Criticism of critics of military tribunals

[Volokh, Eugene]

        I don't have much to add to Mark Scarberry's and Ilya Somin's
excellent recent posts.  There is much to Ashcroft's statements that may be
worth criticizing, but I just don't see the statements violating any First
Amendment principle, whether or not a judicially enforceable one.

        The second paragraph below only persuades me further of this:  I'm
not sure that it's sound to posit some principle that the Attorney General
(and presumably also many other government officials) should never criticize
critics of the government -- whether they are critics of affirmative action
programs, anti-terrorism initiatives, anti-drug programs, pro-welfare
programs, or what have you -- but if there is such a principle, I don't see
it as commanded by the Constitution.  When Vice-President Gore criticized
critics of affirmative action (an excellent example that Ilya Somin gave),
saying that they used the term "color-blind" as hunters used duck blinds,
and thus in my view implicitly suggesting that such critics were trying to
metaphorically shoot down blacks and Hispanics, this was factually false and
unfair.  But I can't see any constitutional objection to his making this
argument.

        Eugene

> -----Original Message-----
> From: Susan Bandes [SMTP:sbandes at DEPAUL.EDU]
> Sent: Friday, December 07, 2001 7:15 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Criticism of critics of military tribunals
>
> Eugene
>
> As to your first point, let me try to clarify. I believe Ashcroft's speech
> has the potential to chill all sorts of people living in the U.S., citizen
> and non citizen, newspaper critic and non newspaper critic. I wouldn't
> fragment the effect in the way you suggest.
>
> As to your second point, although I do think the circumstances are
> important here (as I discussed earlier, given the as yet vague contours of
> "terrorist" and Ashcroft's ability to define it and attach consequences) I
> fail to see why the Attorney General should ever announce what sorts of
> criticism of the government he finds objectionable--disloyal, racist, or
> otherwise. Unless, of course, he's announcing a prosecution for the
> criticism--and then we could talk about that.
>
> Susan
>
>
> >>> VOLOKH at mail.law.ucla.edu 12/07/01 20:30 PM >>>
>         Hmm.  I wonder why the existence of military tribunals adds much
> to
> the "context" here.  The overwhelming majority of the people whom Ashcroft
> is criticizing are U.S. citizens, who are not subject to the tribunals.
> If
> the claim were that Ashcroft is somehow trying to deter dissent by
> noncitizen residents, the risk of prosecution by the tribunals might be
> relevant, though I would doubt that; no matter how "fluid" the legal
> landscape might be, no-one has even intimated that criticizing government
> policy would be criminally punishable, by military tribunals or civilian
> courts.  But in any event, Ashcroft is clearly concerned about citizen
> critics -- the overwhelming majority of the critics, and the ones that the
> public in any event is more likely to listen to -- and not noncitizen
> critics.
>
>         But second, let me pose again the hypothetical I mentioned before:
> Imagine an AG who is committed to fighting racism, and in particular rcist
> groups like the KKK, Aryan Nations, etc.  He interviews hundreds of people
> about various racist crimes.  He detains various alleged racist
> terrorists,
> some for racist crimes and some for other matters.  He wants to plant
> agents
> in various allegedly racist groups, and will be deciding which groups are
> worthy of surveillance.  He will doubtless decide "whose phones are
> tapped"
> and "whose political or religious group is infiltrated" based partly on
> whether those people have said things that (as to tapping phones) create
> probable cause to believe that they may be involved in racial terrorism,
> and
> (as to infiltrating the groups) lead him to think that those groups may be
> planning racial hate crimes.
>
>         Certainly we know that many harms short of prosecution befall
> people
> who are accused of racism (e.g., they may be fired from their jobs, their
> businesses may be boycotted, and so on).  "The populace can already see
> that
> the 'wrong' speech or associations might have consequences."  And of
> course
> the AG has substantial discretion to interpret (and, equally important,
> send
> signals to other law enforcement agents and to society at large as to how
> to
> interpret) numerous laws, directives, and practices, such as hate crimes
> laws, antidiscrimination laws, and so on.
>
>         Against this backdrop, the AG claims that some of the criticisms
> of
> his new anti-racism initiative are themselves "racially insensitive" and
> may
> "aid racists" and "frustrate the great cause of racial equality."  Would
> this be "threatening to the free exchange of ideas that is central to our
> exercise of the First Amendment"?  I would have thought that it would
> itself
> be a contribution -- possibly a factually well-founded contribution and
> possibly an ill-founded one -- to public discussion.
>
>         Eugene
>
> > -----Original Message-----
> > From: Susan Bandes [SMTP:sbandes at DEPAUL.EDU]
> > Sent: Friday, December 07, 2001 5:49 PM
> > To:   CONLAWPROF at listserv.ucla.edu
> > Subject:      Re: Criticism of critcs of m
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