The following story was originally published in The Bloomington Alternative on March 30, 2003. It is reprinted today in response to President Bush's Independence Day declaration: "Today and everyday, the people of this land are grateful for their freedom." Its republication was inspired by two upcoming books: Al Franken's Lies and the Lying Liars Who Tell Them … A Fair and Balanced Look at the Right, and Michael Moore's Dude, Where's My Country?


Citizens who filled last Monday's Boxcar Books Social Justice Lecture Series gained deeper appreciation for Samuel Johnson's observation that "patriotism is the last refuge of scoundrels." They learned how the scoundrels have seized control of their First Amendment.

The overflow crowd heard First Amendment scholar Amy Reynolds outline the ways in which Congress, through the USA Patriot Act of 2001, handed the government near carte blanche authority to flout Americans' First Amendment rights to free speech, free association, and free press in the war on terrorism. The Act, she noted, passed both houses on near unanimous votes, with almost no debate.

"This was one of the fastest-moving bills in American history," Reynolds said.

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act breezed through the House and Senate in a mere six weeks following the 9/11 attacks on New York and Washington. It passed the Senate 98-1, the House 356-66. Its provisions:

  • Give the government broader electronic surveillance and search warrant abilities;
  • Give the FBI expanded access to private U.S. citizens records;
  • Allow the detention of immigrants suspected of terrorism or of supporting terrorism for up to a week without filing charges;
  • Allow law enforcement agencies to subpoena Internet providers to obtain suspected terrorists' e-mails;
  • Make it easier for investigators to share grand jury wiretap and other information;
  • Classify financial contributions to political organizations deemed terrorist as a form of terrorism; and
  • Curb the judiciary's role in overseeing executive authority.

Perhaps most threatening is the Patriot Act's definition of "terrorism," Reynolds said, reading it for the crowd: "Foreign terrorist organizations as designated by the Secretary of State" or "a political, social or other similar group whose public endorsement of acts of terrorist activity the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities."

"That's incredibly broad," she said, punctuating her point with a quote from a column in the British publication VNU Net: "To say that the definition of terrorism is broad would be like saying the Atlantic is a bit wet."


Reynolds is an assistant professor at the Indiana University School of Journalism. At Monday's discussion, she provided copies of a recently published journal article titled "Free speech implications in the wake of September 11," in which she and co-author Brooke Barnett from Elon University conclude:

"Despite the fact that the Supreme Court and legal scholars agree that protection for non-violent political speech is at the heart of the First Amendment, the administration's response to September 11 could easily lead to the repression of unpopular views and could restrict a free press's ability to shed light on important government policies."

The 342-page Patriot Act passed Congress and was signed into law by President Bush on Oct. 26, 2001. And it didn't take long for Attorney General John Ashcraft and the federal government to seize upon their expanded powers to spy on American citizens.

For example, Reynolds and Barnett say: "By the end of May 2002, Ashcroft gave the FBI a new directive, telling the agency it could begin monitoring web pages, Internet communications, libraries, public gatherings and religious institutions without first having to provide evidence of potential criminal activity."

The new guidelines, they add, "also allow the FBI to purchase personal information from commercial data companies, and allow investigations to continue for a year with out 'probable cause' of criminal activity."

On Oct. 12, 2001, Ashcroft issued a memo on administration policy with respect to the Freedom of Information Act (FOIA). The 1966 FOIA guarantees public and press access to information generated by the executive branch of the government.

While the FOIA does have nine exceptions, mostly related to national security, law enforcement, and personal privacy, its overall thrust is framed in favor of disclosure, Reynolds and Barnett say. Ashcroft's policy statement urged new standards that favor government restriction on public information.

The Ashcroft memo says the Department of Justice is "committed to full compliance with the Freedom of Information Act" but that the department is equally committed to "protecting other fundamental values that are held by our society." Ashcroft listed protection of personal privacy as one of the other values that the government sought to protect when it refused to release the names of 600 suspects detained in connection with the September 11 attacks.


Reynolds, whose teaching area includes First Amendment history, offered the audience a historical perspective on "free speech" in America in times of war that offered scant comfort to those who zealously oppose government policy on the war, the environment, or other issues.

"Despite contemporary agreement regarding the importance of protecting all non-violent political speech in a democracy, U.S. history shows that the government, the courts and the public have put limits on such protections," Reynolds and Barnett say. "Those limits often came during times of war or when fear of war or threats of violence dominated the American psyche."

She cited several examples, including the Alien and Sedition Acts of 1798 and the Espionage Act of 1917.

Under the threat of war with France in 1798, Congress passed the Alien and Sedition Acts, which outlawed "false, scandalous and malicious writing defaming Congress, the president or the federal government in general." While it was purportedly enacted by the Federalists to thwart insurrection and French invasion, they mostly used it to "prosecute Jefferson supporters, including Republican Jeffersonian journalists," Reynolds and Barnett say.

Against the backdrop of World War I in 1917, the Espionage Act made it a crime to interfere with armed forces recruiting, to willfully cause or attempt to cause insubordination in the military or to make false reports that interfered with military operations. Congress amended the Espionage Act in 1918 with the Sedition Act, adding restrictions on speech and press and prohibiting the mailing or distribution of any printed material that violated the Espionage Act.

More than 1,000 Americans were jailed under the Espionage Act. In three separate opinions in 1919, the Supreme Court ruled the it constitutional and dismissed First Amendment challenges brought by two leading socialists and a German immigrant newspaper publisher.

Noting that the Bush administration is poised to propose even further restrictions on First Amendment protections in what is being called Patriot Act II, Reynolds said the Act and the government's response to terrorism await history's judgment. She and Barnett offer a standard from former Supreme Court Justice Hugo Black:

"The First Amendment is truly at the heart of the Bill of Rights. The Framers balanced its freedoms of religion, speech, press, assembly and petition against the needs of a powerful central government, and decided that in those freedoms lies this nation's only true security. They were not afraid for men to be free. We should not be."

Steven Higgs is editor of The Bloomington Alternative.