Mayor Bloomberg
and Police Commissioner Kelly are doing the people of New York and the
people of Iraq a great service by delaying and obstructing the anti-war
protest planned for February 15. The longer they delay in granting the
protesters a permit, the less time the organizers have to get their
turnout organized, and the smaller the crowd is likely to be. And we
wouldn't want to overstate the matter, but, at some level, the smaller
the crowd, the more likely that President Bush will proceed with his
plans to liberate Iraq. And the more likely, in that case, that the
Iraqi people will be freed and the citizens of New York will be rescued
from the threat of an Iraqi-aided terrorist attack.
The editorial
goes on to explain that the New York Civil Liberties Union is suing on behalf
of the protesters, asserting that they have a First Amendment right to be
allowed to march down First Avenue near the U.N. But the Sun doesn't
buy it:
So long as the
protesters are invoking the Constitution, they might have a look at
Article III. That says, "Treason against the United States shall
consist only in levying war against them, or in adhering to their enemies,
giving them aid and comfort. No person shall be convicted of treason
unless on the testimony of two witnesses to the same overt act, or on
confession in open court."
There can be no
question at this point that Saddam Hussein is an enemy of America. .
. . And there is no reason to doubt that the "anti-war" protesters
— we prefer to call them protesters against freeing Iraq —
are giving, at the very least, comfort to Saddam Hussein. In a television
interview aired this week, Saddam said, "First of all we admire
the development of the peace movement around the world in the last few
years. We pray to God to empower all those working against war and for
the cause of peace and security based on just peace for all." After
the last big anti-war protest, the one in Washington last month, Saddam
hailed the anti-war protests as proof that Americans back Iraq rather
than President Bush. . . .
So the New York
City police could do worse, in the end, than to allow the protest and
send two witnesses along for each participant, with an eye toward preserving
at least the possibility of an eventual treason prosecution. Thus fully
respecting not just some, but all of the constitutional principles at
stake.
To those concerned
about civil liberties, we'd cite the pragmatic argument made last night
by, of all people, the New York Times's three-time Pulitzer-Prize winning
foreign affairs columnist, Thos. Friedman. "I believe we are one
more 9/11 away from the end of the open society," Mr. Friedman
[said] . . . . His point was that if terrorists strike again at America
and kill large numbers of Americans, the pressure to curb civil liberties
and civil rights will be "enormous and unstoppable." What
we took from that was that the more successful the protesters are in
making their case in New York, the less chance they'll have the precious
constitutional freedom to protest here the next time around.
This is completely
wrong. I firmly support a war against Iraq, but it's vital that the people
have a right to oppose it, both as a matter of moral and political principle,
and as a matter of medium- and long-term practicality. Today, the war
is, I think, wise. But what if it stops being wise? Or what if I'm wrong
even now? A democracy needs an opposition, especially in time of war,
precisely to keep the government honest, and to point to whatever errors
(or possible errors) it finds in the government's actions.
Now it is actually
true that this opposition sometimes can help our enemies, by emboldening
them, or by weakening the nation's resolve; I have little patience for
Pollyanna claims that speech can only do good and never do harm. But antiwar
speech must be protected despite this harm, because the harm of suppressing
it is greater. During every war that America has fought since 1789, one
activity has remained almost entirely intact: elections. Elections, and
politicians' fear of not being reelected, are the means by which the people
remain the government's masters, not its servants. Criticism of the government,
especially in wartime (or in the prelude to war), is vital if the people
are to decide whether to reelect the government, and whether to threaten
the government with not being reelected.
This is the fundamental
truth justifying the First Amendment, and it shows the Sun's error.
First, even if antiwar
speech does give aid and comfort to our nation's enemies, the First Amendment
limits treason prosecutions as much as it limits sedition prosecutions
or hate speech prosecutions. There are always some people, whether in
the government or in editorial offices, who are willing to assume the
worst about the intentions of those with whom they disagree. But we the
voters are entitled to hear the views of those who oppose the war (for
whatever reason) as much as the views of those who support it.
But more importantly,
the response to the Sun's pragmatic claim is that the First Amendment
is a profoundly pragmatic protection. It is justified by the natural tendencies
of governments and their allies — tendencies that are only exacerbated
in wartime — to assume that they're right, and that their opponents
are traitors.
Sometimes, though,
the government is wrong — and the only way that we Americans can
tell whether the government is wrong is by hearing the arguments on both
sides, before the war and during the war. Free speech has persuaded the
Sun's editorial board (as it has me) that war is right. But I'm
confident in my position precisely because I know that the war's opponents
were free to present their best arguments against it. Likewise, to be
confident that the government will fight the war the right way, and will
end it at the right time, the public needs the freedom to hear the government's
critics as well as its supporters. The same First Amendment that protects
the Sun and the National Review protects the war's critics
as well.
—
Eugene Volokh teaches First Amendment law at UCLA School of Law, and runs
"The Volokh
Conspiracy," a weblog.
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