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Carcieri's bill shocks constitutional scholars

Providence Journal | February 19, 2004
BY TOM MOONEY

The governor's proposed homeland security bill would "take the state of Rhode Island back 200 years," says one nationally recognized First Amendment expert.

Constitutional scholars and First Amendment advocates reacted with shock yesterday at Governor Carcieri's homeland security proposal, saying it threatens protected free speech and assembly in ways not seen in decades.

No other state in the nation, they said, has attempted such an encroachment on civil rights in the name of fighting terrorism. And they predicted the legislation could never survive a constitutional challenge.

"When I was reading it in the newspaper this morning, my jaw dropped," said Lawrence E. Rothstein, a lawyer who teaches political science at the University of Rhode Island. "It shocked me that anyone would try this."

"Did he do this in writing?" asked Paul McMasters, a nationally recognized expert at the First Amendment Center in Arlington, Va.

Carcieri has proposed, among several other steps, making it illegal in Rhode Island to "speak, utter, or print" statements in support of anarchy or government overthrow.

His proposal would make it unlawful for any person "to teach or advocate" a government overthrow, or display "any flag or emblem other than the flag of the United States" as preferable to the United States government.

Both acts are plainly protected, the experts said, by the First Amendment, part of the Bill of Rights, enacted in 1791. The founding fathers adopted the Bill of Rights, said McMasters, because they "had a very passionate desire . . . to have something in that Constitution that said what the government could not do."

The First Amendment prohibits the government from infringing on peaceful assembly, free speech and the press. It also prohibits the government from favoring one religion over another, and allows people to petition the government for redress of grievances.

"What Governor Carcieri proposes is to take the state of Rhode Island back 200 years," said McMasters. "Dissent is at the heart of democratic freedoms. From Roger Williams on, Rhode Island has always been at the forefront of championing freedom of speech in general and political discourse specifically."

JANE KIRTLEY, a professor of media ethics and law at the University of Minnesota, has monitored state and federal initiatives in the aftermath of the terrorist attacks of Sept. 11, 2001.

"But I haven't really seen anything like this," she said. "Frankly, it is a throwback to World War I."

Carcieri's bill would expand on two state laws, first enacted in 1919, that criminalize the advocacy of anarchy.

At the time, such laws were common, said James A. Morone, a political science professor at Brown University.

After World War I, he said, "people were sick of dealing with foreigners, particularly Europeans, and there was a lot of anti-immigration, anti-anarchist legislation passed.

"There was a feeling that immigrants, especially from Italy, were labor agitators and unionists and that there was a potential for socialism and anarchy," Morone said.

On Tuesday, Steven Brown, executive director of the Rhode Island Affiliate of the American Civil Liberties Union, characterized the 1919 laws as dormant and "blatantly unconstitutional."

Carcieri spokesman Jeff Neal said the laws had existed without court challenge and government abuse for nearly a century. He said the lack of prosecutions under these laws "points to the tremendous amount of discretion that has been employed" by prosecutors.

Around the country, however, similar laws have been struck down regularly as unconstitutional, said Kirtley.

"Anything that was designed to criminalize advocacy of the overthrow of the government was called into very serious question by the [U.S.] Supreme Court," she said. "So that by the time of the 1960s or so, they had been pretty much stricken from American law because they so obviously represented an infringement on the First Amendment."

One of the most famous cases is Brandenburg v. Ohio.

In 1969, the U.S. Supreme Court overturned the conviction of a Ku Klux Klan leader who had been convicted under the Ohio Criminal Syndicalism statute for advocating violence and terrorism as a means of political reform.

The high court ruled the Ohio law unconstitutional since it criminalized the mere advocacy of violence. The court ruled that the white supremacist's speech was protected since it never rose to the level of incitement.

In other words, says Kirtley, if someone talks about taking over the government, that is a protected right. "It's another matter if someone is standing there armed and saying, 'Let's take it over.' "

CARCIERI'S PROPOSAL comes amid controversy surrounding the USA Patriot Act, a federal law that Congress enacted in 2001, six weeks after the terrorist attacks of Sept. 11, to protect the country from further terrorism.

Many civil libertarians and constitutional advocates say the Patriot Act goes too far: allowing too much secrecy in government, and curbing civil rights, in the name of protection.

"This is a new twist," Rebecca Daugherty, freedom of information service director for the Reporters Committee for Freedom of the Press, said after reading Carcieri's bill. "I really don't understand the need for this. It seems there are probably laws already on the books that protect against the overthrow of the government."

The most sinister aspect of Carcieri's bill, the experts said, is that it seems targeted at quieting dissent.

After the 1991 banking collapse in Rhode Island, thousands of outraged credit union depositors routinely protested at the State House and followed then-Gov. Bruce Sundlun around the state, demanding their money and more than a few political heads.

Under Carcieri's proposal, such civil unrest might be viewed as illegal, a point not lost upon William Lynch, the state chairman of the Democratic Party, who also attacked Carcieri's bill yesterday.

"Political protest is a fundamental right that we are fighting to give to the people of Iraq at this moment," Lynch said. "Yet the governor has followed Attorney General Ashcroft's lead and has condemned protesting as terrorism.

"This legislation defines terrorism as willfully speaking, uttering, printing, writing or publishing language that is intended to incite defiance or disregard to the laws of Rhode Island," said Lynch. "Where would the state be without the brave men and women who stood up during the banking crisis to make their voices heard?"

Morone, the Brown University professor, agreed. "We're famous as a country where anybody can say anything, and that doesn't make us weaker, it makes us stronger," he said. "So the real threat, the greatest threat to who we are, comes from bills like this one."

Said McMasters: "It's these very times, when a nation is in crisis and facing some very troubling decisions and developments, that full participation in the governing process should be encouraged, not discouraged.

"The whole idea of democracy is that truth and sound policy emerges from a diversity of voices, and what proposals like this risk is homogenizing the democratic discourse and that means that essentially democracy is forded. Then we face a very dangerous threat with coming up with very dangerous policy . . . "

McMasters said that in the wake of the terrorist attacks, "Americans looked to the government to be strong and powerful and even arbitrary in the exercise of its power to protect us all," and some people are willing to sacrifice some rights if they feel they are better protected.

KIRTLEY SAID the First Amendment was under attack in the first two years after Sept. 11, 2001.

"But my own impression is the pendulum has been swinging back in the other direction. . . . The American reaction that we should at least be able to criticize the government has come back to the fore."

The futile search to date for weapons of mass destruction in Iraq has reminded people of "how valuable the right to criticize the government is," said Kirtley. "The need to know is critical, of having good information, is critical."

Too often, Kirtley said, "people think of the First Amendment as primarily protecting the press and if you ask them they'd say the press goes too far, therefore the First Amendment goes too far.

"But if you remind them that it protects their freedom of speech, they become quite vociferous."

With reports from Jennifer Jordan

DIGITAL EXTRA: Read the full text of Governor Carcieri's proposed legislation relating to homeland security at:

http://projo.com/news/pdf/securitybill.pdf

 
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