²³ the deprivation of supposed guaranteed rights of non-citizens living in the United States, and the internal threats to the First Amendment stemming from sources other than the U.S. government. Part IV reflects on the current state of the law regarding freedom of expression and offers a glimpse of what to expect should this nation continue on its current path.

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I The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances .²⁴

A An Overview

Justice Brandeis avers that those who won our independence by revolution were not cowards when it came to political change:

They did not exalt order at the cost of liberty. . . . [N]o danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Such must be the rule if authority is to be reconciled with freedom. Such in my opinion is the command of the Constitution.²⁵

Freedom of expression, assembly, association and the press are broad and fundamental rights that the Supreme Court has stated may not be denied or abridged.²⁶ The First Amendment liberties serve not only to protect the rights of the speaker, but also to uphold the general public's interest in having access to information within a free flowing marketplace of ideas.²⁷

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In Meyer v. Nebraska, the Supreme Court addressed the issue of the market place of ideas specifically, stating:

[The exercise of] liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without some reasonable relation to some purpose within the competency of the state to effect. . . . The American people have always regarded . . . the acquisition of knowledge as matters of supreme importance, which should be diligently promoted.²⁸

In United States v. Verdugo-Uriquidez,²⁹ the U.S. Supreme Court extended this right to acquire knowledge to resident aliens and aliens with substantial ties to the United States.

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While the Supreme Court has established broad parameters for the First Amendment, the Court has also been clear in recognizing that these...