Fwd: FC: Ashcroft likens criticism of DOJ power grab to "aidingterrorists"

[Ilya Somin]

I would like to make a couple points about Aschcroft's statement that at
first seemed to me obvious, but which may not be, in so far as no one else
has  made them. if that is simply because everyone else also thinks they
are obvious and didn't mention them for that reason, then I apologize in
advance. Anyways, here goes:

1. Ashcroft's statement has not in fact "silienced" his critics but has
rather drawn a whole new round of criticism of both the AG and his
policies. Critical editorials and op-eds have appeared in major newspapers
such as the NY Times and the Washington Post; there has also been critical
commentary on major TV networks, such as CNN. Of course, no one can
definitively prove that there haven't been any potential critics who
withheld criticism out of fear after Ashcroft's statement. Still, the
total volume of criticism has surely increased on net.  This suggests to
me that we should not worry excessively about government officials, even
ones as powerful as an AG, silencing dissent merely by verbally comparing
it to disloyalty.

2.  Analogies to McCarthy seem to me at best premature and at worst
seriously mistaken. McCarthy, of course, went far beyond attacking his
opponents as disloyal. He had many of them investigated and indicted, and
others fired from their jobs. Even on a purely rhetorical level, McCarthy
went far beyond Ashcroft. He not only said that various liberals, by
criticizing him, were aiding Communists. He said that they actually WERE
Communists - and said so repeatedly, in contrast to Ashcroft's (so far)
single statement.

To avoid misunderstanding, let me reiterate my earlier statement that I
think that Ashcroft's statement was unjustified and unfair. But it is an
example of a standard, though nasty political tactic: trying to discredit
one's opponents through a kind of guilt by association (associating civil
libertarians with the suspects whose rights they seek to defend)  or by
claiming that their goals are much more extreme than they actually are
(stymie all investigation of alleged terrorists, as opposed to merely
impose tighter restrictions on investigations).
Thus, it seems to me little different from any of the following common
rhetorical tropes:

1. Claiming that opponents of affirmative action are racists.

2. Of special interest to some on this list: claiming that defenders of
the individual rights model of the Second Amendment bear responsibility
for tragedies like Columbine.

3. Claiming that gay rights advocates seek to "destroy" the heterosexual
family and impose  a regime of total moral relativism.

4. Pres. Clinton's Oklahoma statements, discussed in my earlier post.

Each of these charges, and many others like them, have been made numerous
times, including by powerful office-holders. Charge 2 was several times
made by Pres. Clinton and (if I recall correctly) by then-AG Janet Reno.
Charge 1 was at least insinuated by Clinton, and more unambiguously by
then-VP Gore. Charge 3 was, of course, often made by high-ranking
Republican politicians. And, of course, to extend the analogy to Ashcroft
and his alleged powers of intimidation, those who made these 3 charges had
considerable power to influence public policy and law enforcement
regarding firms that refuse to practice affirmative action, gun owners,
and homosexuals.

Such claims certainly, in my view, diminish the quality of public
discourse. But I'm not sure if there is much to be gained from arguing
that they somehow undermine the First Amendment or general principles of
free speech. Those principles, I believe, protect poorly reasoned, unfair
charges, no less than well-reasoned, on-target ones. So if our goal is
simply to criticize the substance of Ashcroft's claims, I second it. But I
don't see how his  statements undermine free speech any more than dozens
of other statements by office-holders that most people regard as ordinary
political rhetoric.

Ilya Somin

On Sat, 8 Dec 2001, Malla Pollack wrote:

> I am attaching a posting from another list which (a) includes the text
> of what Ashcroft says, and (b) shows that other persons find Ashcroft's
> rhetoric to imply values antithetical to Free Speech (even though not a
> legal violation of the Constitution) and scary (yes, Ashcroft is too
> reminiscent of Senator McCarthy for my peace of mind).
>     As for analysis, let me make two small points.
> First, emotion is a necessary part of controversy among humans.  It
> would be nice to be polite at all times, but impoliteness is in the eye
> of the beholder.  It is too easy to argue that your antagonist should be
> silenced because of the way he phrased his dissent when your real
> objection is to its content.  Many major beliefs rest on arational
> attitudes IE emotional attitudes.  Belief or disbelief in God is usually
> arational; so is nationalism.  Not all "arational" (not based on logic)
> statements are "irrational" (violate reason).
>     Second, asking if the speaker has power is probably more important
> than asking if the speaker was "rational" or "polite."
>      Polite or not, powerful people have power to chill others.  This is
> why I find Ashcroft's attitude scary.  He has power.  He has the power
> to be another Senator McCarthy.  Polite or not, I find Ashcroft's
> attitude towards dissent scary even though I agree with Eugene that his
> statements would not be held unconstitutional by a court.  Similarly, I
> criticized GW Bush for (a) saying he would govern by consensus, yet (b)
> immediately appointing an extreme AG.  IMHO both Ashcroft's and Bush's
> actions demonstrate that the actor should not be trusted; both actions
> are "legal" and "constitutional."
>
>
> Malla Pollack
> Northern Illinois Univ., College of Law
> DeKalb, Illinois 60115
> 815-753-1160; (fax) 815-753-9499
> mallapollack at niu.edu
>