Clear and Present Danger

-- By MarkusVonDerMarwitz - 25 Apr 2018

The words in the First Amendment were largely given meaning during times of excessive government overreach as a result of fear and panic during wartime. There is a difficulty in remaining level headed during a national emergency, where sentiments of jingoism are at their highest and depriving “others” of liberty is viewed as a necessary sacrifice to defend the nation. As Cicero claimed, “in times of war the law is silent.” In times of emergency, when dissent is most likely to be suppressed, courts have had to grapple with how much to hold the executive accountable, and uphold civil liberties in contravention of the president. What is unique about the current time-period is that the general acquiescence towards greater loss of privacy risks exacerbating the impact of future repression of dissent when a true crisis occurs. To combat the inevitable impacts of excessive fear in the future, awareness, or even a modest level of directed “panic,” towards the loss of privacy is needed now.

During the First World War, the Supreme Court began to articulate the clear and present danger standard for when speech could be restricted. In the early years after the adoption of the Constitution, criticism of the nation’s war effort was considered to have little Constitutional protection. Subsequently, Courts in the United States have created more robust protections for dissenting voices as the words in the First Amendment have been given meaning. Although speech protections have grown stronger, privacy legislation has not kept pace with changing technologies, and this will create new challenges for courts to grapple with. Because privacy is an essential component of free expression, it is important that privacy protections are strengthened.

“The technologies of surveillance are developing at the speed of light, but the body of law that protects us is stuck back in the Stone Age.” --ACLU

In the US context, while protections of outright speech have generally grown stronger over time, protections for privacy have been eroding. While there is no explicit enumerated protection of privacy in the US Constitution, the Court has recognized it in a number of instances. Moreover, the general state of the country has historically allowed for greater secrecy and anonymity. As Lessig explains, “McIntyre establishes a constitutional principle of anonymity, though no doubt a limited one. It is a rule that is consistent with the original practice: While the framing world was not an anonymous one, it was clear that one had the right to build walls. One could take steps to make one’s stuff private, by putting it behind walls.”

The importance of privacy becomes especially important for thinkers with ideas that do not necessarily conform with the status quo. It is important because people generally become more accepting of repression of dissent in times of panic; citizens may be more willing to accept restrictions of civil liberties—especially for segments of society that they perceive as dangerous—when there is a sense of danger. In the People’s Republic of China, where the government has created a perpetual state of national security threat, this is already a reality. James A. Milward writes about the People’s Republic of China, where citizens already live in a surveillance state without anything equivalent to First Amendment protections. Every aspect of citizens’ lives are monitored and recorded, and Uighurs are already burdened in routine aspects of life. It is imaginable that if the Chinese state perceives there to be a substantial separatist threat from the Uighurs, the ability of the state to strike back against any individual fitting the profile would be severe.

Following September 11th, the US government showed how quickly it can act when responding to security threats. The Patriot Act was passed without much debate or scrutiny. Even when threat levels are not high, public officials can manipulate citizens to create a false sense of panic in order to justify further intrusions on privacy. Excessive measures to heighten security may create the impression that serious danger is afoot and people may therefore rationalize it as even more necessary.

Security vs. Privacy

If individuals are not doing anything wrong, why should it matter if they are being watched? Those who feel they conform to the mainstream of society feel they have very little to fear from loss of privacy, because it is only dangerous individuals that have anything to fear. Along with convenience, this is one of the main arguments favoring limited privacy. Terrorist threat requires a shift from watching or surveilling only those suspected of wrongdoing to everyone to catch the wrongdoers. Only dangerous individuals who have something to fear.

Of course, the government may have a broader definition of “dangerous” than the ordinary citizen. Any different or radical thought a potential public figure has ever shared risks being exposed by a potential future rival. If it alters how people speak, and inhibits the exchange of genuine ideas, it seems to violate what Brennan wrote in New York Times v. Sullivan that discourse “should be uninhibited, robust, and wide-open.” If activists and visionary thinkers feel they are being watched as they read, write, or think, it may suppress important ideas. The current president would undoubtedly openly restrict dissent if he could, it is important that he does not have greater tools to do so surreptitiously.

While revelations that the government has been surveilling citizens at an unprecedented level in the United States may have chilling effects on citizens, the revelation may provide the necessary spark to galvanize privacy actions. The United States has generally been able to bounce back from periods where speech and expression has been suppressed, and the courts were able to create doctrines to protect individuals from government overreach. Hopefully, too much privacy will not have been lost by the time the inevitable crisis occurs. While the courts and the Constitution offers protection, it is vital that individuals do not rely exclusively on the courts to save them.

This draft seems to me to present a clear, coherent pathway through a number of the ideas and themes I offered. I'm not sure how far I would endorse the legal history of "panic" and "emergency" in connection with the First World War. I think Paul Murphy's Constitution in Crisis Times is still the best place to start on that. I think some reservation should accompany the idea that the current state of affairs is either about panic or emergency. That it is not about cyberpeace or domestic tranquility seems to me the more important concept.

The best route to improvement, in my opinion, is to harness this clear grasp of where we have been to an idea of your own about where our thinking ought to go. A strong thesis of your own, clearly presented at the outset, and developed through the themes you have here, is what we need. It can then lead to some conclusion that strikes you not having previously struck me—so that the learning you've done can initiate new ideas for the rest of us.

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