by Richard Criley
Bill of Rights Foundation
"Congress shall make no law. 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."
-- First Amendment to the U. S. Constitution
We assume that the United States is dedicated to individual freedoms;
it's part of our national identity.
But as individuals, we seldom appreciate our constitutional freedoms
until we are unjustly treated. An abusive police officer, an unfair
judge, an unresponsive tax auditor, or some other person in a position of
authority can vividly show us how easily our rights can be trampled. Then
we are outraged and want to do something to defend our fragile freedoms.
FREEDOMS FOR ALL--OR FREEDOMS FOR NONE
What can we do? Our system of individual rights depends upon their
availability to *everyone* -- including some people whose beliefs we may
not like. But if the constitutional rights of any unpopular group or
minority are weakened by a decision of the Supreme Court or an Act of
Congress, we will all lose some of our freedom in the process.
The First Amendment declares that "Congress shall make no law . . .
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." This protects us from an abusive government policy
against disagreement or dissent. The colonists wrote it after their
treatment under repressive policies of the British, to guarantee freedom
The First Amendment guarantees freedoms that are both individual and
collective. If the *individual* is not free to express his or her
opinion, not only is that individual deprived of a basic freedom, but the
rest of society is deprived of the right to hear all sides of a
Without meaningful debate, democracy is reduced to a hollow shell. The
wisdom of any decision that is translated into governmental action
depends on the public's access to all the pertinent facts and opinions.
When government propaganda replaces free debate, the consent of the
governed has been engineered, and democracy does not properly function.
Under the Constitution, the *people* are the ultimate authority. The
preamble to the Constitution declares, "We, the People of the United
States . . . do ordain and establish this Constitution. . . ." This
empowerment of the people depends upon our right to know what the
government is doing in our name. If the public cannot discover the truth
because the government suppresses opinion or conceals relevant facts
(calling it security), we citizens lose control of our democracy and take
a step toward dictatorship. The rights of all are diminished.
Freedom of expression and openness of government are closely related.
Both are critical ingredients of democracy. Let us take a look at what's
happened to our freedoms since the end of World War II.
THE NUCLEAR ERA--A THREAT TO LIFE AND FREEDOM
Millions of Americans are aware of the threat of nuclear war; but few of
us recognize how the nuclear era placed our democratic institutions in
The world entered a new era when our atomic bombs were dropped on
Hiroshima and Nagasaki. For the first time in history the weapons of war
carried the potential of destroying all human life. As Albert Einstein
said, "The unleashed power of the atom has changed everything except our
modes of thinking, and thus we drift toward unparalleled catastrophes."
U.S. Government reliance upon nuclear weaponry as a dominant element of
foreign and domestic policy, while propounded as a defense of democracy,
is in fact its greatest threat. Four decades of adherence to this policy
has fundamentally altered the nature of our constitutional democratic
process and poses a paramount threat to civil liberties.
-- American Civil Liberties Union 1983 Biennial Conference Report
Instead of the peace that we hoped would follow the Allied victory over
Hitler and the Nazi ideology, the U.S. entered a cold war with our
wartime ally, the Soviet Union. At first only the U.S. possessed nuclear
weapons, and our national security system was focussed on guarding our
"atomic secret." But given the universality of scientific knowledge, the
"atomic secret" was inevitably unraveled by Soviet scientists and
military planners who created and exploded their nuclear bomb a few years
later. The U.S. government, however, encouraged the belief that the
Soviets had figured out the power of the atom only because somebody stole
our "atomic secret." In the political and anti-Soviet hysteria of the
1950's, political dissent in America was widely equated with disloyalty
Popularly known as the "McCarthy era," the period actually began at the
end of World War II, before Senator Joe McCarthy rose to national
prominence in 1950, and it continued long after his death in 1957. This
political era was the product of many factors. U.S. corporations sought
to take advantage of the post-war pre-eminence to shape the emerging
structures of the third world to their liking. The political center
shifted to the right following the death of Franklin Roosevelt. The news
media adjusted to the new climate and in retrospect appears to have been
easily manipulated by government agencies.
Congress, dominated by the 1950's hysteria of "anti- Communism,"
supported the development of an unprecedented peacetime military
establishment, a network of repressive government institutions, the
growth of right-wing blacklisting and witch-hunting of alleged traitors.
The Supreme Court retreated from the Bill of Rights. Many labor unions,
liberal organizations and other independent groups which had
traditionally defended civil liberties retreated in the 1950's to avoid
being branded "subversive." Some groups even purged their membership
ranks of dissenting voices.
Among the many forces which contributed to McCarthyism, two government
institutions played a leading role in repressing the First Amendment
right to dissent. One, the House Un-American Activities Committee,
operated in the spotlight of media attention. The second, the Federal
Bureau of Investigation, performed its most damaging work under cover of
"The principle at stake was the First Amendment, the right of people not
to be punished for dissenting beliefs. And so I would say that one of the
first lessons of the '50's is the need for serious national First
Amendment education: what it is, how to use it, how to know when it is
under attack, and how to defend it.
-- Victor Navasky, Editor, The Nation, at the "No More Witch-Hunts"
rally, Chicago, 1981
HUAC--HIGH COURT OF THE POLITICAL INQUISITION
The headline-hunting House Un-American Activities Committee (HUAC) was
officially a legislative committee of Congress. But contrary to
constitutional principles, HUAC actually functioned as the chief public
prosecutor and judge of political behavior and heresy. HUAC subpoenaed,
denounced, and punished the individuals and groups it claimed were guilty
of being "un-American". It was the role model for similar investigative
committees which sprang up in the U.S. Senate and state legislatures
across the country. HUAC's voluminous published hearings, reports and
catalogues of "subversives" became an official index of those condemned
to be ostracized and blacklisted. Blacklisted individuals found
themselves unable to get work and sometimes housing, because of
accusations someone had made about their political beliefs or activities.
Many thousands of American were called before HUAC or another of the
investigative committees as "unfriendly witnesses" to be publicly judged
and pilloried. Persons named by informers suffered disruption of their
lives and careers. Even more important, fear of being branded drove
millions of citizens away from political activity and open expression of
their opinions. These "witch-hunt" victims were not charged with legal
offenses; they were condemned and punished without regard to
Constitutionally mandated rules of evidence or rights to due process.
AMERICA'S SECRET POLICE
The Federal Bureau of Investigation (FBI) abused its mandate for law
enforcement in the 1940's, 50's 60's and 70's. Secretly it engaged in
destroying those political views and opinions which FBI Director J. Edgar
Hoover did not personal approve. With its awesome staff of disciplined
agents, the FBI organized a vast network of political spies who
infiltrated thousands of political, religious and civic organizations.
It trained and coordinated similar operations by other law enforcement
agencies at every level of government.
In the City of Chicago alone, from 1966 to 1976, the FBI employed (at a
cost of $2.5 million) over 5,000 secret undercover informers to operate
within civic and political organizations which were violating no laws.
For 16 years (1960 to 1977), the FBI employed 1,600 informers to
infiltrate *one* small political group, the Socialist Workers Party (at
an estimated cost of $26 million). Such was the national pattern.
The information gathered by the FBI's informant network was supplemented
by illegal wiretaps, letter openings, burglaries of office files, secret
examination of bank records, clippings from newspapers, and physical
surveillance. At the FBI and other government offices, vast files of
organizations' political policies and individuals' opinions were
catalogued according to their degrees of presumed "dangerousness" in the
FBI's secret "Security Index." Thousands of individuals in the FBI Index
were targetted for round-up and detention in case of a "national
emergency," although it is still unclear what constituted a "national
emergency." The FBI created this detention list in the 1940's, even
before legislation was passed providing any statutory authority (the
Emergency Detention Act of 1950).
"COINTELPRO is the FBI acronymn for a series of covert action programs
directed against domestic groups....Many of the techniques used would be
intolerable in a democratic society even if all of the targets had been
involved in violent activity, but COINTELPRO went far beyond that...the
Bureau conducted a sophisticated vigilante operation aimed squarely at
preventing the exercise of First Amendment rights of speech and
association, on the theory that preventing the growth of dangerous groups
and the propogation of dangerous ideas would protect the national
security and deter violence.
-- Final Report of the Senate Select Committee to Study Governmental
Operations with respect to Intelligence Activities - Book Three, Staff
Report, April 23, 1976.
THE FBI NEUTRALIZATION PROGRAM
Collecting information was only the starting point of the FBI's
"neutralization program." One segment of this program, with the code
name of COINTELPRO, became a major scandal when its existence was first
revealed to Congress in 1976 following the Watergate investigations.
Established to injure and discredit certain targetted advocates of social
change, it paid special attention to those who voiced criticisms of the
FBI. According to the Congressional Committees investigating COINTELPRO,
the program was an illegal and unconstitutional abuse of power by the
When the Freedom of Information Act was amended in 1974 to remove a
special exemption that had kept the FBI's records secret, it opened the
door to an unending stream of details of FBI misconduct. Hundreds of
thousands of pages of documents now reveal the nature of the FBI's
"neutralization" programs directed against individuals in such
organizations as The Southern Christian Leadership Conference, the
National Committee Against Repressive Legislation, the National Lawyers
Guild, and Students for a Democratic Society, as well as numerous other
civil liberties, civil rights, peace, labor and social action groups.
With intimate knowledge of the organizations' internal structures,
personalities, plans and projected publications, the FBI could
effectively disrupt and damage target groups. Counter- demonstrations
were initiated, encouraged and coordinated by the FBI. Speaking tours
and meetings were disrupted, anonymous "poison pen" letters were
selectively mailed to discredit leaders and stimulate factional disputes.
Forged leaflets were distributed in an effort to disrupt activities and
create confusion. Sources of organizational income dried up as
contributors were harassed. Divisive policies and factional strife were
nurtured by infiltrators acting as agents provocateurs.
Working secretly with HUAC and its counterparts, the FBI provided names
of individuals to be attacked in committee hearings, supplied informer
witnesses to "name names," and laundered secret information from its
files for public dissemination. With this supposedly "public source"
information, the FBI conducted a massive campaign to manipulate public
opinion through secret contacts with a nationwide network of columnists,
commentators, editors, reporters, and radio/TV producers.
Much of the FBI record is still unavailable to the public, but from what
has been released, it is clear that the total effect of the FBI's
political interventions on our national life was considerable. Many
political and civic organizations did not survive the FBI
"neutralization" treatment; most were seriously weakened. The FBI
undoubtedly did succeed in leaving its imprint on public opinion,
chilling the free expression of ideas, distorting public perceptions,
changing the nature of public debate and influencing the course of
During the long reign of FBI Director J. Edgar Hoover, the FBI functioned
as a law unto itself. So great was Hoover's prestige and power that no
President dared to replace him; no Attorney General (theoretically
Hoover's superior) could exercise control or supervision. Hoover's
special files on the personal lives of government leaders, which he kept
in his private vault, were an effective "insurance policy" against
political opposition to the FBI. Few Senators or Representatives dared
express criticisms or question FBI appropriations. With Hoover's death in
1972, the FBI was no longer an impregnable bastion of power, and Congress
did begin to exercise some Control over the agency.
A REBIRTH OF FREEDOM
The post-Watergate years witnessed a rebirth of constitutional freedom.
After strengthening the Freedom of Information Act in 1974, Congress re-
instituted its oversight (previously non-existent) over intelligence
agencies. HUAC and its counterpart, the Senate internal Security
Subcommittee, were abolished. Repressive laws were repealed or made
New guidelines governing the FBI were issued by Attorney General Edward
Levi (the "Levi guidelines") seeking to limit the FBI's investigative
power to legitimate law enforcement matters. Rules for secrecy
classificatiton of government documents were liberalized, recognizing the
public's right to be informed. We seemed to be awakening from the long
political nightmare of the McCarthy/HUAC/Hoover era.
RETURN TO REPRESSION IN THE 80s
In the 1980s, however, the trend toward greater freedom is being reversed
once again. In December 1981, President Reagan authorized the Central
Intelligence Agency (CIA) to engage in domestic spying again, (Executive
Order 12333) despite Congress's original intent to limit the CIA to
intelligence collection abroad. In April 1981, the President established
new rules for classification of documents, severely limiting the right of
public access, emphasizing "security" interests in more secrecy, making
declassification more difficult, and permitting re- classification of
documents that had previously been released to the public. Since
classified documents are exempt from the Freedom of Information Act,
President Reagan's order has greatly reduced the amount of information
previously available to citizens.
"...it is axiomatic that individual liberties are secondary to the
requirements of national security and internal civil order."
-- "Mandate for Leadership," Heritage Foundation report presented to
President Reagan's transition team.
For the first time ever, in June 1981, Congress imposed criminal
penalties for publishing information already made public, with the
Intelligence Identities Protection Act. In January 1983, investigative
reporters, historians and other researchers were priced out of the
information market, with new administrative guidelines for Freedom of
Information Act requests that greatly increased fees for obtaining
In March 1983, the President issued a directive (National Security
Decision Directive 84) to stop unauthorized leaks of information from
government officials. In domestic security and terrorism investigations
it required that government officials sign an agreement that never in
their lifetimes would they write or speak publicly about their government
experience, without obtaining prior clearance. Willingness to take lie
detector tests when requested was made a condition of government
employment. This Presidential act extended controls over freedom of
speech (previously applied only to CIA personnel) to all executive
agencies. Vehement protests from both the House and the Senate have
presently forced a temporary suspension of the order.
In March 1983, new guidelines for the FBI became effective, rescinding
the earlier Levi guidelines. They permit the use of informers and other
intrusive means even without a reasonable cause to believe that any
criminal violation is taking place. Mere speech, without evidence of
criminal conduct, will be enough to trigger investigations in areas
legally protected by the First Amendment.
In April 1984, President Reagan proposed an "anti-terrorism" bill (S.
2626/H.R. 5613) which could imprison Americans for ten years for
supporting or "acting in concert with" groups or nations designated as
"terrorists" by the Secretary of State. Representative Don Edwards
(Democrat, California), chair of the House Judiciary Subcommittee on
Constitutional Rights, observed that under the proposed law "the
Secretary by an edict can almost create the crime himself." Courts
would be forbidden from questioning the validity of the Secretary's
designation. On the other hand, the bill would exclude from prosecution
activities "conducted by officials of the United States government or
their agents"--such as the 1984 mining of Nicaraguan harbors or other
"authorized" terrorist acts against people in other countries.
According to the American Civil Liberties Union, the Reagan "Anti-
Terrorism Bill" is "wholly unnecessary, since current law [already]
prohibits bombing, sabotage, kidnapping, and other crimes which may be
committed by terrorist organizations or factions."
But the proposed legislation would create a new political crime: opposing
government policy in such areas as Central America or the Middle East.
Such nonviolent acts as sending school books to Nicaragua, or voicing
support for a negotiated settlement in El Salvador, would be made
criminal. Because of strong opposition in Congress, this legislation has
not yet been passed.
WHAT WILL THE FUTURE BRING--DEMOCRACY OR A POLICE STATE?
With these disturbing developments in the 1980s, all of the components
are in place for a return to a new era of coordinated repression of our
freedoms. Our democracy has survived some difficult tests before, not
solely because of the vigilance of a vast number of our citizens, but
because of some fortunate turns of history.
President Eisenhower appointed a Supreme Court Chief Justice who was not
previously noted for his support of civil liberties, but Earl Warren
became an outstanding champion of the Bill of Rights and blunted the
impact of McCarthyism in the mid-50s. HUAC leaders made many mistakes in
the 1940's and 1950's, becoming entangled in criminal violations which
contributed to discrediting the Committee. President Nixon (perhaps
foolishly) kept secret tapes and they provided the evidence of "high
crimes and misdemeanors" that ensured his impeachment, forced his
resignation, and exposed the misuse of government agencies.
Freedom loving Americans may not be so lucky again. Our alertness to
events, our opposition to every step taken that would undercut our
constitutional rights, our thoughtfulness in the voting booth and our
courage to resist oppression will determine whether or not we remain a
democratic society or adopt an American version of a police state.
"Our First Amendment was a bold effort... to establish a country with no
legal restrictions of any kind upon the subjects people could
investigate, discuss, and deny. The Framers knew, better perhaps than we
do today, the risks they were taking. They knew that free speech might be
the friend of change and revolution. But they also knew that it is
always the deadliest enemy of tyranny."
-- U. S. Supreme Court Justice Hugo Black
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Chicago, IL 60604
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