Many of us think of the constitutionally protected right to dissent as the right to speak our minds and write and publish what we think. But free speech is only one of three related rights protected by the First Amendment. Not only is Congress prohibited from passing a law “abridging the freedom of speech, or of the press,” the amendment also protects “the right of the people peaceably to assemble” and their right “to petition the Government for a redress of grievances.”
Taken together, the right to free speech, the right of assembly, and the explicit right to express grievances to the government add up to an expansive right to “dissent” enshrined in the Bill of Rights. Beyond written or spoken words, the right to dissent is the right of citizens to organize themselves, to associate, to make themselves heard in order to achieve political and social change and oppose government policies without fear of impediment or reprisal.
Despite these clear protections, the government has not always lived up to its constitutionally required mandate to protect our right to dissent. Indeed, it is this right that the government, whether federal, state, or local, has typically targeted for repression, especially in times of claimed “emergencies.” That has been true historically and it is true today. Often, federal agencies and state and city governments, at times of both war and relative quiescence, try through surveillance, infiltration, and limits on protest to suppress dissent. Most of these repressive efforts have ultimately been beaten back, but not before people were jailed, and often not until the effects of the claimed “emergency” that purportedly justified the restrictions had dissipated.
Since the founding of this nation, the government has made many efforts to restrict free speech and dissent. The list on page 8 is a cursory overview of major turning points in the history of attacks on dissent. The rest of this chapter provides a more in-depth look at the continued assault on our right to dissent over the past fifty years, with a special focus on the new post–9/11 legal framework.
It is important to note that government measures limiting organized dissent have become increasingly common in our society since the terrorist attacks of 2001.
These assaults upon and criminalization of dissent—from the surveillance of activists to the federalization of local law enforcement to the labeling of activists as
“terrorists”—dismantle piece by piece a core right considered essential to meaningful democracy. Understanding the evisceration of this right is a first step to regaining our lost liberties.
Bringing About Political and Social Change
Free speech is a bedrock principle of our nation. The Framers believed that open and unfettered discussion would promote better thinking and decisions, particularly important when it came to government policies. The Supreme Court stated in 1964 in New York Times Co. v. Sullivan, a seminal case on modern-day dissent:
The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”
This “unfettered interchange of ideas” on public issues, according to Sullivan, must be “uninhibited, robust, and wide-open . . . [and] it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Clearly, the lone speaker standing on a soapbox in Times Square or the odd local newspaper article opposing a war will generally not lead to change in government policy. It has always been understood that the right to speak freely is not sufficient without the ability to make that speech effectively reach a meaningful audience. That is why other related rights are included in the First Amendment. Congress was prohibited from abridging the right to demonstrate (“people peaceably to assemble”) and from interfering with the right to petition and lobby government officials (“petition the Government for a redress of grievances”). Implicit in the rights to assemble and petition is the right to freedom of association—the right to join together with others to advocate for change. The Supreme Court has recognized this right of association as a critical part of First Amendment protections.
While not literally protected by the First Amendment, civil disobedience and passive resistance fall within its broad ambit. They are often found to be effective expressions of political dissent because such tactics are a source of organizational solidarity and attract wider media attention. For people without the means to purchase airtime or newspaper space, organized protest offers a chance to “speak with their bodies” and collectively to make themselves heard.
Protesters typically break the law in insubstantial, generally nonviolent ways while making clear that their technically illegal actions seek to bring about change in
policies or practices that are much more harmful than these actions. Such minor violations of law have a long and honorable history in this country. Thousands of activists engaged in civil disobedience in the South to break the Jim Crow laws. Hundreds today engage in civil disobedience protesting the Guantánamo Bay detention camp, torture, draconian immigration laws, and Appalachian mountaintop removal.
Sometimes, however, these minor violations are dealt with severely so as to discourage effective protest. We saw this in the South with mass arrests and jailings meted out to Dr. King and others. We are seeing it today with special laws that treat acts of civil disobedience as terrorism and single out environmentalists for especially harsh sentences. Such repression is never about the nature of the legal violations; it is always about discouraging vigorous dissent and protecting governmental and corporate interests.
Other amendments in our Constitution also ensure that these speech protections can be used effectively. The Fourth Amendment ensures that our persons, homes,
and places of work are not searched without good reason (searching homes and offices for evidence of dissent is one way governments have historically tried to impede free speech) and that our various forms of communications are protected from unwarranted surveillance. The Fifth Amendment guarantees us due process of law before we can be imprisoned or held liable and is designed in part to stop government from using imprisonment as a means of suppressing potential dissent.
Even a cursory look at struggles for progressive social change in America reveals the wisdom of viewing the First Amendment in the context of protecting direct advocacy of social and political change. Often change has occurred only when free speech is taken to the streets, when thousands and eventually millions of people force their demands upon the government and compel the government to act and to change. That is how women gained the right to vote, labor won the 40-hour workweek and the right to unionize, the civil rights movement in the 1950s and 1960s overcame the segregation policies of Jim Crow, protesters helped bring an end to the Vietnam War, and millions in the United States and around the world tried to prevent the 2003 Iraq war. That is why today immigrants and their supporters are marching in demand of immigration reform.
There are some who believed that the access to information provided by the Internet would provide a new force for change—that the democratization of information sharing would provide a new means of association and organization by which to foster political and social change. While access to the Internet has allowed countless voices to speak, the very proliferation of voices means that few are heard by large numbers of people. Neither does the Internet alone provide the real social connectedness needed for political organization. A YouTube video or a blog post can certainly spark action, but as we saw throughout North Africa, change comes about when people take to the streets.
Protests, while often having an element of spontaneity, need organization to be effective. This organizing often begins with small activist groups who believe that
protest against unjust policies and practices is a necessity, and that activism in support of just and moral policies is an obligation. The Student Nonviolent Coordinating
Committee, the Southern Christian Leadership Conference, and other activist organizations led civil rights protests in the South; the National Mobilization Committee
to End the War in Vietnam (a coalition of many groups) led protests against that war; ACT UP organized to draw attention to our government’s failure to respond to the
AIDS crisis; dozens of groups concerned by the draconian 2010 anti-immigration law in Arizona protested in almost 50 cities against that law. These groups formed and were able to function because the First Amendment forbids the government from interfering with their right of association. Too often, however, the history books omit that, at the time these protests occurred, they met strong, even violent resistance from the government and parts of the public.
Disabling Democracy: The Attack on Dissent in America
The U.S. government has regularly sought to suppress movements for social change that challenge the status quo, the hierarchy of power, and the impunity of corporations. This suppression has waxed and waned based on various factors, including the strength and popularity of such movements. Despite the widespread heralding of First Amendment rights, U.S. history includes numerous examples of government authorities using surveillance, spying, wiretapping, infiltration, entrapment, criminal prosecutions, and even extrajudicial homicide to try to suppress dissent and its public expression. The targeting of movements, organizations, and individuals seeking social and political change has taken many forms, including denying demonstrators permits, restricting demonstration sites, controlling the media, and harassing participants, often involving tax audits and character assassination. Historically the government has used both legal means such as search warrants, grand jury subpoenas, indictments, and trials as well as illegal means such as infiltration and entrapment to hinder, if not destroy, its opponents.
--The Sedition Act (1798) (allowed to expire in 1801, but considered unconstitutional by later courts) made it a crime to criticize the government.
--The Espionage Act (1917) made it a crime to incite disloyalty or advocate against military recruitment. Courts have since cast doubt on the constitutionality of its speech provisions.
--The anticommunist Palmer Raids (1919) combined executive action with legislation to crack down on and deport radical leftists and immigrants, actions subsequently revoked by the secretary of labor.
--The Special Committee on Un‑American Activities (1934), which later became the House Un‑American Activities Committee (HUAC), was a congressional committee devoted to investigating political thought that subsequently imprisoned people who refused to answer questions about their political affiliations.
--The preventive internment of more than 120,000 Japanese citizens and residents during World War II exemplified wartime excesses in racial profiling, preventive detention, and violation of civil liberties. It was later ruled by the Supreme Court to be unjustified.
--COINTELPRO (1950s–1970s), the FBI’s secret intelligence program, illegally targeted various individuals and groups including Dr. Martin Luther King Jr., the Southern Christian Leadership Conference, the Black Panther Party, the American Indian Movement, Daniel Ellsberg, and many others in the name of monitoring potential “threats.”
--The Antiterrorism and Effective Death Penalty Act (1996) created a new category of prohibited activity: “material support” to groups designated by the State Department to be Foreign Terrorist Organizations (FTOs), including a range of groups sharing a common opposition to U.S. foreign policy. Enacted in the wake of the Oklahoma City bombing, this act contained little to no content relevant to the circumstances that produced it.
--The USA PATRIOT Act (2001), containing laws of questionable constitutionality, expands government surveillance powers, erodes the right to habeas corpus, formalizes the use of military tribunals rather than courts in the judicial branch, and allows the use of coerced testimony and torture as part of military prosecution techniques. Under this act, much of what has been traditionally considered standard civil disobedience is now viewed as terrorism.
--The TALON databases (2003), part of the increased federalization of local law enforcement, were purportedly set up by the Defense Department to monitor potential threats to the department’s quarters within the United States. However, Freedom of Information Act (FOIA) requests, lawsuits, and media coverage have shown that the Defense Department went well beyond its stated mission, executing sweeping surveillance of a wide variety of peaceful political activities and meetings rather than adhering to the mandate to collect information on an alleged “threat” and judge it to be either “credible” or “not credible.”
--The Animal Enterprise Terrorism Act (2006) amends the Animal Enterprise Protection Act by increasing the penalties for activities that disrupt the business of companies that exploit and abuse animals, and broadens the scope of businesses that the law protects. The law deters protests, leafleting, boycotts, and joining animal rights organizations by using broad language that induces fear of being labeled a “terrorist,” and federalizes penalties for civil disobedience–type actions that were previously classified as minor crimes and prosecuted under state law.
