Published on Thursday, January 10, 2002 in the Miami Herald
Ashcroft Ignores First Amendment
by Christina E. Wells
Speaking before the Senate Judiciary Committee recently, Attorney General John Ashcroft blasted those who criticized his attempts to expand his law-enforcement powers rapidly. He claimed that his critics ``aid terrorists, for they erode our national unity, . . . diminish our resolve . . . [and] give pause to our friends.''
This comment was ill-advised and outrageous. His statement is the language of treason or sedition and should not be used lightly, especially when the accused offenses arise out of political criticism.
The Sedition Act of 1798 provided for criminal punishment of any statement (even if true) tending to bring certain government officials into disrepute. In other words, it provided for punishment of those who criticized the government.
Controversial even at the time, the act has been soundly rejected in this century as inconsistent with the First Amendment's protection of free expression.
The Supreme Court has recognized that the First Amendment, in large part, was meant to break away from the English tradition of punishing criticism of the government. In its words, ``debate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.''
If the First Amendment stands for anything, it is that the government cannot shut down criticism of officials discharging their public duties. Ashcroft knows this. Every law student (and a good number of undergraduates) with only a passing knowledge of constitutional law knows this. Yet, the attorney general pressed on with his statements, presumably to silence his critics.
Ashcroft has not violated his critics' First Amendment rights. Other than his ill-advised comments, there has been no official government action taken to silence his critics. But his words, spoken as the country's chief legal officer and heard by a public legitimately frightened for its safety, could (and were probably meant to) have a chilling effect on his critics. Nobody wants to appear to be disloyal or a traitor. Thus, Ashcroft's words, while not violating the letter of the law, surely violate its spirit.
Ashcroft's words also highlight his fundamental misunderstanding of the values underlying the First Amendment. If he is right, and his critics' statements aid and abet the enemy, they will do so because those words will have persuaded the American public that Ashcroft has overstepped his bounds. The power of speech to persuade is its gift. It is not an evil. This is especially true in a democratic form of government where officials serve the public; they do not rule it.
Americans do not live in a monarchy, and Ashcroft is not our king. As the ultimate rulers in our democratic form of government, we Americans have the freedom to criticize our elected or appointed representatives.
This is not just a right; it is what makes this country great.
Christina E. Wells is the Enoch N. Crowder professor of law at the University of Missouri School of Law.
Copyright 2002 Miami Herald