Criticism of critics of military tribunals

[Parry, John]

I suppose Eugene and I just disagree about the restrictions those at the top
of the executive branch should place upon themselves consistent with the
spirit or penumbra or whatever-you-like of the First Amendment (and I think
that is a First Amendment issue).  I think accusing citizens whom you almost
certainly know to be loyal and patriotic of aiding the enemy goes beyond the
bounds of proper discourse, even under current circumstances.  Should a
court enjoin Mr. Ashcroft from repeating his words because he is chilling
the First Amendment rights of William Safire?  Intriguing, but no.  But
should people who care about the First Amendment criticize the Attorney
General in turn?  I think yes, but of course that depends on my own
conception of what the First Amendment stands for.

Jim Maule's point is a good one (though it would be nice if Senators when
they talk would observe the same rules that they want their witnesses to
follow!).  But couldn't Mr. Ashcroft have simply said the following, "There
have been strong criticisms of our policies, and we understand that some
people disagree with us.  But we are doing our best in a crisis situation to
come up with policies that respect fundamental American values while also
addressing the realities of terrorism and combat."  In other words, he
didn't have to allege that the critics are aiding the enemy.

 -----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
Sent: Friday, December 07, 2001 3:00 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Criticism of critics of military tribunals



        I guess I'm not sure exactly what "First Amendment issue" means
here.  I am pretty confident that nothing that Prof. Parry describes would
be a First Amendment violation.  Even encouraging private employers to fire
people based on their speech would, I think, be constitutional.  Imagine
that a legislator, a mayor, or even the Attorney General criticizes a
newspaper columnist's statements on the grounds that they are racist, and
calls on the publisher to fire the columnist.  First Amendment violation?
It seems to me the answer is no.

        Likewise, consider a recent New York incident that was discussed on
RELIGIONLAW:  A minister rented space on a billboard to put up a statement
harshly criticizing homosexuality.  The Borough President sent the billboard
company a letter saying that the billboard was intolerant, bad for the
community, etc., and urging the billboard company to take the billboard down
(as it apparently had the right to do under its contract with the minister);
I read the letter and saw no explicit threats, though I suppose one could
argue that for a business that doubtless has frequent brushes with zoning
authorities and other local government officials, any letter from a borough
president would be seen as an implicit threat.  I don't think there was any
First Amendment violation there; would others on the list say there was?

        On the other hand, if the inquiry is whether the AG's speech, while
constitutionally permissible, was intolerant or hostile to some broader
First Amendment values, that's a much harder question.  I suspect that
there's even less consensus on what constitutes intolerance or hostility to
free speech values than on the substantive legal rules.  Prof. Parry seems
to suggest that indeed some of the post-Oklahoma-City condemnations of
legitimate critics of federal power government were intolerant, and perhaps
he's right, though I'm not sure.  What about the government criticizing
people on the grounds that they are supposedly racist or sexist or
despoilers of our children's innocence and the like?  Any thoughts on my
hypo of the AG who's engaged in a anti-racism campaign, and who condemns
certain statements as being "racially insensitive"?  I'm not sure that we
can get much enlightenment on these questions, precisely because intolerance
and hostility to free speech values are such ill-defined (though important)
categories -- but perhaps considering a variety of hypothetical and real
statements, ones that might be said by liberal Democrat AGs (and other
politicians) as well as conservative Republicans, might be helpful here.

        Eugene

John Parry writes:

        But my comment was more along the lines of arguing that Mr. Ashcroft
has
gone too far in his criticism of opponents.  The administration he is a part

of has issued an order authorizing trial before as-yet-undefined military
tribunals of those who "aid" terrorists.  Mr. Ashcroft, as I understand it,
endorses that order.  Now, he has accused at least some portion of his
critics of aiding terrorism.  At the very least, the resonances of this
juxtaposition are disturbing to me and, I would argue, ought to be
disturbing to people who cherish the First Amendment.

        Professor Volokh argues there is no First Amendment issue at all
with the
Attorney General seeking to intimidate (my words) his opponents by lumping
them in with terrorists.  Now, if I call other list members "aiders of
terrorists" (not a quote from Mr. Ashcroft), I think there is no First
Amendment issue.  And if Mr. Ashcroft and I go out to dinner and he tells me

that his critics are aiding terrorism, that's fine too.  But when the
Attorney General, in clear language that he knows will be on national
television, newspapers, and web sites, declares that his critics are aiding
the enemy, then I think clearly there can be a First Amendment issue (not
that there is a slam dunk open and shut case, merely a legitimate question
or issue).

        What if, for example, the Attorney General made these statements
with the
intention that others outside the government would take steps to silence
critics?  No problem at all?  What if he said, "and as a consequence, I
think private employers should fire people who exercise their First
Amendment right to criticize the government"?  No relation to the First
Amendment?  Of course, he did not say those things.  But I guess my argument

is that to the extent his statements can be read as an accusation of
disloyalty, and, somewhat less plausibly, as an implicit threat, then
certainly there is something here to discuss, whether it is strict doctrine
or a more general discussion of the spirit of the First Amendment.  Indeed,
I take the relative lack of discussion as an implicit judgment that his
statements were so out of line as to deserve no discussion (as, I think,
were some of the post-Oklahoma City statements).

        Hence, I think "penumbra" is the right word for the location of my
query.
Whether law or policy, the First Amendment is relevant.  If someone on this
list were to argue that Mr. Ashcroft is a champion of the First Amendment,
his comments yesterday would be sufficient to refute that claim.