For the Final Project for this course (13 page APA Formate), select any government or nonprofit organization for which there is sufficient information to allow a thorough analysis of ethical or social justice issues. You may select your own organization i

Assignment: Project 

 For the Final Project for this course, select any government or nonprofit organization for which there is sufficient information to allow a thorough analysis of ethical or social justice issues. You may select your own organization if it is a government or nonprofit organization, but be aware of the need for scholarly objectivity and the need to protect confidentiality. Ethical researchers never begin any project with a hidden agenda or predetermined conclusion. If you do choose your own organization, do not identify it by name or precise location.  

Your Final Project should include the following:     

 An introduction that describes the government or nonprofit organization, the setting, and any other information about the organization or related background that readers need in order to understand the organization and its ethical and social justice issues; a description of the ethical issues facing the organization and public administrators within the organization     

An explanation of the ethical issues related to two or more of the philosophical theories that this course introduces    

 A summary of the major ethical challenges and conflicts of responsibility presented to individuals in the organization and to the organization as a whole     A summary of the strategies that the organization uses to maintain responsible conduct    

 An explanation of your recommendations for addressing the issues, including a rationale for your recommendations and an explanation of why they might be effective in addressing the issues, with consideration given to the possible involvement of guerrilla government employees

     An analysis of the factors that would affect the implementation of the recommendations by using the ethical decision-making model 

    A description of the outcomes you would expect if the organization implemented your recommendations 

    An explanation of how the issues you raised are related to at least two of the four social justice themes (human rights, equality, liberty, and justice) 

 Your Final Project must demonstrate both breadth and depth of knowledge and critical thinking appropriate to graduate-level scholarship. It must follow APA Publication Manual guidelines and be free of typographical, spelling, and grammatical errors.

 The project should be 13pages in length (double-spaced), not including the title page, abstract, and at least 8–10 scholarly resources, excluding any organizational brochures or other nonacademic sources.  Support your Final Project with specific references to all resources used in its preparation.

Required Readings

Alexander, J., & Richmond, S. A. (2007). Administrative discretion: Can we move beyond cider house rules? The American Review of Public Administration, 37(1), 51–64.   Note: Retrieved from Walden Library databases.

Hall, T. E., & Sutton, A. (2003). Agency discretion and public ethics: The case of the Immigration and Naturalization Service. Public Integrity, 5(4), 291–303.       Note: Retrieved from Walden Library databases.

Jost, K. (2003). Civil liberties debates. CQ Researcher, 13(37), 893–916.        Note: Retrieved from Walden Library databases.

10.1177/0032329205280926POLITICS & SOCIETY

CHRISTIANE WILKE

War v. Justice:
Terrorism Cases, Enemy Combatants, and

Political Justice in U.S. Courts

CHRISTIANE WILKE

What mechanisms led to the intractable legal situation of “enemy combatants”
detained by the U.S. government in Guantánamo Bay and elsewhere? And what
does the role of the judiciary in the enemy combatants cases suggest about politi-
cally contentious court cases in general? This article develops a two-stage theory of
political justice that is based on the U.S. post-9/11 terrorism cases. It demonstrates
mechanisms by which politically contentious cases turn into political justice. Politi-
cal justice in these cases is mainly the result of violations of the separation of powers
that are legitimized by portraying the defendants/detainees as enemies beyond the
law.

Keywords: political justice; enemy combatants; terrorism trials; U.S. courts;
Guantánamo Bay

This nation’s enemies may not enlist America’s courts to divert efforts and attention from
the military offensive abroad to the legal defensive at home.

—Former U.S. Attorney General John Ashcroft

I. INTRODUCTION

After the attacks of September 11, 2001, the United States government vowed
“to fight back, to summon all our strength and all our resources and devote our-
selves to better ways to identify, disrupt, and dismantle terrorist networks.”1

Under the heading of the “war on terrorism,” the U.S. government conducted mil-
itary campaigns in Afghanistan and elsewhere. U.S. personnel engaged in “tar-

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637

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DOI: 10.1177/0032329205280926
© 2005 Sage Publications

637

geted assassinations” of presumed terrorists. A significant number of persons
were detained by U.S. personnel in various places on the suspicion of having
committed terrorist acts or being members or supporters of terrorist organiza-
tions. These persons were quickly labeled “unlawful enemy combatants.” Their
number is unknown, and their fates were diverse: very few of them were tried and
convicted in U.S. federal courts. The majority of the detainees were kept incom-
municado in places like Guantánamo Bay (Cuba) or Bagram Air Base (Afghani-
stan)—or in the United States, if they were U.S. citizens. Reports about mistreat-
ment and torture in these detention facilities surfaced soon but caused little public
outrage in the United States.2 Other persons were detained—or abducted—by
U.S. personnel abroad, and then handed on to other states known to mistreat or
torture prisoners. This practice was called “extraordinary rendition.”3 A number
of the detainees held in Guantánamo and elsewhere have been released, often in
response to diplomatic pressures rather than legal requirements. The fates of the
detainees suspected of being or becoming terrorists differed, but the wide major-
ity of them were subject to a unique form of detention. These detentions were not
based on the detainees’ alleged past wrongdoing, but on assessments of their dan-
gerousness as “enemy combatants” who might engage in terrorist acts when
released. This detention rationale allows for a potentially indefinite detention.

This article examines U.S. court cases arising from the “war on terror” with
two purposes: first, the article aims to offer an assessment of these cases in light of
the debates about human rights and terrorism. Second, the U.S. post-9/11 cases
provide an occasion for the development of a theory of political justice. However,
the cases examined here concern only a subsection of the “enemy combatant”
detainees. Most detainees have no access to lawyers or courts. The litigation
examined here accordingly concerns comparatively privileged detainees but
sheds light on the larger mechanisms by which the legal-political figure of the
“enemy combatant” extinguishes public concern for the rights and well-being of
the detainees. In fact, one central problem about the court cases is that the detain-
ees are too often not viewed as persons with rights, but as enemies who lack the
attributes of persons. The U.S. legal approach in the “war on terror” has, to a large
degree, shifted from what criminal law theorists have called a “criminal law for
citizens” to a “criminal law for enemies.”4 While the “criminal law for citizens”
treats its addressees as law-abiding persons, the “criminal law for enemies” treats
its subjects as “dangerous individuals” who cannot be convinced but only forced
into submission to the law.5 The U.S. approach to the “war on terror,” however,
ventures beyond the “criminal law for enemies” period by placing the “enemy

638 POLITICS & SOCIETY

Previous versions of this article were presented at the conference on the United States and Global
Human Rights at the Rothermere American Institute of the University of Oxford in November 2004,
at Carleton University in December 2004, and at the Jacob Landynski Memorial Conference on
Constitutionalism and Social Justice at the Graduate Faculty of the New School for Social Research in
February 2005. The author thanks those who provided comments and suggestions at various stages,
especially David Plotke, Andrew Arato, Michael Goodhart, Amy Bartholomew, and Nehal Bhuta.

combatants” beyond the law: criminal law becomes a moot point where detention
is solely based on a person’s alleged dangerousness. In this process, the “enemy
combatants” are stripped not only of rights, but also of their legal personality that
is the basis for having rights. Insofar as the detainees are accorded procedural
rights by the courts, these rights are understood in relation to the separation of
powers within government—which branch may decide what and how—and not
as a matter of the detainees’ human or civil rights. This approach stands in a
marked contrast to the decision of the British House of Lords on the similar sub-
ject of indefinite detentions of non-U.K. citizens who cannot be deported.6 This
decision was largely based on international human rights treaties and their
domestic incorporation.

What can these terrorism-related cases teach us about political justice? These
cases demonstrate one prominent mechanism whereby court cases that are politi-
cally contentious turn from “normal” justice—as imperfect as it might be—into
instances of political justice. I am proposing a two-stage model of political jus-
tice. First, there are—always—some court cases that are politically contentious:
they differ from standard cases in that significant political hopes and arguments
are attached to their outcome. These politically contentious cases can, but need
not, develop two dimensions that transform them into instances of problematic
political justice. First, the judicial process in these cases might violate the norms
of the separation of powers, usually through executive intrusions into the judicial
process. And second, the public vilification of one party to the trial heightens the
stakes and shapes the outcome of the case. The portrayal of one party as an
“enemy”—regardless of whether this exact term is used—is significant insofar as
it implies the suggestion that “enemies” are not to be treated like “friends” or, as
Jakobs wants to call them, “citizens.”7 To be sure, war—and enmity in war—are
not lawless. But in some legal and political imaginaries, lawless and ruthless ene-
mies have to be fought without the constraints of the law. These enemies are
placed beyond the law. Their treatment becomes a matter of ethics and policy, thus
it is not lawless. Still, the treatment of these enemies is dictated by policy con-
cerns, and not by their rights as persons. They are accordingly beyond the law:
they are governed by the law without being constituted by the law as persons with
rights. This article will argue that both dimensions of problematic political justice
occurred in the post-9/11 terrorism trials.

Examining the two dimensions of political justice—violations of the separa-
tion of powers rules and the vilification of one party—separately, I will argue that
the courts were more assertive in rejecting the executive branch’s reinterpreta-
tions of the separation of powers than they were in questioning the assessments of
the detainees’ and defendants’ status as enemies beyond the law. The courts’
eagerness to dispute executive assertions of unchecked authority over detainees
coincides with the courts’ institutional self-interest in reserving a role for the judi-
ciary in the determination of the fate of enemy combatants and presumed
terrorists.

CHRISTIANE WILKE 639

Three groups of court cases that arose as part of the “war on terrorism” form
the basis for this article. In the first group of cases, there are the criminal trials for
terrorism or siding with the enemy: the cases of John Walker Lindh, Zacarias
Moussaoui, and Richard Reid. Second, there are cases in which the U.S. govern-
ment detains U.S. citizens as “enemy combatants” within the United States: the
cases of José Padilla and Yaser Hamdi. Third, there are cases of “enemy combat-
ants” who are not U.S. citizens, and who were detained outside the U.S. In June
2004, the U.S. Supreme Court ruled on aspects of the cases of Padillia and Hamdi
as well as on the third group of cases: detainees held in Guantánamo Bay, a place
where the United States has jurisdiction but no complete sovereignty. The analy-
sis will ask how the cases unfolded, which arguments were used by the parties,
and how the courts reacted to these arguments. I first introduce the cases and the
main issues they raised. In a next step, I develop my theory of political trials and
utilize it for explaining the deficits in the proceedings as well as the arguments
used by the courts in the analyzed cases.

II. THE CASES

2.1. The Criminal Cases

Zacarias Moussaoui, a French citizen, was arrested on August 17, 2001, on
immigration charges. He had aroused the suspicion of teachers at his flight school
when he only wanted to learn how to fly but not how to start or land a plane. He is
the only defendant in a U.S. criminal case who is suspected of having been part of
the conspiracy that led to the 9/11 attacks. It is alleged that he would have been the
“twentieth hijacker” on the plane that crashed in Pennsylvania. On December 11,
2001, the government announced that Moussaoui would be tried in a federal
court, not in one of the military tribunals that had been established by executive
order a month earlier.8 Even though Moussaoui’s case was left in the civilian court
system, the specter of a military tribunal resurfaced later when the trial moved into
impasses.

The pretrial proceedings were marked by a high degree of antagonism between
Moussaoui—who insisted on acting without a lawyer—and the prosecution.9

Moussaoui proudly admits to being an Al Qaeda member and views the court and
his lawyers as part of a government conspiracy to have him executed.10 His court
filings and speeches were saturated with slurs to the point that his sanity was in
doubt.11 Moussaoui’s insistence that the trial was a mockery was reinforced by the
government’s intransigent stance on defendants’ rights in relation to security con-
cerns.12 The main point of contention was Moussaoui’s request to interview wit-
nesses who are being held incommunicado as enemy combatants in Guantánamo
Bay and elsewhere. As a result of these disputes, the proceedings were widely
perceived as a “circus,” and Moussaoui was blamed for this undignified process.
Soon critics began wondering whether a military tribunal would not have been

640 POLITICS & SOCIETY

more appropriate: there Moussaoui would not get an audience for his political
views, and he would not get the access to the witnesses he requested. Moussaoui’s
latest guilty plea of April 2005 contains detailed statements about his connections
to Al Qaeda and Osama bin Laden.13 If the plea is eventually accepted despite the
doubts about Moussaoui’s mental health, this means that this terrorism case does
not have to be argued out in court. Thus the law, the access to evidence, and the
interrogation methods remain legally largely uncontested.

John Walker Lindh was captured in Afghanistan after the Taliban prisoner
uprising in Mazar-i-Sharif in late November 2001. While he was awaiting medi-
cal attention, he told a CNN journalist and military interrogators that he enjoyed
his experience in Afghanistan and identified with jihad. Already at the time of
Lindh’s interrogation and incommunicado detention in Afghanistan, the U.S.
public discussed his apparent treason.14 It was widely thought that by joining the
Taliban, he had become an enemy of the United States and thereby morally—or
even legally—forfeited his U.S. citizenship.15 Lindh’s case accustomed the public
to the idea that enemies of the United States might carry a U.S. passport that they
don’t “deserve”: the enemy status was made more important than the citizenship
status, paving the way for the later treatment of José Padilla and Yaser Hamdi that
only few people objected to.

John Lindh claims that he was interrogated while being held under inhumane
conditions and being denied proper medical treatment and access to a lawyer.16

U.S. authorities denied any mistreatment and maintained that Lindh did not need
or could not get a lawyer because he was held as a wartime captive, not as a crimi-
nal suspect.17 The interrogations were aimed at gathering vital intelligence about
the enemy and were legally part of the battlefield actions, so the Miranda rights
did not have to be read. Yet the criminal case against Lindh rested on statements
from these interrogations.

During the trial, the government tried to connect Lindh to the death of CIA
officer Michael Spann during the prisoners’ uprising in Mazar-i-Sharif. The con-
nection between the “hero” Spann and the “traitor” Lindh galvanized public sup-
port for the legally weak case against Lindh.18 Treason could not legally be
proved, but administration officials suggested that when Lindh was interviewed
shortly before the uprising and remained silent, he had chosen sides by failing to
warn his fellow countrymen of the imminent uprising that would bring about the
death of Michael Spann.19 Given the uncertainties of a jury trial in an atmosphere
in which many potential jurors saw him as a radical enemy and wanted to strip him
of his citizenship, Lindh entered a plea arrangement. On July 12, 2002, he pleaded
guilty to two minor charges and was sentenced to twenty years in prison. The gov-
ernment did not need to argue out the case and did not have to disprove the
allegations of mistreatment.

Richard Reid, a U.K. citizen, tried to ignite his explosives-filled sneakers on an
American Airlines flight from Paris to Miami on December 22, 2001. He was sub-
dued by passengers and crew members. Although then–Attorney General John

CHRISTIANE WILKE 641

Ashcroft repeatedly announced that Reid was charged as an Al Qaeda–trained ter-
rorist,20 the indictment was not based on any Al Qaeda link. Reid decided to plead
guilty, and was sentenced to life in prison. In his guilty plea, he rejected the
authority of U.S. law and confirmed the Justice Department’s designation as a
public enemy: Reid stated that he used a destructive device in an act of war.21 The
judge rejected Reid’s self-proclaimed warrior status, saying that he did not con-
sider Reid an enemy combatant but a terrorist. Calling Reid a soldier, the judge
reasoned, would give him too much of a standing.22 Both sides grasped the politi-
cal importance of distinguishing between criminals (who supposedly accept the
authority of domestic law) and warriors (who reject the enemy’s domestic law but
are possibly subject to international legal norms). Reid squarely attacked the
authority of the U.S. law in order to pose as a captive warrior who is illegitimately
subjected to the enemy’s law. The judge, in turn, defended the authority of the
court and—in contrast to the government’s stance in the Padilla and Hamdi
cases—rejected the rhetoric of war and enemy. The stress on the absence of war
and the depiction of Reid as a criminal was meant to enhance the legitimacy of the
court decision as an impartial judgment rather than a case of wartime victor’s jus-
tice. This is the only politically contentious U.S. terrorism case examined here
that did not turn into a case of political justice.

2.2. U.S. Citizens as Enemy Combatants

José Padilla, a U.S. citizen, was arrested at Chicago O’Hare Airport on May 8,
2002. He was first detained as a material witness in a “dirty bomb” plot until, a
month later, the government suddenly changed the rationale for his detention:
speaking from Moscow, John Ashcroft ordered José Padilla’s detention as an
“enemy combatant,” adding that the arrest “disrupted an unfolding terrorist plot to
attack the United States.”23 The government soon acknowledged that the alleged
plot had not advanced beyond the initial planning stages.24 Padilla was suddenly
detained as an enemy combatant and not as a criminal suspect because the govern-
ment could not construct a criminal case against him. Therefore, the detention
rationale was based not on what he had done but on what he might do if released.
In addition, his “intelligence value” should justify his continued detention:

Our interest really in this case is not law enforcement, it is not punishment because he was a
terrorist or working with the terrorists. Our interest at the moment is to try and find out
everything he knows so that hopefully we can stop other terrorist acts.25

Within days of the detention, an administration advisor on terrorism trials and
two former government anti-terrorism lawyers took to the op-ed pages to justify
the detention. Administration advisor Ruth Wedgwood assures that habeas cor-
pus review would still be available.26 Victoria Toensing, who established the ter-
rorism unit in the Justice Department under President Ronald Reagan, states less

642 POLITICS & SOCIETY

soothingly that the criminal justice system is not the proper place for fighting ene-
mies, and that keeping Padilla there would be a threat to national security.27

Douglas Kmiec, former counsel to George Bush Sr. and Reagan, reminds the
readers that the country is at war. This, he continues, is key to understanding and
approving the military detention of Yaser Hamdi and José Padilla.28

What were the intended legal consequences of designating Padilla an “en-
emy”? The government’s position was that, being an enemy combatant, Padilla
has no right to meet his lawyer, Donna Newman, or to challenge his status as an
enemy combatant. Even habeas corpus review should be unavailable because
Padilla is not held as a criminal suspect but as an enemy: a habeas petition would
“interject this court into the president’s conduct of ongoing hostilities.”29 This
assertion is based on the logically prior and irrefutable designation of Padilla as a
public enemy. Indeed, the government’s position is that this designation is virtu-
ally a “decision” in the Schmittian sense: not reducible to a subsumption of a case
under a general rule, and beyond the possibility of independent rational review.30

This decision moves Padilla into an exceptional status beyond the normal law:
legal recourse should not be available to him because he was not accused of break-
ing the law, but of being a threat to the law who needs to be kept beyond the law. If
Padilla’s case were still in the area of criminal law, it would be in the field of
Jakobs’s “criminal law for enemies”: there, “punishment serves as a prevention
of future crimes, not as a retribution for past ones.”31 But the case is not a case of
“criminal law for enemies” because there are no significant references to criminal
conduct. All we are told is that Padilla is dangerous. Therefore, he is placed in a
legal situation in which he ceases to exist as a person with rights.

The courts were partially at unease when they were asked to certify their own
abdication of authority in this case. The U.S. District Court agreed that the gov-
ernment possesses the authority to detain Padilla under the given circumstances,
but the U.S. Court of Appeals reversed the decision. In the U.S. Supreme Court
decision of June 28, 2004, the material question of whether the government has
the authority to detain Padilla was not resolved because the Supreme Court held
that the habeas petition was filed in the wrong jurisdiction. The Court did, how-
ever, address the question of possible government justifications for detaining
Padilla indirectly in its related decision in the case of Yaser Hamdi.32

Yaser Esam Hamdi was arrested in Afghanistan in late November 2001 during
the Mazar-i-Sharif prison uprising, and subsequently brought to the Guantánamo
Bay detention center. In early April 2002, U.S. authorities found out that Hamdi,
who was born in Louisiana, holds U.S. citizenship. He was still considered an
enemy combatant, but the newly discovered facts about his citizenship led to his
transfer to a military prison in the continental United States: like Padilla and Lind,
he is both a citizen and an enemy. Unlike Lindh, however, Hamdi did not enjoy the
benefits of criminal procedure. On May 10, 2002, Hamdi’s court-appointed law-
yer, Frank Dunham, filed a writ of habeas corpus. A district judge initially

CHRISTIANE WILKE 643

allowed Dunham to meet his client in private.33 The government appealed this rul-
ing to a panel of the Fourth Circuit Court, which remanded the case to the district
court because the latter did not properly “consider what effect petitioner’s un-
monitored access to counsel might have on the government’s ongoing gathering
of intelligence.”34

The publicized factual basis for Hamdi’s enemy combatant status was thin:
the prosecution only produced a declaration of six pages written by Michael
Mobbs, a special advisor to Defense Department Undersecretary Douglas Feith,
which is based on third-party information. In the document, Mobbs admits that
“some information provided by the sources remains uncorroborated and may be
part of an effort to mislead or confuse U.S. officials.”35 These doubts notwith-
standing, the appellate court unanimously held that “asking the executive to pro-
vide more detailed factual assertions would be to wade further into the conduct of
war then [sic] we consider appropriate” and rejected the lawyer’s petition.36 The
court accepted a thinly substantiated “enemy combatant” designation by the gov-
ernment on the grounds that in wartime, the courts’ deference to the executive
authority gains in importance and “the Constitution does not specifically contem-
plate any role for courts in the conduct of war, or in foreign policy generally.”37

The designation of Yaser Hamdi as a dangerous public enemy thus leads an appel-
late court to assume that the detention of a U.S. citizen on U.S. territory is a matter
of “foreign policy.” Is such a conclusion possible because in this political logic,
enemies—even those who are nominally citizens—become foreigners? In any
case, the “enemy” designation makes the difference between the treatment that
Hamdi was accorded and the treatment that a criminal suspect in the United States
is normally accorded.

In the Supreme Court, the Hamdi case raised separation of powers issues more
directly than the Padilla case because if a habeas petition was allowed at all, it was
filed in the correct jurisdiction. The two central questions both concerned the
scope of presidential and judicial powers: first, is there a constitutional or con-
gressional authorization for the executive to detain an American citizen under the
conditions and circumstances in which Hamdi was detained? And, second, which
procedure is someone who is detained under these powers entitled to in order to
challenge the factual or legal basis for their detention? The Supreme Court plural-
ity of three justices argued that Congress’s resolution authorizing the president to
use “necessary and appropriate force” to counter the attacks of 9/11 was sufficient
as an authorization of the detention of enemy combatants defined as persons who
are “part of or supporting forces hostile to the United States or coalition partners.”
Hamdi is, however, entitled to a “fair opportunity” to rebut the facts on which his
detention is based in front of a “neutral decisionmaker.”38

This balancing act did not command widespread agreement. Justice Clarence
Thomas argues that this compromise is an unjustified intrusion into executive
power, while Justice Antonin Scalia proposes that Hamdi is entitled to a full crim-

644 POLITICS & SOCIETY

inal trial as long as Congress does not suspend habeas corpus. The case was pri-
marily framed and argued as a dispute about the separation of powers rules—and
not, for example, about Hamdi’s human rights. The most extreme attempt by the
U.S. government to assert unchecked authority over detainees, however, was the
establishment of detention centers in Guantánamo Bay and other places outside
the U.S. sovereign territory in the hope to enter a jurisdictional void.

2.3. The Guantánamo Bay Detainees

The U.S. detainees in Guantánamo Bay were arrested over the course of the
U.S. military action in Afghanistan. The first detention facilities opened in Janu-
ary 2002, and the area has been redesigned for long-term detention. Up to 600
detainees were held there at the same time; the numbers are gradually declining.39

The Guantánamo detainees were not meant to have access to the U.S. judicial sys-
tem because of their personal status (as enemy combatants) and the place of their
detention: they are not U.S. citizens and, moreover, are presumed unlawful enemy
combatants; and the United States has jurisdiction but no full sovereignty in
Guantánamo Bay. This has previously been interpreted to preclude the jurisdic-
tion of U.S. federal courts—at least as far as non-U.S. citizens are concerned. In
fact, the location was chosen for the detention facility precisely because of this
unique legal status. While the “war on terror” provides one rationale for creating
exceptions from the rule of law for an indeterminate period of time, the status of
Guantánamo Bay legitimizes a spatial exception from the rights normally accord-
ed to detainees under U.S. control.40 However, since the “war on terrorism” pro-
vides for a potentially indefinite temporal exception, the war-induced state of
exception is becoming permanent—though confined to Guantánamo Bay and
other marginal “permanent spaces of exception.”41

Habeas corpus petitions brought on behalf of Guantánamo detainees were ini-
tially rejected by courts in California and the District of Columbia.42 Although
courts have thought that the detainees “have some form of rights under interna-
tional law,”43 they did not review the petitions. “Some form of rights” was simply
not sufficient for noncitizen enemy combatants detained by the United States out-
side U.S. sovereign territory. According to the government, the detainees should
eventually be tried in military tribunals. The tribunals would offer a minimum of
process, but their decisions cannot be appealed to any U.S., foreign, or interna-
tional court. The complaint of the detainees was, however, that they had not even
been accorded a military tribunals procedure to determine the legality of their
detentions after 2-1/2 years in Guantánamo Bay.44 About 150 detainees were
released over time, but the releases are due as much to diplomatic pressure from
their home countries as to executive determinations that they did not pose a threat
anymore.45

The Supreme Court had to decide whether federal courts have jurisdiction to
review habeas petitions brought on behalf of Guantánamo detainees, or whether

CHRISTIANE WILKE 645

the personal status of the detainees or of their place of detention precludes juris-
diction. The majority argued that the decision widely thought to be a precedent,
Johnson v. Eisentrager (1950), does not apply.46 First, the detainees are not clearly
enemy combatants or enemy aliens because they are not nationals of countries
with which the United States is formally at war.47 Thus, they do not fit the classic
definition of “enemy alien.”48 Second, they dispute having been engaged in illicit
warfare against the U.S. And finally, they have not been accorded a judicial or
other procedure to determine the veracity of their claims, or have even been for-
mally charged with any wrongdoing.49 In addition, the Court argues that the case
at hand posed the danger of creating an “unconstitutional gap” in the authority of
federal courts with regard to jurisdiction over habeas claims: no single court
clearly has statutory jurisdiction, but the detainees have a constitutional right to
have their petitions heard.50 The Court fills the gap by resorting to “constitutional
fundamentals,” arguing that a legal vacuum depriving persons in U.S. custody of
access to the U.S. court system cannot be tolerated, and by construing the habeas
statute to confer federal courts jurisdiction over the petitions brought from the
Guantánamo detainees.51 The Court did not, however, detail the procedures due to
the detainees trying to challenge their status. The Supreme Court thus enlarged
the scope of judicial power against the explicit claims of the executive that wanted
to keep Guantánamo Bay beyond the reach of civilian courts—without, however,
providing immediate juridical benefits to the detainees. In order to comply with
the Supreme Court decision, the military created “Combatant Status Review Tri-
bunals” (CSRT). Detainees have to argue their cases for themselves and cannot
see the complete evidence against them. One-third of the detainees have declined
to attend their hearings; their cases were decided in absentia. The CSRT’s have
found that all except for thirty-three detainees were held properly as unlawful
enemy combatants.52 This miniscule chance of release on the basis of a procedure
in which the detainees have little chance to effectively rebut the evidence against
them suggests that while the government might have been unsuccessful at devis-
ing military commissions to try and convict or acquit enemy combatants, there
is less judicial resistance to the detentions of prisoners as “enemy combatants”
without charges for an indeterminate period of time.

What lessons can be drawn from these cases? How are they different from
other court cases? First, the criminal cases against John Walker Lindh, Richard
Reid, and Zacarias Moussaoui were very public, and were publicly connected to
political agendas. The courts were portrayed as arms of the government engaged
in the war on terror. The introduction of the war logic in the criminal cases led to a
low tolerance for acquittals: once a case is promoted as part of the war on terror,
the government cannot afford to lose it. In this logic, the courts represent a poten-
tial obstacle to a deserved prison sentence for a proven terrorist rather than a
forum for testing the evidence.53 If a case may not be lost because it is part of a war,
the government takes further steps to challenge the authority of the court: In the

646 POLITICS & SOCIETY

Moussaoui case, for example, the government repeatedly raised the specter of
transferring Moussaoui to a military tribunal where procedures are shorter, defen-
dants’ rights are fewer, and judges as well as prosecutors are under military com-
mand. The case against Richard Reid was so clear-cut that not even the war rheto-
ric by government officials and the defendant could damage the trial. And in the
case of John Walker Lindh, accusations of torture and misinterpreted evidence
linger long after he decided to plead guilty to lesser charges. The government por-
trayed all three trials as part of the war on terrorism and emphasized the alleged or
admitted links between the defendants and Al Qaeda.

The enemy combatant cases, in contrast, started in relative political silence. In
these cases, the executive branch did not want to use the courts as part in an all-
embracing strategy in the war on terror. Instead, the courts were portrayed as
obstacles in this war. By connecting these detentions to the “war on terror,” the
government tried to convince the courts that they could not “second-guess” exec-
utive determinations and military decisions because courts have no role in fight-
ing a war. The Supreme Court decisions established some limits to executive
power over the detainees. Still, the limited role of the courts in the enemy combat-
ant cases suggests that the government has succeeded in carving out a space of
exception for its designated enemies.

Second, the judicial component of the war on terror has shifted its emphasis
away from the criminal trials of the initial post-9/11 period and toward the legal
figure of executive detention of unlawful enemy combatants. Thus, criminal law,
whether “criminal law for citizens” or “criminal law for enemies,” has declined in
importance for U.S. counterterrorism policy. The executive detention policies
pose as preventive measures. They are not designed to adjudicate responsibility
for past wrongdoing, or even for the preparation stages of future acts of terrorism.
Instead, the “unlawful enemy combatants” are held for as long as they are deemed
dangerous.

Third, in the criminal cases and the challenges to executive detentions, the gov-
ernment and—to a limited degree—the courts agreed that the defendants and
detainees are not merely criminals. But they could not agree on the legal and polit-
ical significance of the enemy status. The government was especially vocal in the
introduction of the “war” and “enemy” terminology into the courtrooms. The pur-
pose of this terminology is to suggest that the persons concerned should not enjoy
the standard procedural rights. At the extreme, the designated enemies become
“non-persons” who have no rights or legal personality to be reckoned with.54 Only
the discursive force of the enemy designation can explain how, for example, the
detention of U.S. citizen Yaser Hamdi on U.S. territory becomes a matter of U.S.
foreign policy.

These groups of cases—the criminal cases as well as the enemy combatant
cases—were unusual in their political dimension, in the frequent usage of “war”
and “enemy” language, and in their implications for the separation of powers. The

CHRISTIANE WILKE 647

political stakes of the cases call for a closer analysis. In the next section I will
argue that the cases surveyed above suggest a powerful mechanism by which
politically contentious cases develop into cases of political justice.

III. THE CONCEPT OF POLITICAL JUSTICE

Which types of trials are political trials? I argue for a two-step model. First, any
open court system will confront a number of cases that are politically contentious
because they raise politically salient issues. Some of these politically contentious
cases reach stage two as they develop two problematic dimensions: first, the care-
ful separation of roles between the executive and the judiciary might collapse if
the executive values winning the case higher than judicial independence; and, sec-
ond, in many politically contentious cases, one party is declared a “public enemy”
with the understanding that this person does not deserve full rights in court. At
the extreme, the “public enemy” is treated as a “non-person” (Jakobs). Thus, the
question is no longer which rights enemies should enjoy, but whether enemies are
persons capable of having rights at all.

These two dimensions of political justice signal the problems that are often
referred to by the term “political justice.” Benjamin Constant, for example, com-
plains about the changes in the judicial system caused by Napoleon’s wars, such
as the improper influence of the military, for whom opposition is “disorder . . . the
courts councils of war, the judges soldiers under orders, the accused enemies and
the trials battles”;55 the addition of “representatives of the government” to local
courts; and the introduction of special military courts.56 Constant objects to mili-
tary courts because they see defendants as enemies, and protests the decline
of judicial independence that arises from the militarization and executive domi-
nation of the judicial system. These are the primary reasons why, according to
Constant, political trials are objectionable.

Before further explaining the two prevalent dimensions of political justice, I
want to distinguish my use of the term from three frequent usages in order to avoid
misunderstandings. These accounts differ most importantly in their understand-
ing of what the “political” in “political justice” refers to. Political trials are often
defined (1) by the bias or unwitting partiality of the judiciary in certain cases, (2)
in reference to a specified “political” area of law and state activity that the trials
touch upon, or (3) by the presence of a political adversary in court whose actions
are being incriminated.

1. The political bias model maintains that political justice is defined by the way a
judicial decision is arrived at. In the radical version of this model, judges con-
sciously decide cases in accordance with their own political views.57 More sub-
tle and sociologically founded accounts stress that judges are often recruited
from a particular social background, and that this background and the training
they receive make them systematically more receptive to certain claims than to

648 POLITICS & SOCIETY

others. The political bias model has two important problems. First, it cannot
delimit the area of political justice. If political trials were different because
their decisions manifest explicit or implicit judicial bias, which trials would
not be political trials? At the extreme, the political bias theory only states the
obvious: that the judiciary is never insulated from the political and social con-
text. Though valuable as a corrective to a purely legalistic understanding, this
model cannot point to a theory of political justice. Second, the political bias
model tends to be a rationalization for lost trials rather than an analytical
model. Friedrich Wolff, an East German lawyer with the rare distinction of first
defending scores of political defendants in the GDR and then defending the
former East German head of state Erich Honecker in court, accordingly states
in his book, titled Lost Trials 1953-1998: My Defenses in Political Cases, “All
cases that I thought were political trials were seen as unpolitical trials by the
prosecution and the judges. . . . My political trials are thus political trials
according to my interpretation.”58 If only lost trials are political trials, cases
will be “political” according to one party and “unpolitical” according to the
other party; and the model has little analytical value.

2. The political core model identifies political trials according to the area of law
and state activity they touch upon. It presumes that there is a “core” of state
activity that is “political” and thus the object of “political” trials.59 This center
of state activity is “immediately concerned with the conflicts about the type of
political system,”60 with the “protection of the state, the political order, its insti-
tutions and representatives, its symbols, and the political process of forming
opinions and majorities.”61 Political justice according to the “political core”
model takes place when the judiciary “takes on the task of defending the exist-
ing power structures in an unmediated way and thereby becomes a part of the
conflict about the political order.”62 This concept also raises serious problems.
First, the “political core” model views intense political conflict as a challenge
to the “core” of the polity. A concept of politics that centers on the preservation
of the state makes it harder to carve out a space for political arguments that are
not perceived as threats, and thus not liable to be criminalized. The nongovern-
mental party to a conflict is easily criminalized or vilified because conflict is
viewed as a threat to the state, and not just to a particular policy. In this model,
the “political core” of state activity is vigorously protected, even with means
that include the partial breakdown of the separation of powers and the vilifica-
tion of the perceived challenger to the state. Thus, the “political core” model
tends to condone the instances of political justice that it can identify. Second,
the approach not only adopts the perspective (though not always the point of
view) of the prosecuting party, but also tends to accept the existence of the two
problematic dimensions of political justice as necessary for warding off chal-
lenges against the state. If a conflict is portrayed as a threat to the state, the
challenger turns into an enemy of the state, and the standard procedural safe-
guards are thus more easily cast aside. Critics of political trials who adopt this
model therefore often feel the need to point out that the challengers on trial
were in fact no credible or imminent threat to the state.63 Finally, the “political
core” model operates with a too narrow and state-centered concept of politics.

CHRISTIANE WILKE 649

Politically contentious cases need not challenge the political system, and they
need not arise under laws designed to protect the state. Instead, political con-
flicts can concern important principles that do not challenge the political sys-
tem. For example, cases like Brown v. Board of Education (1954) or Roe v.
Wade (1973) concerned fundamental political issues, but not the continued
existence of the political system. So why should they not be viewed as poten-
tially political cases? It is obvious that a concept of politics that centers on the
preservation of the state is too narrowly concerned with some areas of law, at
the risk of neglecting other fields in which different political views are adjudi-
cated. The “political core” model is thus problematic because it views political
conflicts as challenges to the present political order in a way that gives too
much deference to the evaluation of the executive.

3. The political conflict model maintains that political justice describes trials in
which political adversaries use the court in order to have their claims legiti-
mized, and to change the distribution of political power.64 Political justice
according to this model is “a political conflict argued out with legal means.”65

The political conflict model presumes that the other party in court is a political
adversary and that the presence of this political adversary transforms the trial
into a “political” one. Some political trials follow this pattern, but others don’t.
In many political cases, the characters involved in the courtroom drama are
secondary because the dominant political aspect of the case is an issue, and not
a person. Moreover, the courtroom adversary might not be a competitor for
social or political power at all. Some defendants might have committed crimes
for political reasons but are not part of a sizable and coherent political group
that the state might take the trouble to delegitimize through legal proceedings;
such is the case with terrorists like Timothy McVeigh and the current slate of
Al Qaeda suspects. In these cases, the government does not want to criminalize
a political party through judicial action but wants public approval for the cho-
sen strategy in dealing with a perceived threat. The issue is certainly political,
but the persons in court are not political adversaries.

In sum, the three alternative definitions of political justice are not sufficient
because they implicitly take sides with either the state party (political core model)
or challengers who lost a case (the political bias model), or they narrow down the
number of potential political cases in accordance with a too narrow concept of
politics. In contrast to these three definitions, I propose a two-stage model: some
trials are politically contentious because they deal with politically salient issues.
Some of these trials, in turn, become instances of political justice because they
violate the separation of powers rules or vilify one party to the case. This defini-
tion does not place restrictions on the area of law under which the cases arise, and
it does not suppose that a case under the sedition laws is any more “political” than
a case about equal opportunity in education. This definition also does not adopt an
evaluation of actions as “political” or “unpolitical” by either party. And, finally,
this definition allows us to tell which trials are political trials regardless of which

650 POLITICS & SOCIETY

party has “won” and irrespective of whether the claims of the prosecution, of the
defense, or of certain political groups have been upheld.

In this model, political trials occur when at least one of two dimensions is pres-
ent: the violations of the separation of powers norms, and the construction of one
party to the case as a public enemy. However, this model is primarily based on the
U.S. post-9/11 cases. What are the limitations that arise from these sources? First,
the interlocking mechanisms of vilification and abridgment of the separation of
powers might be specific to terrorism cases—although this need not be the case.
Thus, it is possible to imagine other political-legal mechanisms that steer trials
away from the normal mode of interaction between the judiciary, the political
branches, and the public. Second, the U.S. cases arise in a context in which a
stated adherence to the rule of law, separation of powers, and nonvilification of
defendants is the norm. Political justice appears as an exception to that norm—an
exception that is triggered predominantly by the convergence of executive inter-
ference and vilification of the defendants or detainees. This model of political jus-
tice thus presupposes that the administration of justice normally operates in a dif-
ferent mode, and that political justice is the exception that needs a political
legitimation. Where show trials are the norm, this model of political justice has
only limited analytical purchase.

I will now introduce the idea of politically contentious cases and the two prob-
lematic dimensions of political trials, explain the dynamics arising from them,
and examine the U.S. post-9/11 trials in light of this model of political justice.

3.1. Politically Contentious Cases

Some cases raise politically salient issues. But how can we know which issues
are salient at any given time and place? I propose that a case is politically conten-
tious if one party credibly claims that the issues at stake are of central importance
to the political life of the jurisdiction in which the case arises. This criterion does
not rely on a consensus about whether any given case is “political.” It might
falsely identify some trials as “politically contentious” on the basis of fraudulent
claims about the political dimensions of a case. Still, since “politically conten-
tious” is not a reproach but an analytical category, it is better to scrutinize more
cases for the potential presence of the two troubling dimensions of political jus-
tice than to ignore some politically contentious cases altogether.

Why are the U.S. post-9/11 terrorism cases politically contentious? The gov-
ernment and the defense lawyers raised fundamental questions and suggested
answers to the courts. The government portrayed the cases as part of the “war
against terrorism.” It asked the courts to confirm the incommunicado detention
of citizens and foreigners as enemy combatants, and publicly questioned whether
the courts were up to the task of defending the country against terrorists. More
importantly, the government asked the courts to confirm their version of the politi-
cal reality—an open-ended war on a transnational terrorist network—against

CHRISTIANE WILKE 651

alternative interpretations. The lawyers for the detainees and defendants stressed
related questions: is the president authorized to declare persons enemy combat-
ants in a war undeclared by Congress and without review by the courts? How does
the law change when there is a war? Who can properly recognize “enemies,” and
how? Can information obtained from interrogations “on the battlefield” without
the presence of a lawyer be used in court?

The courts’ early answers to these questions often confirmed the administra-
tion’s outlook on the situation. The Supreme Court justices, though disagreeing
on the legal evaluations of the cases, repeatedly stressed the fundamental political
questions involved: the minority in Rasul v. Bush, for example, accuses the major-
ity of “an irresponsible overturning of settled law in a matter of extreme impor-
tance to our forces currently in the field.”66 In making this change, the minority in
Rumsfeld v. Padilla agrees, with the majority that the case is politically important.
Yet the majority disagrees with the minority’s account of the nature of the political
stakes.

At stake in this case is nothing less than the essence of a free society. Even more important
than the method of selecting the people’s rulers and their successors is the character of the
constraints imposed on the Executive by the Rule of Law. Unconstrained executive deten-
tion for the purpose of investigating and preventing subversive activity is the hallmark of
the Star Chamber. Access to counsel for the purpose of protecting the citizen from official
mistakes and mistreatment is the hallmark of due process.67

The plurality opinion in Hamdi v. Rumsfeld starts its attempt to strike a com-
promise between the interests involved by noting that “at this difficult time in our
Nation’s history, we are called upon to consider the legality of the government’s
detention of a United States citizen on United States soil.”68 The courts and the
Supreme Court justices were keenly aware of the political importance of these
cases. Their disagreements mainly stem from diverging evaluations of the rights
and interests at stake, not from a refusal to recognize the political significance of
their decisions. The political salience of cases raises the stakes, but it does not turn
them into instances of political justice. Still, these politically contentious cases
have the potential of turning into political justice. In the post-9/11 world, the pri-
mary mechanism by which politically contentious cases became instances of
political justice was the convergence of vilification and executive interference.

3.2. Political Justice I:
Overstepping the Boundaries of the Separation of Powers

The separation of powers imposes limits on the executive interference in the
ongoing judicial business. The institutional aspects of a court case can affect the
balance of powers between the three branches of government: which branch may
decide what, and in which procedure? In political trials, the most common viola-
tion of the rules establishing the separation of powers is the executive interference

652 POLITICS & SOCIETY

in judicial proceedings. The interference can be so extreme that the executive vir-
tually delivers the “script” of the trial in which the prosecution and the judges are
merely acting in their assigned roles.69 But not only totalitarian and authoritarian
regimes are liable to violating separation of powers rules in cases that are dear to
the government. The problem regularly appears—though to a lesser degree—in
constitutional democracies. In order to see why governments are tempted to over-
step the boundaries of the separation of powers, and why they nonetheless usually
refrain from it, it is necessary to consider the role that the separation of powers
plays with regard to judicial decisions.

Courts legitimize and authorize actions of the other, “political,” branches.
They can fulfill this task because they operate according to preestablished rules
and maintain their independence from the executive and the legislative. The
courts’ independence and the legality of the proceedings thus give the court deci-
sions their public legitimacy.70 And because the courts are relatively well insu-
lated against the claims of political power, they can also decide against the current
power holders. The legal and political ramifications of a politically contentious
case can be “almost as uncertain as the outcome of an election campaign.”71 In
order to reduce this uncertainty, those in positions of political power sometimes
try to take shortcuts when they insist that they cannot afford to lose the case. The
only way to secure a favorable outcome, of course, is by disregarding some of the
boundaries set by the separation of powers. The price to be paid for this transgres-
sion will be a lower political surplus value of the court decision. Court decisions
that seemed predetermined will not legitimize government action or convince
people to change their views on an issue.72

Governments face the dilemma of either being sure to win a case or being cer-
tain that the decision with an uncertain outcome will command public legitimacy.
Constitutions order governments to choose the second alternative, but govern-
ments sometimes find seemingly compelling reasons for why they cannot lose a
certain case even at the price of violating ordinary separation of powers rules. In
these cases, it is justified to speak of political justice. In the post-9/11 cases specif-
ically, the violation of the separation of powers was linked to a prior vilification
of the defendants or petitioners. The asserted dangerousness of a defendant or
detainee is one of the most convincing arguments to this effect. Indeed, the poten-
tial damage that could be inflicted by someone who was let free because of lack of
evidence or because he was “only planning” to commit terrorist acts would be
immense. And in times of public fear of further terrorist attacks, even a minimal
risk of another attack committed by one of the designated “enemy combatants”
can suffice to legitimize the detention policy in the eyes of a wary public. Ruth
Wedgwood, an advisor to the government, states that traditionally, the criminal
justice system is based on the assumption that cases might be lost and criminals
might wrongly be released. It might happen that a rapist goes free and assaults
more women. Yet the calculus is different, Wedgwood implores the readers, if you
are dealing with persons who might kill 100,000 people if they are not detained.73

CHRISTIANE WILKE 653

Such risk assessments, whether exaggerated or not, seem to introduce the “pre-
ventive strike” doctrine into criminal and administrative law. How would you
know that a defendant would be “going to do something to cause 100,000 casual-
ties,” and how justified could these beliefs be if judge and jury dismiss the evi-
dence? From this perspective, counterterrorism becomes an epistemological
problem. In the end, concurrence with presidential threat assessments might be
rooted in the simple fear of incurring a small risk of a large-scale attack by ques-
tioning executive authority.

In the U.S. post-9/11 terrorism cases, the government undermined the separa-
tion of powers rules mainly by two interlocking strategies. First, the administra-
tion consistently argued that courts should play no role in the conduct of warfare
and hence not challenge executive determinations in the context of the “war on
terrorism.” And, second, the establishment of military tribunals, or the threat
thereof, squarely challenged the jurisdiction of civilian courts. In addition, there
were restrictions on the defense—justified with regard to security concerns—in
the criminal cases, and lack of access to lawyers in the enemy combatant cases.
These restrictions also serve to either hinder the defense or prevent court cases
altogether, but they will not be discussed here. Instead I will concentrate on the
direct challenges to the courts’ authority.

First, the government argued that the courts are not entitled to review gov-
ernment determinations of who is an enemy combatant and which witnesses in
Pentagon custody can be interviewed. In the case of José Padilla, judges were
warned not to second-guess the military’s enemy combatant determination.
Doing this, the prosecution argued, would interfere with the constitutional pre-
rogatives of the commander in chief.74 Even a writ of habeas corpus would “inter-
ject this court into the president’s conduct of ongoing hostilities.”75 This strategy
could only succeed because the government could convince the courts that the
detentions and the interrogations in Afghanistan, South Carolina, and Guantán-
amo are part of an ongoing war, so that any procedural hurdles or judicial review
would move the battlefield into the courtroom.76 The enemy appears not as a
person, but as a danger to be contained.

In Hamdi v. Rumsfeld, the separation of powers perspective shaped the jus-
tices’ responses to the question of whether there was a congressional authoriza-
tion for the detention. To be legal, the detention of Hamdi needed to be part of the
military campaign that was authorized by Congress, as the plurality holds. The
opinions by Justice David Souter (concurring in part and dissenting in part) and
Justice Scalia (dissenting) argue that the presumed authorization is too vague to
allow such grave deprivations of liberty like the potentially indefinite detention of
citizens as enemy combatants.77 Both opinions explicitly argue that finding an
authorization in a vague congressional resolution would give the executive pow-
ers that jeopardize the separation of powers—in relation to both Congress and the
judiciary.

654 POLITICS & SOCIETY

The separation of powers perspective controls not only the issue of an alleged
authorization of the detention, but also the decision on what procedure Hamdi is
entitled to in order to challenge his status. The more procedural rights Hamdi is
accorded, the less will the government’s determination be taken at face value, and
the more will the government have to give public and substantiated reasons for his
continued detention. According to the view of the administration, any judicial
inquiry into the enemy combatant designations would be a challenge to executive
authority. Yet any measure of procedure accorded to Hamdi could strengthen the
legitimacy of the detention by subjecting it to added independent scrutiny. To be
sure, judicial inquiries into the grounds of the detention could also reveal that the
detention was unjustified.

In the Guantánamo case (Rasul v. Bush), the justices again stress the implica-
tion of the decision for the separation of powers. While the majority rules on very
narrow grounds by comparing the facts in the case with the facts in the alleged
precedent of Eisentrager, the concurring opinion by Justice Anthony Kennedy
explicitly stresses the separation of powers aspect. Granting that Eisentrager
“indicates that there is a realm of political authority over military affairs where the
judicial power may not enter,” he stresses, “a necessary corollary of Eisentrager is
that there are circumstances in which the courts maintain the power and the
responsibility to protect persons from unlawful detention even where military
affairs are implicated.”78 The dissenters also view the scope of executive power as
the primary issue at stake, but they disagree with the majority on how the interest
of the executive in its own unchallenged power should be balanced against the
interest of the detainees in challenging their status: “The Commander in Chief and
his subordinates had every reason to expect that the internment of combatants at
Guantanamo Bay would not have the consequence of bringing the cumbersome
machinery of our domestic courts into military affairs.”79 In sum, the Guantánamo
Supreme Court decision clearly justified the expansion of judicial authority
against the strongly voiced claims of the executive by the need to safeguard
detainees against potentially illegal detention—against a dissenting opinion that
finds greater virtue in heightened deference to the executive in wartime.

Second, in the terrorism trials the civilian courts were reminded that military
tribunals constitute another available option in the “war on terrorism.” The gov-
ernment asked the courts to play their part by allowing the incapacitation of
enemy combatants through continued detention and without concrete charges by
privileging the military over the juridical logic.80 Courts were expected to justify
the government’s treatment of enemy combatants and terrorism suspects and to
satisfy the public’s wish for the legitimacy of legality. Courts were hailed as long
as they fulfilled these expectations. When John Walker Lindh pleaded guilty, a
government attorney interpreted this as a victory for the American people, adding
that the case shows that the criminal justice system is suitable for combating ter-
rorism.81 On the other hand, when the prosecution and the judge had diverging

CHRISTIANE WILKE 655

assessments about the conditions needed for a fair trial, the idea of military tribu-
nals reemerged. Suddenly, what is at stake in the Moussaoui case is whether the
courts can still be an option in the war on terror.82 The cases were pictured as
challenges to the courts, and the courts might fail.

Normally the government cannot remove cases from civilian courts unless it
wishes to drop the indictment. In the post-9/11 cases, however, the government
has carved out a novel legal space where the cases can be transferred to military
tribunals. These tribunals emanate from a presidential order issued on November
13, 2001. As of July 2005, only 4 of about 560 detainees have formally been
charged. Moreover, the legality of the entire procedure is in doubt.83 Still, the
option of switching to military tribunals was consistently part of the discussions
in the cases. “Given the danger to the safety of the United States and the nature of
international terrorism,” declares the executive order, “it is not practicable to
apply in military commissions under this order the principles of law and the rules
of evidence generally recognized in the trial of criminal cases in the United States
district courts.”84 Military tribunals differ from federal courts not only in the pro-
cedures and laws that are applied. Military tribunals are established under the aus-
pices of the executive power and are not independent courts. Both the prosecutors
and the commissioners in military tribunals are military officers and “are ulti-
mately answerable to the Secretary of Defense and the President.”85 Moreover, the
rules according to which the detainees might be tried are also devised by the exec-
utive branch. The tribunals’ decisions are beyond judicial review, as the Military
Tribunals Order states: persons convicted by a military tribunal “shall not be priv-
ileged to seek any remedy” in any court of the United States, any foreign court, or
any international tribunal.86 Once a case is in the military tribunals system, it will
never again be subject to normal independent judicial review.

Decisions issued by these military tribunals would not carry the legitimacy that
the federal court decisions still have in spite of executive incursions into the pro-
ceedings. This might be a reason why the government in practice preferred federal
criminal courts to military tribunals. Yet, since the tribunals are established while
the federal courts are working, the prosecution can at least threaten to move the
case to a “safer” venue in case the courts do not accept the government claims.
The criminal trials were influenced by the background threat of a “streamlined”
procedure in military tribunals for cases which civilian courts could not handle.
The detainees who lodged habeas petitions, however, complained that they had
not even had the benefit of a military tribunal procedure. Given the legal dispute
on the military commissions, it is not likely that these commissions will be used to
a significant degree. For the Guantánamo detainees, the most likely path to being
released is a determination by an “administrative review board” that they do not
pose a threat anymore—that they ceased to be enemies, irrespective of whether
they have committed war crimes.

656 POLITICS & SOCIETY

In sum, the post-9/11 terrorism cases were explicitly viewed through the lens
of the separation of powers. The executive wanted the war powers expanded to
include detentions of enemy combatants at home and abroad. Based on assess-
ments of the risks of letting terrorism suspects go free, some federal courts ini-
tially acquiesced to the stipulations of the executive. The Supreme Court, how-
ever, strongly asserts that courts have to play a role in these policy areas: “[I]t does
not infringe on the core role of the military for the courts to exercise their own
time-honored and constitutionally mandated roles of reviewing and resolving
claims like those presented here.”87 Yet it took the courts more than two years to
develop a consistent and independent position on these urgent matters, and the
actual improvement of the legal status of the designated enemy combatants is still
limited as the litigation over the scope and depth of the procedure accorded to the
detainees is ongoing.88

3.3. Political Justice II:
Constructing Public Enemies

The second problematic dimension of political justice is the construction of
one party as a public enemy. At a minimum, the allusions to “war” and “enemies”
suggest the plausibility of relaxed standards. At the extreme, the enemy designa-
tion denies the other’s legal and moral personality. Public vilification can there-
fore legitimize infringements on defendants’ rights and violations of the separa-
tion of powers rules. In a constitutional democracy, the sustained exercise of
political justice in violation of procedural standards and the separation of powers
needs a legitimation.89 The construction of a “clear and present danger” posed by
a dangerous enemy is a frequent rationale for such a slighting of the rule of law
standards. The “enemy” in these cases is not the traditional belligerent who shares
notions of the laws and customs of war with the adversary. Rather, the enemy fig-
ure used in the “enemy combatant” designations is at the intersection of a tradition
in Western thought about the laws of war that excludes certain enemies from the
law, and a concept of the enemy proposed by Carl Schmitt.

Within the codified international law of armed conflict as well as within politi-
cal thought on war, we find at least two different ideas of the enemy. Some ene-
mies are defined and recognized by the law, and other enemies are recognized by
the law only insofar as they are placed beyond it. Articles 4 and 5 of the Third
Geneva Convention, for example, define those participants in war who are enti-
tled to the protected prisoner of war status when they are captured. They can be
tried for war crimes, and their enemy status is legally bounded and regulated.
Those who fall outside the definition of these articles, in contrast, are enemies
beyond the specific scope of the convention. This bifurcation of the enemy status
in the Geneva Conventions—which is often assumed to be no longer operative—
is a reflection of a much older distinction in Western thought about international
norms: for many thinkers, these norms primarily apply to what they call Christian

CHRISTIANE WILKE 657

or civilized states; and the rules for fighting Christian enemies and fighting those
who are outside the scope of these norms are very different. For example, the 1912
edition of Lassa Oppenheim’s seminal international law treatise states that inter-
national law is the “body of customary and conventional rules which are consid-
ered legally binding by civilized States in their intercourse with each other.”90 The
scope of the application of these rules is determined by the “facts of the present
international life.”91 There are states—Oppenheim lists “Persia, Siam, China,
Morocco, Abyssinia, and the like”—where “civilization has not yet reached that
condition which is necessary to enable their governments and their population in
every respect to understand and carry out the command and rules of International
Law.”92 Reciprocity demands that the rules of international law can only be
applied in relation to actors who can equally be expected to observe them: “[I]t is
discretion, and not International Law, according to which the members of the
Family of Nations deal with such states as still remain outside that family.”93 Out-
side of the “family of nations” there is no law, but only ethics and policy. This dis-
tinction is based on the assumption that some actors do not merely violate interna-
tional law, but they don’t recognize it even in its violation. Because international
law needs to rely on reciprocity, it cannot be applied in relation to those who can-
not be expected to apply it. The others presumed lawlessness thus turns into a jus-
tification for placing them beyond the law. The reciprocity-based idea of interna-
tional law has, as far as basic norms on the treatment of persons are concerned,
largely been superseded by the universalizing logic of human rights. These rights
are thought to be universal regardless of express consent. If the treatment of
detainees was based on the human rights framework, the reciprocity-based argu-
ment would therefore have no purchase. The relatively wide acceptance of the
reciprocity-based argument about the Geneva Conventions in the “war on terror”
indicates, however, that the older limited and reciprocity-based view of the law of
war has not completely lost its traction. The “discretion” in the treatment of
enemies beyond the law allowed by the reciprocity concept of international
obligation is filled with other, related notions of the enemy.

In the post-9/11 cases, the enemy beyond the law resembles the Schmittian
enemy:94 the enemy is not a competitor for political power but “existentially
something different and alien.” He “intends to negate his opponent’s way of life
and therefore must be repulsed or fought in order to preserve one’s own form of
existence.”95 This is an extreme characterization of an ideal-type enemy from
which the U.S. government has borrowed in this and other occasions. Enemies
can be created and shaped in political discourse. The terrorist, for example, “could
be made to take on all characteristics that the accusing party decided upon.”96 The
image of the terrorist enemy draws on real-world events but interprets them to suit
preconceptions about the moral character of the specific enemy: rational and cal-
lous, ruthless, or irrational and fanatic. There is a long history of Western societies
imagining different groups of Muslims and Arabs as existential enemies.97 Carl
Schmitt himself uses such an example to illustrate the apparent plausibility of his

658 POLITICS & SOCIETY

enemy model that does not allow for compromise: “Never in the thousand-year
struggle between Christians and Moslems did it occur to a Christian to surrender
rather than defend Europe.”98 If the conflict is pictured as existential, there are no
independent third parties or legal rules common to both adversaries. The sover-
eign “decides” on the “enemy.” In this stark view of the “enemy,” neither law nor
independent judgment nor the idea of a justiciable offense have a place. This stark
portrayal of the “existential enemy” helps to identify the elements from which the
Bush administration’s rhetoric borrowed.

At first, the administration tried to argue that the Guantánamo detainees (and
those detained in undisclosed locations abroad as well as some of the detainees in
the continental U.S.) are prisoners of war—traditional belligerents bound by the
common laws of war. But the administration backtracked from this designation
insofar as it would have implied according the detainees the protections of the
Geneva Conventions. The administration thus created a novel legal category that
resonated with the war language without imposing legal obligations on the gov-
ernment. The categories of “illegal combatant,” “enemy combatant,” and “unlaw-
ful enemy combatant” are poorly defined.99 They have the effect of placing the
designated enemy outside the law and beyond justice. According to President
George W. Bush, Padilla is “a bad guy” who is “where he needs to be, detained.”100

The “enemy combatant” cases highlight another crucial element of the desig-
nation of persons as “enemies” as distinct from criminals. Criminals are judged
on what they could be shown to have done. “Enemies,” in contrast, are judged by
their stipulated hostile commitment that constitutes them as an abstract threat. For
dealing with enemies, prevention rather than punishment is the rule. The intro-
duction of the “preventive strike” doctrine into criminal and administrative law is
based on the logically prior designation of the detainees as dangerous and unpre-
dictable public enemies by the president.

Where there are enemies, war is not far behind.101 The almost unanimous
description of the situation as a war, even after major fighting in Afghanistan
ended and before the war in Iraq started, is noteworthy.102 The state of war inten-
sifies the political friend/enemy distinction, legitimizes heightened executive
power, and paves the way for the detention of enemies during wartime. Given the
description of the task of the war, there is no foreseeable end to the regime of
exceptionalism. The war language implies that the courtroom case was not the
United States versus Zacarias Moussaoui, but the United States versus the Enemy.
Far from affirming the value of adversarial proceedings, the war language of the
administration suggests a strict friend/foe distinction. And how could a court rule
against the United States in such a context? Can a court even be “independent” in
adjudicating between the U.S. and an enemy? It is the state, according to Carl
Schmitt, which decides on who is an enemy; and conflicts among enemies “can
neither be decided by a previously determined general norm nor by the judgment
of a disinterested and therefore neutral third party.”103 The U.S. government is not
following a purely Schmittian line. Yet by portraying the defendants or petitioners

CHRISTIANE WILKE 659

as enemies against whom the U.S. needs to be defended, the government suggests
that they are beyond the law, and that any legal process they are accorded is a mat-
ter of policy or grace, but not of rights: “This nation’s enemies may not enlist
America’s courts to divert efforts and attention from the military offensive abroad
to the legal defensive at home,” as Attorney General John Ashcroft put it.104 Thus,
if enemies are not criminals but are a danger beyond guilt and innocence, and
civilian courts might interfere with the conduct of warfare, the prospect of mili-
tary tribunals or prolonged detention without access to the judicial system seems
acceptable.

With the exception of Justice Thomas in his dissent in Hamdi v. Rumsfeld, none
of the Supreme Court justices subscribe to the view that enemy combatant desig-
nations cannot be subject to review. But are the other justices convinced that
Hamdi, Padilla, and the Guantánamo detainees are not really the enemies they
were portrayed as? The decisions suggest that the Supreme Court justices have no
doubt that at least some of the detainees might warrant a designation as public
enemies. Yet in their view, judicial procedures are capable of finding the enemies
among the detainees. “Indefinite detention without trial or other proceeding,”
argues Justice Kennedy, concurring in the Guantánamo decision, “allows friends
and foes alike to remain in detention.”105 He does not object to “foes” being in
detention, but trusts in the ability of judicial procedures to tell friends from foes.
This reasoning applies to the Guantánamo detainees, who are not U.S. citizens. In
the case of U.S. citizen Yaser Hamdi, however, both Justice Souter and Justice
Scalia dispute that an enemy combatant status distinct from the status of a crimi-
nal is necessary or legal. In reviewing the presumed congressional authorization
for the enemy combatants designations, Justice Souter argues,

There is no reason to think Congress might have perceived any need to augment Executive
power to deal with dangerous citizens within the United States, given the well-stocked stat-
utory arsenal of defined criminal offenses covering the gamut of actions that a citizen sym-
pathetic to terrorists might commit.106

Justice Scalia, pointing to previous wars in U.S. history, argues that “where the
Government accuses a citizen of waging war against it, our constitutional tradi-
tion has been to prosecute him in federal court for treason or some other crime” as
long as habeas corpus is not suspended by Congress.107 The idea that there could
be a status of an enemy that is distinct from that of a criminal by being outside the
categories of criminal guilt and innocence raised more objections when it was
applied to U.S. citizens than when it was applied to other persons. Still, the plural-
ity opinion holds that “there is no bar to this Nation’s holding one of its own citi-
zens as an enemy combatant.”108 Eventually, we are led to believe, the enemy
status trumps the citizenship status.

The Court opposed the government’s infringements of separation of powers
rules more than it opposed the idea that some of the persons involved in the cases

660 POLITICS & SOCIETY

are public enemies. However, by requiring some procedure to review the enemy
combatant designations, the Supreme Court changed the nature of these designa-
tions: they are no longer decisions beyond review and appeal based on few or no
publicized facts—quasi-Schmittian sovereign decisions. Instead, the designation
of someone as an enemy combatant under the Supreme Court guidelines would
get closer to a rational administrative decision for which reasons have to be given,
and which might be tested in court according to preexisting general standards.
The enemy status is almost converted from a Schmittian “political” decision into a
“liberal” legal determination; it is hedged within the confines of the law. Still, the
Supreme Court leaves the purpose of this enemy designation—the enemy, once
properly designated, is beyond the law—intact.

The Supreme Court uses similar arguments for answering the question of
whether there is an ongoing war that might be complicated by adding legal
requirements for executive actions. The question was answered in the affirmative:
“Active combat operations against Taliban fighters apparently are ongoing in
Afghanistan.”109 Yet the existence of a war does not mandate the silence of the
courts, as both the plurality and a dissenting opinion point out: “We have long
since made clear that a state of war is not a blank check for the President when it
comes to the rights of the Nation’s citizens.”110 Justice Scalia argues explicitly that
the Constitution is no stranger to the state of war:

Whatever the general merits of the view that war silences law or modulates its voice, that
view has no place in the interpretation and application of a Constitution designed precisely
to confront war and, in a manner that accords with democratic principles, to accommo-
date it.111

War does not appear as an extralegal event unforeseen by an old Constitution,
but it is hedged within the constitutional rules and precedents. Thus both the pub-
lic vilification of detainees with their designation as “enemy combatants” and the
description of the political context as a “war on terrorism” are curtailed but largely
accepted by the Supreme Court. Yet the Court undermines the traction of the
“enemy” and “war” language by nevertheless requiring some form of judicial
proceedings for the detainees. Had the government’s claims about the “enemies”
found less acceptance, the Court might have accorded the detainees more robust
procedural rights. Now an enemy combatant who is a U.S. citizen is merely enti-
tled to “notice of the factual basis for his classification, and a fair opportunity to
rebut the government’s factual assertions before a neutral decisionmaker.” In the
proceeding, hearsay evidence can be admitted, and “the Constitution would not
be offended by a presumption in favor of the government’s evidence, so long as
that presumption remained a rebuttable one and fair opportunity for rebuttal were
provided.”112 If the current implementation of this standard is approved by the
judiciary, Guantánamo Bay and other places will remain a “permanent space of
exception” (Agamben). These spaces are not outside of the law—the applicable

CHRISTIANE WILKE 661

legal regulations are too dense to allow such a claim. Rather, the situation is pecu-
liar in that the detainees are in a place of rightlessness in a context that is not law-
less. The law, however, fails to recognize them as full persons that become
subjects, and not mere objects, of the law.

In sum, the language of enemies and war helped to suggest that the detainees
and defendants in the post-9/11 cases do not have the same rights as other persons
would have. Enemies are not guilty of specific acts, but they are abstractly danger-
ous. According to the administration’s views, the status of an “enemy” is not sub-
ject to review. This view was largely upheld by the lower courts but was only par-
tially shared by the Supreme Court. Although the Supreme Court accepted the
suggestion that there are enemy combatants who are not criminals and yet need to
be detained, the Court subjects the decision about the enemy combatant status to a
limited form of judicial process.

IV. CONCLUDING EVALUATIONS

The post-9/11 terrorism trials in the U.S. inevitably stirred emotions and
prompted discussions about the responsibility for the attacks, the status of Al
Qaeda and the Taliban, and the reasonable scope of civil liberties. The cases that
found their way to the courts were bound to be politically contentious. It was not
inevitable, however, that the administration would turn most of these cases into
political justice by interfering with judicial proceedings, portraying the defen-
dants as enemies beyond the law, and literally trying to enlist the courts in the war
against terrorism. This executive-dominated political justice even jeopardized the
“image-creating capacity” (Kirchheimer) of the trials. Over time, the importance
of the strict criminal justice framework in the “war on terror” declined. The
administration went beyond even the “criminal law for enemies” and used means
of executive detention entirely unconnected to any reproach of past wrongdoing.
As of July 2005, only 4 out of more than 560 detainees at Guantánamo Bay have
been charged with any crimes.113 This shift from criminal law to detention is based
not only on practical but also on ideological considerations: during the 2004 pres-
idential election campaign, Vice President Dick Cheney warned that a Demo-
cratic administration would pose a danger to national security because it would
fall back into the pre-9/11 mindset of assuming that terrorist attacks are criminal
acts, and that there is no war.114

The post-9/11 trials demonstrate the attractions and dangers of highly politi-
cized cases in times of public fear. The omnipresent language of enemies and war
was clearly meant to legitimize the abrogation of defendants’ rights and limits on
courts’ autonomy. In the cases concerning the detention of enemy combatants, the
war talk was effectively used for introducing the “preventive strike” doctrine into
criminal law—or for going beyond criminal law altogether. Accordingly, the
problems with political trials are not limited to issues that can be neatly described
as “human rights” or “rule of law issues.” The violation of the separation of pow-

662 POLITICS & SOCIETY

ers rules is predicated upon a political designation of persons as enemies beyond
the law. This designation diminishes or denies the detainees’ legal personality. In
order to reverse the legal surface of the situation exemplified by Guantánamo Bay,
these underlying vilifications need to be addressed. Only when the detainees are
publicly imagined as persons whose pain, fear, hopes, and rights have to be taken
into account by others will they be able to gain standing as full legal and moral
persons. Yet only little information about the detainees and their experiences is
available. A letter written by Moazzam Begg, a UK citizen detained by U.S. and
Pakistani authorities on January 31, 2002, and since held as Bagram Air Base and
then Guantánamo Bay, sheds a bit more light on the experiences of persons who,
for example, had not seen daylight or fresh food for a year, and who had been sub-
jected to psychological and physical mistreatment. Any statements he made,
writes Begg, “were signed and initialed under duress”:

The said interviews were conducted in an environment of generated fear, resonant with ter-
rifying screams of fellow detainees facing similar methods. In this atmosphere of severe
antipathy toward detainees was the compounded use of racially and religiously prejudiced
taunts. This culminated, in my opinion, with the deaths of two fellow detainees, at the
hands of US military personnel, to which I myself was partially witness.115

In spite of this treatment and his almost complete isolation, Begg continues,
“I have maintained a compliant and amicable manner with my captors, and a co-
operative attitude.”116 Moazzam Begg and three other UK citizens were released
from Guantánamo Bay in January 2005.117 After a brief questioning by the British
police, they were released without charges.118 Their release was not obtained on
the level of law alone: being citizens of a key U.S. ally in the war on terror, they
had a government that could (and finally did) press for their release. From the
point of view of the UK public, the four were primarily citizens, and maybe sec-
ondarily criminal suspects. They were not released from Guantánamo Bay for
being nonenemies, or human beings, but for being citizens of a close ally. For the
purpose of achieving their release, their humanity was mediated through their
citizenship.

What are the potential and limit of litigation in these cases? U.S. courts have
taken different positions on the rights of detainees and the scope of executive
power to detain or try them. There is no clear tendency to raise the evidential and
procedural thresholds for detention in favor of the detainees. The most recent
decisions in the case of Salih Ahmed Hamdan demonstrate that the detainees
should not pin their hopes on the judiciary: while a district court found the “mili-
tary commissions” for trying Guantánamo detainees in violation of standing
law,119 an appeals court reversed this decision,120 allowing the commissions with
curtailed procedure to continue. Courts seem indeed more vigorous at rejecting
one dimension of political justice (the violation of the separation of powers rules)
than the other dimension (the vilification of the defendants and detainees). When

CHRISTIANE WILKE 663

courts counter unreasonable claims of authority from the executive, their action
coincides with their institutional self-interest in having a role in an important area
of U.S. policies. The de-vilification of the detainees and defendants, it seems, will
not primarily be achieved in the courts.

NOTES

1. Former U.S. Attorney General John Ashcroft, statement before the Senate Judi-
ciary Committee, quoted from “U.S. Detention of Aliens in Aftermath of September 11
Attacks,” American Journal of International Law 96, no. 2 (2002): 473.

2. See Joseph Lelyveld, “Interrogating Ourselves,” New York Times Magazine, June 12,
2005.

3. See, for example, Scott Shane, “Detainee’s Suit Gains Support from Jet’s Log,” New
York Times, March 29, 2005, on the case of Maher Arar, a Canadian “rendered” by U.S.
authorities to Syria.

4. See Günther Jakobs, “Bürgerstrafrecht und Feindstrafrecht,” Höchstricherliche
Rechtsprechung Strafrecht (2004): 88-95.

5. Ibid.
6. Lords of Appeal, Judgment in the Cause A and Others v. Secretary of State for the

Home Department, and X and Another v. Secretary of State for the Home Department, 2004
UKHL 56. Decision of December 16, 2004.

7. Jakobs, “Bürgerstrafrecht und Feindstrafrecht,” 88. Jakobs treats “enemies” and “cit-
izens” as opposites. Thereby he alludes to the more common opposites associated with
these terms: “enemies” are opposed to “friends,” and “citizens” to “foreigners.” The con-
clusion that “citizens” are “friends” and “enemies” are “foreigners” (or “foreigners” are
“enemies”) is not suggested by Jakobs. Still, Jakobs’s odd opposition calls for a closer
examination of the connection between citizenship and the enemy status. This issue also
appeared directly in the U.S. cases. See, for example, George Fletcher, “Citizenship and
Personhood in the Jurisprudence of War,” Journal of International Criminal Justice 2, no. 4
(2004): 953-66.

8. On the criteria for the military tribunals, see Presidential Military Tribunals Order,
November 13, 2001, available at http://www.whitehouse.gov/news/releases/2001/11/
print/20011113-27.html (accessed July 19, 2005). Senator Joseph Lieberman (D-CT)
immediately suggested trying Moussaoui in one of these tribunals; see Don van Natta with
Benjamin Weiser, “Compromise Settles Debate over Tribunal,” New York Times, Decem-
ber 12, 2001; and Robert Jackson, “Pentagon Argues Case for Military Tribunals System,”
Los Angeles Times, December 13, 2001.

9. See Philip Shenon, “Terror Suspect Says He Wants U.S. Destroyed,” New York Times,
April 23, 2002.

10. See Neil Lewis, “Defendant in Sept. 11 Plot Accuses Judge of Trickery,” New York
Times, June 26, 2002.

11. See Philip Shenon, “Terror Suspect Says He Wants U.S. Destroyed,” New York
Times, April 23, 2002; and Brooke Masters, “Defiance Could Delay Terror Trial:
Moussaoui Refuses to Meet Psychiatrist,” Washington Post, May 16, 2002.

13. See Philip Shenon, “Lawyers Seek Information behind Theory on Hijacking,” New
York Times, April 25, 2003; and “Crime and Justice,” editorial, Washington Post, March
27,2003.

13. See Richard Serrano, “Moussaoui Pleads Guilty to Terror Plot,” Los Angeles Times,
April 23, 2005.

664 POLITICS & SOCIETY

14. There was consensus that Lindh had voluntarily chosen to be an enemy. Some criti-
cized the president’s military tribunals order for not including citizens: “[O]ne’s status of
fighting for the enemy, not one’s status as a noncitizen,” should be decisive, according to
law professor David Cole; see Brooke Masters and Edward Walsh, “U.S. Taliban Fighter to
Have His Rights, Rumsfeld Says,” Washington Post, December 5, 2001; also see Edward
Epstein, “Boxer Says Marin Taliban Should Face Court-Martial,” San Francisco Chroni-
cle, December 19, 2001.

15. See, for example, Jim Wooten, “Trials Would Give Enemies an Advantage,” Atlanta
Journal—Atlanta Constitution, December 16, 2001.

16. For a defense statement, see Richard Serrano, “Lindh Team Offers List of Abuses,”
Los Angeles Times, March 23, 2002. The descriptions seemed rather unlikely at the time,
but seem much more plausible now after similar forms of abuse have been reported from
Iraq and other detention centers in Afghanistan.

17. See Edward Epstein, “Prosecutors Belittle Lindh’s Brutality Claim,” San Francisco
Chronicle, July 2, 2002.

18. Legal commentators frequently remarked that the charges were weak and changing,
so the prosecution had to rely on the symbolic meaning of Lindh’s actions and statements
in addition to the scattered evidence; see Leon Friedman, “It Won’t Be Easy to Convict
John Walker,” New York Times, December 29, 2001; and Naftali Bendavid, “Analysts See
Trouble Spots in Legal Case against Lindh,” Chicago Tribune, February 10, 2002.

19. David Pace, “Lindh Torture Claims Disputed; Government Fights Bid to Exclude
His Statements from Trial,” Houston Chronicle, July 3, 2002.

20. Wayne Washington, “Suspect in Bomb Attempt Indicted,” Boston Globe, January
17, 2002.

21. Shelley Murphy, “Defiant Reid Pleads Guilty,” Boston Globe, October 5, 2002.
22. Pam Belluck, “Unrepentant Shoe Bomber Sentenced to Life,” New York Times,

January 31, 2003.
23. Dan Eggen and Susan Schmidt, “‘Dirty Bomb’ Plot Uncovered, U.S. Says,” Wash-

ington Post, June 11, 2002.
24. Patrick Tyler, “A Message in An Arrest,” New York Times, June 11, 2002.
25. News briefing by Secretary of Defense Donald Rumsfeld. Quoted from U.S.

Supreme Court, Rumsfeld v. Padilla, No. 03-1027. Decision of June 28, 2004. Justice John
Paul Stevens, dissenting, 11.

26. Ruth Wedgwood, “The Enemy Within,” Wall Street Journal, June 14, 2002.
27. Victoria Toensing, “Citizenship Doesn’t Matter,” USA Today, June 14, 2002.
28. Douglas Kmiec, “This Is War, and Military Justice Is Appropriate,” Los Angeles

Times, June 14, 2002.
29. Padilla v. Rumsfeld, No. 4445, Motion to Dismiss Amended Writ of Habeas Corpus

in the U.S. District Court for the Southern District of New York, June 26, 2002, 7.
30. See Carl Schmitt, The Concept of the Political, trans. George Schwab (1932; reprint,

Chicago: University of Chicago Press, 1996), 27.
31. Jakobs, “Bürgerstrafrecht und Feindstrafrecht,” 92.
32. Hamdi v. Rumsfeld, Decision of June 28, 2004, No. 03-6696.
33. Brooke Masters, “Access to Lawyers Ordered for Detainee,” Washington Post,

May 30, 2002.
34. U.S. 4th Circuit Court of Appeals, Hamdi v. Rumsfeld, No. 02-6895. Decision of

July 12, 2002. Also see Philip Shenon, “Appeals Court Keeps American Detainee and His
Lawyer Apart,” New York Times, July 13, 2002.

35. Michael Mobbs, “Declaration”, August 27, 2002, 2.

CHRISTIANE WILKE 665

36. U.S. 4th Circuit Court of Appeals, Hamdi v. Rumsfeld, No. 02-7338. Decision of
January 8, 2003, p. 37.

37. Ibid., 38.
38. Hamdi v. Rumsfeld, Justice Sandra Day O’Connor, plurality opinion, at 9, 10.
39. See Tim Golden, “After Terror, a Secret Rewriting of Military Law,” New York

Times, October 24, 2004.
40. The creation of spatial exceptions in areas of de facto control is not new; see the

Supreme Court decision in Johnson v. Eisentrager, 339 U.S. 763 (1950).
41. Giorgio Agamben, Means without Ends: Notes on Politics (Minneapolis: Univer-

sity of Minnesota Press, 2000), 44.
42. On the decisions of the trial courts and the appeals courts, see “Ability of Detainees

in Cuba to Obtain Federal Habeas Corpus Review,” American Journal of International
Law 96, no. 2, 481-82; Neely Tucker, “Judge Denies Detainees in Cuba Access to U.S.
Courts,” Washington Post, August 1, 2002; Henry Weinstein, “Suit on Behalf of Prisoners
Blocked,” Los Angeles Times, November 19, 2002; and Neil Lewis, “Bush Administration
Wins Court Victory on Guantánamo Detentions,” New York Times, March 12, 2003.

43. U.S. District Court for the District of Columbia, Rasul v. Bush, No. 02-299. Deci-
sion of July 31, 2002, 30.

44. The recent District Court decision invalidating the Military Commission process for
different reasons does not increase the likelihood that the “enemy combatants” will be
charged with any war crimes: it seems easier for the government to continue the detention
under the enemy combatant rationale than to comply with the demanded changes in the
Military Commission procedure. See U.S. District Court for the District of Columbia,
Hamdan v. Rumsfeld, No. 04-1519. Decision of November 8, 2004.

45. See Tim Golden, “Tough Justice: Administration Officials Split over Stalled Mili-
tary Tribunals,” New York Times, October 25, 2004; and Neil Lewis, “Guantánamo Prison-
ers Getting Their Day, but Hardly in Court,” New York Times, November 8, 2004.

46. Rasul v. Bush, No. 03-334. Decision of June 28, 2004.
47. The petitioners in the Rasul et al. and Odah et al. cases that were joined by the

Supreme Court were Kuwaitis and Australians. The Court did not indicate whether this
reasoning would apply to citizens of Afghanistan as well. However, since citizenship is
only one of many criteria, it may be assumed that the decision also applies to Afghan
citizens.

48. Also see Fletcher, “Citizenship and Personhood,” 963.
49. Rasul v. Bush, Justice Stevens, majority opinion, 7-8.
50. Ibid., 9.
51. Ibid., 16-17.
52. See Neil Lewis, “Ruling Lets U.S. Restart Trials at Guantánamo,” New York Times,

July 16, 2005.
53. The initial hard line of the prosecution in terrorism-related cases seems to have

relaxed after more than two years. Recently, prosecutors in a Detroit case against a sus-
pected “sleeper cell” asked the judge for a reversal of a conviction and a retrial after dis-
covering misconduct by the prosecutor in the original case. Evidence contrary to the prose-
cution’s theory had been ignored, and the court, the jury, and the defense had been misled
about evidence. The first prosecutor is being investigated for misconduct. See Danny
Hakim, “Judge Reverses Conviction in Detroit ‘Terrorism’ Case,” New York Times,
September 3, 2004.

54. See Günther Jakobs, “Das Selbstverständnis der Strafrechtswissenschaft vor den
Herausforderungen der Gegenwart,” in Die Deutsche Strafrechtswissenschaft vor der

666 POLITICS & SOCIETY

Jahrtausendwende, ed. Albin Eser, Winfried Hassemer, and Björn Burkhardt (Munich:
C. H. Beck, 2000), 53.

55. Benjamin Constant, “The Spirit of Conquest and Usurpation and Their Relation
to European Civilization,” in Benjamin Constant: Political Writings, ed. Biancamaria
Fontana (Cambridge: Cambridge University Press, 1988), 61.

56. Editorial footnote in Constant, “The Spirit of Conquest,” 61.
57. This is Ernst Fraenkel’s definition of political justice as distinct from his analysis

of class justice; see Ernst Fraenkel, Zur Soziologie der Klassenjustiz (1931; reprint,
Darmstadt, Germany: Wissenschaftliche Buchgesellschaft, 1968), 26.

58. Friedrich Wolff, Verlorene Prozesse 1953-1998: Meine Verteidigungen in
politischen Verfahren, 2nd ed. (Baden-Baden, Germany: Nomos Verlag, 1999), 7.

59. This model has often been used in analyses of German postwar political trials.
See, for example, Alexander von Brünneck, Politische Justiz gegen Kommunisten in der
Bundesrepublik Deutschland 1949-1968 (Frankfurt am Main: Suhrkamp, 1978), where the
political core model is part of a more elaborate theory; Dieter Sterzel, “Funktionen der
politischen Justiz,” in Politische Justiz, ed. Axel Görlitz (Baden-Baden, Germany: Nomos,
1996); and Herwig Roggemann, Systemunrecht und Strafrecht (Berlin: Berlin-Verlag,
1993).

60. Von Brünneck, Politische Justiz, 12.
61. Roggemann, Systemunrecht und Strafrecht, 17.
62. Sterzel, “Funktionen der politischen Justiz,” 116.
63. See, for example, von Brünneck, Politische Justiz.
64. See Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political

Ends (Princeton, N.J.: Princeton University Press, 1961); and Alexander von Brünneck,
Politische Justiz.

65. Von Brünneck, Politische Justiz, 335.
66. Rasul v. Bush, Justice Scalia, dissenting opinion, 1.
67. Rumsfeld v. Padilla, Justice Stevens, dissenting opinion, 11.
68. Hamdi v. Rumsfeld, Justice O’Connor, plurality opinion, 1.
69. For an analysis of two trials belonging to this species, see Clemens Vollnhals, Der

Fall Havemann: Ein Lehrstück politischer Justiz, 2nd ed. (Berlin: Ch. Links Verlag, 2000).
70. See von Brünneck, Politische Justiz, 365.
71. Kirchheimer, Political Justice, 117.
72. See von Brünneck, Politische Justiz, 13.
73. Karen Branch-Brioso, “Quality of Evidence Colors How U.S. Handles Suspects,”

St. Louis Post-Dispatch, June 16, 2002.
74. Tom Jackman and Dan Eggen, “‘Combatants’ Lack Rights, U.S. Argues,” Washing-

ton Post, June 20, 2002.
75. Padilla v. Rumsfeld, No. 4445, Motion to Dismiss Amended Petition for Habeas

Corpus in the U.S. District Court for the Southern Circuit of New York, June 26, 2002, 1.
76. An appellate court judge suggested that this would be the immediate conse-

quence of a further inquiry into the circumstances of Yaser Hamdi’s arrest, quoted from
Tom Jackman, “Judges Wary of Interference in Hamdi Case,” Washington Post, October
29, 2002.

77. Hamdi v. Rumsfeld, Justice Souter, concurring in part and dissenting in part, 3; and
Justice Scalia, dissenting, 22.

78. Rasul v. Bush, Justice Kennedy, concurring, 3.
79. Rasul v. Bush, Justice Scalia, dissenting, 19.
80. Katharine Q. Seelye, “War on Terror Makes for Odd Twists in Justice System,”

New York Times, June 23, 2002.

CHRISTIANE WILKE 667

81. Richard Serrano, “Lindh Pleads Guilty, Agrees to Aid Inquiry,” Los Angeles
Times, July 16, 2002.

82. Jerry Markon, “Much Rides on Terror Case,” Washington Post, February 19, 2003.
83. Tim Golden, “After Terror, a Secret Rewriting of Military Law,” New York Times,

October 24, 2004.
84. Military Tribunals Order, November 13, 2001.
85. Harold Hongju Koh, “The Case against Military Commissions,” American Jour-

nal of International Law 96, no. 2 (2002): 339.
86. Military Tribunals Order, November 13, 2001, sec. 4(b).
87. Hamdi v. Rumsfeld, Justice O’Connor, plurality opinion, 28.
88. See Neil Lewis, “Ruling Lets U.S. Restart Trials at Guantánamo,” New York Times,

July 16, 2005.
89. Von Brünneck, Politische Justiz, 336.
90. Lassa Oppenheim, International Law, vol. 1, 2nd ed. (New York: Longmans,

Green, 1912), 3.
91. Ibid., 30.
92. Ibid., 33.
93. Ibid., 34-35.
94. Schmitt makes a rather large point of the distinction between foe and enemy. Fol-

lowing common contemporary usage, I am collapsing his not altogether clear distinctions
into different models of “enemies,” not “foes.”

95. Schmitt, The Concept of the Political, 27.
96. Lon Troyer, “Counterterrorism: Sovereignty, Law, Sovereignty,” Critical Asian

Studies 35, no. 2 (2003): 260.
97. See Gil Anidjar, The Jew, the Arab: A History of the Enemy (Stanford, Calif.: Stan-

ford University Press, 2003).
98. Schmitt, The Concept of the Political, 29.
99. The term “unlawful combatant” seems lifted from the Supreme Court decision in

Ex Parte Quirin, 317 U.S. 1 (1942), while the “enemy combatant” terminology is strikingly
similar to the “enemy alien” language in Johnson v. Eisentrager, 339 U.S. 763 (1950).

100. Stephen Hedges, “U.S. Flouts Legal Rights, Lawyer Says,” Chicago Tribune,
June 12, 2002.

101. War is not strictly required for the existence of enemies, but in the 9/11 cases, the
administration constantly emphasized the existence of a war even when courts could not
see it.

102. See Troyer, “Counterterrorism,” 269.
103. Schmitt, The Concept of the Political, 27.
104. Lyle Denniston, “Court Gives No Rights to Detained: Military’s Prisoners Can’t

Appeal,” Boston Globe, March 12, 2003. Ashcroft is, whether intentionally or not, para-
phrasing the Eisentrager decision:
It would be difficult to devise more effective fettering of a field commander than to allow
the very enemies he is ordered to reduce to submission to call him to account in his own
civil courts and divert his efforts and attention from the military offensive abroad to the
legal defensive at home. (Johnson v. Eisentrager, 339 U.S. 763 [1950], at 779)

105. Rasul v. Bush, Justice Kennedy, concurring, 4.
106. Hamdi v. Rumsfeld, Justice Souter, concurring in part and dissenting in part, 9-10.
107. Hamdi v. Rumsfeld, Justice Scalia, dissenting, 1.
108. Hamdi v. Rumsfeld, Justice O’Connor, plurality opinion, 11.
109. Ibid., 13.
110. Ibid., 29.

668 POLITICS & SOCIETY

111. Hamdi v. Rumsfeld, Justice Scalia, dissenting, 27.
112. Hamdi v. Rumsfeld, Justice O’Connor, plurality opinion, 26-27.
113. See Neil Lewis, “Detainee Trials to Resume Soon,” New York Times, July 19, 2005.
114. “Edwards Demands Action on Remark,” New York Times, September 9, 2004.
115. Moazzam Begg, letter, July 12, 2004, http://image.guardian.co.uk/sys-files/

Guardian/documents/2004/10/01/guan_letters (accessed July 19, 2005).
116. Ibid.
117. See Associated Press, “Last Four Britons Let Go from Guantánamo,” January 25,

2005.
118. See Associated Press, “British Police Release Former Gitmo Inmates,” January

26, 2005.
119. U.S. District Court for the District of Columbia, Hamdan v. Rumsfeld, No. 04-

1519. Decision of November 8, 2004.
120. U.S. Court of Appeals for the District of Columbia Circuit, Hamdan v. Rumsfeld,

No. 04-5393. Decision of July 15, 2005.

Christiane Wilke (cwilke@connect.carleton.ca) is assistant professor in the De-
partment of Law at Carleton University, Ottawa. Her research interests are at the
intersection of political theory, international law, and criminal law, currently with a
focus on concepts of the enemy. She is completing a book manuscript on criminal tri-
als for massive human rights violations in Argentina, Germany, and South Africa.

CHRISTIANE WILKE 669

1353

NOTES

Due Process Rights and the
Targeted Killing of Suspected
Terrorists: The Unconstitutional
Scope of Executive Killing Power

ABSTRACT

The Central Intelligence Agency (CIA), with the approval of
the Obama Administration, conducts targeted killings of
individual suspected terrorists. These killings have significantly
increased since the Iraq war and are now a central component
of U.S. counterterrorism strategy. The targeted killing program
consists mainly of missile strikes from Predator drones, which
are unmanned aerial vehicles operated by the CIA. In May
2010, President Obama’s National Security Council approved
the targeted killing of Anwar al-Aulaqi, a U.S. citizen and
suspected al-Qaeda senior leader believed to be hiding in
Yemen. As the first American targeted for extrajudicial lethal
force, Aulaqi’s situation quickly became a source of great
controversy and concern. His father challenged this decision in
federal court in December 2010, but the court ruled in favor of
executive authority and awarded summary judgment to the
government. Aulaqi was subsequently killed by a drone strike in
September 2011. This Note challenges the asserted statutory
and constitutional basis for the president’s authority to order
the targeted killing of an American citizen. As the case of Anwar
al-Aulaqi demonstrates, the constitutionality of targeted killing
is highly suspect. To clarify the state of the law, Congress
should pass legislation that either prohibits targeted killing or
establishes judicial oversight.

1354 Vanderbilt Journal of Transnational Law [Vol. 44:1353

TABLE OF CONTENTS

I. INTRODUCTION …………………………………………………….. 1355 
II. AN OVERVIEW OF TARGETED KILLING AND THE

CASE OF ANWAR AL-AULAQI …………………………………… 1357 
A. Defining Targeted Killing as a Concept
and Practice ……………………………………………….. 1357 
B. The Aulaqi Case in Federal Court ………………… 1359 
C. The Aulaqi Opinion Reveals a Judicial
Impasse ………………………………………………………. 1361 

III. CHALLENGING THE ASSERTED GROUNDS OF
AUTHORITY FOR THE TARGETED KILLING OF
AMERICANS ………………………………………………………….. 1363 
A. The Scope of the AUMF Is Not a Political
Question …………………………………………………….. 1363 
B. The Constitutionality of Targeted Killing
Is Not a Political Question …………………………… 1366 

IV. CHALLENGING THE CONSTITUTIONALITY OF
TARGETED KILLING: A CLEAR VIOLATION OF
DUE PROCESS ………………………………………………………. 1368 
A. How Due Process Rights Are Determined ………. 1369 
B. A Comparative Perspective: The Due Process
Rights of Detainees ……………………………………… 1370 

V. CHALLENGING THE EXECUTIVE BRANCH DEFENSE
OF TARGETED KILLING ………………………………………….. 1373 
A. The Obama Administration’s Reassurances
Are Circular and Unsatisfactory ………………….. 1373 
B. A Record of Error and Abuse of Authority …….. 1375 
C. The Need for a Resolution ……………………………. 1376 

VI. THE RESPONSIBLE WAY FORWARD: CONGRESS
SHOULD EITHER PROHIBIT THE TARGETED KILLING
OF AMERICANS OR ESTABLISH OVERSIGHT ……………….. 1377 
A. Option One: Congress Could Pass Legislation

to Establish Screening and Oversight of
Targeted Killing ………………………………………….. 1378 
i.  FISA as an Applicable Model …………………. 1379 
ii.  CIPA: An Alternative Model ………………….. 1381 

B. Option Two: Congress Could Pass
Legislation Prohibiting the Targeted
Killing of Americans ……………………………………. 1382 

VI. CONCLUSION ………………………………………………………… 1383 

2011] Due Process Rights and Targeted Killing 1355

I. INTRODUCTION

In September 2011, the Obama Administration killed Anwar al-
Aulaqi, an American citizen, through a covert counterterrorism
program known as targeted killing.1 The Department of Justice
(DOJ) claims that Aulaqi was a senior leader of al-Qaeda in the
Arabian Peninsula and that he represented an imminent threat to
national security.2 Although the government would not produce
specific evidence against Aulaqi,3 there is a large body of publicly
available evidence that linked Aulaqi to jihadist, anti-American views
and to several terrorist plots.4 However, Aulaqi was never detained in
connection with terrorist activity or convicted of plotting or aiding a
terrorist attack.5 Aulaqi was eventually killed by a drone missile
strike in Yemen.6
In August 2010, Aulaqi’s father, Nasser al-Aulaqi, filed suit
against the federal government and requested an injunction against
the targeted killing of his son.7 The complaint alleged that a targeted
killing would violate Anwar al-Aulaqi’s Fifth Amendment right to due
process of law before a deprivation of life.8 In response, the DOJ
argued that the decision to target Aulaqi for extrajudicial killing was
purely within executive branch authority and that to litigate this
matter would require judicial infringement on executive power.9
Nasser al-Aulaqi asserted that the Executive Branch claimed the

1. Complaint for Declaratory and Injunctive Relief ¶ 3, Al-Aulaqi v. Obama,
727 F. Supp. 2d 1 (D.C.C. 2010) (No. 10-CV-1469) [hereinafter Al-Aulaqi Complaint].
2. Brief in Opposition to Plaintiff’s Motion for Preliminary Injunction and
Memorandmum in Support of Defendants’ Motion to Dismiss at 5, Al-Aulaqi, 727 F.
Supp. 2d 1 (No. 10-CV-1469) [hereinafter Al-Aulaqi Response].
3. Id. at 2–3 (arguing that the complaint is based on unconfirmed speculation
and raises nonjusticiable claims beyond the purview of the judiciary).
4. For a detailed overview of the publicly available information on Aulaqi’s
radical teachings, beliefs, and associations, including connections to known terrorists
such as Nidal Malik Hassan (the “Fort Hood Shooter”), Umar Farouk Abdulmutalleb
(the “Christmas Day Bomber”), Faisal Shahzad (the “Times Square Bomber”), and
many others, see Profile: Anwar al-Awlaki, ANTI-DEFAMATION LEAGUE (Nov. 24, 2009),
http://www.adl.org/main_Terrorism/anwar_al-awlaki.htm?Multi_page_sections=sHeading_
2. Aulaqi had an infamous reputation in the general media and had been called “the
bin Laden of the internet” and “the world’s most dangerous man.” See, e.g., Aamer
Madhani, Cleric Al-Awlaki Dubbed “Bin Laden of the Internet,” USA TODAY , Aug. 25,
2010, at A1; Andrew Malcolm, Editorial, Awlaki Strikes Again, INVESTOR’S BUS. DAILY
(May 10, 2010), http://www.investors.com/NewsAndAnalysis/Article/532892/2010051
01836/Awlaki-Strikes-FI7Again.aspx.
5. See Al-Aulaqi Response, supra note 2 (making no specific allegation of
criminality).
6. Mark Mazzetti et al., C.I.A. Strike Kills U.S.-Born Militant in a Car in
Yemen, N.Y. TIMES, Oct. 1, 2011, at A1.
7. Al-Aulaqi Complaint, supra note 1, ¶ 6.
8. Id. ¶ 5.
9. Al-Aulaqi Response, supra note 2, at 3.

1356 Vanderbilt Journal of Transnational Law [Vol. 44:1353

power to kill an American without producing any justification.10 The
government’s response essentially suggested that, in fact, it had this
power in the context of counterterrorism and that this power was not
subject to judicial review.11
In December 2010, the District Court for the District of Columbia
rejected Nasser al-Aulaqi’s claims and granted summary judgment to
the government.12 While acknowledging the profound and troubling
nature of the issues at stake in the case,13 the court deferred to the
assertion of executive authority and declined to review the evidence
against Aulaqi.14 The court held that these issues were nonjusticiable
and that Aulaqi’s father did not have standing to bring this claim on
behalf of his son.15
This Note challenges the statutory and constitutional basis for
the government’s authority to conduct the targeted killing of
Americans and attempts to resolve important legal questions left
unanswered by the controversial outcome of Al-Aulaqi v. Obama.
Applied broadly, the practical effect of the Aulaqi holding suggests
that the president has the unchecked authority to kill Americans
accused of terrorism without providing the accused with some
minimum form of due process.16 According to the defendants’
reasoning in Aulaqi, the government’s use of lethal force, even
against its own citizens, is shielded from judicial review merely on
the assertion that lethal force was necessary to respond to the threat
of terrorism.17 Although the use of force in the specific case of Aulaqi
may be justifiable, the precedent established by this case creates a
broader and more unnerving form of executive power than is
permissible under the constitution.18
While targeted killing is utilized much more frequently against
foreign suspected terrorists, which is itself a subject of controversy in
international law, this Note focuses on the constitutional and

10. Al-Aulaqi Complaint, supra note 1, ¶ 16.
11. Al-Aulaqi Response, supra note 2, at 4–5.
12. See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010) (granting
summary judgment on all four of the plaintiff’s claims).
13. Id. at 51.
14. Id. at 47.
15. Id. at 54.
16. John C. Dehn & Kevin J. Heller, Debate, Targeted Killing: The Case of
Anwar al-Aulaqi, 159 U. PA. L. REV. PENNUMBRA 175, 186 (2011),
http://www.pennumbra.com/debates/pdfs/Targeted_Killing (Heller, Rebuttal) (“This
statement––and there are many more like it in the [Aulaqi] opinion––would seem to
preclude any U.S. citizen overseas from ever challenging her inclusion on the JSOC kill
list.”).
17. Al-Aulaqi Response, supra note 2, at 4–5.
18. See supra note 4 (providing an overview of a large body of publicly available
evidence linking Aulaqi to known terrorists and anti-American propaganda).

2011] Due Process Rights and Targeted Killing 1357

prudential objections to the targeted killing of Americans.19 Part II
provides an overview of the concept of targeted killing and analyzes
the court’s reasoning in the Aulaqi opinion to provide a framework for
analysis. Part III challenges the court’s conclusion that targeted
killing represents a nonjusticiable political question, reasoning that a
premeditated killing does not satisfy the imminence standard for the
use of defensive force as a matter of law. Part IV expands on the
constitutional criticism of targeted killing by arguing that a
deprivation of life without notice or opportunity to protest is a clear
violation of minimum due process rights. Part V raises a number of
historical and prudential grounds for distrusting the president’s
exclusive authority over targeted killing. Finally, Part VI proposes
that congress either prohibit targeted killing or establish independent
oversight of this controversial program.

II. AN OVERVIEW OF TARGETED KILLING AND THE CASE OF
ANWAR AL-AULAQI

A. Defining Targeted Killing as a Concept and Practice

Targeted killing is an “extra-judicial, premeditated killing by a
state of a specifically identified person not in its custody.”20 The CIA
conducts the majority of U.S. targeted killings using missile strikes
from unmanned aerial vehicles, more commonly known as Predator
drones.21 According to John Rizzo, the CIA’s former acting general
counsel, the targeted killing program is “basically a hit list” in which
the “Predator is the weapon of choice, but it could also be someone
putting a bullet in your head.”22 These covert drone strikes are an
integral part of U.S. counterterrorism strategy and have increased
significantly during the Obama Administration.23
The government has neither confirmed nor denied the existence
of an official targeted killing program.24 However, media outlets have

19. There are moral and legal objections to the premeditated killing of any
person by any government, regardless of nationality. However, this Note focuses on the
targeted killing of Americans because this is an issue of first impression that raises
profoundly difficult questions of constitutional law. For an analysis of targeted killing
in the context of International Humanitarian Law (IHL), see David Kretzmer, Targeted
Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of
Defense?, 16 EUR. J. INT’L. L. 171, 202 (2005).
20. Richard Murphy & Afsheen John Radsan, Due Process and

Targeted Killing

of Terrorists, 31 CARDOZO L. REV. 405, 405 (2009).
21. Tara McKelvey, Inside the Killing Machine, NEWSWEEK, Feb. 21, 2011, at
34 .
22. Id.
23. Id.
24. See, e.g., Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 11 (D.D.C. 2010) (neither
confirming nor denying issuing an order to kill the plaintiff’s son).

1358 Vanderbilt Journal of Transnational Law [Vol. 44:1353

reported extensively on the existence and nature of the U.S. targeted
killing program.25 The New York Times reported that because Aulaqi
is an American citizen, President Obama’s National Security Council
had to approve the order to pursue him with lethal force.26 It is
unclear why the National Security Council’s approval was necessary
or constitutionally satisfactory.27 This ambiguity raises a
fundamental problem with the current targeted killing program:
what are the procedures for determining the targets of lethal force
and how is the program managed? Understanding the procedural
mechanisms that determine this process is an essential step in
evaluating the legitimacy of targeted killing safeguards and
oversight.
Rizzo has called the process by which suspected terrorists are
identified and targeted for lethal force as “punctilious.”28 Bruce
Reidel, a former CIA officer, claims there is a “well-established
protocol.”29 Within the CIA’s Counterterrorist Center, a team of
roughly ten agency attorneys reviews the evidence against suspected
terrorists and prepares memos arguing whether or not the collected
evidence merits an order for targeted killing.30 Memos that
recommend targeted killing are sent to the General Counsel for
approval.31 Rizzo described the subordinate lawyers as “very picky”
and the memos as “carefully argued.”32 He also described situations
in which flimsy cases were rejected for lack of persuasive evidence.33
However, beyond official descriptions of a rigorous and methodical
process, few specific details are known about the evaluation of
evidence against suspected terrorists or the standard of proof.34 How
is evidence collected by field agents in foreign countries verified by
American attorneys for authenticity and veracity? Are there
minimum standards for the quantity and quality of evidence required
for a targeted killing order? Is the evidence evaluated under the
criminal “beyond a reasonable doubt” standard, or under something
less strict, such as the “preponderance of the evidence” standard?
These are critical questions, but as the case of Anwar al-Aulaqi

25. See, e.g., McKelvey, supra note 21; supra note 4.
26. Scott Shane, U.S. Approves Targeted Killing of American Cleric, N.Y.
TIMES, Apr. 7, 2010, at A12.
27. Cf. id. (failing to explain why the approval of the National Security Council
was necessary).
28. McKelvey, supra note 21.
29. Id.
30. Id.
31. Id.
32. Id.
33. Id.
34. Id. Beyond a general description of the process, the Newsweek article does
not offer any specifics on the legal guidelines or standards used by the CIA lawyers.

2011] Due Process Rights and Targeted Killing 1359

demonstrates, the legal standards for targeted killing are unknown, a
chilling thought given the extraordinary power involved.35

B. The Aulaqi Case in Federal Court

In August 2010, Nasser al-Aulaqi, Anwar’s father, filed suit in
the District Court for the District of Columbia requesting an
injunction against the targeted killing of his son.36 Represented by
the American Civil Liberties Union (ACLU), Nasser al-Aulaqi claimed
that outside of the zone of armed conflict, the targeted killing of an
American citizen represents an extrajudicial killing without due
process of law.37 The claim stated that under customary international
law, the only circumstances allowing an exception to this general rule
are those presenting a “concrete, specific, and imminent threat of
death or serious physical injury.”38 The targeted killing of an
American citizen outside of these circumstances is a violation of the
Fourth and Fifth Amendments.39
The complaint asserted three constitutional challenges to the
targeted killing program.40 By targeting an American for an
extrajudicial killing outside of circumstances that present concrete,
specific, and imminent threats of harm, the government had violated
Aulaqi’s Fourth Amendment right to be free from unreasonable
seizure and his Fifth Amendment right not to be deprived of life
without due process of law.41 In addition, by refusing to disclose the
standards used in determining that Aulaqi should be targeted for
extrajudicial killing, the government violated the Fifth Amendment’s
notice requirement.42 The complaint further asserted that by
claiming this broad and unreviewable power, the Executive Branch
permitted itself to conduct at-will extrajudicial killings of Americans,
in secret, without any notice.43
In the suit—filed against President Obama, then-Defense
Secretary Robert Gates, and then-Director of the CIA Leon
Panetta44—Nasser al-Aulaqi requested several forms of relief to

35. See discussion infra Part II.C.
36. Al-Aulaqi Complaint, supra note 1, ¶ 3.
37. Id. ¶ 4.
38. Id.
39. Id. ¶¶ 4, 27–28.
40. Id. ¶¶ 27–28, 30. The complaint also listed a fourth claim, a violation of the
Alien Tort Statute, 28 U.S.C. § 1350 (2006). Al-Aulaqi Complaint, supra note 1, ¶ 29.
This Note focuses on the constitutional claims raised in this case. The Alien Tort
Statute claim was dismissed along with the other constitutional claims by the district
court. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010).
41. Id. ¶¶ 27–28.
42. Id. ¶ 30.
43. Id. ¶¶ 1, 22.
44. See id. ¶¶ 10–12.

1360 Vanderbilt Journal of Transnational Law [Vol. 44:1353

prevent the targeted killing of his son.45 He requested a preliminary
injunction against the order to pursue Anwar al-Aulaqi with lethal
force, and declaratory relief requiring the government to disclose the
standards used for placing people on the targeted killing list.46
In its brief in response, the DOJ moved for summary judgment
on several alternative grounds, with emphasis on standing, the
political question doctrine, and the state secrets privilege.47 The DOJ
argued that Nasser al-Aulaqi did not meet the requirements for next-
friend standing for two reasons.48 First, Aulaqi was not denied access
to the courts.49 Rather, Aulaqi seemed to be hiding in Yemen of his
own accord.50 Second, there was no evidence that Aulaqi desired to
raise these claims in court to challenge the government’s authority to
conduct an extrajudicial killing against him.51 Therefore, Nasser al-
Aulaqi did not demonstrate that he was representing his son’s
interests or purpose.52
The DOJ also challenged Nasser al-Aulaqi’s complaint on
grounds of executive authority, arguing that litigating this matter
would violate established boundaries in the separation of judicial and
executive power.53 First, the government asserted that the decision to
target Anwar al-Aulaqi was a nonjusticiable political question, and
that conducting judicial review of this decision would require an
infringement on textually committed executive authority.54 Second,
the government invoked the state secrets privilege, a rarely used but
mostly successfully employed doctrine claiming that certain issues
cannot be litigated because litigating them would require the
disclosure of classified intelligence.55 According to the state secrets
doctrine, classified information cannot be disclosed through discovery
and public trial because it would threaten national security and
disrupt the Executive’s ability to discharge its constitutional
obligations.56
The district court granted the defendant’s motion to dismiss in
December 2010.57 The court held that Nasser al-Aulaqi did not have

45. Id. ¶ 6.
46. Id.
47. Al-Aulaqi Response, supra note 2, at 10, 19, 39, 43. The brief also
responded to the plaintiff’s claim under the Alien Tort Statute. Id. at 39–42.
48. Id. at 11, 15.
49. Id. at 11.
50. Id.
51. Id.
52. Id.
53. Id. at 19.
54. Id.
55. Id. at 43.
56. Id.
57. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 54 (D.D.C. 2010) (dismissing all
four of plaintiff’s claims due to lack of standing and nonjusticiability).

2011] Due Process Rights and Targeted Killing 1361

standing to raise these constitutional claims on his son’s behalf.58 By
ruling on standing grounds the court focused on a narrow legal
doctrine and avoided confrontation with the larger, more
controversial issues in the suit.59 However, the court also expressed
discomfort with the outcome and its potential implications on due
process rights and executive power.60

C. The Aulaqi Opinion Reveals a Judicial Impasse

A more thorough overview of the Aulaqi opinion reveals an
irreconcilable conflict between due process rights and the CIA
targeted killing program.61 Moreover, the opinion demonstrates the
many obstacles, if not the utter futility, of attempting to resolve this
critical problem in federal court.62 Although the court expressed
serious concern over the extraordinary nature of Aulaqi’s claims and
the circumstances of the case, it also hesitated to infringe on
executive military power or on decisions regarding national security,
especially in the absence of any judicially manageable standard.63
The court’s ruling is technically sound in terms of the standing
analysis, but it nonetheless resulted in an American citizen targeted
for lethal force without any due process of law.64

58. Id. at 49.
59. Id. at 9 (declining to evaluate the case on other grounds “because plaintiff
lacks standing and his claims are non-justiciable”); see Charlie Savage, Suit over
Targeted Killing Is Thrown Out, N.Y. TIMES, Dec. 7, 2010, at A12 (claiming that the
court “sidestepped several issues”).
60. See Al-Aulaqi, 727 F. Supp. 2d at 8 (calling the nature of the case “stark,”
“perplexing,” and “extraordinary”).
61. See id. at 51 (acknowledging the difficulty in reconciling the political
question doctrine with questions of citizens’ constitutional rights). Although the court
recognized the “extraordinary” and “unsettling” nature of the case and its outcome, the
court also expressed great deference to the executive interests at stake and the
compelling grounds for dismissal.
62. See id. at 9 (noting that constitutional elements of jurisdiction may seem
“less significant” than the questions posed by the merits of the case, but that they serve
an essential part of ensuring separation of powers).
63. See id. at 46–47 (“[T]here are no judicially manageable standards by which
courts can endeavor to assess the President’s interpretation of military intelligence and
his resulting decision . . . whether to use military force against a terrorist target
overseas.”).
64. See id. The court based its dismissal of the case on a reasonable analysis of
standing, concluding that Nasser al-Aulaqi did not meet the requirements for filing a
claim on the basis of next-friend standing. Id. at 35. First, the court found that there
was no adequate explanation for Anwar al-Aulaqi’s inability to file the claim on his
own behalf, which the court observed is fatal to next friend standing. Id. at 17. The
court stated that all available evidence suggested that Aulaqi is incommunicado as a
matter of personal choice and philosophy, not coercion. Id. at 21. Also, Nasser al-Aulaqi
had not provided adequate evidence that his claims represented his son’s actual
interests. Id. at 20. There was no basis for the assumption that Anwar al-Aulaqi
wished to challenge the constitutionality of the government’s decision in federal court.
Id. at 21. In fact, the court inferred that the opposite was more likely. Id. Finally,

1362 Vanderbilt Journal of Transnational Law [Vol. 44:1353

The district court went further, however, and agreed with the
government that the claims and requested relief represented a
“quintessential” political question and were therefore
nonjusticiable.65 The court analyzed the specifics of the Aulaqi
scenario to determine whether it encompassed a form of authority
reserved for the Executive Branch.66 The court determined that the
Aulaqi scenario encompassed exactly the sort of complex military,
intelligence, and policy judgments that are the province of the
Executive Branch.67 The court also emphasized several times that the
fundamental reason why this issue was nonjusticiable was the lack of
judicially manageable standards for reviewing the judgment of the
National Security Council.68 Because the court did not have the
necessary expertise for evaluating the merits of this decision, this
claim could not be settled in court.69
The court’s ruling rests firmly on standing grounds, but its
conclusion that the issue in the case was a nonjusticiable political
question amplified the dangerous scope of the holding.70 Even if the
court had granted standing in this case, the claims likely still would
not have proceeded past the summary judgment stage.71 Further
contributing to this concern is the fact that the court declined to
address the state secrets doctrine, a formidable barrier to litigation in
its own right.72
Despite ruling on a technicality, the court did acknowledge the
troubling and unsettling nature of the outcome, as well as the
extraordinary circumstances of the case.73 Yet, the court also rejected
the plaintiff’s assertion that allowing the Executive to proceed in this
manner amounted to a grant of unchecked and unreviewable killing
power.74 But a major question remains: after Aulaqi, does the
government owe an American citizen any form of due process if he or

although the plaintiff claimed that the order of targeted killing prevented Anwar al-
Aulaqi from emerging in public, the court observed that, under domestic and
international law, the government could not kill Aulaqi if he attempted peaceful
surrender. Id. at 31.
65. Id. at 45.
66. See id. at 46 (noting the “particular questions” the court would have to
decide, including Aulaqi’s affiliation with al-Qaeda in the Arabian Peninsula , the link
between that organazation and al-Qaeda, whether Aulaqi is a “concrete, specific, and
imminent threat to life or physical safety,” and whether there are other means the
United States could reasonably employ).
67. Id. at 45.
68. Id. at 47.
69. Id.
70. Id.
71. Id. (finding in the alternative the claims nonjusticiable).
72. Id. at 54; see also discussion infra Part V.B (arguing that the state secrets
privilege is “problematic” and should be “met with skepticism”).
73. Al-Aulaqi, 727 F. Supp. 2d at 51 (recognizing the “unsettling nature” of the
conclusion.).
74. Id. at 52.

2011] Due Process Rights and Targeted Killing 1363

she is suspected of terrorism and selected for targeted killing?75 The
court’s opinion does not directly answer this question, but it suggests
that in practical terms, the answer is no.76

III. CHALLENGING THE ASSERTED GROUNDS OF AUTHORITY
FOR THE TARGETED KILLING OF AMERICANS

In its brief in response, the DOJ argued that the President’s
power to conduct the targeted killing of Aulaqi comes from two
sources of authority.77 First, and more narrowly, the DOJ argued that
the Authorization for the Use of Military Force (AUMF) serves as a
statutory grant of authority to retaliate against threats of terrorism
from al-Qaeda.78 Second, and much more broadly, the DOJ argued
that the authority to use defensive force against imminent threats of
terrorism is inherent in the President’s Article II military power.79
Both arguments turn on the theory that targeted killing decisions are
nonjusticiable political questions beyond judicial review.80 As the
following analysis demonstrates, this is a dubious assertion based on
overbroad and inaccurate interpretations of the AUMF and the
President’s constitutional war powers.

A. The Scope of the AUMF Is Not a Political Question

In Aulaqi, the DOJ asserted that the President has the authority
to conduct targeted killing pursuant to congressionally granted war
power,81 but this argument relies on an overbroad interpretation of
the AUMF. It is debatable whether the scope of the AUMF and the
powers it grants the Executive Branch encompass the circumstances
of the Aulaqi case. Furthermore, the scope of a congressional
authorization for the use of military force is certainly an appropriate
subject for judicial review, particularly where powers under the
authorization may infringe on due process rights.82 As a matter of
law, courts may properly review this issue.
Congress passed the AUMF in response to the terrorist attacks
of September 11, but the actual text of the Authorization casts doubt

75. See id.
76. See id. at 46 (“Viewed through these prisms, it becomes clear that plaintiff’s
claims pose precisely the types of complex policy questions that the D.C. Circuit has
historically held non-justiciable under the political question doctrine.”).
77. Al-Aulaqi Response, supra note 2, at 23–24.
78. Id. at 24.
79. Id. at 23–24.
80. Id. at 3–4.
81. Id. at 4.
82. See infra note 92 (citing the jurisdiction of federal courts regarding the
scope of congressionally authorized war power).

1364 Vanderbilt Journal of Transnational Law [Vol. 44:1353

on whether this authority extends to all suspected terrorists or only
those responsible for the September 11 attacks.83 The AUMF
authorizes the President to use “all necessary and proper force”
against those “he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11, 2001.”84
The purpose of this authorization is to “prevent any future acts of
international terrorism against the United States by such nations,
organizations, or persons.”85 Although the goal of the Authorization is
the prevention of more terrorist attacks, the designated authority
appears to rest on a September 11 predicate.86 In other words, those
involved in the September 11 terrorist attacks are legal targets, but
do all suspected terrorists fall within this construction?
In its brief in response, the DOJ never alleged that Aulaqi was
connected to the September 11 attacks.87 However, the DOJ did
assert that Aulaqi had emerged as a senior leader in al-Qaeda in the
Arabian Peninsula.88 So, while it appears that Aulaqi did not
personally satisfy the September 11 predicate of the AUMF, it can be
argued that membership or affiliation with al-Qaeda is enough to
satisfy the AUMF.89 Al-Qaeda planned and executed the terrorist
attacks of September 11, and the AUMF authorizes lethal force
against al-Qaeda.90 Yet, the scope of the AUMF is unclear, as is the
conclusion that Aulaqi fit within this scope.91
More importantly, the argument that the AUMF grants the
President authority to conduct targeted killings of Americans is itself
likely subject to judicial review. Contrary to the DOJ’s assertion,
there is ample precedent to suggest that the scope of congressionally
authorized war power is a matter subject to judicial review and not
an exclusively political question.92 Whether Anwar al-Aulaqi satisfies

83. See Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat.
224 (2001) (codified at 50 U.S.C. § 1541 note (2006)) (delegating broad authority to the
President to make determinations as to whether a person fits within the scope of the
resolution).
84. Id. § 2(a).
85. Id.
86. William C. Banks & Peter Raven-Hansen, Targeted Killing and
Assassination: The U.S. Legal Framework, 37 U. RICH. L. REV. 667, 737 (2002).
87. See Al-Aulaqi Response, supra note 2, at 6 (alleging that Aulaqi held a
senior leadership role in current al-Qaeda operations, but no September 11
relationship).
88. Id.
89. See Banks & Raven-Hansen, supra note 86, at 737.
90. See id. (discussing the scope of the AUMF to include the organizations
involved in the terrorist attacks of September 11).
91. See id.
92. See Dehn & Heller, supra note 16, at 178 (“The jurisdiction of federal courts
extends to the review of executive war measures in appropriate cases . . . This
jurisdiction has traditionally included the ability to review whether the Executive has
properly identified specific individuals or objects as being within the scope of
congressionally authorized hostilities.”).

2011] Due Process Rights and Targeted Killing 1365

the September 11 predicate in specific circumstances may be a
political question, but the targeted killing of Americans without due
process is a matter of law subject to judicial review.93 The court in
Aulaqi should have focused on this broader question of law and
probably erred in declining to do so.94
If a court were to decide whether the AUMF permits the targeted
killing of Americans, it would likely exercise restraint so that the
AUMF does not operate to permit total global military power.95 An
unrestrained interpretation would allow the Executive to use lethal
force against any person, anywhere in the world, simply by accusing
that person of a relationship to terrorist organizations that were
involved in the September 11 attacks.96 A more balanced
interpretation would not go as far while still enabling the Executive
to effectively confront the threat of global terrorism.97 A
demonstration of specific evidence that Aulaqi was a senior leader
with al-Qaeda would have gone a long way toward establishing the
AUMF as the proper source of authority in this situation.98 However,
the DOJ argued that no such demonstration of evidence or
independent review was even required.99 This position supports an
unrestrained interpretation of the AUMF in which the Executive can
use lethal force against any person in any location simply on the basis
of an unsubstantiated accusation. This is arguably an improper
interpretation of the congressional purpose and intent behind the
passage of the AUMF.100

93. See id. at 187 (arguing that there is an important distinction in the Aulaqi
case between ruling on a specific finding of fact and the broader question of law at
issue).
94. See id. (arguing that the court failed to recognize this distinction despite
the fact that Nasser al-Aulaqi’s pleadings asked for relief in the form of declarations of
law, not the specific findings of fact held nonjusticiable by the court).
95. See Banks & Raven-Hansen, supra note 86, at 737 (discussing the AUMF’s
limitations and noting the role of 18 U.S.C. § 1116 (2006) in restricting targeted
killing).
96. See id. at 736–37 (“All persons are permissible targets provided that they
planned, authorized, committed, or aided the September 11 attacks or harbored those
who did.”).
97. See id. at 737.
98. See id. (noting that certain figures, such as Osama bin Laden, are
implicated under the AUMF because there is causal evidence linking them to the
September 11 attacks). The possibility of in camera review of the government’s
evidence against Aulaqi was never raised, though it might have resolved many of the
concerns over verifying the government’s accusations. See Al-Aulaqi v. Obama, 727 F.
Supp. 2d 1, 46 (D.D.C. 2010) (noting that judicial resolution of plaintiff’s claims would
require the court to determine many of the factual issues involving Aulaqi’s association
with al-Qaeda and his potential as a threat to the United States).
99. See Al-Aulaqi Response, supra note 2, at 4–5 (noting that the new DOJ
guidelines for states secret privilege would bar the disclosure of necessary evidence to
establish standing for suit).
100. There is clear precedent for judicial review of the scope of congressional
intent in the AUMF. For example, in Hamdan v. Rumsfeld, the Supreme Court rejected

1366 Vanderbilt Journal of Transnational Law [Vol. 44:1353

B. The Constitutionality of Targeted Killing Is Not
a Political Question

In the alternative, and far more broadly, the DOJ argued that
executive authority to conduct targeted killings is constitutionally
committed power.101 Under this interpretation, the President has the
authority to defend the nation against imminent threats of attack.102
This argument is not limited by statutory parameters or
congressional authorization, such as that under the AUMF.103
Rather, the duty to defend the nation is inherent in the President’s
constitutional powers and is not subject to judicial interference or
review.104
The DOJ is correct in arguing that the President is
constitutionally empowered to use military force to protect the nation
from imminent attack.105 As the DOJ noted in its brief in response,
the Supreme Court has held that the president has the authority to
protect the nation from “imminent attack” and to decide the level of
necessary force.106 The same is true in the international context.
Even though Yemen is not a warzone and al-Qaeda is not a state
actor, international law accepts the position that countries may
respond to specific, imminent threats of harm with lethal force.107

the government’s argument that the AUMF authorized the President to convene
military tribunals under the circumstances of the case, observing that congressional
intent did not support this interpretation of statutory authorization. 548 U.S. 557, 734
(2006) (finding nothing in the AUMF text or its legislative history to even hint that
Congress intended to expand the President’s authority to convene military
commissions).
101. Al-Aulaqi Response, supra note 2, at 23–24.
102. Id.
103. Id.
104. See id. (contrasting the President’s constitutional authority to protect the
nation from imminent attack and the lack of constitutional authority for the Judicial
Branch to engage in policymaking for national security).
105. Id. at 24; see infra notes 107–08 (discussing the use of defensive force to
address an imminent threat to the nation).
106. Al-Aulaqi Response, supra note 2, at 24. In addition, the Supreme Court
has held that domestic law enforcement may use lethal force against those who pose an
imminent threat of violence or harm to others. See Tennessee v. Garner, 471 U.S. 1, 4
(1985) (“[Deadly] force may not be used unless . . . the officer has probable cause to
believe that the suspect poses a significant threat of death or serious physical injury to
the officer or others.”).
107. This is a fundamental principle in international law derived from the
“Caroline incident.” See Dale Stephens, Rules of Engagement and the Concept of Unit
Self Defense, 45 NAVAL L. REV. 126, 135 (1998) (“The right of unit of self defense exists
as a matter of customary international law and it is the ‘Caroline’ principles which
provide the legal basis for the contours of the right . . .”). The UN Charter also permits
the use of defensive force by a nation when attacked by another nation. See U.N.
Charter art. 51 (“Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs against a Member of the
United Nations . . . .”).

2011] Due Process Rights and Targeted Killing 1367

Under these doctrines of domestic and international law, the use of
lethal force against Aulaqi was valid if he presented a concrete,
specific, and imminent threat of harm to the United States.108
Therefore, the President was justified in using lethal force to
protect the nation against Aulaqi, or any other American, if that
individual presented a concrete threat that satisfied the “imminence”
standard.109 However, the judiciary may, as a matter of law, review
the use of military force to ensure that it conforms with the
limitations and conditions of statutory and constitional grants of
authority.110 In the context of targeted killing, a federal court could
evaluate the targeted killing program to determine whether it
satisfies the constitutional standard for the use of defensive force by
the Executive Branch. Targeted killing, by its very name, suggests an
entirely premeditated and offensive form of military force.111
Moreover, the overview of the CIA’s targeted killing program revealed
a rigorous process involving an enormous amount of advance
research, planning, and approval.112 While the President has
exclusive authority over determining whether a specific situation or
individual presents an imminent threat to the nation, the judiciary
has the authority to define “imminence” as a legal standard.113 These

108. Stephens, supra note 107, at 136–37 (discussing the justification of unit
self-defense “in the most pressing of circumstances” where “the imminence of attack is
so clear and the danger so great that defensive action is absolutely necessary”).
However, the notion of defining and ascertaining an imminent threat is particularly
difficult in the context of international terrorism. Modern-day terrorist attacks often
involve extensive planning, training, and other forms of preparation, as well as
cooperation among individuals in different geographical locations carrying out
disparate responsibilities. See Eight Years After 9/11: Confronting the Terrorist Threat
to the Homeland: Hearing Before the S. Comm. on Homeland Sec. & Governmental
Affairs, 111th Cong. (2009) (statement of Robert S. Mueller III, Dir. of the Fed. Bureau
of Investigation) (acknowledging the “many different directions” from which modern-
day terrorism threatens our country).
109. See supra notes 106–07 (discussing the use of defensive force to address an
imminent threat to the nation).
110. Dehn & Heller, supra note 16, at 178 (observing that the jurisdiction of
federal courts “has traditionally included the ability to review whether the executive
has properly identified specific individuals or objects as being within the scope of
congressionally authorized hostilities”); see also Ex parte Quirin, 317 U.S. 1, 24 (1942)
(reviewing whether the President has constitional authority to order the petitioners
tried by military tribunal).
111. See Dehn & Heller, supra note 16, at 183 (“Perhaps the premeditated
targeting of a U.S. citizen deserves a higher standard.”).
112. See supra Part II.A (discussing the nature and protocol of the U.S. targeted
killing program).
113. See Al-Aulaqi Response, supra note 2, at 24 (“[T]he President may act to
protect the Nation from imminent attack and ‘determine what degree of force [a] crisis
demands.’” (alteration in original) (quoting The Brig Amy Warwick (The Prize Cases),
67 U.S. (2 Black) 670 (1863))); Dehn & Heller, supra note 16, at 179, 187 (criticizing Al-
Aulaqi for failing to indicate whether “the case involved an extant armed conflict or a
separate, discrete act of self-defense” and arguing that the courts should make a legal
determination as to the standard for targeted killing).

1368 Vanderbilt Journal of Transnational Law [Vol. 44:1353

are general concepts of law, not political questions, and they are
subject to judicial review.114
Under judicial review, a court would likely determine that
targeted killing does not satisfy the imminence standard for the
president’s authority to use force in defense of the nation. Targeted
killing is a premeditated assassination and the culmination of months
of intelligence gathering, planning, and coordination.115 “Imminence”
would have no meaning as a standard if it were stretched to
encompass such an elaborate and exhaustive process.116 Similarly,
the concept of “defensive” force is eviscerated and useless if it
includes entirely premeditated and offensive forms of military action
against a perceived threat.117 Under judicial review, a court could
easily and properly determine that targeted killing does not satisfy
the imminence standard for the constitutional use of defensive
force.118

IV. CHALLENGING THE CONSTITUTIONALITY OF TARGETED
KILLING: A CLEAR VIOLATION OF DUE PROCESS

The President’s supposed authority to conduct targeted killings
of Americans is highly questionable.119 Moreover, the DOJ’s
argument that targeted killing is a political question within executive
discretion inaccurately portrays the judiciary’s power to review
broader questions of law.120 Yet in addition to these compelling
objections to the legal underpinnings of targeted killing authority,
targeted killing likely violates existing law as well.121 Targeted
killing is a unilateral government execution that completely

114. Al-Aulaqi Response, supra note 2, at 24–25 (acknowledging its authority to
define “imminence” yet declining to do so because it would require the court to
determine “ex ante the permissible scope of particular tactical decisions”); Dehn &
Heller, supra note 16, at 179 (referring to the government’s motion to dismiss on the
basis that it “involv[es] an executive-branch decision to target an individual in the
context of a congressionally authorized, armed conflict”); id. at 187 (noting Aulaqi’s
request for the court to make a legal determination of the correct standard for the
targeted killing of a U.S. citizen).
115. See supra Part II.A.
116. See supra note 111 (suggesting that a premeditated killing requires a
higher standard than the use of defensive force).
117. See supra note 108 and accompanying text (explaining the current
understanding of the imminence standard).
118. See Al-Aulaqi Response, supra note 2, at 31 (noting that the judiciary has a
long and established history of reviewing the scope of congressionally authorized war
power).
119. See discussion supra Part III.
120. See supra note 118.
121. See discussion infra Part IV.A–C.

2011] Due Process Rights and Targeted Killing 1369

circumvents traditional notions of law enforcement and violates even
minimum notions of established due process.122

A. How Due Process Rights Are Determined

Despite the fact that Aulaqi was hiding in Yemen, the Fifth
Amendment still protected him. The Supreme Court has held that
Americans enjoy the same constitutional protections abroad as in
American territory, unless the application of the Bill of Rights would
prove “impracticable and anomalous.”123 The rationale for this
principle is that although Americans are not completely without
constitutional protections abroad, it may not always be feasible to
ensure all of these protections.124 The application of the Bill of Rights
abroad must take into account “the particular circumstances, the
practical necessities, and the possible alternatives” of the situation at
hand.125 Analyzing Aulaqi’s Fifth Amendment rights is especially
complex given the many political, economic, and security problems in
Yemen at the time of his killing.126
The Fifth Amendment provides, in part, that no American may
be “deprived of life, liberty, or property, without due process of
law.”127 The case of Anwar al-Aulaqi implicates procedural due
process because the plaintiff’s complaint alleges that the government
is attempting to deprive Aulaqi of life without any formal
presentation of the charges against him or an opportunity to protest
these charges at a hearing before an impartial judge.128 The Supreme

122. Id.
123. See Reid v. Covert, 354 U.S. 1, 74 (1957) (Harlan, J., concurring) (asserting
that the protections of the Constitution apply overseas, but that special circumstances
may limit the application of these protections).
124. Id.
125. Id.
126. Yemen has teetered on the edge of “failed state” status in recent years. For
an assessment of the critical political conditions on the ground in Yemen, see The
Failed States Index 2011, FOREIGN POL’Y, http://www.foreignpolicy.com/failedstates
(last visited Nov. 1, 2011). These conditions would implicate the particularized analysis
described in Reid v. Covert. See id.
127. U.S. CONST. amend. V.
128. Al-Aulaqi Complaint, supra note 1, ¶¶ 4−6. Due process has both
procedural and substantive meanings. Substantive due process refers to an evolving set
of fundamental rights recognized by the Supreme Court that have “for the most part
been accorded to matters relating to marriage, family, procreation, and the right to
bodily integrity.” Albright v. Oliver, 510 U.S. 266, 272 (1994). The Supreme Court has
described substantive due process as “all fundamental rights comprised within the
term liberty [that] are protected by the federal Constitution by invasion from the
states.” Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring)
(applying the due process clause of the Fourteenth Amendment). Procedural due
process, on the other hand, refers to the minimum level of procedures that must be
satisfied before the government may complete any deprivations of life, liberty, or
property. Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976).

1370 Vanderbilt Journal of Transnational Law [Vol. 44:1353

Court uses a balancing test for determining the level of due process in
different contexts.129 This balancing test has three factors: the
private interest that will be affected by a deprivation, the risk of an
erroneous deprivation by the procedural method in question, and the
government interests involved.130
Aulaqi’s case represents a collision of the first and third
factors.131 The deprivation in question was Aulaqi’s life, the most
serious deprivation in law.132 In the case of judicial error or
procedural shortfall, property can be returned and liberty can be
restored, but the deprivation of life is permanent. However, the
government’s interest in protecting American citizens from the
unrelenting threat of terrorism is also compelling.133 The exigencies
involved in combating terrorism require decisive action and
safeguards for intelligence sources that help identify threats.134
Under such extraordinary circumstances, the time and resources
involved in satisfying procedural due process rights might also serve
to inadvertently amplify specific threats of terrorism.135
The purpose of the Fifth Amendment, however, is to provide
protections for citizens, not to increase the power of government or to
ease the burden of government agencies under exigent
circumstances.136 Given this constitutional purpose and the unique
importance of life as a civil liberty, it is clear that Aulaqi is owed at
least the minimum form of due process protection.

B. A Comparative Perspective: The Due Process Rights of Detainees

The position that minimum due process protections are required
in Aulaqi is a natural extension of the holding in Hamdi v. Rumsfeld.
In Hamdi, the Supreme Court held that the government may not
indefinitely detain a citizen without providing some form of

129. See Mathews, 424 U.S. at 334–35 (establishing the procedural due process
balancing test).
130. Id.
131. See id.; Al-Aulaqi Complaint, supra note 1, ¶¶ 4−6.
132. Al-Aulaqi Complaint, supra note 1, ¶¶ 4−6.
133. Al-Aulaqi Response, supra note 2, at 43−46 (“The state secrets privilege
should be invoked only rarely, but its assertion in this case is proper and entirely
consistent with the Attorney General’s Policy. Without admitting or denying plaintiff’s
allegations (and indeed regardless of whether any particular allegations are true), the
Complaint puts directly at issue the existence and operational details of alleged
military and intelligence activities directed at combating the terrorist threat to the
United States.”).
134. Id.
135. Id.
136. See Mathews, 424 U.S. at 332 (“Procedural due process imposes constraints
on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests
within the meaning of the Due Process Clause of the Fifth or Fourteenth
Amendment.”).

2011] Due Process Rights and Targeted Killing 1371

procedural due process.137 Yaser Hamdi was an American captured in
Afghanistan in 2001 and turned over to U.S. authorities during the
invasion of Afghanistan.138 He was initially held at the detention
facility in Guantanamo Bay, but was transferred to military holding
brigs in Virginia and South Carolina after the military learned that
he was an American.139 Originally, President George W. Bush
claimed the authority to hold Hamdi as an enemy combatant caught
within a theatre of war.140 As an enemy combatant, Hamdi was not
entitled to any procedural rights such as the right to an attorney or
access to a federal court.141 However, the Eastern District of Virginia
granted next-friend standing to his father, and that court
subsequently found the evidence against Hamdi insufficient to
support his detention.142 The Fourth Circuit reversed, citing the
broad wartime powers designated to the president under Article II of
the Constitution and the infringement on executive power that would
occur if judicial review proceeded in this case.143 Hamdi’s father
appealed the reversal of the Fourth Circuit and the Supreme Court
granted certiori.144
Although the Court did not reach a majority opinion in its
decision, a plurality of Justices agreed that the Executive Branch
does not have the power to detain an American citizen indefinitely
without providing some basic due process protections.145 A majority of
Justices agreed that Hamdi had the right to challenge his
detention.146 Because it is a plurality opinion, the extent of the due
process protections required in a federal detention scenario is
unclear.147 But the basic principle of Hamdi is that the Executive
does not have the authority to detain an American citizen without
some form of due process.148
If elements of due process are required when the government
deprives an American of liberty, is it not logical to conclude that the
government must also satisfy due process when depriving an
American of life? This is a natural extension of the Hamdi holding,

137. Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004).
138. Id. at 510.
139. Id.
140. Id. at 512.
141. Id. at 513.
142. Hamdi v. Rumsfeld, 316 F.3d 450, 476 (2003).
143. Hamdi, 542 U.S. at 514–15.
144. Id. at 516.
145. Id. at 521.
146. Id. at 539–40.
147. Id. at 538−39.
148. Id. at 521.

1372 Vanderbilt Journal of Transnational Law [Vol. 44:1353

especially because a deprivation of life must be treated more seriously
and carefully than a deprivation of liberty.149
Not only is the Hamdi holding a natural theoretical cousin of
Aulaqi, but the legal analysis is also similar. In its brief in response
to the Aulaqi complaint, the DOJ made several arguments that echo
the overturned Fourth Circuit’s arguments in Hamdi: judicial review
represents an infringement on textually committed executive
authority and litigating this issue would involve the disclosure of
sensitive intelligence that would threaten national security.150 Hamdi
was an American citizen, and the government detained him due to
allegations that he was fighting for the Taliban in Afghanistan.151
Similarly, Aulaqi was an American citizen accused of providing
leadership and spiritual counsel to al-Qaeda terrorists.152 He was
therefore considered a high-risk threat to national security, and the
DOJ claims that the authority to kill Aulaqi is a nonjusticiable
political question protected by the state secrets privilege.153 Because
the Supreme Court held that Hamdi’s deprivation of liberty merited
due process, it is a natural extension of this holding to find that the
government also owes Aulaqi basic due process.
However, there are important factual distinctions between
Hamdi and Aulaqi to balance against the similarities. Although both
cases fit the general category of due process rights in the context of
national security concerns, the circumstances of the Hamdi holding
limit its application to Aulaqi.154 Hamdi was captured in a theatre of
war and originally accused of aiding the Taliban in hostilities against
the United States.155 But once he was moved to holding brigs within
the United States, Hamdi was fully secured under government
control.156 Therefore, at the time of the Supreme Court’s decision,
Hamdi was not an imminent threat to national security and was
completely subject to government authority.157
The same cannot be said of Aulaqi. As an alleged high-value
terrorist target hiding in Yemen, a known staging ground for al-

149. Id. at 529. Expanding on the Court’s reasoning in Hamdi, which applies
Mathews to detention cases, citizens the U.S. government targets and kills may be
entitled to notice and a hearing. Id. at 597; Mike Dreyfuss, Note, My Fellow Americans,
We Are Going to Kill You: The Legality of Targeting and Killing U.S. Citizens
Abroad, 65 VAND. L. REV. (forthcoming Jan. 2012).
150. Al-Aulaqi Response, supra note 2, at 43−47.
151. Hamdi, 542 U.S. at 510.
152. Al-Aulaqi Response, supra note 2, at 5.
153. Id. at 5, 7.
154. Hamdi, 542 U.S. at 510.
155. Id.
156. Id. at 510, 512.
157. Id. At the time of the Hamdi holding, the government asserted that his
alleged ties to the Taliban rendered him an ongoing threat to national security.
Contrary to the Aulaqi scenario, however, if Hamdi did have anti-American goals, his
detainment sufficiently neutralized that threat.

2011] Due Process Rights and Targeted Killing 1373

Qaeda operations, Aulaqi was not under government control.158
Assuming that the government’s allegations against him were true,
Aulaqi posed an imminent threat to national security.159 These are
important factual distinctions that may render the Hamdi opinion
inapplicable to the Aulaqi case. The lack of government control over
Aulaqi and the potential for an imminent threat to national security
may serve as government interests that trump Aulaqi’s due process
rights. The exigencies of the Aulaqi situation are important
distinctions that may render the Hamdi analysis inapplicable.
However, even if the Hamdi holding is not directly controlling in
the Aulaqi context, it is still highly relevant to the analysis. After
Hamdi, it is clear that very serious constitutional rights are
implicated, and perhaps violated, when the president authorizes the
targeted killing of an American without any independent judicial
review of that decision or of the criteria involved.160 As demonstrated
in Aulaqi, it is equally clear that litigating this issue in federal court
is an ineffective ex post mechanism for ensuring basic due process
protections.161 Yet the result in Aulaqi is unsatisfactory and
potentially very dangerous. Given the constitutional protections
guaranteed by the Supreme Court in Hamdi, it is important to clarify
the law of targeted killing and ensure basic safeguards against the
abuse of this power.

V. CHALLENGING THE EXECUTIVE BRANCH DEFENSE
OF TARGETED KILLING

A. The Obama Administration’s Reassurances Are
Circular and Unsatisfactory

The Obama Administration has addressed the controversy over
targeted killing in an effort to assuage concerns over the program’s
constitutionality, including concerns over due process protections.162
However, the Administration’s explanations do little but reiterate the
gaping hole in guaranteed due process protections if Americans are

158. Al-Aulaqi Response, supra note 2, at 6.
159. See id. (describing Aulaqi’s leadership role and involvement with al-Qaeda
in the Arabian Peninsula).
160. Hamdi, 542 U.S. at 516.
161. See Al-Aulaqi v. Obama , 727 F. Supp. 2d 1, 9 (D.D.C. 2010) (observing the
unsettling nature of the case but also deference owed the Executive Branch under the
circumstances).
162. Harold Hongju Koh, Legal Adviser, U.S. Dep’t of State, Remarks at Annual
Meeting of the American Society of International Law: The Obama Administration and
International Law (Mar. 25, 2010), available at http://www.state.gov/s/l/releases/
remarks/139119.htm.

1374 Vanderbilt Journal of Transnational Law [Vol. 44:1353

targeted with lethal force.163 In fact, the Administration’s attempts to
justify the current response emphasize the desperate need for a clear
articulation of the law and a mechanism for constitutional
safeguards.164 Harold Koh, the Legal Adviser to the Department of
State, addressed the criticisms of targeted killing in a speech at the
Annual Meeting of the American Society of International Law in
March 2010.165 Koh addressed the concern that “the use of lethal
force against specific individuals fails to provide adequate process
and thus constitutes unlawful extrajudicial killing.”166 First, he
asserted that a state engaged in armed conflict is not required to
provide legal process to military targets.167 Koh then attempted to
reassure the critics of targeted killing that the program was
conducted responsibly and with precision.168 He said that the
procedures for identifying targets for the use of lethal force are
“extremely robust,” without providing any explanation or details to
substantiate this claim.169 He then argued that “[i]n my experience,
the principles of proportionality and distinction . . . are implemented
rigorously throughout the planning and execution of lethal operations
to ensure that such operations are conducted in accordance with
international law.”170 Koh dismissed constitutional claims over
targeted killing by simply suggesting that the program is legal and
responsible.171 But this response only begs the question over targeted
killing: what mechanisms are in place to prevent the unsafe and
irresponsible use of this extraordinary power? Asserting that the
program is legal and responsible without substantiating this
assertion rests on notions of blind faith in executive prudence and
responsibility, and provides no grounds for reassurance.172
The Obama Administration’s assurances regarding the targeted
killing program are unsatisfactory because they fail to address the
primary concern at issue: the possibility that an unchecked targeted
killing power within the Executive Branch is an invitation for
abuse.173 Without some form of independent oversight, there is no
mechanism for ensuring the accurate and legitimate use of targeted
killings in narrowly tailored circumstances.174

163. Id.
164. Id.
165. Id.
166. Id.
167. Id.
168. Id.
169. Id.
170. Id.
171. Id.
172. See id.
173. See id.
174. See infra notes 188–99 and accompanying text (arguing that the Obama
Administration’s justification amounts to an insufficient due process guarantee).

2011] Due Process Rights and Targeted Killing 1375

B. A Record of Error and Abuse of Authority

Currently, there is no specific evidence that the targeted killing
program has been used for illegitimate purposes other than national
defense and security. However, the Executive’s exercise of authority
in identifying and pursuing threats of terror has produced a
worrisome error rate.175 According to an analysis of Predator drone
strikes in Pakistan conducted by the New America Foundation, since
2004, the non-militant fatality rate has been roughly 20 percent.176 In
other words, about one-fifth of those killed by Predator drone strikes
have been non-military targets, including innocent civilians.177 In
June of 2010, it was reported that the government lost nearly 75
percent of the cases involving habeas petitions filed by detainees at
Guantanamo Bay.178 This suggests that for the majority of detained
enemy combatants, the government has had insufficient evidence for
the assertion that the detained individuals were involved in
hostilities against the United States.179 The rate of error in these
instances only adds to the concern over the procedural guarantees of
the targeted killing process and the need for a more standardized
process with a robust system of screening and oversight.
There is also historical precedent for cautiously evaluating the
legitimacy and constitutionality of unreviewable executive authority
in matters of espionage and national security. In 1976, President
Ford issued an executive order outlawing political assassination.180
The order was a response to revelations after the Watergate scandal
that the CIA had attempted to assassinate Cuban President Fidel
Castro multiple times.181 Every U.S. president since Ford has upheld
the ban on political assassinations in subsequent executive orders.182
This is an example of classified CIA activity that, once publicly
known, was deemed unacceptable as a matter of law and policy.183
The current targeted killing program conducted in executive secrecy
raises concerns similar to those of political assassination.

175. See infra notes 195–97.
176. The Year of the Drone: An Analysis of U.S. Drone Strikes in Pakistan, 2004–
2011, NEW AM. FOUND., http://counterterrorism.newamerica.net/drones (last visited
Nov. 1, 2011).
177. Id.
178. Carol Rosenberg, U.S. Has Now Lost 75 Percent of Guantanamo Habeas
Cases, Guantanamo: Beyond the Law, MCCLATCHY (July 8, 2010),
http://www.mcclatchydc.com/2010/07/08/97211/federal-judge-order-release-of.html.
179. See id.
180. Exec. Order No. 11,905, 3 C.F.R. 90 (1976).
181. U.S. Policy on Assassinations, CNN JUST., Nov. 4, 2002,
http://articles.cnn.com/2002-11-04/justice/us.assassination.policy_1_assassination-
prohibition-cia-lawyers?_s=PM:LAW.
182. Id.
183. Id.

1376 Vanderbilt Journal of Transnational Law [Vol. 44:1353

The state secrets privilege is another form of unreviewable
executive power that ought to be met with skepticism. In Aulaqi, the
DOJ raised the state secrets privilege as alternative grounds for
summary judgment, claiming that litigating the issues before the
court would require the disclosure of sensitive classified intelligence
and would endanger national security.184 Originally, the state secrets
privilege was a rarely-used but formidable evidentiary objection.185
Since the terrorist attacks of September 11, however, it has been used
much more frequently and as grounds for the dismissal of entire
cases.186
Not only is the expanded use of the state secrets privilege
problematic, so too is the privilege itself.187 The Supreme Court
formally recognized the privilege in United States v. Reynolds.188
However, the validity of even this first use of the privilege has been
called into question, raising concerns over the potential for
government abuse.189 In Reynolds, the government argued that
certain accident reports containing state secrets should be kept out of
trial.190 Although the Court agreed, the merits of this decision have
since been cast in doubt.191 When the accident reports in Reynolds
later became public, they were shown to contain no sensitive state
secrets.192 Instead, the reports contained potentially embarrassing
evidence of negligent government conduct.193 As long as targeted
killing is conducted under the cloak of the state secrets privilege,
there is no guarantee that the program will be free of government
misconduct.

C. The Need for a Resolution

Concerns over targeted killing error rates and historical abuses
of executive power cast extraordinary doubt over the adequacy of the
Obama Administration’s legal justification of targeted killing, as

184. Al-Aulaqi Response, supra note 2, at 6.
185. 154 CONG. REC. 198, 199 (2008) (statement of Sen. Kennedy) (introducing
the State Secrets Protection Act, S. 2533, 110th Cong. 154 (2008)).
186. Id. at 200.
187. See id. (stating that the privilege’s limitation on judicial review has led to
further litigation and public skepticism).
188. Id. (citing United States v. Reynolds, 345 U.S. 1 (1953)).
189. See id. (“When the documents finally became public just a few years ago, it
became clear that the government had lied. The papers contained information
embarrassing to the government but nothing to warrant top secret treatment or
denying American citizens honest adjudication of their lawsuit.”).
190. Reynolds, 345 U.S. at 11.
191. See 154 CONG. REC. 2008 (stating that the privilege’s limitation on judicial
review ultimately led to further litigation and public skepticism when the accident
from the Reynolds case was later declassified).
192. Id.
193. Id.

2011] Due Process Rights and Targeted Killing 1377

articulated by the Department of State.194 The government’s
argument is that it should be taken at its word when it assures the
public that the process for identifying and targeting suspected
terrorists with lethal force is careful, rigorous, and legal.195 This is
not an adequate explanation of targeted killing law for two reasons.
First, this explanation leaves unanswered the question of how the
targeted killing program is careful, rigorous, and legal.196 Second,
there is ample historical evidence that suggests that executive
guarantees of authority and privilege ought to be met with
skepticism.197 Without some form of independent oversight or review,
taking the Executive Branch at its word is not an adequate form of
due process and provides no minimum constitutional guarantee.198

VI. THE RESPONSIBLE WAY FORWARD: CONGRESS SHOULD
EITHER PROHIBIT THE TARGETED KILLING OF

AMERICANS OR ESTABLISH OVERSIGHT

The targeted killing of Americans, as demonstrated by the
Aulaqi case, presents complex questions of constitutional law that are
not easily answered or resolved.199 This is more than an academic
debate; the stakes are high, as targeted killing in its current form
provides the Executive Branch with a power over American lives that
is chillingly broad in scope.200 It is concerning that the President’s
grounds for claiming this extraordinary authority are tenuous and
subject to compelling challenges.201 Furthermore, the absence of basic
due process protection in Aulaqi appears unconstitutional after
Hamdi.202 But the Aulaqi case shows that the constitutional
objections to targeted killing cannot be resolved in federal court.203
For these reasons, Congress should intervene by passing legislation
with the goal of establishing clear principles that safeguard
fundamental due process liberties from potential executive overreach.

194. Koh, supra note 162 .
195. See id. (“Our procedures and practices for identifying lawful targets are
extremely robust, and advanced technologies have helped to make our targeting even
more precise.”).
196. Contra id. (offering no actual evidence to support this claim).
197. See supra notes 191–96.
198. Al-Aulaqi Complaint, supra note 1, ¶ 5; see also Murphy & Radsan, supra
note 20, at 437 (asserting that in the context of targeted killing, due process requires
at least a minimum level of judicial control).
199. See supra Part II.B–C.
200. See Dehn & Heller, supra note 16, at 187 (“Judge Bates’s opinion [in Al-
Aulaqi], in short, makes it impossible for an American citizen to challenge her
inclusion on the JSOC kill list.”).
201. See supra Part III.
202. See supra Part IV.B.
203. See supra Part II.B–C.

1378 Vanderbilt Journal of Transnational Law [Vol. 44:1353

A. Option One: Congress Could Pass Legislation to
Establish Screening and Oversight of

Targeted Killing

As the Aulaqi case demonstrates, any resolution to the problem
of targeted killing would require a delicate balance between due
process protections and executive power.204 In order to accomplish
this delicate balance, Congress can pass legislation modeled on the
Foreign Intelligence Surveillance Act (FISA) that establishes a
federal court with jurisdiction over targeted killing orders, similar to
the wiretapping court established by FISA.205 There are several
advantages to a legislative solution. First, FISA provides a working
model for the judicial oversight of real-time intelligence and national
security decisions that have the potential to violate civil liberties.206
FISA also effectively balances the legitimate but competing claims at
issue in Aulaqi: the sensitive nature of classified intelligence and
national security decisions versus the civil liberties protections of the
Constitution.207 A legislative solution can provide judicial
enforcement of due process while also respecting the seriousness and
sensitivity of executive counterterrorism duties.208 In this way,
congress can alleviate fears over the abuse of targeted killing without
interfering with executive duties and authority.
Perhaps most importantly, a legislative solution would provide
the branches of government and the American public with a clear
articulation of the law of targeted killing.209 The court in Aulaqi
began its opinion by explaining that the existence of a targeted killing
program is no more than media speculation, as the government has
neither confirmed nor denied the existence of the program.210
Congress can acknowledge targeted killing in the light of day while
ensuring that it is only used against Americans out of absolute

204. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 51 (D.D.C. 2010) (noting the
complex and disconcerting conflict between constitutional claims at issue in the case).
205. Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801–1862 (2006).
206. Id.
207. See id.
208. See id.
209. Rise of the Drones: Unmanned Systems and the Future of War, Hearing
Before the Subcomm. on Nat’l Sec. & Foreign Affairs of the H. Comm. on Oversight &
Gov’t Reform, 110th Cong. 2 (2010) (written testimony of Professor Kenneth Anderson)
(arguing that Congress must clearly establish the authority for targeted killing of
suspected terrorists).
210. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 11 (D.D.C. 2010).

2011] Due Process Rights and Targeted Killing 1379

necessity.211 Independent oversight would promote the use of all
peaceful measures before lethal force is pursued.212

i. FISA as an Applicable Model

FISA is an existing legislative model that is applicable both in
substance and structure.213 FISA was passed to resolve concerns over
civil liberties in the context of executive counterintelligence.214 It is
therefore a legislative response to a set of issues analogous to the
constitutional problems of targeted killing.215 FISA also provides a
structural model that could help solve the targeted killing
dilemma.216 The FISA court is an example of a congressionally
created federal court with special jurisdiction over a sensitive
national security issue.217 Most importantly, FISA works. Over the
years, the FISA court has proven itself capable of handling a large
volume of warrant requests in a way that provides judicial screening
without diminishing executive authority.218 Contrary to the DOJ’s
claims in Aulaqi, the FISA court proves that independent judicial
oversight is institutionally capable of managing real-time executive
decisions that affect national security.219
The motivation for passing FISA makes this an obvious choice
for a legislative model to address targeted killing. With FISA,
Congress established independent safeguards and a form of oversight
in response to President Nixon’s abusive wiretapping practices.220
The constitutional concern in FISA involved the violation of Fourth
Amendment privacy protections by excessive, unregulated executive

211. See Kretzmer, supra note 19, at 202 (“Under ordinary human rights
principles, based on a law-enforcement model with its guarantees of due process, use of
lethal force to defend persons against unlawful violence is justified only when
absolutely necessary.”).
212. See Banks & Raven-Hansen, supra note 86, at 678–79 (concluding that the
Constitution does not prohibit the targeted killing abroad of foreign nationals, at least
in anticipatory self-defense when other more peaceful means of defense have been
exhausted).
213. Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801–1862 (2006).
214. See Larry Abramson, The Secret Court of Terror Investigations, NPR, Dec.
13, 2005, http://www.npr.org/templates/story/story.php?storyId=5049679 (noting that
FISA was enacted to end the practice of placing wiretaps on enemies of President
Nixon).
215. See id.
216. 50 U.S.C. §§ 1801–1862.
217. Id. § 1803.
218. See Ellen Yaroshefsky, Secret Evidence Is Slowly Eroding the Adversary
System: CIPA and FISA in the Courts, 34 HOFSTRA L. REV. 1063, 1081 (2006).
219. See id.
220. See Abramson, supra note 214 (“The Foreign Intelligence Surveillance
Court was supposed to put an end to the kinds of wiretaps that were placed on the
phones of enemies of President Nixon, such as Morton Halperin.”).

1380 Vanderbilt Journal of Transnational Law [Vol. 44:1353

power.221 Similarly, the current state of targeted killing law allows
for executive infringement on Fifth Amendment due process rights.
Although there is no evidence of abusive or negligent practices of
targeted killing, the main purpose of congressional intervention is to
ensure that targeted killing is conducted only in lawful circumstances
after a demonstration of sufficient evidence.
Finally, a FISA-style court is a potentially effective possibility
because it would provide ex ante review of targeted killing orders,
and the pre-killing stage is the only stage during which judicial
review would be meaningful.222 In the context of targeted killing, due
process is not effective after the decision to deprive an American of
life has already been carried out. Pre-screening targeted killing
orders is a critical component of judicial oversight. Currently, this
screening is conducted by a team of attorneys at the CIA.223 Despite
assurances that review of the evidence against potential targets is
rigorous and careful, due process is best accomplished through
independent judicial review.224 The FISA court provides a working
model for judicial review of real-time requests related to national
security.225 FISA also established the requisite level of probable cause
for clandestine wiretapping and guidelines for the execution and
lifetime of the warrant, whereas the legal standards used by the
CIA’s attorneys are unknown.226 The only meaningful way to ensure
that Americans are not wrongfully targeted with lethal force is to
screen the evidence for the decision and to give ultimate authority to
an impartial judge with no institutional connection to the CIA.

221. See id. (acknowledging the tension between FBI agents who try to obtain
warrants and the Justice Department that refuses to take the cases to the Foreign
Intelligence Surveillance Court for privacy concerns).
222. See Murphy & Radsan, supra note 20, at 438 (stating that the pre-killing
review could increase the accuracy of target selection, reducing the danger of mistaken
or illegal destruction of lives, limbs and property).
223. See supra Part II.A (describing CIA procedural process for targeted killing
program).
224. See Murphy & Radsan, supra note 20, at 437 (arguing that courts are
capable of applying duly deferential standards and determining the legality of attacks
after they occur); supra Part III.B (arguing that under judicial review, a court could
easily and properly determine that targeted killing does not satisfy the imminence
standard for the constitutional use of defensive force).
225. Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801–1862 (2006).
226. Id. § 1805(a); see supra Part II.A (describing how few specific details are
known about the evaluation of evidence against suspected terrorists or the standard of
proof).

2011] Due Process Rights and Targeted Killing 1381

ii. CIPA: An Alternative Model

The Classified Intelligence Procedures Act (CIPA) provides
another blueprint for a possible legislative solution.227 CIPA was
passed to protect against the practice of “graymailing,” in which
defendants accused of crimes by the government would cause the
release of classified information through discovery if prosecuted.228
This left the government with a difficult choice: either drop the
charges or continue the case and risk the exposure of sensitive
information.229 CIPA responded to this problem by providing
unclassified substitutes to privileged information that allow the
litigation to proceed.230 During discovery, security-cleared defendants
and defense counsel are allowed to review classified evidence.231 Also,
defendants in possession of classified evidence for use at trial are
allowed to utilize this evidence using a similar procedure that
protects against public release.232
Legislation modeled on CIPA and applied to the context of
targeted killing would allow a case like Aulaqi to proceed in federal
court. Rather than dismiss the entire suit out of deference to the state
secrets privilege, a CIPA-style procedure would allow a court and the
defendant to review the government charges without endangering
sensitive intelligence sources. If the government reveals compelling
evidence that confirms the specific and imminent nature of a threat
from a suspected terrorist, as it claimed in Aulaqi, then a court can at
least review this evidence before granting summary judgment.
A legislative solution modeled on CIPA also creates a less
invasive procedure for the review of privileged information. This has
the added advantage of avoiding the delicate balance of constitutional
powers that a FISA-style remedy would involve.233 FISA responded to
evidence of executive abuse by creating a direct form of judicial
supervision.234 Because there is no such charge of misconduct in the
case of targeted killing, perhaps a less intrusive remedy is

227. Classified Intelligence Procedures Act, Pub. L. No. 96-456, 94 Stat. 2025
(1980) (codified as amended at 18 U.S.C. §§ 1−16 (2006)).
228. Yaroshefsky, supra note 218, at 1067.
229. Timothy J. Shea, CIPA Under Siege: The Use and Abuse of Classified
Information in Criminal Trials, 27 AM. CRIM. L. REV. 657, 658 (1990).
230. Classified Intelligence Procedures Act § 4.
231. Yaroshefsky, supra note 218, at 1067–68.
232. Id.
233. See Banks & Raven-Hansen, supra note 86, at 678–79 (“The President’s
authority [to order a targeted killing], like the constitutional authority for self-defense
itself, may well depend on the necessity for action and the gravity of risk, but
depending on those factors would leave room for Congress to ban or regulate targeted
killings except in the extreme case of an otherwise unavoidable catastrophic attack.”
(footnote omitted)).
234. Abramson, supra note 214.

1382 Vanderbilt Journal of Transnational Law [Vol. 44:1353

sufficient.235 Rather than creating a new judicial institution and
altering the Executive’s chain of decision making, a CIPA-style
procedure would allow for litigation in this extraordinary context
without altering the balance of power between the Executive and the
judiciary. This alternative solution is less complicated to design and
easier to implement. Although it would not allow for ex ante review of
targeted killing orders, a solution modeled on CIPA might be a more
practical and realistic solution given the bureaucratic hurdles of a
FISA-style solution.

B. Option Two: Congress Could Pass Legislation Prohibiting
the Targeted Killing of Americans

Alternatively, Congress could pass legislation that explicitly
prohibits the targeted killing of Americans unless the circumstances
present a concrete threat of imminent danger.236 As the analysis in
Part II.A indicates, targeted killing is a premeditated offensive
military strategy, not a defensive practice.237 Congress could exercise
its own constitutional powers as the war-making body of government
to ensure that no American may be targeted for extrajudicial lethal
force by the Executive Branch.238
Similarly, Congress could amend the AUMF to include a
prohibition of the targeted killing of Americans.239 Although this has
the potential to limit the military in counterterrorism measures in
circumstances such as the Aulaqi case, it would emphasize
congressional commitment to fundamental constitutional rights even
in the face of terrorist threats.240 The irony of the Aulaqi case is that
based on the publicly available evidence, there is good reason to
believe the DOJ’s assertion that Anwar al-Aulaqi presented
significant danger to the country.241 But allowing the president to
target Aulaqi for extrajudicial killing presents its own danger, as it
establishes a broad and unreviewable killing power with potential for

235. See Al-Aulaqi Complaint, supra note 1 (no allegation of government
misconduct).
236. See supra notes 107–08 (noting that the notion of defining and ascertaining
an imminent threat is particularly difficult in the context of international terrorism).
Although this is simply a reiteration of the existing standard and therefore appears
redundant, legislation of this kind has two important benefits. First, it reaffirms
legislative commitment to the defense of individual liberties. Second, it provides a
statutory basis for judicial review of challenges to targeted killing.
237. See discussion supra Part II.A.
238. U.S. CONST. art. I, § 8, cl. 11 (Congress’s war-making power).
239. Al-Aulaqi Response, supra note 2, at 24 (citing the AUMF as congressional
authority for the targeted killing of Aulaqi).
240. Id. at 4 (arguing that the judiciary should not interfere with the
complexities of military and national security decisions).
241. See supra note 4 (providing an overview of the publicly available evidence
linking Aulaqi to known terrorists).

2011] Due Process Rights and Targeted Killing 1383

error and abuse.242 Americans must have more reassurance that the
powers of the Executive Branch are limited and reasonable.
Although a legislative solution is appealing given the success of
the analogous FISA court, a statutory ban on the targeted killings of
Americans is certainly the preferable option. When a government
unilaterally assassinates one of its own citizens in circumvention of
civil liberties, this raises profound questions about the legitimacy of
that government, especially in a representative democracy. It also
stands in contradiction to the American constitutional legacy, in
which separate but coequal branches of government were created
primarily to limit the possibility of tyranny and other government
abuses of power. A congressional ban on the targeted killing of
Americans would represent a legislative rebuke of executive excesses
in protection of fundamental civil liberties.
Congressional action of any kind, however, faces a very serious
hurdle: as the DOJ made clear in the Aulaqi case, the executive
branch position is that any infringement on the President’s targeted
killing authority is simply unconstitutional. Yet if congress were to
prohibit targeted killing and a court found that such a law is an
unconstitutional infringement on executive authority, there is still
another and perhaps final option. In the event that a federal court
interprets the constitution to actually permit the targeted killing of
Americans by the Executive Branch, then it would be necessary to fix
this constitutional flaw. A constitutional amendment prohibiting the
practice of targeted killing would thus permanently extinguish the
concerns over targeted killing.243

VI. CONCLUSION

The targeted killing of Americans raises serious due process
concerns. But the law and protocol for targeted killing are unclear.
Currently there is no independent enforcement of due process rights
when the Executive targets Americans with lethal force on the basis
of unsubstantiated accusations. As the Aulaqi case makes clear, the
threat of international terrorism is very real, but so is the risk of an
unchecked killing power with the potential for error and abuse.
Congress should respond to this problem by clarifying the law and
procedure of targeted killing in a way that enforces fundamental due
process rights and keeps this power in check. The Executive owes due
process rights in detainment scenarios and must request a warrant

242. See supra Part V.B.
243. I credit Professor Michael Newton of Vanderbilt University Law School for
advocating this solution during a discussion about targeted killing.

1384 Vanderbilt Journal of Transnational Law [Vol. 44:1353

before wiretapping. The law of targeted killing should be updated to
reflect similar minimum commitments to civil liberties.

Benjamin McKelvey*

* Benjamin McKelvey serves as Executive Development Editor on the Editorial
Board of the Vanderbilt Journal of Transnational Law. He is a member of the Class of
2012 at Vanderbilt University Law School.

Copyright of Vanderbilt Journal of Transnational Law is the property of Vanderbilt Journal of Transnational

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565

The Forgotten Freedom of Assembly

John D. Inazu*

The freedom of assembly has been at the heart of some of the most important social
movements in American history: antebellum abolitionism, women’s suffrage in the nineteenth
and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and
the Civil Rights movement. Claims of assembly stood against the ideological tyranny that
exploded during the first Red Scare in the years surrounding the First World War and the second
Red Scare of 1950s’ McCarthyism. Abraham Lincoln once called “the right of peaceable
assembly” part of “the Constitutional substitute for revolution.” In 1939, the popular press
heralded it as one of the “four freedoms” at the core of the Bill of Rights. And even as late as
1973, John Rawls characterized it as one of the “basic liberties.” But in the past thirty years,
assembly has been reduced to a historical footnote in American law and political theory. Why
has assembly so utterly disappeared from our democratic fabric? This Article explores the
history of the freedom of assembly and what we may have lost in losing sight of that history.

I. INTRODUCTION ………………………………………………………………….. 566
II. THE CONSTITUTIONAL RIGHT OF ASSEMBLY ………………………… 571

A. The Common Good ………………………………………………….. 571
B. Assembly and Petition ……………………………………………….. 573

III. THE FIRST TEST OF ASSEMBLY: THE DEMOCRATIC-
REPUBLICAN SOCIETIES ……………………………………………………… 577

IV. ASSEMBLY IN THE ANTEBELLUM ERA ………………………………….. 581
V. ASSEMBLY MISCONSTRUED ………………………………………………… 588
VI. ASSEMBLY IN THE PROGRESSIVE ERA ………………………………….. 590

A. Suffragists ………………………………………………………………… 591
B. Civil Rights Activism ………………………………………………… 592
C. Organized Labor ……………………………………………………….. 593

VII. THE INTER-WAR YEARS AND THE RISE OF THE FREEDOM
OF ASSEMBLY ……………………………………………………………………. 595
A. A New Conception of the First Amendment………………… 596
B. New Challenges to Labor ………………………………………….. 598
C. Assembly Made Applicable to the States …………………….. 599
D. Hague v. Committee for Industrial Organization ………….. 599
E. The Four Freedoms …………………………………………………… 601

VIII. THE RHETORIC OF ASSEMBLY …………………………………………… 603

* © 2010 John D. Inazu. Public Law Fellow, Duke University School of Law. J.D.,
Duke University School of Law; Ph.D., University of North Carolina at Chapel Hill. Thanks
to Jeff Spinner-Halev, Michael Lienesch, Susan Bickford, Jeff Powell, Stanley Hauerwas,
Nathan Chapman, Seth Dowland, Roman Hoyos, Jason Mazzone, Tabatha Abu El-Haj,
Kelsey Meeks Duncan, and Amin Aminfar for comments on earlier versions of this Article.

566 TULANE LAW REVIEW [Vol. 84:565

IX. THE RISE OF ASSOCIATION AND THE END OF ASSEMBLY ………… 606
X. CONCLUSION …………………………………………………………………….. 611

I. INTRODUCTION

The freedom of assembly has been at the heart of some of the
most important social movements in American history: antebellum
abolitionism, women’s suffrage in the nineteenth and twentieth
centuries, the labor movement in the Progressive Era and after the New
Deal, and the Civil Rights movement. Claims of assembly stood
against the ideological tyranny that exploded during the first Red Scare
in the years surrounding the First World War and the second Red Scare
of 1950s’ McCarthyism. Abraham Lincoln once called “the right of
peaceable assembly” part of “the Constitutional substitute for revolu-
tion.”1 In 1939, the popular press heralded it as one of the “four
freedoms” at the core of the Bill of Rights. And even as late as 1973,
John Rawls characterized it as one of the “basic liberties.”2 But in the
past thirty years, the freedom of assembly has been reduced to a
historical footnote in American political theory and law. Why has
assembly so utterly disappeared from our democratic fabric?
One might, with good reason, contend that the right of assembly
has been subsumed into the rights of speech and association and that
these two rights provide adequate protection for the people gathered.
On this account, contemporary free speech doctrine protects the “most
pristine and classic form” of assembly—the occasional gathering of
temporary duration that often takes the form of a protest, parade, or
demonstration.3 Meanwhile, the judicially recognized right of
association shelters forms of assembly that extend across time and
place—groups like clubs, churches, and social organizations.
This characterization of the rights of speech and association is not
implausible. Indeed, it appears to be the approach assumed by a

1. Letter from Abraham Lincoln to Alexander H. Stephens (Jan. 19, 1860), in
UNCOLLECTED LETTERS OF ABRAHAM LINCOLN 127 (Gilbert A. Tracy ed., 1917). In the same
letter, Lincoln also wrote: “[T]he right of peaceable assembly and of petition and by article
Fifth of the Constitution, the right of amendment, is the Constitutional substitute for
revolution. Here is our Magna Carta not wrested by Barons from King John, but the free gift
of states to the nation they create . . . .” Id.
2. JOHN RAWLS, A THEORY OF JUSTICE 53 (1971). Rawls relies primarily on
association rather than assembly in his later work. See, e.g., JOHN RAWLS, POLITICAL
LIBERALISM 221 n.8, 291, 338, 418 (1993) [hereinafter RAWLS, POLITICAL LIBERALISM]. But
cf. id. at 335 (mentioning assembly).
3. Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (“most pristine and classic
form”).

2010] FORGOTTEN FREEDOM OF ASSEMBLY 567

number of contemporary political theorists.4 Nevertheless, I want to
suggest that something is lost when assembly is dichotomously
construed as either a moment of expression (when it is viewed as
speech) or an expressionless group (when it is viewed as association).
Many group expressions are only made intelligible by the practices
that give them meaning. The rituals and liturgy of religious worship
often embody deeper meaning than that which would be ascribed to
them by an outside observer. The political significance of a women’s
pageant in the 1920s would be lost without an understanding of why
these women gathered or what they were doing with the rest of their
lives. And the creeds and songs recited by members of hundreds of
diverse associations, from Alcoholics Anonymous to the Boy Scouts,
during their gatherings may reflect a way of living and system of
beliefs that cannot be captured by a text or its utterance at any one
event.5
The United States Supreme Court has partially recognized these
connections in the category of “expressive association” that it
introduced in Roberts v. United States Jaycees.6 But by privileging
“intimate” over expressive association and declaring the latter merely
instrumentally valuable to other modes of communication, the Court
has obfuscated the critical role that a group’s practices and identity
play in its expression. Even worse, the attenuated protections of
expressive association underwrite a political theory whose espoused
tolerance ends with those groups that challenge the fundamental
assumptions of the liberal state. These changes open the door for the
state to demand what Nancy Rosenblum has called a “logic of congru-
ence” requiring “that the internal life and organization of associations
mirror liberal democratic principles and practices.”7
William Galston intimates that this result undermines liberalism
itself: “Liberalism requires a robust though rebuttable presumption in
favor of individuals and groups leading their lives as they see fit,
within a broad range of legitimate variation, in accordance with their

4. See, e.g., STEPHEN MACEDO, LIBERAL VIRTUES: CITIZENSHIP, VIRTUE, AND
COMMUNITY IN LIBERAL CONSTITUTIONALISM (1990); FREEDOM OF ASSOCIATION (Amy
Gutmann ed., 1998); RAWLS, POLITICAL LIBERALISM, supra note 2.
5. This argument is not meant to be universal. Some assemblies that gather in single
instances of fixed duration may present a relatively coherent message absent any collective
background identity. A group of strangers that gathers in front of a prison to protest an
execution is one example.
6. Roberts v. U.S. Jaycees, 468 U.S. 609, 618, 622 (1984).
7. NANCY L. ROSENBLUM, MEMBERSHIP AND MORALS: THE PERSONAL USES OF
PLURALISM IN AMERICA 37 (1998).

568 TULANE LAW REVIEW [Vol. 84:565

own understanding of what gives life meaning and value.”8 We do not
live under Galston’s “rebuttable presumption.” If we did, we might
hear more about polygamist Mormons, communist schoolteachers, all-
male Jaycees, and peyote-consuming Native Americans. And while
today’s cultural and legal climate raises the most serious challenges to
practices at odds with liberal democratic values, the eclectic collection
of groups that have at one time or another been silenced and stilled by
the state cuts across political and ideological boundaries. The freedom
of assembly has opposed these incursions throughout our nation’s
history. As C. Edwin Baker has argued, “[T]he function of constitu-
tional rights, and more specifically the role of the right of assembly, is
to protect self-expressive, nonviolent, noncoercive conduct from
majority norms or political balancing and even to permit people to be
offensive, annoying, or challenging to dominant norms.”9 This core
role of assembly and its broad appeal to groups of markedly different
ideologies makes it a better “fit” than the right of association within
our nation’s legal and political heritage.10
Recognizing this fit requires learning the story of the right of
assembly. This is no easy task. The right of association is now firmly
entrenched in our legal and political vernacular. Consider the
following: (1) at least twenty-five federal district and appellate court
opinions have referred to a nonexistent “freedom of association
clause” in the United States Constitution;11 (2) a federal appellate court
has denied associational protections to an all-male Jewish fraternity
after intimating that the fraternity was neither an intimate nor an

8. WILLIAM A. GALSTON, LIBERAL PLURALISM: THE IMPLICATIONS OF VALUE
PLURALISM FOR POLITICAL THEORY AND PRACTICE 3 (2002).
9. C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 134 (1989).
10. By “fit,” I mean to suggest the coherence with an ongoing tradition and social
practice intimated in different ways by both Ronald Dworkin and Alasdair MacIntyre. See
RONALD DWORKIN, LAW’S EMPIRE (1986); ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY
IN MORAL THEORY (3d ed., Univ. Notre Dame Press 2007) (1981).
11. See, e.g., Swanson v. City of Bruce, No. 03-60541, 2004 WL 1491594, at *3 (5th
Cir. July 1, 2004) (referring to “the freedom of association clause”); Boyle v. County of
Allegheny, 139 F.3d 386, 394 (3d Cir. 1998) (asserting that the plurality opinion in Elrod v.
Burns, 427 U.S. 347 (1976), “held that the discharge of a government employee because of
his political affiliation violates the freedom of association clause of the First Amendment”);
Darnell v. Campbell County Fiscal Court, No. 90-5453, 1991 WL 11255 (6th Cir. Feb. 1,
1991) (discussing the requirements for a prima facie case under “the freedom of association
clause of the first amendment”); Grace United Methodist Church v. City of Cheyenne, 235 F.
Supp. 2d 1186, 1203 (D. Wyo. 2006) (“The First Amendment’s Free Speech Clause and
Freedom of Association Clauses apply to the states through the Fourteenth Amendment.”);
Hyman v. City of Louisville, 132 F. Supp. 2d 528, 543 (W.D. Ky. 2001) (“The Supreme Court
has interpreted the First Amendment to provide little protection under the Freedom of
Association Clause to commercial enterprises.”).

2010] FORGOTTEN FREEDOM OF ASSEMBLY 569

expressive association;12 and (3) a well-respected commentator has
argued that in sixteen years, Roberts came to represent “a well-settled
law of freedom of association,” an “ancien regime.”13 In this context, it
takes effort to envision an alternative understanding of the
constitutional protections for groups. Accordingly, part of my task is
to cast a vision for recovering the freedom of assembly. Doing so
requires creative engagement with regnant legal doctrine and political
theory, particularly that espoused by the Supreme Court and its
commentators over the past half-century. But this is a task worth
doing. Constitutional language—and the ways in which we use it or
ignore it—matters to the views we form about the law. Words like
“assembly” and “association” by themselves convey little of the values
that underlie the inevitable line-drawing that takes place around our
civil liberties,14 but in our constitutional story, these words come to
represent the values that helped to shape them and give them
constitutional salience.15 Forgetting words may represent the final
stage of forgetting values; reclaiming words can be a first step to
reclaiming those values.

12. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136
(2d Cir. 2007). The fraternity was located at the College of Staten Island, which is “primarily
a commuter campus,” and it never had more than twenty members. Id. at 140, 145.
13. ANDREW KOPPELMAN, A RIGHT TO DISCRIMINATE?: HOW THE CASE OF BOY
SCOUTS OF AMERICA V. JAMES DALE WARPED THE LAW OF FREE ASSOCIATION, at xi (2009)
(arguing that Boy Scouts of America v. Dale, 530 U.S. 640 (2000), “disrupted” the law of
freedom of association). Koppelman acknowledges the “germinal case” of the right of
association in NAACP v. Alabama, 357 U.S. 449 (1958), see KOPPELMAN, supra, at 18-22, but
it is clear that Roberts rather than NAACP v. Alabama does most of the work that he wants to
embrace as the “well-settled law of freedom of association.”
14. I do not presume that unbounded group autonomy is either preferable or possible.
To borrow from Stanley Fish, there is “no such thing as free assembly.” The state always
constrains. The pertinent inquiry is therefore not whether the state can constrain group
autonomy, but the conditions under which those constraints will be imposed. See STANLEY
FISH, THERE’S NO SUCH THING AS FREE SPEECH, AND IT’S A GOOD THING, TOO 104 (1994)
(“Speech, in short, is never a value in and of itself but is always produced within the precincts
of some assumed conception of the good to which it must yield in the event of conflict.”); cf.
Peter de Marneffe, Rights, Reasons, and Freedom of Association, in FREEDOM OF
ASSOCIATION, supra note 4, AT 146 (“Some may think of rights as ‘absolute,’ believing that to
say that there is a right to some liberty is to say that the government may not interfere with
this liberty for any reason. But if this is how rights are understood, there are virtually no
rights to liberty—because for virtually every liberty there will be some morally sufficient
reason for the government to interfere with it.”).
15. Frederick Schauer uses the phrase “constitutional salience” to refer to “the often
mysterious political, social, cultural, historical, psychological, rhetorical, and economic forces
that influence which policy questions surface as constitutional issues and which do not.”
Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of
Constitutional Salience, 117 HARV. L. REV. 1765, 1768 (2004).

570 TULANE LAW REVIEW [Vol. 84:565

In the pages that follow, I take this first step by tracing the story
of the freedom of assembly. This is the right of assembly “violently
wrested” from enslaved and free African Americans in the South and
denied to abolitionist William Lloyd Garrison in the North. It is the
freedom recognized in public celebrations across the nation as
America entered the Second World War—at the very time it was
denied to 120,000 Japanese Americans. It is the right placed at the
core of democracy by eminent twentieth-century Americans, including
Dorothy Thompson, Zechariah Chafee, Louis Brandeis, Orson Welles,
and Eleanor Roosevelt.
I begin by examining the constitutional grounding of assembly in
the Bill of Rights. I then explore the use of assembly in legal and
political discourse in six periods of American history: (1) the closing
years of the eighteenth century that brought the first test of assembly
through the Democratic-Republican Societies; (2) the appeals to
assembly in the suffragist and abolitionist movements of the
antebellum era; (3) the narrowing of the constitutional right of
assembly by the Supreme Court following the Civil War; (4) the claims
of assembly by suffragists, civil rights activists, and organized labor
during the Progressive Era; (5) the rhetorical high point of assembly
between the two World Wars; and (6) the end of assembly amidst mid-
twentieth century liberalism and the rise of the freedom of association.
As I recount the role of assembly in the political history of the
United States, I pay particular attention to three of its characteristics.
First, groups invoking the right of assembly have inherently been those
that dissent from the majority and consensus standards endorsed by
government. Second, claims of assembly have been public claims that
advocate for a visible political space distinguishable from government.
Finally, manifestations of assembly have themselves been forms of
expression—parades, strikes, and demonstrations, but also more
creative forms of engagement like pageants, religious worship, and the
sharing of meals. These three themes—the dissenting assembly, the
public assembly, and the expressive assembly—emerge from the
groups that have gathered throughout our nation’s history. Theirs is the
story of the forgotten freedom of assembly.16

16. My characterization of dissenting, public, and expressive assembly bears some
resemblance to Timothy Zick’s emphasis on the relationship between expression and physical
space. See TIMOTHY ZICK, SPEECH OUT OF DOORS: PRESERVING FIRST AMENDMENT
LIBERTIES IN PUBLIC PLACES (2009). Zick observes, “In First Amendment doctrine and
scholarship, place has generally been treated as a background principle, not a fundamental
aspect of assembly, expression, and other public liberties.” Id. at 8. He responds that “places
ground and give meaning to lives, activities, and cultures.” Id. at 10. My argument for

2010] FORGOTTEN FREEDOM OF ASSEMBLY 571

II. THE CONSTITUTIONAL RIGHT OF ASSEMBLY

I begin with the text of the First Amendment and with a textual
observation. As a historical matter, we should not make too much of
slight variations in wording, grammar, and punctuation in constitu-
tional clauses.17 There is little indication that the Framers applied our
level of exegetical scrutiny to the texts that they considered and
created. But because modern constitutional law parses wording so
carefully, our current arguments are in many ways constrained by the
precise text handed down to us. And so it is for this reason a useful
exercise to consider forensically the text that has survived, as well as
the text that did not.

A. The Common Good

The most important aspect of the clause containing the
constitutional right of assembly may be three words missing from its
final formulation: the common good. Had antecedent versions of the
assembly clause prevailed in the debates over the Bill of Rights and
lawful assembly been limited to purposes serving the common good,
the kinds of marginalized and disfavored groups that have sought
refuge in its protections may have met with little success. Assembly
for the common good would have endorsed the consensus narrative
advanced by mid-twentieth century pluralism: we tolerate groups only
to the extent that they serve the common good and thereby strengthen
the stability and vitality of democracy.18 The Framers decided
otherwise.
When the First Congress convened in 1789 to draft amendments
to the Constitution, it considered proposals submitted by the various
states. Virginia and North Carolina proposed identical amendments
covering the rights of assembly and petition: “That the people have a

assembly builds upon Zick’s theoretical approach by considering practices as well as places in
the background that gives coherence to meaning.
17. Caleb Nelson cautions against placing too much reliance on punctuation in the
Constitution because at the time of the Founding “punctuation marks [were] thought to lack
the legal status of words.” Caleb Nelson, Preemption, 86 VA. L. REV. 225, 258 (2000). He
notes that “[t]he ratification of the Constitution by the states reflects this relatively casual
attitude toward punctuation” because many states that incorporated a copy of the Constitution
in the official form of ratification varied its punctuation. Id. at 258 n.102. Nelson cites as an
example the copy of the Constitution in the Pennsylvania form of ratification, which used
“different punctuation marks than the Constitution engrossed at the Federal Convention” in
roughly thirty-five places. Id.
18. For a critique of the consensus narrative and its relationship to the constitutional
right of association, see John D. Inazu, The Strange Origins of the Constitutional Right of
Association, 77 TENN. L. REV. (forthcoming 2010).

572 TULANE LAW REVIEW [Vol. 84:565

right peaceably to assemble together to consult for the common good,
or to instruct their representatives; and that every freeman has a right
to petition or apply to the Legislature for redress of grievances.”19
New York and Rhode Island offered slightly different wording,
emphasizing that the people assembled for “their” common good
rather than “the” common good: “That the people have a right
peaceably to assemble together to consult for the common good, or to
instruct their Representatives; and that every [person] has a right to
petition or apply to the legislature for redress of grievances.”20
On June 8, 1789, James Madison’s proposal to the House favored
the possessive pronoun over the definite article: “The people shall not
be restrained from peaceably assembling and consulting for their
common good; nor from applying to the legislature by petitions, or
remonstrances for redress of their grievances.”21
Whether intentional or not, the endorsement of the common good
of the people who assemble rather than the common good of the state
signaled the possibility that the interests of the people assembled need
not be coterminous with the interests of those in power.
The point was not lost during the House debates. When Thomas
Hartley of Pennsylvania contended that, with respect to assembly,
“every thing that was not incompatible with the general good ought to
be granted,”22 Elbridge Gerry of Massachusetts replied that if Hartley
“supposed that the people had a right to consult for the common good”
but “could not consult unless they met for the purpose,” he was in fact
“contend[ing] for nothing.”23 In other words, if the right of assembly
encompassed only the common good from the perspective of the state,
then its use as a means of protest or dissent would be eviscerated.24
On August 19, 1789, the House approved a version of the
amendment that retained the reference to “their common good” and
also incorporated the rights of speech and press: “The freedom of

19. THE COMPLETE BILL OF RIGHTS: THE DRAFTS, DEBATES, SOURCES, AND ORIGINS
140 (Neil H. Cogan ed., 1997) [hereinafter THE COMPLETE BILL OF RIGHTS]. This language is
substantially similar to declarations in North Carolina and Pennsylvania in 1776 that “the
People have a Right to assemble together, to consult for their common good, to instruct their
Representatives, and to apply to the Legislature for Redress of Grievances.” Id. at 141.
20. Id. at 140.
21. Id. at 129.
22. Id. at 145 (quoting 1 ANNALS OF CONG. 760 (Joseph Gales ed., 1834)).
23. Id. (quoting 1 ANNALS OF CONG. 760-61 (Joseph Gales ed., 1834)).
24. Cf. Melvin Rishe, Freedom of Assembly, 15 DEPAUL L. REV. 317, 337 (1965)
(“Were the courts truly bound to delve into whether or not an assembly served the common
good, it is likely that many assemblies that have been held to be protected by the constitution
would lose this protection.”).

2010] FORGOTTEN FREEDOM OF ASSEMBLY 573

speech and of the press, and the right of the people peaceably to
assemble and consult for their common good, and to apply to the
government for redress of grievances shall not be infringed.”25
Eleven days later, the Senate defeated a motion to strike the
reference to the common good.26 But the following week, the text
inexplicably dropped out when the Senate merged language pertaining
to religion into the draft amendment: “Congress shall make no law
establishing articles of faith or a mode of worship, or prohibiting the
free exercise of religion, or abridging the freedom of speech, or the
press, or the right of the people peaceably to assemble, and petition to
the government for the redress of grievances.”27

B. Assembly and Petition

The striking of the reference to the common good may have been
intended to broaden the scope of the assembly clause, but it also
introduced a textual ambiguity. Without the prepositional “for their
common good” following the reference to assembly, the text now
described “the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.”28 This left
ambiguous whether the amendment recognized a single right to
assemble for the purpose of petitioning the government or whether it
established both an unencumbered right of assembly and a separate
right of petition.
In one of the only recent considerations of assembly in the First
Amendment, Jason Mazzone argues in favor of the former.29 Mazzone
suggests:

25. THE COMPLETE BILL OF RIGHTS, supra note 19, at 143 (internal quotation marks
omitted). This version also changed the semicolon after “common good” to a comma.
26. S. Journal, 1st Cong., 70 (Sept. 3, 1789). The following day the Senate adopted
similar language: “That Congress shall make no law abridging the freedom of speech, or of
the press, or the right of the people peaceably to assemble and consult for their common
good, and to petition the government for a redress of grievances.” Id. at 70-71 (Sept. 4, 1789)
(internal quotation marks omitted).
27. Id. at 77 (Sept. 9, 1789). The amendment took its final form on September 24,
1789: “Congress shall make no Law respecting an establishment of Religion, or prohibiting
the free exercise thereof; or abridging the freedom of Speech, or of the Press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of
grievances.” THE COMPLETE BILL OF RIGHTS, supra note 19, at 136 (internal quotation marks
omitted).
28. Jason Mazzone, Freedom’s Associations, 77 WASH. L. REV. 639 (2002) (internal
quotation marks omitted).
29. Id. The only recent article to address the history of free assembly other than
Mazzone’s is Tabatha Abu El-Haj, The Neglected Right of Assembly, 56 UCLA L. REV. 543
(2009).

574 TULANE LAW REVIEW [Vol. 84:565

There are two clues that we should understand assembly and petition to
belong together. The first clue is the use of “and to petition,” which
contrasts with the use of “or” in the remainder of the First Amendment’s
language. The second clue is the use of “right,” in the singular (as in
“the right of the people peaceably to assemble, and to petition”), rather
than the plural “rights” (as in “the rights of the people peaceably to
assemble, and to petition”). The prohibitions on Congress’ power can
therefore be understood as prohibitions with respect to speech, press,
and assembly in order to petition the government.30

Mazzone’s interpretation is problematic because the comma preceding
the phrase “and to petition” appears to be residual from the earlier text
that had described the “right of the people peaceably to assemble and
consult for their common good, and to apply to the government for a
redress of grievances.”31 Whether left in deliberately or inadvertently, it
relates back to a distinction between a right to peaceable assembly and
a right to petition.32 Moreover, at least some members of the First
Congress appeared to have conceived of a broader notion of assembly,
as evidenced in an exchange between Theodore Sedgwick of
Massachusetts and John Page of Virginia.

30. Mazzone, supra note 29, at 712-13 (internal citations omitted). But see AKHIL
REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 26 (1998) (referring to
assembly and petition as separate clauses); WILLIAM W. VAN ALSTYNE, FIRST AMENDMENT:
CASES AND MATERIALS 32 (2d ed. 1995) (referring to a distinct “‘peaceably to assemble’
clause”); JAMES E. LEAHY, THE FIRST AMENDMENT, 1791-1991: TWO HUNDRED YEARS OF
FREEDOM 202 (1991) (“The final wording of the First Amendment indicates that the first
Congress intended to protect the right of the people to assemble for whatever purposes and at
the same time to be assured of a separate right to petition the government if they chose to do
so.”).
31. THE COMPLETE BILL OF RIGHTS, supra note 19, at 143. The earlier version
derived in turn from Madison’s draft. Id. at 129. Mazzone recognizes that “in Madison’s
draft, assembly is separated from petitioning by a semi-colon, perhaps indicating that while
the right of assembly is related to the right of petition, assembly is not necessarily limited to
formulating petitions.” Mazzone, supra note 29, at 715 n.409.
32. Mazzone addresses the comma in a footnote and argues that because it “mirrors
the comma” preceding the words “or prohibit the free exercise thereof ” in the first half of the
First Amendment, “[i]t does not therefore signal a right of petition separate from the right of
assembly.” Id. at 713 n.392 (internal quotation marks omitted). The argument for textual
parallelism does not hold because the free exercise clause explicitly refers back to “religion”
(before the comma) with the word “thereof.” A closer parallel—which illustrates Mazzone’s
interpretive problem—is the suggestion that the comma separating speech and press connotes
that they embody only a singular freedom. My quibbles with Mazzone do not diminish my
appreciation for his work. Mazzone is one of the few scholars in recent years to notice the
relationship between assembly and association, and his thoughtful article posits a number of
ideas with which I am highly sympathetic. See, e.g., id. at 646 (arguing that assembly and
petition provide “a much firmer constitutional basis for protecting the rights of citizens to
come together in collective activities” than “expressive association”).

2010] FORGOTTEN FREEDOM OF ASSEMBLY 575

During the House debates over the language of the Bill of Rights,
Sedgwick criticized the proposed right of assembly as redundant in
light of the freedom of speech: “If people freely converse together,
they must assemble for that purpose; it is a self-evident, unalienable
right which the people possess; it is certainly a thing that never would
be called in question; it is derogatory to the dignity of the House to
descend to such minutiae.”33
Page responded:

[Sedgwick] supposes [the right of assembly] no more essential than
whether a man has a right to wear his hat or not, but let me observe to
him that such rights have been opposed, and a man has been obliged to
pull off his hat when he appeared before the face of authority; people
have also been prevented from assembling together on their lawful
occasions, therefore it is well to guard against such stretches of
authority, by inserting the privilege in the declaration of rights; if the
people could be deprived of the power of assembling under any pretext
whatsoever, they might be deprived of every other privilege contained
in the clause.34

Irving Brant notes that while Page’s allusion to a man without a hat is
lost on a contemporary audience, “[t]he mere reference to it was
equivalent to half an hour of oratory” before the First Congress.35 Page
was referring to the trial of William Penn.36
On August 14, 1670, Penn and other Quakers had attempted to
gather for worship at their meeting-house on Gracechurch Street,
London, in violation of the 1664 Conventicle Act that forbade any
Nonconformists attending a religious meeting, or assembling them-
selves together to the number of more than five persons in addition to
members of the family, for any religious purpose not according to the
rules of the Church of England.37 Prevented from entering by a
company of soldiers, Penn began delivering a sermon to the Quakers
assembled in the street. Penn and a fellow Quaker, William Mead,
were arrested and brought to trial in a dramatic sequence of events that
included a contempt of court charge stemming from their wearing of
hats in the courtroom.38 A jury acquitted the two men on the charge

33. THE COMPLETE BILL OF RIGHTS, supra note 19, at 143-44.
34. Id. at 144 (quoting 1 ANNALS OF CONG. 760 (Joseph Gales ed., 1834)).
35. IRVING BRANT, THE BILL OF RIGHTS: ITS ORIGIN AND MEANING 55 (1965).
36. Id. at 54-61.
37. Conventicle Act, 1664, 16 Car. 2, c. 4 (Eng.).
38. BRANT, supra note 35, at 57 (quoting Penn’s journal). Penn and Mead were fined
for contempt of court for wearing their hats after being ordered by an officer of the court to
put them on. Id.

576 TULANE LAW REVIEW [Vol. 84:565

that their public worship constituted an unlawful assembly. The case
gained renown throughout England and the American colonies.39
According to Brant:

William Penn loomed large in American history, but even if he had
never crossed the Atlantic, bringing the Quaker religion with him,
Americans would have known about his “tumultuous assembly” and his
hat. Few pamphlets of the seventeenth century had more avid readers
than the one entitled “The People’s Ancient and Just Liberties, asserted,
in the Trial of William Penn and William Mead at the Old Bailey, 22
Charles II 1670, written by themselves.” Congressman Page had
known the story from boyhood, reproduced in Emlyn’s State Trials to
which his father subscribed in 1730. It was available, both in the State
Trials and as a pamphlet, to the numerous congressmen who had used
the facilities of the City Library of Philadelphia. Madison had an
account of it written by Sir John Hawles, a libertarian lawyer who
became Solicitor General after the overthrow of the Stuarts in 1688.40

Congressman Page’s allusion to Penn made clear that the right of
assembly under discussion in the House encompassed more than
meeting to petition for redress of grievances: Penn’s ordeal had
nothing to do with petition; it was an act of religious worship. After
Page spoke, the House defeated Sedgwick’s motion to strike assembly
from the draft amendment by a “considerable majority.”41 On
September 24, 1789, the Senate approved the amendment in its final
form, and the subsequent ratification of the Bill of Rights in 1791
enacted “the right of the people peaceably to assemble.”42
The text handed down to us thus conveys a broad notion of
assembly in two ways. First, it does not limit the purposes of assembly
to the common good, thereby implicitly allowing assembly for
purposes that might be antithetical to that good (although constraining
assembly to peaceable means). Second, it does not limit assembly to
the purposes of petitioning the government, which means that the
constitutional expression of assembly may take many forms for many

39. In addition to its pronouncement on the right of assembly, the case became an
important precedent for the independence of juries. Following their verdict of acquittal, the
trial judge had imprisoned the jurors, who were later vindicated in habeas corpus
proceedings.
40. BRANT, supra note 35, at 55-56 (emphasis omitted).
41. THE COMPLETE BILL OF RIGHTS, supra note 19, at 145 (quoting 1 ANNALS OF
CONG. 761 (Joseph Gales ed., 1834)).
42. “Congress shall make no Law respecting an establishment of Religion, or
prohibiting the free exercise thereof; or abridging the freedom of Speech, or of the Press; or
the right of the people peaceably to assemble and to petition the Government for a redress of
grievances.” Id. at 136 (internal quotation marks omitted).

2010] FORGOTTEN FREEDOM OF ASSEMBLY 577

purposes. Neither of these broad interpretations of the right to
assembly has been readily acknowledged in legal and political
discourse. But the larger vision of assembly can be found in the
practices of people who have gathered throughout American history. It
is to these practices that I now turn.

III. THE FIRST TEST OF ASSEMBLY: THE DEMOCRATIC-REPUBLICAN
SOCIETIES

The nascent freedom of assembly faced an early challenge when
the first sustained political dissent in the new republic emerged out of
the increasingly partisan divide between Federalists and Republicans.
By the summer of 1792, Republican concern over the Federalist
administration and its perceived support of the British in their conflict
with the French had reached new levels of agitation. The Republican-
leaning National Gazette began calling for the creation of voluntary
“constitutional” and “political” societies to critique the Washington
administration.43
The first society was organized in Philadelphia in March of
1793.44 Over the next three years, dozens more emerged throughout
most of the major cities in the United States.45 These “Democratic-
Republican” societies consisted largely of farmers and laborers wary
of the aristocratic leanings of Hamilton and other Federalists, but they
also included lawyers, doctors, publishers, and government
employees.46 The largest society—the Democratic Society of
Pennsylvania—boasted over three hundred members.47
The societies “invariably proclaimed the right of citizens to
assemble.”48 A 1794 resolution from a society in Washington, North
Carolina, asserted: “It is the unalienable right of a free and

43. Robert M. Chesney, Democratic-Republican Societies, Subversion, and the
Limits of Legitimate Political Dissent in the Early Republic, 82 N.C. L. REV. 1525, 1536 n.46
(2004). Mazzone also highlights the importance of the Democratic-Republican Societies to
early interpretations of assembly and association. Mazzone, supra note 29, at 734-42.
44. Philip S. Foner, The Democratic-Republican Societies: An Introduction, in THE
DEMOCRATIC-REPUBLICAN SOCIETIES, 1790-1800: A DOCUMENTARY SOURCEBOOK OF
CONSTITUTIONS, DECLARATIONS, ADDRESS, RESOLUTIONS AND TOASTS 6 (Philip S. Foner ed.,
1976).
45. Although the exact number is disputed, there were probably around forty
societies. Chesney, supra note 43, at 1537 n.52.
46. Foner, supra note 44, at 7; EUGENE PERRY LINK, DEMOCRATIC-REPUBLICAN
SOCIETIES, 1790-1800, at 71-74 (Octagon Books 1965) (1942); Chesney, supra note 43, at
1538 n.54. The term “Democratic-Republican Societies” comes from historians. Chesney,
supra note 43, at 1527 n.5.
47. Foner, supra note 44, at 7.
48. Id. at 11.

578 TULANE LAW REVIEW [Vol. 84:565

independent people to assemble together in a peaceable manner to
discuss with firmness and freedom all subjects of public concern.”49
That same year, Boston’s Independent Chronicle declared:

Under a Constitution which expressly provides “That the people have a
right in an orderly and peaceable manner to assemble and consult upon
the common good,” there can be no necessity for an apology to the
public for an Association of a number of citizens to promote and
cherish the social virtues, the love of their country and a respect for its
Laws and Constitutions.50

The societies usually met monthly, although more frequently
during elections or times of political crisis.51 According to Philip
Foner, a large part of their activities consisted of “creating public
discussions; composing, adopting, and issuing circulars, memorials,
resolutions, and addresses to the people; and remonstrances to the
President and the Congress—all expressing the feelings of the
assembled groups on current political issues.”52 But in addition to
meeting to discuss political issues, the societies also joined in the
“extraordinarily diverse array of . . . feasts, festivals, and parades” that
unfolded in the streets and public places of American cities.53
Collectively, the activities of the societies “embodied an understanding
of popular sovereignty and representation in which the role of the
citizen was not limited to periodic voting, but instead entailed active
and constant engagement in political life.”54 As Simon Newman’s
study of popular celebrations of this era observes, these kinds of
gatherings were self-consciously political expressions:

Festive culture required both participants and an audience, and by
printing and reprinting accounts of July Fourth celebrations and the like
newspapers contributed to a greatly enlarged sense of audience: by the

49. Id. (quoting NORTH-CAROLINA GAZETTE (New Bern), Apr. 19, 1794).
50. Id. at 25 (quoting INDEPENDENT CHRONICLE (Boston), Jan. 16, 1794). It is
unclear what authority the paper is quoting—the italicized text is not from the Constitution.
51. Id. at 10. El-Haj notes that “the centrality of large gatherings of people in public
spaces as part of the election festivities—to eat, drink, and parade and by implication to
affirm their role as participants in the new nation.” El-Haj, supra note 29, at 555.
52. Foner, supra note 44, at 10.
53. SIMON P. NEWMAN, PARADES AND THE POLITICS OF THE STREET: FESTIVE CULTURE
IN THE EARLY AMERICAN REPUBLIC 2 (1997). These rituals were “vital elements of political
life” practiced by ordinary Americans in the early republic. Id. at 5. While Newman cautions
that some participants may have been interested only in “the festive aspects of public
occasions and holidays,” he writes that it was “all but impossible for these people, whatever
their original motives for taking part, to avoid making public political statements by and
through their participation: both their presence and their participation involve some degree of
politicization and an expression of political identity and power in a public setting.” Id. at 8-9.
54. Chesney, supra note 43, at 1539.

2010] FORGOTTEN FREEDOM OF ASSEMBLY 579

end of the 1790s those who participated in these events knew that their
actions were quite likely going to be read about and interpreted by
citizens far beyond the confines of their own community.55

Celebrations of the French Revolution took on an especially partisan
character when members and supporters of the emerging Federalist
party refused to participate in them.56 Without the endorsement of the
Federalist government, Republicans “were forced to foster alternative
ways of validating celebrations that were often explicitly opposi-
tional.”57 In doing so, they characterized their tributes as representing
the unified views of the entire community rather than just political
elites. Newman writes:

The result of the Democratic Republican stratagem was that members
of subordinate groups—including women, the poor, and black
Americans, all of whom were excluded from or had strictly
circumscribed roles in the white male contests over July Fourth and
Washington’s birthday celebrations—found a larger role for themselves
in French Revolutionary celebrations than in any of the other rites and
festivals of the early American republic.58

The relatively egalitarian gestures of these celebrations were not well
received by Federalists, who berated the women who participated in
them with sarcasm and derision and raised fears about black
participation.59
Federalists became increasingly agitated with the growing
popular appeal of the societies. The pages of the pro-Federalist
Gazette of the United States repeatedly warned that the societies were
fostering disruptive tendencies and instigating rebellion.60 And while
there was little basis in fact to suggest that the societies were behind
the Whiskey Rebellion, the Federalist press was quick to highlight that
several members of societies in western Pennsylvania had been
actively involved in the insurrection.61
President Washington came to believe that the widespread public
condemnation of the rebellion had created a political opportunity for

55. NEWMAN, supra note 53, at 3.
56. Id. at 120.
57. Id.
58. Id. at 122. It is important not to overstate these egalitarian glimpses. The officers
of the societies were “virtually without exception men of considerable substance.” STANLEY
ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM 458 (1993).
59. NEWMAN, supra note 53, at 128-30.
60. Chesney, supra note 43, at 1546.
61. Id. at 1557-58.

580 TULANE LAW REVIEW [Vol. 84:565

the “annihilation” of the societies.62 He had been incensed by their
organized opposition to the whiskey tax, writing in a personal letter
that while “no one denies the right of the people to meet occasionally,
to petition for, or to remonstrate against, any Act of the Legislature,”
nothing could be “more absurd, more arrogant, or more pernicious to
the peace of Society, than for . . . a self created permanent body” that
would pass judgment on such acts.63 Washington took clear aim at the
societies in his annual address to Congress on November 19, 1794,
asserting that “associations of men” and “certain self-created societies”
had fostered the violent rebellion.64 Robert Chesney suggests that
“[t]he speech was widely understood at the time not as ordinary
political criticism, but instead as a denial of the legality of organized
and sustained political dissent.”65 And Irving Brant observes that “[t]he
damning epithet ‘self-created’ indorsed the current notion that
ordinary people had no right to come together for political purposes.”66
The Federalist-controlled Senate quickly censured the societies in
response to Washington’s address. The House, in contrast, began an
extended debate about the wording of its response, and assigned James
Madison, Theodore Sedgwick, and Thomas Scott to draft a reply. The
Federalist Sedgwick, who years earlier had suggested that the freedom
of assembly was so “self-evident” and “unalienable” that its inclusion
in the constitutional amendments was unnecessary,67 now argued in
spite of the First Amendment that the societies’ efforts to organize
were effectively illegal.68 After four days of debate, Madison conten-
ded that a House censure would be a “severe punishment” and would
have dire consequences for the future of free expression.69 The final
language in the House response was substantially more muted than
that issued by the Senate.
Following Washington’s address and the congressional response,
“[s]pirited debates concerning the legitimacy of the societies were

62. Id. at 1559 (quoting Letter from President George Washington to Governor Henry
Lee (Aug. 26, 1794), in THE WRITINGS OF GEORGE WASHINGTON 475 (John C. Fitzpatrick ed.,
1940)).
63. Id. at 1526 (quoting Letter from President George Washington to Burges Ball
(Sept. 25, 1794), in THE WRITINGS OF GEORGE WASHINGTON, supra note 62, at 506.
64. 4 ANNALS OF CONG. 788 (1794) (statement of President George Washington).
65. Chesney, supra note 43, at 1561.
66. IRVING BRANT, JAMES MADISON: FATHER OF THE CONSTITUTION, 1787-1800, 417
(1950).
67. THE COMPLETE BILL OF RIGHTS, supra note 19, at 143-44.
68. Chesney, supra note 43, at 1562-63.
69. 4 ANNALS OF CONG. 934 (1794) (statement of Rep. Madison).

2010] FORGOTTEN FREEDOM OF ASSEMBLY 581

conducted in every community where a society existed.”70 Due in part
to Washington’s wide popularity, public opinion turned the corner
against the societies. Many of them folded completely within a year of
the President’s speech, and by the end of the decade, all had been
driven out of existence.71 Yet despite their relatively short duration, the
societies’ influence was not inconsequential. According to Foner, “As
a center of Republican agitation and propaganda . . . the societies did
much to forge the sword that defeated Federalism and put Jefferson in
the presidency.”72 They did so through public and political activities,
physical and communal gatherings that displayed their enthusiasm and
sought to sway public opinion. But as significant as these first
assertions of assembly were the heavy handed political attacks against
them. The vigorous resistance to the claims of the people assembled
from those in power demonstrated the precarious nature of dissenting
groups in the new republic.

IV. ASSEMBLY IN THE ANTEBELLUM ERA

In spite of the government’s response to the Democratic-
Republican societies, the idea that the people could assemble apart
from the sanction of the state continued to take hold in early American
political life. Benjamin Oliver’s 1832 treatise, The Rights of an
American Citizen, called the right of assembly “one of the strongest
safeguards, against any usurpation or tyrannical abuse of power, so
long as the people collectively have sufficient discernment to perceive
what is best for the public interest, and individually have independence
enough, to express an opinion in opposition to a popular but designing
leader.”73 Writing in 1838, the state theorist Francis Lieber described
“those many extra-constitutional, not unconstitutional, meetings, in
which the citizens either unite their scattered means for the obtaining
of some common end, social in general, or political in particular, or
express their opinion in definite resolutions upon some important

70. Foner, supra note 44, at 33.
71. Chesney, supra note 43, at 1528.
72. Foner, supra note 44, at 40.
73. BENJAMIN L. OLIVER, THE RIGHTS OF AN AMERICAN CITIZEN 187 (1832). Oliver
limited his conception of assembly to discussions of “public measures.” Id. at 195. His
lukewarm description warned that assemblies “called on the most unexceptionable business”
to serve “chiefly as occasions for haranguing the people, and exciting their passions by loud
and florid declamation, delivered with the regulated and precise gesture of the academy, and
with all the generous and glowing ardor of holiday patriotism” but are nevertheless “a great
improvement on the affrays, tumults, riots and public disturbances, which in many countries
invariably attend numerous and irregular assemblies of the people.” Id.

582 TULANE LAW REVIEW [Vol. 84:565

point before the people.”74 These “public meetings” were undertaken
for a variety of purposes:

[T]hey are of great importance in order to direct public attention to
subjects of magnitude, to test the opinion of the community, to inform
persons at a distance, representatives or the administration, for instance,
of the state of public opinion on certain measures, whether yet
depending or adopted; to resolve upon and adopt petitions; to
encourage individuals or bodies of men in arduous undertakings
requiring the moral support of well-expressed public approbation; to
effect a union with others, striving for the same ends; to disseminate
knowledge by way of reports of committees; to form societies for
charitable purposes or the melioration of laws or institutions; to
sanction by the spontaneous expression of the opinion of the
community measures not strictly agreeing with the letter of the law, but
enforced by necessity; to call upon the services of individuals who
otherwise would not feel warranted to appear before the public and
invite its attention, or feel authorized to interfere with a subject not
strictly lying within their proper sphere of action; to concert upon more
or less extensive measures of public utility, and whatever else their
object may be.75

A generation later, John Alexander Jameson referred to “wholly
unofficial” gatherings and “spontaneous assemblages” that were
protected by the right of peaceable assembly, a “common and most
invaluable provision of our constitutions, State and Federal.”76 These
assemblies were “at once the effects and the causes of social life and
activity, doing for the state what the waves do for the sea: they prevent
stagnation, the precursor of decay and death.”77 They were “public
opinion in the making—public opinion fit to be the basis of political
action, because sound and wise, and not a mere echo of party cries and
platforms.”78
The significance of free assembly to public opinion was not lost
on policymakers in southern states, who routinely prohibited its
exercise among slaves and free blacks. A 1792 Georgia law restricted

74. 2 FRANCIS LIEBER, MANUAL OF POLITICAL ETHICS: DESIGNED CHIEFLY FOR THE
USE OF COLLEGES AND STUDENTS AT LAW 295 (2d ed. 1881).
75. Id. at 296. Lieber refers to “public meetings” at 471.
76. JOHN ALEXANDER JAMESON, A TREATISE ON CONSTITUTIONAL CONVENTIONS:
THEIR HISTORY, POWERS, AND MODES OF PROCEEDING 4-5, 104 (4th ed. 1887). Jameson also
refers to “spontaneous conventions” and “spontaneous assemblages.” Id. at 4.
77. Id.
78. Id.

2010] FORGOTTEN FREEDOM OF ASSEMBLY 583

slaves from assembling “on pretense of feasting.”79 In South Carolina,
an 1800 law forbade “slaves, free negroes, mulattoes, and mestizoes”
from assembling for “mental instruction or religious worship.”80 An
1804 Virginia statute made any meeting of slaves at night an unlawful
assembly.81 In 1831, the Virginia Legislature declared “[a]ll meetings
of free Negroes or mulattoes at any school house, church, meeting
house or other place for teaching them reading or writing, either in the
day or the night” to be an unlawful assembly.82
The restrictions on assembly intensified following Nat Turner’s
1831 rebellion in Southampton County, Virginia, which resulted in the
deaths of fifty-seven white men, women, and children. Turner’s
insurrection sent Virginia and other southern states into a panic.83
Virginia Governor John Floyd made the rebellion the central theme of
his December 5, 1831, address to the Legislature.84 Floyd thought that
black preachers were behind a broader conspiracy for insurrection and
had acquired “great ascendancy over the minds of their fellows.”85 He
argued that these preachers had to be silenced “because, full of
ignorance, they were incapable of inculcating anything but notions of
the wildest superstition, thus preparing fit instruments in the hands of
crafty agitators, to destroy the public tranquility.”86 In response, the
Legislature strengthened Virginia’s black code by imposing additional
restrictions on assembly for religious worship.87

79. WILLIAM GOODELL, THE AMERICAN SLAVE CODE IN THEORY AND PRACTICE (3d
ed. 1853).
80. Id. (emphasis omitted).
81. JUNE PURCELL GUILD, BLACK LAWS OF VIRGINIA: A SUMMARY OF THE
LEGISLATIVE ACTS OF VIRGINIA CONCERNING NEGROES FROM EARLIEST TIMES TO THE PRESENT
71 (1936).
82. Id. at 175-76 (citing VIRGINIA LAWS 1831, ch. XXXIX).
83. See generally John W. Cromwell, The Aftermath of Nat Turner’s Insurrection, 5 J.
NEGRO HIST. 208 (1920).
84. Id. at 218, 223.
85. Id. at 218.
86. Id. at 219 (quoting The Journal of the House of Delegates 9, 10 (1831)).
87. Id. at 230; see GUILD, supra note 81, at 106-07 (“[N]o slave, free Negro or
mulatto shall preach, or hold any meeting for religious purposes either day or night.” (internal
quotation marks omitted)). In 1848, chapter 120 of the Criminal Code decreed: “It is an
unlawful assembly of slaves, free Negroes or mulattoes for the purpose of religious worship
when such worship is conducted by a slave, free Negro, or mulatto, and every such assembly
for the purpose of instruction in reading and writing, by whomsoever conducted, and every
such assembly in the night time, under whatsoever pretext.” Id. at 178-79. The law also
stated that “[a]ny white person assembly with slaves or free Negroes for purpose of
instructing them to read or write, or associating with them in any unlawful assembly, shall be
confined in jail not exceeding six months and fined not exceeding $100.00.” Id. at 179.

584 TULANE LAW REVIEW [Vol. 84:565

Concern over Turner’s rebellion also spawned additional
restrictions on the assembly of slaves and free blacks in Maryland,
Tennessee, Georgia, North Carolina, and Alabama.88 By 1835, “most
southern states had outlawed the right of assembly and organization by
free blacks, prohibited them from holding church services without a
white clergyman present, required their adherence to slave curfews,
and minimized their contact with slaves.”89 In 1836, Theodore Dwight
Weld aptly referred to the oppressive restrictions on blacks as “‘the
right of peaceably assembling’ violently wrested.”90
James Smith’s slave narrative highlights the importance of
assembly for religious worship and the felt impact of its loss:

The way in which we worshiped is almost indescribable. The singing
was accompanied by a certain ecstasy of motion, clapping of hands,
tossing of heads, which would continue without cessation about half an
hour; one would lead off in a kind of recitative style, others joining in
the chorus. The old house partook of the ecstasy; it rang with their
jubilant shouts, and shook in all its joints. . . . When Nat. Turner’s
insurrection broke out, the colored people were forbidden to hold
meetings among themselves.91

The collective restrictions on assembly did not simply silence political
dissent in a narrow sense: they were an assault on an entire way of life,
suppressing worship, education, and community among slave and free
African Americans.92
While southern states increased their efforts to suppress the
freedom of assembly for African Americans, abolitionists in the North
expanded their reliance on the constitutional right to spread their
message. And because many abolitionists were women, freedom of
assembly was “indelibly linked with the woman’s rights movement

88. Cromwell, supra note 83, at 231-33.
89. 1 C. PETER RIPLEY, THE BLACK ABOLITIONIST PAPERS 443 n.9 (1985).
90. Theodore Dwight Weld, The Power of Congress over Slavery in the District of
Columbia (1838), reprinted in JACOBUS TENBROEK, EQUAL UNDER LAW 271 (Collier Books
1965) (1951). Jacobus tenBroek has described Weld’s tract as “a restatement and synthesis of
abolitionist constitutional theory as of that time.” Id. at 243 (emphasis omitted); see also
HARRY KALVEN, JR., THE NEGRO AND THE FIRST AMENDMENT (1965). Akhil Amar writes that
the right of assembly for religious worship was “a core right that southern states had
violated.” AMAR, supra note 30, at 245.
91. NAT TURNER 74 (Eric Foner ed., 1971) (quoting JAMES L. SMITH,
AUTOBIOGRAPHY OF JAMES L. SMITH 27-30 (1881)).
92. William Goodell’s 1853 book, The American Slave Code, observed that
“[r]eligious liberty is the precursor of civil and political liberty and enfranchisement.”
GOODELL, supra note 79, at 328.

2010] FORGOTTEN FREEDOM OF ASSEMBLY 585

from its genesis in the abolition movement.”93 Female abolitionists and
suffragists organized their efforts around a particular form of
assembly: the convention. The turn to the convention was not
accidental. Between 1830 and 1860, official conventions accompanied
revisions to constitutions in almost every state.94 The focus of these
official conventions on rights and freedoms provided a natural
springboard for “spontaneous conventions” to criticize the blatant
racial and gender inequalities perpetuated by the state constitutions.95
Women held antislavery conventions in New York in 1837 and in
Philadelphia in 1838 and 1839.96 Two years after the 1848 Woman’s
Rights Convention in Seneca Falls, New York, and less than a month
before the official convention to revise the Ohio Constitution, a group
of women assembled in Salem, Ohio, to call for equal rights to all
people “‘without distinction of sex or color.’”97 As Nancy Isenberg
describes:

[T]he Salem forum stood apart from the American political tradition.
Activists used the meeting to critique politics as usual. Women
occupied the floor and debated resolutions and gave speeches, while the
men sat quietly in the gallery. Through a poignant reversal of gender
roles, the women engaged in constitutional deliberation, and the men
were relegated to the sidelines of political action.98

In other words, the very form of the convention conveyed the suffragist
message of equality and disruption of the existing order.
Women’s conventions often met with harsh resistance. When
Angelina and Sarah Grimké toured New England on a campaign for
the American Anti Slavery Society in 1837, they were rebuked for
lecturing before “promiscuous audiences.”99 The following year,
Philadelphia newspapers helped inspire a riotous disruption of the
Convention of American Women Against Slavery that ended in the
burning of Pennsylvania Hall.100 The participants of the 1850 Salem

93. LINDA J. LUMSDEN, RAMPANT WOMEN: SUFFRAGISTS AND THE RIGHT OF
ASSEMBLY, at xxiii (1997). Lumsden has suggested that “virtually the entire suffrage story
can be told through the prism of the right of assembly.” Id. at 144.
94. NANCY ISENBERG, SEX AND CITIZENSHIP IN ANTEBELLUM AMERICA 16 (1998).
95. Id.
96. THE ABOLITIONIST SISTERHOOD: WOMEN’S POLITICAL CULTURE IN ANTEBELLUM
AMERICA, at ix (Jean Fagan Yellin & John C. VanHorne eds., 1994).
97. ISENBERG, supra note 94, at 15 (quoting “To the Women of Ohio,” ANTI-SLAVERY
BUGLE, Mar. 30, 1850, at 114).
98. Id.
99. Id. at 46 (internal quotation marks omitted).
100. Id.

586 TULANE LAW REVIEW [Vol. 84:565

convention were denied the use of the local school and church.101 An
1853 women’s rights convention at the Broadway Tabernacle in New
York degenerated into a shouting match when hecklers interrupted the
speakers. Rather than criticize the disruptive crowd, the New York
Herald sardonically characterized the gathering as the “Women’s
Wrong Convention” and quipped that “[t]he assemblage of rampant
women which convened at the Tabernacle yesterday was an interesting
phase in the comic history of the nineteenth century.”102 The following
year, the Sunday Times published an editorial that used racial and
sexual slurs to describe the national women’s rights convention in
Philadelphia.103 Isenberg intimates that proponents of these attacks
believed that “women’s unchecked freedom of assembly mocked all
the restraints of civilized society.”104
A striking example of the importance of free assembly to
politically unpopular causes in the antebellum area occurred in 1835,
when the Boston Female Anti-Slavery Society invited William Lloyd
Garrison and the British abolitionist George Thompson to speak at its
annual meeting. Antiabolitionists reviled Thompson, calling him an
“artful, cowardly fellow” who “always throws himself under the
protection of the female portion of his audience when in danger.”105
The Society originally scheduled its meeting to take place in Congress
Hall, but the lessee rescinded his offer after concluding that “not the
rabble” but “the most influential and respectable men in the commu-
nity” intended to “make trouble” if Thompson spoke.106 The Society
responded to the lessee’s rescission with a letter to the editor of the
Boston Courier asserting:

This association does firmly and respectfully declare, that it is our right,
and we will maintain it in Christian meekness, but with Christian
constancy, to hold meetings, and to employ such lecturers as we judge
best calculated to advance the holy cause of human rights; even though
such lecturers should chance to be foreigners. It comes with an ill grace
from those who boast an English ancestry, to object to our choice on
this occasion: still less should the sons of the pilgrim fathers invoke the
spirit of outrageous violence on the daughters of the noble female band

101. LUMSDEN, supra note 93, at xxvi.
102. Id. at xxvii (internal quotation marks omitted).
103. ISENBERG, supra note 94, at 46.
104. Id.
105. REPORT OF THE BOSTON FEMALE ANTI SLAVERY SOCIETY 12 (1836) (quoting
BOSTON COM. GAZETTE).
106. Id. at 11.

2010] FORGOTTEN FREEDOM OF ASSEMBLY 587

who shared their conflict with public opinion;—their struggle with
difficulty and danger. The cause of freedom is the same in all ages.
. . . We must meet together, to strengthen ourselves to discharge our
duty as the mothers of the next generation—as the wives and sisters of
this.107

The editor of the Boston Courier appended his own comments to the
Society’s letter:

When before, in this city, or in any other, did a benevolent association
of ladies, publicly invite an itinerant vagabond—a hired foreign
incendiary—to insult their countrymen and fellow-citizens, and to
kindle the flames of discord between different members of the Union?
Would not our friends of the Female Anti Slavery Society do well to
cast the beams out of their own eyes, before they waste their pathos
upon a justly indignant public?108

The Society rescheduled its meeting for October 21, 1835, a week
after its initial meeting date. The meeting would now take place at the
offices of Garrison’s The Liberator. Anti-abolitionists circulated a
handbill that was duly printed in the Boston Commercial Gazette:

That infamous foreign scoundrel THOMPSON, will hold forth this
afternoon, at the Liberator Office, No. 46 Washington street. The
present is a fair opportunity for the friends of the Union to snake
Thompson out! It will be a contest between the abolitionists and the
friends of the Union. A purse of $100 has been raised by a number of
patriotic citizens to reward the individual who shall first lay violent
hands on Thompson, so that he may be brought to the tar kettle before
dark. Friends of the Union, be vigilant!109

The Society went forward with its meeting in spite of the threat. A
large crowd gathered and soon turned riotous. Unable to find
Thompson, some of them called for Garrison’s lynching. Garrison
fled through a back entrance and barely escaped with his life.110
Reflecting on the harrowing experience in the November 7, 1835
edition of The Liberator, Garrison lambasted the instigators of the riot
in an editorial entitled Triumph of Mobocracy in Boston:

Yes, to accommodate their selfishness, they declared that the liberty of
speech, and the right to assemble in an associated capacity peaceably
together, should be unlawfully and forcibly taken away from an

107. Id. at 24-25 (quoting BOSTON COURIER).
108. Id. at 27.
109. Id. at 27-28 (quoting BOSTON COM. GAZETTE (internal quotation marks omitted)).
110. See generally JOHN L. THOMAS, THE LIBERATOR: WILLIAM LLOYD GARRISON
(1963).

588 TULANE LAW REVIEW [Vol. 84:565

estimable portion of the community, by the officers of our city—the
humble servants of the people! Benedict Arnold’s treachery to the
cause of liberty and his bleeding country was no worse than this.111

The Boston mob “became a cause célèbre among abolitionists who
defended their right to free speech and assembly.”112 But fifteen years
later, when Thompson returned to Boston to address the Massachusetts
Anti-Slavery Society in Faneuil Hall, he was again driven away by a
mob.113 Frederick Douglass referred to the latter incident as the
“mobocratic violence” that had “disgraced the city of Boston.”114 In an
1850 address delivered in Rochester, New York, Douglass decried
“[t]hese violent demonstrations, these outrageous invasions of human
rights” and argued:

It is a significant fact, that while meetings for almost any purpose under
heaven may be held unmolested in the city of Boston, that in the same
city, a meeting cannot be peaceably held for the purpose of preaching
the doctrine of the American Declaration of Independence, “that all
men are created equal.”115

As Akhil Amar has observed, the nineteenth century movements
of the disenfranchised brought “a different lived experience” to the
words of the First Amendment’s assembly clause.116 They were
political movements, to be sure, but they embodied and symbolized
even larger societal and cultural challenges. They met with slanderous
media coverage, blatant racial and sexual slurs, and even outright
violence, visceral reminders of the importance of protecting free
assembly from those who would seek to deny it.

V. ASSEMBLY MISCONSTRUED

Courts and commentators lost sight of the lived history of
assembly, due in part to a judicial misreading of the text of the First
Amendment’s assembly clause. The interpretive problem began in the
1876 decision, United States v. Cruikshank.117 The primary legal

111. WILLIAM LLOYD GARRISON, SELECTIONS FROM THE WRITINGS AND SPEECHES OF
WILLIAM LLOYD GARRISON 377 (1852).
112. 3 THE BLACK ABOLITIONIST PAPERS 166 n.17 (C. Peter Ripley ed., 1991).
113. FREDERICK DOUGLASS SERIES ONE: SPEECHES, DEBATES AND INTERVIEWS, in 2
THE FREDERICK DOUGLASS PAPERS, 1847-54, at 268 n.14 (John W. Blassingame ed., 1982).
114. Id. at 267.
115. Id. at 268-67.
116. AMAR, supra note 30, at 246.
117. 92 U.S. 542 (1875). Cruikshank unfolded in the aftermath of the 1873 Colfax
Massacre in Grant Parish, Louisiana. See CHARLES LANE, THE DAY FREEDOM DIED: THE

2010] FORGOTTEN FREEDOM OF ASSEMBLY 589

principle articulated in Cruikshank was that private citizens could not
be prosecuted for denying the First Amendment’s freedom of assembly
to other citizens.118 But Cruikshank’s dictum proved more significant
than its holding. Reiterating that the First Amendment established a
narrow right enforceable only against the federal government, Chief
Justice Waite wrote:

The right of the people peaceably to assemble for the purpose of
petitioning Congress for a redress of grievances, or for any thing else
connected with the powers or the duties of the national government, is
an attribute of national citizenship, and, as such, under the protection of,
and guaranteed by, the United States.119

In context, it is likely that Waite was merely listing petition as an
example of the kind of assembly protected against infringement by the
federal government. The Constitution also guaranteed assembly “for
any thing else connected with the powers of the duties of the national
government,” which was as broadly as the right of assembly could be
applied prior to its incorporation through the Fourteenth
Amendment.120 But Waite’s reference to “[t]he right of the people
peaceably to assemble for the purpose of petitioning Congress for a
redress of grievances” came close to the text of the First Amendment.
Read in isolation from his qualifying language, the dictum could be
erroneously construed as limiting assembly to the purpose of
petitioning Congress for a redress of grievances.121
Ten years after Cruikshank, Justice William Woods made
precisely this interpretive mistake in Presser v. Illinois.122 Woods
concluded that Cruikshank had announced that the First Amendment
protected the right to assemble only if “the purpose of the assembly
was to petition the government for a redress of grievances.”123 Presser

COLFAX MASSACRE, THE SUPREME COURT, AND THE BETRAYAL OF RECONSTRUCTION (2008)
(chronicling the horrific events of the massacre).
118. The holding is consistent with a contemporary understanding of most of the
provisions of the Bill of Rights.
119. Cruikshank, 92 U.S. at 552.
120. Id. at 542. It is, of course, possible to read the text so that the additional clause
modifies “petitioning” rather than “assemble,” as if Waite were referring to “[t]he right of the
people peaceably to assemble for the purpose of petitioning Congress for any thing else
connected with the powers or the duties of the national government” rather than “[t]he right
of the people peaceably to assemble for any thing else connected with the powers or the
duties of the national government.” Either way, the sentence cannot be read as limiting
assembly to petitioning Congress for a redress of grievances.
121. Id.
122. 116 U.S. 252 (1886).
123. Id. at 267.

590 TULANE LAW REVIEW [Vol. 84:565

is the only time that the Supreme Court has expressly limited the right
of assembly in this way.124 But Woods’s interpretation has persisted in
decades of scholarship.125

VI. ASSEMBLY IN THE PROGRESSIVE ERA

In spite of the Court’s misconstrual of assembly, the people
claiming the right to assemble insisted on a broader purpose and
meaning. This thicker sense of assembly is most evident during the
Progressive Era in three emerging political movements: a revitalized
women’s movement, a surge in political activity among African
Americans, and an increasingly agitated labor movement. In the early
decades of the twentieth century, these groups turned to the freedom of
assembly as an important guarantee of their ability to dissent and
advocate for change. In doing so, they insisted that their public
gatherings were no less political than the institutional structures they
criticized. They brought together people in physical forms that both
displayed and symbolized a unified purpose. Their histories are

124. Justice Fuller made a passing reference to “the right of the people to assemble
and petition the government for a redress of grievances” in United States ex rel Turner v.
Williams, 194 U.S. 279, 292 (1904). The Court has since contradicted the view that assembly
and petition comprise one right. See Thomas v. Collins, 323 U.S. 516, 530 (1945) (referring
to “the rights of the people peaceably to assemble and to petition for redress of grievances”
(emphasis added)); cf. Chisom v. Roemer, 501 U.S. 380, 409 (1991) (Scalia, J., dissenting)
(The First Amendment “has not generally been thought to protect the right peaceably to
assemble only when the purpose of the assembly is to petition the Government for a redress
of grievances.”).
125. See, e.g., Note, Freedom of Association: Constitutional Right or Judicial
Technique, 46 VA. L. REV. 730, 736 (1960) (“[Cruikshank was the] first case to construe . . .
freedom of assembly to mean the right to assemble in order to petition the government.”);
CHARLES E. RICE, FREEDOM OF ASSOCIATION 109 (1962) (citing Cruikshank for the view that
the language in the First Amendment “constituted the right of petition as the primary right,
and the right of assembly as the ancillary right, thereby guaranteeing a right to assemble in
order to petition”); M. GLENN ABERNATHY, THE RIGHT OF ASSEMBLY AND ASSOCIATION 152
(2d ed. 1981) (“It is important to note that the Cruikshank dictum narrowed the federal right
from that of ‘the right to peaceably assemble and petition for redress of grievances’ to ‘the
right of the people peaceably to assemble for the purpose of petitioning Congress for a
redress of grievances, or for anything else connected with the powers or the duties of the
National Government.’” (emphasis added)); EDWARD S. CORWIN, HAROLD W. CHASE & CRAIG
R. DUCAT, EDWIN S. CORWIN’S THE CONSTITUTION AND WHAT IT MEANS TODAY 332 (14th ed.
1978) (1920) (citing Cruikshank for the view that “historically, the right of petition is the
primary right, the right peaceably to assemble a subordinate and instrumental right, as if
Amendment I read: ‘the right of the people peaceably to assemble’ in order to ‘petition the
government’”). Presser has also been cited for the view that the freedom of assembly is
limited to the purpose of petition. See Frank H. Easterbrook, Implicit and Explicit Rights of
Association, 10 HARV. J.L. & PUB. POL’Y 91 (1987) (citing Presser for the view that the
freedom of assembly is “the exercise by groups of the right to petition for redress of
grievances”).

2010] FORGOTTEN FREEDOM OF ASSEMBLY 591

storied and complex, and even the most elementary treatment of them
is beyond the scope of this Article. Yet we can nevertheless glean
insights into the importance of assembly through snapshots of each.

A. Suffragists

The new women’s movement began at the end of the nineteenth
century, when “[h]undreds of thousands of women joined the
thousands of clubs united under the auspices of the General Federation
of Women’s Clubs and the National Association of Colored Women.”126
According to Linda Lumsden, these clubs “served as training grounds
for the activist, articulate reformers who steered the suffrage
movement in the 1910s.”127 In 1908, various women’s clubs began
holding “open-air” campaigns to draw attention to their interests:

The success of the open-air campaigns helped prompt the organization
of the first American suffrage parades, a more visible and assertive
form of assembly. The spectacle of women marching shoulder to
shoulder achieved many ends. One was that because of the press
coverage parades attracted, suffrage became a nationwide issue.
Women also acquired organizational and executive skills in the course
of orchestrating extravaganzas featuring tens of thousands of marchers,
floats, and bands. Better yet, parades showcased women’s skills in
those areas and emphasized their numbers and determination. Finally,
and most crucially, marching together imbued women with a sense of
solidarity that lifted the movement to the status of a crusade for many
participants.128

As is often the case, the growth of local assemblies corresponded
to the growth of the larger institutional structures that operated on a
national level.129 The National American Woman Suffrage Association
grew from 45,000 in 1907, to 100,000 in 1915, to almost two million
in 1917.130 But the core of assembly in the women’s movement came
through networking and personal connections at the local level.
Women’s assemblies were not confined to traditional deliberative
meetings but included banner meetings, balls, swimming races, potato
sack races, baby shows, sharing of meals, pageants, and teatimes.131

126. LUMSDEN, supra note 93, at 3.
127. Id. at 3.
128. Id. at 146.
129. See generally THEDA SKOCPOL, DIMINISHED DEMOCRACY: FROM MEMBERSHIP TO
MANAGEMENT IN AMERICAN CIVIC LIFE (2003) (discussing the relationship between
grassroots movements and larger institutional structures).
130. LUMSDEN, supra note 93, at 3.
131. Id. at 17-19.

592 TULANE LAW REVIEW [Vol. 84:565

Just as the Democratic-Republican Societies had earlier refused to
limit their gatherings to formal meetings, the women’s movement
capitalized on an expanded conception of public political life built
upon an array of physical gatherings. These gatherings appealed not
only to reason but also to the emotions of those before whom they
assembled. As Harriot Stanton Blatch affirmed in 1912, men and
women “are moved by seeing marching groups of people and by
hearing music far more than by listening to the most careful
argument.”132

B. Civil Rights Activism

A second manifestation of the right of assembly during the
Progressive Era involved political organizing among African
Americans. These efforts repeatedly met with mob violence by white
citizens largely unrestrained by state and federal authorities. The first
decade of the twentieth century saw “savage race riots” around the
country, including significant violence in Atlanta in 1906 and
Springfield, Illinois, in 1908.133 Stirred by observing first-hand the
carnage resulting from these riots, Mary White Ovington joined Jane
Addams, William Lloyd Garrison, John Dewey, W.E.B. Du Bois and
other prominent Americans in calling for a conference to discuss
“present evils, the voicing of protests, and the renewal of the struggle
for civil and political liberty.”134 The first National Negro Conference
that ensued led to the formation of the National Association for the
Advancement of Colored People (NAACP).135
Based partly on the proximity between labor unrest and racial
violence, government officials linked the increasing political activity
among African Americans to the influence of communism, a
connection that foreshadowed even greater problems for civil liberties
a generation later. Theodore Kornweibel reports that J. Edgar Hoover
“fixated on the belief that racial militants were seeking to break down
social barriers separating blacks from whites, and that they were

132. Quoted in Jennifer L. Borda, The Woman Suffrage Parades of 1910-1913:
Possibilities and Limitations of an Early Feminist Rhetorical Strategy, 66 W. J. COMM. 25
(2002) (internal quotation marks omitted).
133. John P. Roche, Civil Liberty in the Age of Enterprise, 31 U. CHI. L. REV. 103, 119
(1963).
134. LANGSTON HUGHES, FIGHT FOR FREEDOM: THE STORY OF THE NAACP 22 (1962)
(quoting Oswald Garrison Villard’s “Call for a Conference”).
135. GILBERT JONAS, FREEDOM’S SWORD: THE NAACP AND THE STRUGGLE AGAINST
RACISM IN AMERICA, 1909-1969, at 13-15 (2005).

2010] FORGOTTEN FREEDOM OF ASSEMBLY 593

inspired by communists or were the pawns of communists.”136 In a
report to Congress, Attorney General A. Mitchell Palmer described “‘a
well-concerted movement among a certain class of Negro leaders of
thought and action to constitute themselves a determined and
persistent source of radical opposition to the Government’ . . . who
proclaimed ‘an outspoken advocacy of the Bolsheviki or Soviet
doctrines.’”137
Armed with these suspicions of communist influences, agents
from the Bureau of Investigation carefully monitored and constrained
the efforts of African Americans to organize through blatant violations
of the right of assembly. When A. Philip Randolph and Chandler
Owen, the editors of the black publication The Messenger, arrived to
address a large crowd in Cleveland on August 4, 1918, two Bureau
agents confiscated their publications and took them into custody for
interrogation.138 Undercover informants and the first black agents of
the Bureau infiltrated local gatherings of the NAACP and other
African-American organizations.139 An agent attending a Du Bois
lecture in Toledo reported that the audience consisted of “mostly
radicals.”140 In Boston, an agent reported that Du Bois’ editorials were
urging that supporters “incite riots and cause bloodshed.”141 The
Bureau also kept tabs on whites associated with the NAACP, including
Jane Addams and Anita Whitney.142

C. Organized Labor

The most frequent articulations of the right of assembly during
the Progressive Era came from an increasingly vocal labor movement.
Widespread labor unrest had emerged at the end of the nineteenth
century with the increase in industrialization and immigration.143 The
“Great Strike” of 1877 had involved over 100,000 workers throughout
the country and brought to a halt most of the nation’s transportation
system.144 By the early 1880s, the Knights of Labor had organized

136. THEODORE KORNWEIBEL, JR., “SEEING RED”: FEDERAL CAMPAIGNS AGAINST
BLACK MILITANCY, 1919-1925 xii (1998).
137. Id. at xv.
138. Id. at 77.
139. Id. at 62, 102.
140. Id. at 64-66.
141. Id. at 65 (internal quotation marks omitted). According to Kornweibel, this was
an “outrageously exaggerated charge.” Id.
142. Id.
143. Alexis J. Anderson, The Formative Period of First Amendment Theory, 1870-
1915, 24 AM. J. LEGAL HIST. 56, 58 (1980).
144. PHILIP S. FONER, THE GREAT LABOR UPRISING OF 1877, at 8, 10, 27 (1977).

594 TULANE LAW REVIEW [Vol. 84:565

hundreds of thousands of workers.145 The Haymarket Riot of 1886 and
the Pullman Strike of 1894 sandwiched “almost a decade of labor
unrest punctuated by episodes of spectacular violence” which included
“the strike of the Homestead Steel workers against the Carnegie
Corporation, the miners’ strikes in the coal mining regions of the East
and hardrock states in the West, a longshoremen’s strike in New
Orleans that united black and white workers, and numerous railroad
strikes.”146 But these labor efforts remained largely unorganized, and
direct appeals to the freedom of assembly by the labor movement did
not begin in earnest until the formation of the Industrial Workers of the
World (IWW) in 1905.
The IWW (nicknamed the “Wobblies”) formed out of a
conglomeration of labor interests dissatisfied with the reform efforts of
the American Federation of Labor. Led by William Haywood, Daniel
De Leon, and Eugene Debs, the Wobblies employed provocative words
and actions. The preamble to their Constitution declared that “the
working class and the employing class have nothing in common,” and
the IWW advocated this message in gatherings and demonstrations
throughout the country.147
The freedom of assembly figured prominently in the IWW’s
appeals to constitutional protections during organized strikes in major
industries including steel, textiles, rubber, and automobiles from 1909
to 1913. In 1910, Wobblies highlighted the denial of the right to
assemble at a demonstration in Spokane, Washington.148 When
members of the IWW invoked the rights of speech and assembly
during the Paterson Silk Strike of 1913, Paterson Mayor H.G. McBride
responded that these protections extended to the striking silk workers
but not to the Wobblies:

I cannot stand for seeing Paterson flooded with persons who have no
interest in Paterson, who can only give us a bad name, who can despoil

145. Louis Adamic reported that by May of 1886, the Knights of Labor had surpassed
one million members. LOUIS ADAMIC, DYNAMITE: THE STORY OF CLASS VIOLENCE IN
AMERICA 86 (1931). Despite these numbers, the Knights of Labor were “anything but
effectual” throughout their history. Id. at 58-59, 87.
146. Richard Schneirov, Shelton Stromquist & Nick Salvatore, Introduction to THE
PULLMAN STRIKE AND THE CRISIS OF THE 1890S, at 4 (Shelton Stromquist & Nick Salvatore
eds., 1999).
147. Fiske v. Kansas, 274 U.S. 380, 383 (1927) (quoting INDUSTRIAL WORKERS OF THE
WORLD CONST. pmbl., available at http://www.iww.org/culture/official/preamble.shtml)
(internal quotation marks omitted).
148. David M. Rabban, The IWW Free Speech Fights and Popular Conceptions of
Free Expression Before World War I, 80 VA. L. REV. 1055, 1076 (1994) (citing A Call to
Action, INDUSTRIAL WORKER (Seattle), Feb. 26, 1910, at 2).

2010] FORGOTTEN FREEDOM OF ASSEMBLY 595

in a few hours a good name we have been years in building up, and I
propose to continue my policy of locking these outside agitators up on
sight.149

True to his word, Mayor McBride arrested a number of IWW leaders,
including Elizabeth Gurley Flynn.150 Later that year, the IWW
publication Solidarity protested that “America today has abandoned
her heroic traditions of the Revolution and the War of 1812 and has
turned to hoodlumism and a denial of free speech and assembly to a
large and growing body of citizens.”151

VII. THE INTER-WAR YEARS AND THE RISE OF THE FREEDOM OF
ASSEMBLY

The growing fear of communism facilitated gross incursions on
the freedom of assembly across progressive movements. As Irwin
Marcus has observed: “Unrest associated with the assertiveness of
women, African Americans, and immigrant workers could be ascribed
to the influence of the Communists and inoculating Americans with a
vaccine of 100 percent Americanism was offered as a cure for national
problems.”152 The rising Americanism was on the verge of claiming the
freedom of assembly as one of its casualties. On the eve of America’s
entry into the First World War, President Wilson predicted to New York
World editor Frank Cobb that “the Constitution would not survive” the
war and “free speech and the right of assembly would go.”153 Seven
months later, Wilson’s words seemed ominously prescient when the
Bolshevik Revolution in Russia triggered the First Red Scare. Over
the next few years, the freedom of assembly was constrained by
shortsighted legislation like the Espionage Act of 1917 (and its 1918
amendments) and the Immigration Act of 1918, and the Justice
Department’s infamous Palmer Raids in 1920, which “effectively
torpedoed most notions of freedom of expression and freedom of

149. Paterson Checks Weavers’ Strike, N.Y. TIMES, Feb. 27, 1927, at 22.
150. Id.
151. DAVID M. RABBAN, FREE SPEECH IN ITS FORGOTTEN YEARS 84-85 (1997) (quoting
Heroic Contrasts, SOLIDARITY, July 26, 1913, at 2 (internal quotation marks omitted)).
152. Irwin M. Marcus, The Johnstown Steel Strike of 1919: The Struggle for
Unionism and Civil Liberties, 63 PENN. HIST. 96, 100 (1996). A variant of these views
resurfaced during the “liberal consensus” of mid-twentieth century pluralism, just as the
Court first recognized a constitutional right of association. See Inazu, supra note 18.
153. JOHN L. HEATON, COBB OF “THE WORLD:” A LEADER IN LIBERALISM 269-70
(1924) (internal quotation marks omitted). There has been some debate as to when or even
whether the conversation occurred. See Jerold S. Auerbach, Woodrow Wilson’s “Prediction”
to Frank Cobb: Words Historians Should Doubt Ever Got Spoken, 54 J. AM. HIST. 608
(1967); Arthur S. Link, That Cobb Interview, 72 J. AM. HIST. 7 (1985).

596 TULANE LAW REVIEW [Vol. 84:565

association that survived the war fought to make the world safe for
democracy.”154

A. A New Conception of the First Amendment

Despite the Red Scare, and probably because of some of the
flagrant abuses of civil liberties that occurred during it, libertarian
interpretations of the First Amendment that had surfaced prior to the
First World War began to take shape shortly into the inter-war period.155
Meanwhile, Samuel Gompers repeatedly invoked the freedoms of
speech and assembly in his battle against labor injunctions.156
The growing importance of assembly in political and legal
discourse during the 1920s is strikingly evident in Justice Brandeis’s
famous opinion in Whitney v. California.157 Anita Whitney’s appeal
stemmed from her conviction under California’s Criminal Syndicalism
Act for having served as a delegate to the 1919 organizing convention

154. AVIAM SOIFER, LAW AND THE COMPANY WE KEEP 57 (1995).
155. Harvard law professor Zechariah Chafee, Jr., led the doctrinal synthesis with his
1919 article “Freedom of Speech in War Time” and his book Freedom of Speech the
following year. RABBAN, supra note 151, at 4-5 (citing Zechariah Chafee, Freedom of Speech
in War Time, DUNSTER HOUSE PAPERS, July 1917, at 1; ZECHARIAH CHAFEE, JR., FREEDOM OF
SPEECH (1920)); see also John Wertheimer, Freedom of Speech: Zechariah Chafee and Free-
Speech History, 22 REVS. AM. HIST. 365, 374 (1994). Although Chafee’s scholarship was
shaky, it “provided intellectual cover for Justices Holmes and Brandeis when they began to
dissent in First Amendment cases in the fall of 1919.” RABBAN, supra note 151, at 7. On the
problems with Chafee’s scholarship, see Wertheimer, supra at 374-75 (noting that Chafee’s
“record as a scholar rightly gives us pause”). Wertheimer also notes that Chafee’s advocacy
was not without personal risk: “A group of conservative Harvard Law School alumni, with
behind-the-scenes help from J. Edgar Hoover and the Justice Department, launched a
campaign to have Chafee fired from Harvard on the grounds that his free-speech writings
rendered him unfit to continue teaching there.” Id. at 368.
156. Gompers Fights Sedition Bill, N.Y. TIMES, Jan. 19, 1920, at 15 (Sterling-Graham
sedition bill “can be used to kill free speech and free assembly”); Labor Will Fight for Every
Right, Gompers Asserts, N.Y. TIMES, June 13, 1922, at 1 (arguing against the denial of
“freedom of expression, freedom of press, and the freedom of assembly”); Gompers Assails
Harding on Unions, N.Y. TIMES, July 1, 1923, at 3 (“[T]he Daugherty injunction . . . sought to
deny the constitutional rights of freedom of speech, freedom of assembly, and freedom of the
press to railroad workers.”). In 1951, President Truman, speaking at the dedication of a
memorial to Gompers, said, “[A]bove all, he fought the labor injunction because it was used
to violate the constitutional rights to free speech and freedom of assembly.” President Harry
S. Truman, Addresss at the Dedication of a Square in Washington to the Memory of Samuel
Gompers (Oct. 27, 1951) (transcript available at the American Presidency Project,
http://www.presidency.ucsb.edu).
157. 274 U.S. 357 (1927) (Brandeis, J., concurring). The decision was formally
overruled in Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). Brandeis concurred
rather than dissented in Whitney on procedural grounds, but his opinion strongly rebuked of
the majority’s reasoning. See PHILIPPA STRUM, LOUIS D. BRANDEIS: JUSTICE FOR THE PEOPLE
306 (1984).

2010] FORGOTTEN FREEDOM OF ASSEMBLY 597

of the Communist Labor Party of California.158 The Court rejected her
argument that the California law violated her rights under the First
Amendment, expressing particular concern that her actions had been
undertaken in concert with others, which “involve[d] even greater
danger to the public peace and security than the isolated utterances and
acts of individuals.”159
Chafing at this rationale, Brandeis penned some of the most well-
known words in American jurisprudence:

Those who won our independence . . . believed that freedom to think as
you will and to speak as you think are means indispensable to the
discovery and spread of political truth; that without free speech and
assembly discussion would be futile; that with them, discussion affords
ordinarily adequate protection against the dissemination of noxious
doctrine; that the greatest menace to freedom is an inert people; that
public discussion is a political duty; and that this should be a
fundamental principle of the American government.160

The freedoms of “speech and assembly” lie at the heart of Brandeis’s
argument—the phrase appears eleven times in his brief concurrence.
The two freedoms had been linked only once before; after Whitney,
the nexus occurs in over one hundred of the Court’s opinions.161 The
connection between assembly and speech highlights that a group
expresses itself not only through spoken words but also through its
very act of gathering. As the Court itself recognized, group expression
was far more worrisome than “the isolated utterances and acts of
individuals.”162

158. Vincent Blasi has written a fascinating account of these circumstances. See
Vincent Blasi, The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion
in Whitney v. California, 29 WM. & MARY L. REV. 653 (1988).
159. 274 U.S. at 372.
160. Id. at 375 (Brandeis, J., concurring). Legal scholars have written volumes about
these words and those that followed, and Brandeis’s concurrence has been praised for its
eloquent defense of free speech. Vincent Blasi has called the opinion “arguably the most
important essay ever written, on or off the bench, on the meaning of the first amendment.”
Blasi, supra note 158, at 668. And Justice Brennan, writing for the Court in the landmark
case New York Times v. Sullivan, deemed Brandeis’s Whitney concurrence the “classic
formulation” of the fundamental principle underlying free speech. 376 U.S. 254, 270 (1964);
cf. H. JEFFERSON POWELL, A COMMUNITY BUILT ON WORDS: THE CONSTITUTION IN HISTORY
AND POLITICS 194 (2002); Robert M. Cover, The Left, the Right, and the First Amendment:
1918-1928, 40 MD. L. REV. 349, 371 (1981) (asserting that Brandeis’s concurrence is a
“classic statement of free speech”).
161. E.g., New York ex rel. Doyle v. Atwell, 261 U.S. 590, 591 (1923) (noting that
petitioners alleged a deprivation of the “rights of freedom of speech and assembly”).
162. 274 U.S. at 372.

598 TULANE LAW REVIEW [Vol. 84:565

B. New Challenges to Labor

In the early 1920s, the conservative wing of the Supreme Court
issued a series of antilabor decisions aimed at stopping picketing and
union organizing.163 But by 1933, workers had successfully obtained
legislative relief through the National Industrial Recovery Act, which
provided the first guarantee to workers of the right to organize in
associations. Two years later, the Wagner Act sought to strengthen the
associational rights of workers even further.
The relationship between the right of assembly and the interests
of labor took on a more public dimension on April 10, 1936, when
Congress held hearings on legislation to authorize the Committee on
Education and Labor to investigate “violations of the rights of free
speech and assembly and undue interference with the right of labor to
organize and bargain collectively.”164 National Labor Relations Board
chairman J. Warren Madden testified that “[t]he right of workmen to
organize themselves into unions has become an important civil liberty”
and that workers could not organize without exercising the rights of
free speech and assembly.165 Following the hearings and subsequent
approval of the Senate measure, Committee Chair Hugo Black named
Senator Robert La Follette, Jr. of Wisconsin to chair a subcommittee to
investigate these concerns. The La Follette Committee embarked with
“the zeal of missionaries” in an exhaustive investigation that spanned
five years.166 When it concluded, La Follette reported to Congress that
“[t]he most spectacular violations of civil liberty . . . [have] their roots
in economic conflicts of interest” and emphasized that “[a]ssociation
and self-organization are simply the result of the exercise of the
fundamental rights of free speech and assembly.”167
Rhetoric across the political spectrum during the mid-1930s
echoed the importance of assembly in the labor context. In a 1935
speech on Constitution Day, former President Hebert Hoover listed
assembly among the core freedoms that guarded liberty.168 That same
year, President Roosevelt’s Interior Secretary Harold Ickes referred to
the freedoms of speech, press, and assembly as “the three musketeers

163. Cover, supra note 160, at 354.
164. Jerold S. Auerbach, The La Follette Committee: Labor and Civil Liberties in the
New Deal, 51 J. AM. HIST. 435, 440 (1964) (citing 74 CONG. REC. 4151 (1936) (internal
quotation marks omitted)).
165. Id. at 440 n.30 (internal quotation marks omitted).
166. Id. at 442.
167. Id. at 442 n.40 (quoting 77 CONG. REC. 3311 (1942)) (internal quotation marks
omitted).
168. Hoover’s Warning of the Perils to Liberty, N.Y. TIMES, Sept. 18, 1935, at 10.

2010] FORGOTTEN FREEDOM OF ASSEMBLY 599

of our constitutional forces” during an address before an annual
luncheon of the Associated Press.169 Ickes asserted: “We might give
up all the rest of our Constitution, if occasion required it . . . [a]nd yet
have sure anchorage for the mooring of our good ship America, if
these rights remained to us unimpaired.”170

C. Assembly Made Applicable to the States

In 1937, the Supreme Court made the freedom of assembly
applicable to state as well as federal action in De Jonge v. Oregon.171
Chief Justice Hughes asserted that the right of assembly “cannot be
denied without violating those fundamental principles of liberty and
justice which lie at the base of all civil and political institutions,—
principles which the Fourteenth Amendment embodies in the general
terms of its due process clause.”172 In words strikingly similar to
Brandeis’s Whitney concurrence, he emphasized:

[The need] to preserve inviolate the constitutional rights of free speech,
free press and free assembly in order to maintain the opportunity for
free political discussion, to the end that government may be responsive
to the will of the people and that changes, if desired, may be obtained
by peaceful means. Therein lies the security of the Republic, the very
foundation of constitutional government.173

Hughes underscored the significance of applying the right of assembly
to state action by observing that “[t]he right of peaceable assembly is a
right cognate to those of free speech and free press and is equally
fundamental.”174

D. Hague v. Committee for Industrial Organization

At the end of 1938, the American Bar Association’s Committee
on the Bill of Rights advocated the importance of the right of assembly
in an amicus brief to the United States Court of Appeals for the Third
Circuit in Hague v. Committee for Industrial Organization.175 The
appeal addressed Mayor Frank Hague’s repeated denials of a permit to

169. Long and Coughlin Classed by Ickes as ‘Contemptible,’ N.Y. TIMES, Apr. 23,
1935, at 1 (internal quotation marks omitted).
170. Id. (internal quotation marks omitted).
171. 299 U.S. 353 (1937).
172. Id. at 364.
173. Id. at 365.
174. Id. at 364. Brandeis had called the right of assembly fundamental in his Whitney
concurrence ten years earlier. Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J.,
concurring).
175. Hague v. Comm. Indus. Org., 101 F.2d 774 (3d Cir. 1939).

600 TULANE LAW REVIEW [Vol. 84:565

the Committee for Industrial Organization to hold a public meeting in
Jersey City. The ABA’s lengthy brief emphasized that “the integrity of
the right ‘peaceably to assemble’ is an essential element of the
American democratic system” involving “the citizen’s right to meet
face to face with others for the discussion of their ideas and
problems—religious, political, economic or social”; that “assemblies
face to face perform a function of vital significance in the American
system”; and that public officials had the “duty to make the right of
free assembly prevail over the forces of disorder if by any reasonable
effort or means they can possibly do so.”176
The amicus brief garnered an unusual amount of attention. The
American Bar Association wrote:

The filing of the brief was widely hailed as a great step in the defense
of liberty and the American traditions of free speech and free assembly
as basic institutions of democratic government. The clear and earnest
argument of the brief was attested as an admirable exposition of the
fundamental American faith. Hardly any action in the name of the
American Bar Association in many years, if ever, has attracted as wide
and immediate attention and as general acclaim, as the preparation and
filing of this brief.177

The New York Times reviewed the brief with similarly effusive
language:

This brief ought to stand as a landmark in American legal history. It
ought to be multiplied and spread about in all communities in which
private citizens, private organizations or public officials dare threaten or
suppress the basic guarantees of American liberty. It ought to be on file
in every police station. It ought to be in every public library, in every
school library, and certainly in the home of every voter in Jersey City.178

176. Brief for the Committee on the Bill of Rights, of the American Bar Association as
Amicus Curiae, Hague v. Comm. Indus. Org., 307 U.S. 496 (1939) (No. 651) [hereinafter
Brief for the Committee].
177. Association’s Committee Intervenes To Defend Right of Public Assembly, 25
A.B.A. J. 7 (1939).
178. Editorial, A Brief for Free Speech, N.Y. TIMES, Dec. 23, 1938, at 18. The Times
later wrote that the brief “was received all over the country with approval as a lucid
exposition and defense of the fundamental guarantee of American liberty.” Editorial, Bar and
Civil Liberties, N.Y. TIMES, July 17, 1939, at 10. Zechariah Chafee had a substantial role in
drafting the brief. When he published Free Speech in the United States two years later, his
thirty-page discussion of the freedom of assembly consisted almost entirely of verbatim
sections of the brief. See ZECHARIAH CHAFEE, JR., FREE SPEECH IN THE UNITED STATES 409-
38 (1941).

2010] FORGOTTEN FREEDOM OF ASSEMBLY 601

The Third Circuit ruled in favor of the C.I.O., but Hague appealed to
the Supreme Court, setting the stage for an even broader judicial
endorsement of the freedom of assembly.179

E. The Four Freedoms

In 1939, assembly joined religion, speech, and press as one of the
“Four Freedoms” celebrated in the New York World’s Fair. Fair
organizers commissioned Leo Friedlander to design a group of statues
commemorating each of the four freedoms.180 Grover Whalen, the
president of the fair corporation, credited New York Times president
and publisher Arthur Sulzberger with the idea:

Mr. Sulzberger pointed out that if we portrayed four of the
constitutional guarantees of liberty in the “freedom group” we could
teach the millions of visitors to the fair a lesson in history with a moral.
The lesson is that freedom of press, freedom of religion, freedom of
assembly and freedom of speech, firmly fixed in the cornerstone of our
government since the days of Washington, have enabled us to build the
most successful democracy in the world. And the moral is that as long
as these freedoms remain a part of our constitutional set-up we can face
the problems of tomorrow, a nation of people calm, united and
unafraid.181

The buildup to the opening of the Fair began with New Year’s Day
speeches celebrating each of the four freedoms that were broadcast
internationally from Radio City Music Hall. Dorothy Thompson, the
“First Lady of American Journalism,” delivered the speech on the
freedom of assembly.182 Calling assembly “the most essential right of
the four,” Thompson elaborated:

The right to meet together for one purpose or another is actually the
guaranty of the three other rights. Because what good is free speech if
it impossible to assemble people to listen to it? How are you going to
have discussion at all unless you can hire a hall? How are you going to

179. The Committee on the Bill of Rights had submitted a revised version of its
amicus brief when the case had reached the Supreme Court. Brief for the Committee, supra
note 176.
180. Mile-Long Mall Feature of Fair, N.Y. TIMES, Dec. 12, 1937, at 57.
181. Id. (internal quotation marks omitted).
182. Fair To Broadcast to World Today, N.Y. TIMES, Jan. 1, 1939, at 13. Thompson
was at the time a news commentator for the New York Herald Tribune. She was considered
by some to be “the most influential woman in the United States after Eleanor Roosevelt,” and
her syndicated column, “On the Record,” reached an estimated eight to ten million readers
three times a week. SUSAN WARE, LETTER TO THE WORLD: SEVEN WOMEN WHO SHAPED THE
AMERICAN CENTURY 45 (1998). Thompson’s portrait made the cover of Time on June 13,
1939. Id. at 47.

602 TULANE LAW REVIEW [Vol. 84:565

practice your religion, unless you can meet with a community of people
who feel the same way? How can you even get out a newspaper, or any
publication, without assembling some people to do it? 183

Three months later, Columbia University president Nicholas Butler
penned a New York Times editorial on “The Four Freedoms.”184 With
the European conflict in mind, Butler warned of the “millions upon
millions of human beings living under governments which not only do
not accept the Four Freedoms, but frankly and openly deny them all.”185
The following month, the Times ran an editorial by Henry Steele
Commager. Commager decried the assaults on the “four fundamental
freedoms” and concluded his essay by asserting: “The careful
safeguards which our forefathers set up around freedom of religion,
speech, press and assembly prove that these freedoms were thought to
be basic to the effective functioning of democratic and republican
government. The truth of that conviction was never more apparent
than it is now.”186
On April 30, 1939, the opening day of the World’s Fair, New York
Mayor Fiorello la Guardia called the site of Friedlander’s four statues
the “heart of the fair.”187 Before an audience of fifteen to twenty
thousand, la Guardia proclaimed that the right of assembly “must be
given to any group who desire to meet and there discuss any problem
that they desire.”188
Barely a month after the opening of the World’s Fair, the Supreme
Court issued its Hague decision, noting that streets and parks were
publicly available “for purposes of assembly, communicating thoughts
between citizens, and discussing public questions.”189 The New York
Times’ coverage of Hague pronounced: “With Right of Assembly
Reasserted, All ‘Four Freedoms’ of Constitution Are Well
Established.”190
Hague’s words on the heels of the tribute to the four freedoms at
the World’s Fair seemed to anchor the freedom of assembly in political

183. Dorothy Thompson, Democracy 1 (Jan. 1, 1939) (transcript available in the
Syracuse University Library, Dorothy Thompson Papers, ser. VII, box 6). Thompson’s speech
pitted the free assembly of democracy against the abuses of fascism.
184. Nicholas Murray Butler, The Four Freedoms, N.Y. TIMES, Mar. 5, 1939, at AS5.
185. Id. Pictures of Friedlander’s statues accompanied the editorial.
186. Henry Steele Commager, “To Secure the Blessings of Liberty,” N.Y. TIMES, Apr.
9, 1939, at SM3.
187. Mayor Dedicates Plaza of Freedom, N.Y. TIMES, May 1, 1939, at 4.
188. Id.
189. 307 U.S. 496, 515 (1939).
190. Dean Dinwoodey, A Fundamental Liberty Upheld in Hague Case, N.Y. TIMES,
June 11, 1939, at E7.

2010] FORGOTTEN FREEDOM OF ASSEMBLY 603

discourse. Indeed, a poll by Elmo Roper’s organization at the end of
1940 reported that 89.9% of respondents thought their personal
liberties would be decreased by restrictions on freedom of assembly
(compared to 81.5% who expressed concern over restrictions on
“freedom of speech by press and radio”).191 Americans appeared
resolute in their belief of the indispensability of free assembly to
democracy, and the importance of assembly seemed secure.
Politics and history decided otherwise. On January 6, 1941,
President Roosevelt proclaimed “four essential human freedoms” in
his State of the Union Address.192 Rather than refer to the freedoms of
speech, religion, assembly and press that had formed the centerpiece
of the World’s Fair, Roosevelt’s “Four Freedoms Speech” called upon
freedom of speech and expression, freedom of religion, freedom from
want, and freedom from fear. The new formulation—absent assembly—
quickly overtook the old. Seven months later, Roosevelt and Winston
Churchill incorporated the new four freedoms into the Atlantic
Charter. In 1943, Norman Rockwell created four paintings inspired by
Roosevelt’s Four Freedoms. The Saturday Evening Post printed the
paintings in successive editions, accompanied by matching essays
expounding upon each of the freedoms. And like the earlier four
freedoms, the new ones were also set in stone. Roosevelt
commissioned Walter Russell to create the Four Freedoms Monument,
which was dedicated at Madison Square Garden. Today, the Franklin
and Eleanor Roosevelt Institute honors well-known individuals with
the “Four Freedoms Award.”193

VIII. THE RHETORIC OF ASSEMBLY

Despite its absence from Roosevelt’s formulation of the Four
Freedoms, the freedom of assembly did not disappear from political
and legal discourse overnight. In 1941, an illustrious group called
“The Free Company” penned a series of radio dramas about the First
Amendment. Attorney General Robert Jackson and Solicitor General
Francis Biddle helped shape the group, which included Robert
Sherwood (then Roosevelt’s speechwriter), William Saroyan, Maxwell
Anderson, Ernest Hemingway, and James Boyd.194 The group operated

191. Editorial, Public Mind in Good Health, WALL ST. J., Jan. 7, 1941, at 4.
192. President Franklin Delano Roosevelt, Annual Message to Congress, The “Four
Freedoms” Speech (Jan. 6, 1941).
193. See The Franklin D. Roosevelt Four Freedoms Awards Home Page, http://
www.FourFreedoms.nl (last visited Nov. 3, 2009).
194. Radio Broadcast: Of Thee They Sing, TIME, Feb. 24, 1941.

604 TULANE LAW REVIEW [Vol. 84:565

under what was “virtually a Government charter” to spread a message
of democracy.195
Orson Welles wrote The Free Company’s play on the freedom of
assembly. “His Honor, the Mayor” portrayed the dilemma of Bill
Knaggs, a fictional mayor confronted with an impending rally of a
group called the “White Crusaders.” After deciding to allow the rally,
the mayor addressed the crowd that had gathered in protest:

[D]on’t start forbiddin’ anybody the right to assemble. Democracy’s a
rare precious thing and once you start that—you’ve finished
democracy! Democracy guarantees freedom of assembly uncondi-
tionally to the worst lice that want it. . . . All of you’ve read the history
books. You know what the right to assemble and worship God meant to
most of those folks that first came here, the ones that couldn’t pray the
way they wanted to in the old country?196

The play concluded with music followed by the voice of the narrator:
Like his honor, the Mayor, then, let us stand fast by the right of lawful
assembly. Let us say with that great fighter for freedom, Voltaire, “I
disapprove of what you say but I will defend to the death your right to
say it.” Thus one of our ancient, hard-won liberties will be made secure
and we, differing though we may at times among ourselves, will stand
together on a principle to make sure that government of the people, by
the people, for the people shall not perish from the earth.197

Not everyone shared these sentiments. Following the broadcast of
“His Honor, The Mayor,” the Hearst newspaper chain and the
American Legion attacked it as “un-American and tending to
encourage communism and other subversive groups” and “cleverly
designed to poison the minds of young Americans.”198 The next week,
J. Edgar Hoover drafted a Justice Department memorandum
“concerning the alleged Communist activities and connections of
Orson Welles.”199
Later in 1941, festivities around the country marked the
sesquicentennial anniversary of the Bill of Rights. In Washington
D.C.’s Post Square, organizers of a celebration displayed an enormous

195. Radio Broadcast: Freely Criticized Company, TIME, Apr. 28, 1941.
196. Orson Welles, His Honor, The Mayor, in THE FREE COMPANY PRESENTS: A
COLLECTION OF PLAYS ABOUT THE MEANING OF AMERICA 143 (1941).
197. Id.
198. CHARLES HIGHAM, ORSON WELLES: THE RISE AND FALL OF AN AMERICAN GENIUS
175 (1985); Freely Criticized Company, supra note 195.
199. Memorandum from J. Edgar Hoover, Director, Fed. Bureau of Investigation, to
Matthew F. McGuire, Assistant to the Attorney Gen. (Apr. 24, 1941), available at http://www.
wellesnet.com/?p=186.

2010] FORGOTTEN FREEDOM OF ASSEMBLY 605

copy of the Bill of Rights next to the four phrases: “Freedom of
Speech, Freedom of Assembly, Freedom of Religion, Freedom of the
Press.”200 The Sesquicentennial Committee, with President Roosevelt
as its chair, issued a proclamation describing the original four
freedoms as “the pillars which sustain the temple of liberty under
law.”201 Days before the attack on Pearl Harbor, Roosevelt declared
that December 15, 1941, would be “Bill of Rights Day.” Roosevelt
heralded the “immeasurable privileges” of the First Amendment and
signed the proclamation for Bill of Rights Day against the backdrop of
a mural listing the original four freedoms.202 The photo op was not
without irony; less than three months later he signed Executive Order
9066, authorizing the internment of Japanese Americans.
Although the Supreme Court endorsed the President’s restrictions
on the civil liberties of Japanese Americans in Hirabayashi v. United
States203 and Korematsu v. United States,204 it elsewhere affirmed a core
commitment to the Bill of Rights generally and the freedom of
assembly in particular. In 1943, Justice Jackson wrote in West Virginia
v. Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to place them beyond the
reach of majorities and officials and to establish them as legal principles
to be applied by the courts. One’s right to life, liberty, and property, to
free speech, a free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they depend on the
outcome of no elections.205

Two years later, the Court emphasized in Thomas v. Collins that
restrictions of assembly could only be justified under the “clear and
present danger” standard that the Court had adopted in its free speech
cases.206 By a 5-4 majority, the Court overturned the contempt
conviction of a labor spokesman who had given a speech in Houston
despite a restraining order prohibiting him from doing so. Because of
the “preferred place given in our scheme to the great, the indispensable
democratic freedoms secured by the First Amendment,” the Court

200. Scott Hart, America Celebrates 150th Anniversary of Bill of Rights, WASH. POST,
Dec. 15, 1941, at 19.
201. Henry Steele Commager, Charter of Our Way of Life, N.Y. TIMES, Dec. 14, 1941,
at SM6.
202. Day Will Honor Bill of Rights, N.Y. TIMES, Nov. 29, 1941, at 19.
203. 320 U.S. 81 (1943).
204. 323 U.S. 214 (1944).
205. 319 U.S. 624, 638 (1943).
206. 323 U.S. 516, 527 (1945).

606 TULANE LAW REVIEW [Vol. 84:565

concluded that only “the gravest abuses, endangering paramount
interests, give occasion for permissible limitation.”207 Justice
Rutledge’s opinion noted that the right of assembly guarded “not solely
religious or political” causes but also “secular causes,” great and
small.208 And Rutledge recognized the expressive nature of assembly
by noting that the rights of the speaker and the audience were
“necessarily correlative.”209 As Aviam Soifer has suggested, Rutledge’s
“dynamic, relational language” emphasized that the right of assembly
was “broad enough to include private as well as public gatherings,
economic as well as political subjects, and passionate opinions as well
as factual statements.”210
A further endorsement of assembly came by way of the executive
branch in the 1947 Report of the President’s Committee on Civil
Rights.211 The Report indicated that the “great freedoms” of religion,
speech, press, and assembly were “relatively secure” and that citizens
were “normally free . . . to assemble for unlimited public
discussions.”212 Noting growing concerns about “Communists and
Fascists,” the Committee asserted that it “unqualifiedly opposes any
attempt to impose special limitations on the rights of these people to
speak and assemble” and cautioned that while “the government has the
obligation to have in its employ only citizens of unquestioned loyalty,”
our “whole civil liberties history provides us with a clear warning
against the possible misuse of loyalty checks to inhibit freedom of
opinion and expression.”213

IX. THE RISE OF ASSOCIATION AND THE END OF ASSEMBLY

With an irony that rivaled President Roosevelt’s Bill of Rights
Day proclamation, President Truman established the Federal Employee
Loyalty Program the same year that his committee issued its civil

207. Id. at 530-31 (emphasis added).
208. Id. The “preferred place” language originated in Justice Douglas’s opinion for the
Court in Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943) (“Freedom of press, freedom of
speech, freedom of religion are in a preferred position.”).
209. 323 U.S. at 534.
210. SOIFER, supra note 154, at 77-78. Soifer argues that the principles articulated in
Thomas “starkly contrast with the instrumental focus of more recent freedom of association
decisions.” Id. at 78.
211. THE PRESIDENT’S COMM. ON CIVIL RIGHTS, TO SECURE THESE RIGHTS: THE
REPORT OF THE PRESIDENT’S COMMITTEE ON CIVIL RIGHTS (1947). President Truman
established the Committee with Executive Order 9808. Exec. Order No. 9808, 11 Fed. Reg.
14,153 (Dec. 5, 1946).
212. THE PRESIDENT’S COMM. ON CIVIL RIGHTS, supra note 211, at 47.
213. Id. at 48, 50 (emphasis omitted).

2010] FORGOTTEN FREEDOM OF ASSEMBLY 607

rights report. The loyalty program empowered the federal government
to deny employment to “disloyal” individuals.214 The government’s
loyalty determination could consider “activities and associations” that
included “[m]embership in, affiliation with or sympathetic association
with any foreign or domestic organization, association, movement,
group or combination of persons, designated by the Attorney General
as totalitarian, fascist, communist, or subversive.”215 Attorney General
Tom Clark quickly generated a list of 123 “subversive” organiza-
tions.216 Within a year, the FBI had examined over two million federal
employees and conducted over 6300 full investigations.217
The restrictions imposed by the loyalty program prompted some
of the earliest articulations of a previously unseen defense of group
autonomy: a constitutional right of association.218 Constitutional
scholar Thomas Emerson attacked the loyalty program in a 1947
article in the Yale Law Journal, contending that the investigations
infringed upon the “concept of the right to freedom [of] political
expression” emerged from “the specific guarantees of freedom of
speech, freedom of the press, the right of assembly and the right to
petition the government.”219 This right of political expression was
“basic, in the deepest sense, for it underlies the whole theory of
democracy.”220 Emerson cited a recent speech by Charles Wyzanski,
Jr., who had argued that the “peculiarly complicated” freedom of
association “cuts underneath the visible law to the core of our political
science and our philosophy.”221
These nascent references to a right of association emerged just as
the Supreme Court entered the fray of the Communist Scare with its
1950 decision, American Communications Ass’n v. Douds.222 Douds
involved a challenge to the Taft-Hartley amendments to the National
Labor Relations Act (NLRA), which required that union officers
submit affidavits disavowing membership in or support of the

214. SAMUEL WALKER, IN DEFENSE OF AMERICAN LIBERTIES: A HISTORY OF THE ACLU
176 (1990) (quoting Exec. Order No. 9835, 3 C.F.R. 627 (1947).
215. Exec. Order No. 9835, supra note 214.
216. Thomas I. Emerson & David M. Helfeld, Loyalty Among Government
Employees, 58 YALE L.J. 1, 32 (1948).
217. Id.
218. What follows in this Part is a much abbreviated version of my account of the
emergence of the right of association in Inazu, supra note 18.
219. Id. at 83.
220. Id.
221. Charles E. Wyzanski, Jr., The Open Window and the Open Door: An Inquiry into
Freedom of Association, 35 CAL. L. REV. 336, 337-38 (1947).
222. 339 U.S. 382 (1950).

608 TULANE LAW REVIEW [Vol. 84:565

Communist Party before a union could receive the NLRA’s
protections.223 Although recognizing “[t]he high place in which the
right to speak, think, and assemble as you will was held by the Framers
of the Bill of Rights and is held today by those who value liberty both
as a means and an end,” Chief Justice Vinson concluded that the Act
reflected “legitimate attempts to protect the public, not from the
remote possible effects of noxious ideologies, but from present
excesses of direct, active conduct.”224 The denial of associational
protections continued in Dennis v. United States225 and Adler v. Board
of Education226 before the Court finally imposed some limits on
anticommunist legislation in Wieman v. Updegraff.227
Despite hints of greater associational protections in Wieman—
Justice Frankfurter’s concurrence described “a right of association
peculiarly characteristic of our people”228—the communist cases
proved inadequate for elaborating upon the right of association toward
which Emerson and others had gestured. Instead, the first explicit
recognition of a constitutional right of association came in the civil
rights context, with the Supreme Court’s 1958 decision in NAACP v.
Alabama ex rel. Patterson.229 By this time, the distinction between
assembly and association was sufficiently muddled. Justice Harlan’s
opinion for a unanimous Court framed the constitutional question in
terms of the “fundamental freedoms protected by the Due Process
Clause of the Fourteenth Amendment.”230 He began his constitutional
analysis by citing De Jonge v. Oregon231 and Thomas v. Collins232 for
the following principle: “Effective advocacy of both public and private
points of view, particularly controversial ones, is undeniably enhanced
by group association, as this Court has more than once recognized by
remarking upon the close nexus between the freedoms of speech and
assembly.”233 De Jonge and Thomas had established that the freedom

223. Taft-Hartley Act, 29 U.S.C. §§ 141, 159(h) (1947) (amending National Labor
Relations Act, 29 U.S.C. §§ 151-166 (1935)).
224. 339 U.S. at 399.
225. 341 U.S. 494 (1951).
226. 342 U.S. 485 (1952).
227. 344 U.S. 183 (1952).
228. Id. at 195 (Frankfurter, J., concurring).
229. 357 U.S. 449 (1958). I explore the doctrinal tensions of the right of association
that resulted from the Court’s differing treatment of communist and civil rights cases in Inazu,
supra note 18.
230. 357 U.S. at 460.
231. 299 U.S. 353 (1937).
232. 323 U.S. 516 (1945).
233. NAACP, 357 U.S. at 460.

2010] FORGOTTEN FREEDOM OF ASSEMBLY 609

of assembly applied to the states through the Fourteenth Amendment;
that it covered political, economic, religious, and secular matters; and
that it could only be restricted “to prevent grave and immediate danger
to interests which the State may lawfully protect.”234 Based on these
precedents, Justice Harlan could have grounded his decision in the
freedom of assembly. But he instead shifted away from assembly,
writing in the next sentence, “it is beyond debate that freedom to
engage in association for the advancement of beliefs and ideas is an
inseparable aspect of the ‘liberty’ assured by the Due Process Clause
of the Fourteenth Amendment, which embraces freedom of speech.”235
The Alabama courts had constrained the “right to freedom of
association” of members of the NAACP.236 These members had a
“constitutionally protected right of association” that meant they could
“pursue their lawful private interests privately” and “associate freely
with others in so doing.”237 Writing a few years after NAACP v.
Alabama ex rel. Patterson, Emerson suggested that Justice Harlan
“initially treated freedom of association as derivative from the first
amendment rights to freedom of speech and assembly, and as ancillary
to them” and then “elevated freedom of association to an independent
right, possessing an equal status with the other rights specifically
enumerated in the first amendment.”238
Despite its adventitious roots, the new right of association gained
traction in a series of civil rights cases challenging state attacks on the
NAACP.239 By the mid-1960s, the only cases addressing the freedom
of assembly (as distinct from the freedom of association) were those
overturning convictions of African Americans who had participated in

234. De Jonge, 299 U.S. at 364; Thomas, 323 U.S. at 528 n.12 (internal quotation
marks omitted).
235. 357 U.S. at 460 (emphasis added). He then proceeded to discuss the “protected
liberties” of speech and press that were “assured under the Fourteenth Amendment.” Id. at
461.
236. Id. at 462.
237. Id. at 463, 466.
238. Thomas I. Emerson, Freedom of Association and Freedom of Expression, 74
YALE L.J. 1, 2 (1964). Justice Harlan’s opinion is more ambiguous than Emerson suggests: it
is not clear that he relied at all on the First Amendment to ground association—the opinion,
in fact, never mentions the First Amendment.
239. E.g., Bates v. City of Little Rock, 361 U.S. 516 (1960); Shelton v. Tucker, 364
U.S. 479 (1960); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961); Gibson v. Fla.
Legislative Investigation Comm., 372 U.S. 539 (1963). During this same era, the Court either
ignored or downplayed similar freedom of association cases involving suspected communists.
See, e.g., Uphaus v. Wyman, 360 U.S. 72 (1959); Barenblatt v. United States, 360 U.S. 109
(1959); Communist Party v. Subversive Activities Control Bd., 367 U.S. 1 (1961); Scales v.
United States, 367 U.S. 203 (1961).

610 TULANE LAW REVIEW [Vol. 84:565

peaceful civil rights demonstrations.240 In political discourse, Martin
Luther King, Jr., appealed to assembly in his Letter from a
Birmingham Jail and in his speech, I’ve Been to the Mountaintop,
delivered just prior to his assassination.241 But by the end of the 1960s,
the right of assembly in law and politics was limited almost entirely to
public gatherings like protests and demonstrations. Earlier intimations
of a broadly construed right beyond these narrow circumstances were
largely forgotten.
In 1983, the Court swept the remnants of freedom of assembly
within the ambit of free speech law in Perry Education Ass’n v. Perry
Local Educators’ Ass’n.242 Justice White reasoned:

In places which by long tradition or by government fiat have been
devoted to assembly and debate, the rights of the State to limit
expressive activity are sharply circumscribed. At one end of the
spectrum are streets and parks which have immemorially been held in
trust for the use of the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts between citizens, and
discussing public questions. In these quintessential public forums, the
government may not prohibit all communicative activity. For the State
to enforce a content-based exclusion it must show that its regulation is
necessary to serve a compelling state interest and that it is narrowly
drawn to achieve that end. The State may also enforce regulations of
the time, place, and manner of expression which are content-neutral, are
narrowly tailored to serve a significant government interest, and leave
open ample alternative channels of communication.243

The doctrinal language came straight out of the Court’s free speech
cases and made no mention of the right of assembly.244 With Perry,

240. See, e.g., Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379
U.S. 536 (1965); Brown v. Louisiana, 383 U.S. 131 (1966); Shuttlesworth v. City of
Birmingham, 394 U.S. 147 (1969); Gregory v. City of Chicago, 394 U.S. 111 (1969); cf.
Coates v. City of Cincinnati, 402 U.S. 611, 615 (1971) (“The First [Amendment does] not
permit a State to make criminal the exercise of the right of assembly simply because its
exercise may be ‘annoying’ to some people.”).
241. See MARTIN LUTHER KING, JR., LETTER FROM THE BIRMINGHAM JAIL 14 (Harper
Collins 1944) (1963) (asserting that the Birmingham ordinance denied “citizens the First
Amendment privilege of peaceful assembly and peaceful protest”); MARTIN LUTHER KING,
JR., I’VE BEEN TO THE MOUNTAINTOP 12-13 (Harper Collins 1994) (1968) (“But somewhere I
read of the freedom of assembly.”).
242. 460 U.S. 37 (1983); cf. BAKER, supra note 9, at 316 n.18 (“An interesting, and
[perhaps] ideologically telling, practice of the Supreme Court is its focus on ‘speech’ and
expression in cases in which it has the option of using either a speech or an assembly
analysis.”).
243. 460 U.S. at 45 (internal citations and quotation marks omitted).
244. Perry cited Carey v. Brown, 447 U.S. 455, 461 (1980), U.S. Postal Service v.
Council of Greenburgh Civic Ass’n, 453 U.S. 114, 132 (1981); Consolidated Edison Co. v.

2010] FORGOTTEN FREEDOM OF ASSEMBLY 611

even cases involving protests or demonstrations could now be resolved
without reference to assembly. The Court’s 1988 opinion in Boos v.
Barry exemplifies this change.245 Boos involved a challenge to a
District of Columbia law that prohibited, among other things,
congregating “within 500 feet of any building or premises within the
District of Columbia used or occupied by any foreign government or
its representative or representatives as an embassy, legation, consulate,
or for other official purposes.”246 On its face, the challenge to the
regulation appeared to rest on the right of assembly. The petitioner
challenged the deprivation of First Amendment speech and assembly
rights and argued that “[t]he right to congregate is a component part of
the ‘right of the people peaceably to assemble’ guaranteed by the First
Amendment.”247 Justice O’Connor’s opinion for the Court cited Perry
three times and resolved the case under a free speech analysis without
reference to the freedom of assembly. The Court, in fact, has not
addressed a freedom of assembly claim in the last twenty years.248

X. CONCLUSION

The disappearance of the freedom of assembly from legal and
political discourse is intriguing in a country that attaches so much
importance to the Bill of Rights in general and the First Amendment in
particular. It may be that the principles encapsulated in the
constitutional right of association embrace a kind of group autonomy
that broadens the conception of assembly. But I suspect otherwise. I
have detailed elsewhere the doctrinal problems with the freedom of
association, both in its original form that emerged in NAACP v.

Public Service Commission, 447 U.S. 530, 535-36 (1980); Grayned v. City of Rockford, 408
U.S. 104 (1972); Cantwell v. Connecticut, 310 U.S. 296 (1940); and Schneider v. State, 308
U.S. 147 (1939).
245. 485 U.S. 312 (1988).
246. Id. at 315 (internal quotation marks omitted).
247. Brief for Petitioners at 64, 74, Boos, 485 U.S. 312 (No. 86-803).
248. In City of Chicago v. Morales, 527 U.S. 41 (1999), the Court addressed the
constitutionality of a Chicago ordinance that prohibited “criminal street gang members” from
loitering in public places. But while the lower court had relied on the freedom of assembly to
hold the ordinance unconstitutional, the Supreme Court cited “the First Amendment ‘right of
association’ that our cases have recognized.” Id. at 53. Justice Scalia has invoked the
freedom of assembly (among others) in his dissents from the Court’s decisions upholding
restrictions on the activities of antiabortion protesters. See Madsen v. Women’s Health Ctr.,
512 U.S. 753, 785 (1994) (Scalia, J., dissenting); Hill v. Colorado, 530 U.S. 703, 774, 779
(2000) (Scalia, J., dissenting). The language of assembly reappeared in the text of the
Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.
§§ 2000cc1-5 (limiting government restrictions on “the religious exercise of a person,
including a religious assembly or institution”).

612 TULANE LAW REVIEW [Vol. 84:565

Alabama and its transformation in the Court’s 1984 decision, Roberts
v. United States Jaycees.249 These cases and others have converted the
right of association into an instrument of control rather than a
protection for the people. In doing so, they have lost sight of the
dissenting, public, and expressive groups that once sought refuge
under the right of assembly.250 They have ignored the wise counsel of
C. Edwin Baker that “[c]hallenges to existing values and decisions to
embody and express dissident values are precisely the choices and
activities that cannot be properly evaluated by summations of existing
preferences” and that “the constitutional right of assembly ought to
protect activities that are unreasonable from the perspective of the
existing order.”251 By losing touch with our past recognition of the
freedom of assembly and the groups that embodied it, we risk
embracing too easily an attenuated framework that cedes to the state
authority over what kinds of groups are acceptable in the democratic
experiment. Democracy and stability may be easier in the short term,
but in forgetting the freedom of assembly, we forget the kind of politics
that has brought us this far.

249. 468 U.S. 609 (1984). For my critiques of the freedom of association, see Inazu,
supra note 18, and John D. Inazu, The Forgotten Freedom of Assembly (2009) (unpublished
Ph.D. dissertation, University of North Carolina at Chapel Hill) (on file in the University of
North Carolina thesis database). See also Mazzone, supra note 29, at 645-46 (“[E]xpressive
association has shifted the focus away from associating and to the more familiar First
Amendment territory of speech . . . and the like,” and “the modern notion of ‘expression’ is a
dubious peg on which to hang a constitutional right of free association.”); El-Haj, supra note
29, at 589 (“[T]he right of assembly should not be collapsed into the right of free
expression.”).
250. Cf. El-Haj, supra note 29, at 588 (“We seem to have forgotten that the right of
assembly, like the right to petition, was originally considered central to securing democratic
responsiveness and active democratic citizens. We now view it instead as simply another
facet of the individual’s right of free expression, focusing almost exclusively on the question
of whether the group’s message will be heard.”); ZICK, supra note 16, at 325 (“Our long
tradition of public expression, dissent, and contention, from the earliest activities in the
colonies to present-day peace activists, agitators, and dissenters, has been possible owing to
relatively open access to embodied, contested, inscribed, and other places on the expressive
topography.”).
251. BAKER, supra note 9, at 134. I expand upon these concepts in INAZU, supra note
249.

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Free Speech at Risk

Will it survive government repression?

G
overnments around the globe have been weaken-

ing free-speech protections because of concerns

about security or offending religious believers.

After a phone-hacking scandal erupted in the

British press and Muslims worldwide violently protested images in

the Western media of the Prophet Muhammad, European nations

enacted new restrictions on hate speech, and Britain is considering

limiting press freedom. Autocratic regimes increasingly are jailing

journalists and political dissidents or simply buying media compa-

nies to use them for propaganda and to negate criticism. Muslim

countries are adopting and rigidly enforcing blasphemy laws,

some of which carry the death penalty. Meanwhile, some govern-

ments are blocking or monitoring social media and cybertraffic,

increasing the risk of arrest for those who freely express their

thoughts online and dashing hopes that new technologies would

allow unlimited distribution of information and opinion.

I

N

S

I

D

E

THE ISSUES ………………..379

BACKGROUND …………….386

CHRONOLOGY …………….387

CURRENT SITUATION ……..392

AT ISSUE……………………393

OUTLOOK………………….395

BIBLIOGRAPHY…………….398

THE NEXT STEP …………..399

THISREPORT

Russian police arrest a supporter of the punk rock
band Pussy Riot near a court building in Moscow on
Aug. 17, 2012. Three members of the all-female group
were convicted of hooliganism and sentenced to

prison after a performance in Moscow’s main cathedral
in which they ridiculed President Vladimir Putin.

CQResearcher
Published by CQ Press, an Imprint of SAGE Publications, Inc.

www.cqresearcher.com

CQ Researcher • April 26, 2013 • www.cqresearcher.com
Volume 23, Number 16 • Pages 377-400

RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOR
EXCELLENCE � AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD

90th
Anniversary

1923-2013

378 CQ Researcher

THE ISSUES

379 • Has technology madespeech freer?
• Should religious sensibil-
ities be allowed to limit
free expression?
• Should the U.S. pro-
mote free speech abroad?

BACKGROUND

386 Refusal to “Revoco”The struggle for free speech
has been a long story
about testing limits.

388 Controlling the PressIt remained heavily regulated
in the United Kingdom
and its American colonies.

390 Expanding RightsAfter World War II, the
sense that free speech was
an inalienable right took
deep hold in the country.

CURRENT SITUATION

392 Government SecretsThe case of Army Pfc.
Bradley Manning, who
leaked sensitive government
documents to WikiLeaks,
has made him a cause
célèbre in some circles.

392 Information ExplosionOnline databases have
complicated free-speech
legal issues.

394 Regulating the Press?A phone-hacking scandal in
Britain has led to concerns
about press freedom there.

394 Reporters Under AttackMore than 230 journalists
were imprisoned last year.

OUTLOOK

395 Shame, Not Laws?“Every new technology, by
its nature, is open to both
use and abuse.”

SIDEBARS AND GRAPHICS

380 Democracies Enjoy theMost

Press Freedom

Totalitarian regimes have

the least.

381 Number of JournalistsKilled on the Rise
Seventy journalists were
killed in 2012.

384 Blasphemy Laws ProliferateVideos and cartoons mock-
ing the Muslim prophet
Muhammad have led many
countries to enact anti-blasphe-
my laws.

387 ChronologyKey events since 1946.

388 Free Speech Can Be Deadly in Russi

a

“Many journalists end up
dead, assaulted or threatened.”

390 China Opens Up — ButJust a Crack
It still monitors journalists
and dissenters’ activities.

393 At Issue:Should journalists be regulated?

FOR FURTHER RESEARCH

397 For More InformationOrganizations to contact.

398 BibliographySelected sources used.

399 The Next StepAdditional articles.

399 Citing CQ ResearcherSample bibliography formats.

FREE SPEECH AT RISK

Cover: AFP/Getty Images/Andrei Smirnov

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April 26, 2013 379www.cqresearcher.com

Free Speech at Risk

THE ISSUES
I

t wasn’t an April Fool’s
joke. On April 1, “Daily
Show” host Jon Stewart

defended Egyptian political
satirist Bassem Youssef, who
had undergone police ques-
tioning for allegedly insult-
ing President Mohammed
Morsi and Islam.
“That’s illegal? Seriously?

That’s illegal in Egypt?” Stew-
art said on his Comedy Cen-
tral show. “Because if insult-
ing the president and Islam
were a jailable offense here,
Fox News go bye-bye.”
Stewart was kidding, but

Youssef’s case has drawn at-
tention from free-speech ad-
vocates who worry Egypt’s
nascent democracy is ac-
cording no more respect to-
ward freedom of expression
than the regime it replaced.
The U.S. Embassy in Cairo,

which had linked to Stew-
art’s broadcast on its Twitter
feed, temporarily shut down
the feed after Egyptian au-
thorities objected to it. Egypt’s
nascent government also has
filed charges against hundreds
of journalists, although Morsi
asked that they all be dropped
earlier this month.
Concerns are widespread that

commentators, journalists, bloggers —
and, yes, even comedians — are being
intimidated into silence. And not just
in Egypt.
Free speech, once seen as close to

an absolute right in some countries,
is beginning to conflict with other val-
ues, such as security, the protection of
children and the desire not to offend
religious sensibilities, not just in the
Middle East but in much of the world,
including Western Europe.

In many cases, freedom of speech
is losing. “Free speech is dying in the
Western world,” asserts Jonathan Tur-
ley, a George Washington University
law professor. “The decline of free
speech has come not from any single
blow but rather from thousands of paper
cuts of well-intentioned exceptions de-
signed to maintain social harmony.” 1

In an era when words and images
can be transmitted around the world
instantaneously by anyone with a cell
phone, even some American acade-
mics argue that an absolutist view of

First Amendment protections
couldn’t be expected to pre-
vail. Several made that case
after protests broke out in
several Muslim countries last
September over an American-
made video uploaded to
YouTube defamed the
Prophet Muhammad.
Even the administration of

President Obama, who de-
fended the nation’s free-speech
traditions at the United Na-
tions in the wake of video
backlash, supports a proposed
U.N. resolution to create an
international standard to re-
strict some anti-religious
speech. And, under Obama,
the Justice Department has
prosecuted a record number
of government employees
who have leaked sensitive doc-
uments, discouraging poten-
tial whistleblowers from ex-
posing government waste,
fraud or abuse. 2

“Wherever you look, you
see legislation or other mea-
sures seeking to reassert state
control over speech and the
means of speech,” says John
Kampfner, author of the 2010
book Freedom for Sale.
In the United Kingdom and

Australia, government minis-
ters last month proposed that
media outlets be governed by

new regulatory bodies with statutory
authority, although they ran into op-
position. Two years ago, a new media
law in Hungary created a regulatory
council with wide-ranging powers to
grant licenses to media outlets and as-
sess content in a way that Human
Rights Watch says compromises press
freedom. 3

“Not only is legislation such as this
bad in and of itself, but it is crucial
in sending a green light to authori-
tarians who use these kind of mea-

BY ALAN GREENBLATT

A

F
P
/G
e
tt
y
I
m
a
g
e
s/
K
h
a
le
d
D
e
so
u
k
i

Egyptian political satirist Bassem Youssef arrives at the
public prosecutor’s office in Cairo on March 31. Police
questioned Youssef for allegedly insulting President
Mohammed Morsi and Islam. The government filed
charges against hundreds of Egyptian journalists but
dropped them earlier this month. Free-speech advocates

worry that journalists, bloggers and democracy
supporters worldwide are being intimidated into silence.

380 CQ Researcher

sures by Western states to say, when-
ever they are criticized by the West,
‘Hey, you guys do the same,’ ” says
Kampfner, former CEO of Index on
Censorship, a London-based nonprofit
group that fights censorship.
Some observers have hoped the

growth of social media and other
technologies that spread information
faster and more widely than previ-
ously thought possible could act as

an automatic bulwark protecting free-
dom of expression. “The best example
of the impact of technology on free
speech is to look at the Arab Spring,”
says Dan Wallach, a computer scientist
at Rice University, referring to the se-
ries of upheavals starting in 2011 that
led to the fall of autocratic leaders in
Tunisia, Egypt, Yemen and Libya. 4

But as studies by Wallach and
many others show, countries such as

China and Iran are building new fire-
walls to block sensitive information
and track dissidents. “The pattern seems
to be that governments that fear mass
movements on the street have real-
ized that they might want to be able
to shut off all Internet communica-
tions in the country and have started
building the infrastructure that en-
ables them to do that,” said Andrew
McLaughlin, a former White House

FREE SPEECH AT RISK

Democracies Enjoy the Most Press Freedom
Democracies such as Finland, Norway and the Netherlands have the most press freedom, while authori-
tarian regimes such as Turkmenistan, North Korea and Eritrea have the least, according to Reporters
Without Borders’ 2012 index of global press freedom. European and Islamic governments have enacted
or considered new press restrictions after a recent phone-hacking scandal in Britain and Western media
outlets’ irreverent images of the Prophet Muhammad triggered deadly protests by Muslims. Myanmar
(formerly Burma), which recently enacted democratic reforms, has reached its greatest level of press
freedom ever, the report said.

Source: “Freedom of the Press Worldwide in 2013,” Reporters Without Borders, http://fr.rsf.org/IMG/jpg/2013-carte-liberte-presse_1900

Press Freedom Worldwide, 2013

C A N A D A

U N I T E D S T A T E S O F

A M E R I C A

MEXICO

BELIZE

DOMINICAN
REPUBLICHAITI

PUERTO RICO
GUATEMALA

COSTA RICA

EL SALVADOR

PANAMA

COLOMBIA

VENEZUELA

TRINIDAD & TOBAGO

G
UY

AN
A

SU
RI

NA
M

FR
EN

CH
G

UI
AN

A

B R A Z I L
P E R U

B O L I V I A

PARAGUAY

A R G E N T I N A

URUGUAY

CHILE

FALKLAND/MALVINAS
ISLANDS

G R E E N L A N D

ICELAND

N O R WAY

SWEDEN
F I N L A N D

DENMARKUNITED
KINGDOM

IRELAND

FRANCE

BELGIUM

NETHERLANDS

LUXEMBOURG
GERMANY

ESTONIA
LATVIALITHUANIA

RUSSIA

P O L A N D
BELARUS

U K R A I N E

S PA I N

PORTUGAL

CZECH
REP.AUSTRIA

SWITZERLAND

SLOVENIA
ITALY

CRO
ATI

A

SLOVAKIA

HUNGARY
ROMANIA

MOLDOVA

ALB
ANI

A

GREECE
T U R K E Y

CYPRUS

MOROCCO

WESTERN
SAHARA

A L G E R I A
L I B Y A

TUNISIA

MAURITANIA

SENEGAL

GAMBIA
GUINEA-BISSAU

GUINEA

SIERRA LEONE

LIBERIA

M A L I

BURKINA
FASO

IVORY
COAST

TO
G

O
B

E
N

IN

NIGERIA

N I G E R C H A D

E G Y P T

S U D A N

SOUTH
SUDAN

ERITREA

E T H I O P I A
CENTRAL
AFRICAN
REPUBLIC

CAMEROON

GABON RWANDA
BURUNDI

UGANDA
KENYA

SOMALIA

A N G O L A

NAMIBIA

Z A M B I A

TA N Z A N I A

MALAWI

ZIMBABWE

BOTSWANA

MOZAMBIQUE
MADAGASCAR

SWAZILAND

LESOTHO

S O U T H A F R I C A

MAURITIUS

RÉUNION

GEORGIA

LEBANON

ISRAEL
I R A Q

I R A N

S A U D I

A R A B I A

QATAR
UNITED
ARAB

EMIRATES

OMAN

YEMEN

I N D I A

AFGHANISTAN

PAKISTAN

TURKMENISTAN

UZBEKISTAN KYRGYZSTAN

TAJIKISTAN

K A Z A K H S T A N

SRI
LANKA

NEPAL BHUTAN

BANGLADESH

MYANMAR LAOS

THAILAND

CAMBODIA

VIETNAM

M A L A Y S I A

BRUNEI

TIMOR LESTE

PHILIPPINES

TAIWAN

I N D O N E S I A

PA P UA
N E W

G U I N E A

SOLOMON
ISLANDS

FIJI

VANUATU

NEW CALEDONIA
A U S T R A L I A

NEW
ZEALAND

R U S S I A

M O N G O L I A

NORTH KOREA

SOUTH
KOREA

J A P A N

C H I N A

HONG
KONG

ANDORRA

BOSNIA AND
HERZEGOVINA

BAHAMAS

GHANA

MACEDONIA

GALAPAGOS
ISLANDS

South Georgia

N o r w e g i a n

S e a

B l a c k S e a

R
e

d

S
e

a

S e a o f

O k h o t s k

G u l f
o f

A d
e n

M e d i t e
r r a n e a n S e a

P A C I F I C

O C E A N

N O R T H

A T L A N T I C

O C E A N

S O U T H

A T L A N T I C
O C E A N

I N D I A N

O C E A N
P A C I F I C

O C E A N
A r a b i a n

S e a

SYRIA

JORDAN

ARMENIAAZERBAIJAN

DEM. REP.
OF

CONGO

BULGARIA

Good

Satisfactory

Noticeable
problems

Difficult

Very serious

Press Freedom

SERBIA

MONTENEGRO

CONGO
EQUATORIAL GUINEA

NICARAGUA

HONDURAS

ECUADOR

CUBA

JAMAICA

April 26, 2013 381www.cqresearcher.com

adviser on technology. 5

In January, a French court ordered
Twitter to help identify people who had
tweeted racist or anti-Semitic remarks,
or face fines of 1,000 euros (about $1,300)
per day. The San Francisco-based com-
pany refused to comply, citing First
Amendment protections for free
speech. 6

But even as Twitter appeals the
French court order, the microblogging
site in October blocked the account
of a neo-Nazi group called Besseres
Hannover, or Better Hanover, which
had been charged with inciting racial
hatred. Twitter said it was the first
time it had used technology to mon-
itor and withhold content based on a
given country’s concerns and laws.
Meanwhile, government arrests of

journalists and mob attacks against
them are on the rise. Journalists are
being arrested more often than in pre-
vious years in countries such as Rus-
sia and Turkey, and in 2012, mobs at-
tacked journalists in Mali and Canada
— among other countries — for what
the protesters perceived as their blas-
phemous coverage of Islam. Blasphe-
my prosecutions have become more
common, especially in predominantly
Islamic countries such as Pakistan,
where blasphemy laws apply only to
comments about Islam or Muhammad,
not to derogatory comments about
Christianity, Judaism or other world
religions. 7

“There have been attempts to pass
so-called religious-sensibility laws,
which are, in fact, a way of curbing
press freedom and expression,” says
Robert Mahoney, director of the Com-
mittee to Protect Journalists, a New
York-based nonprofit group that pro-
motes press freedom.
In one widely covered case, three

members of the Russian punk rock
band Pussy Riot were found guilty of
hooliganism motivated by religious
hatred last year. They had been ar-
rested in March after a performance
in Moscow’s main cathedral, in which

they profanely called for the Virgin
Mary to protect Russia against Vladimir
Putin, who was returned to the pres-
idency soon after the performance. The
three were sentenced to two years in
a prison colony, but one member was
released on probation before being
sent to prison. 8 In more open soci-
eties, laws meant to protect against
hate speech, Holocaust denial and of-
fenses against religious sensibilities also
can end up limiting what people can
talk and write about.
Free-speech laws traditionally have

been about the protection of unpop-
ular and provocative expression. Pop-
ular and uncontroversial opinions usu-

ally need no protection. But in recent
years, free-speech protections have
been fading away.
“The new restrictions are forcing

people to meet the demands of the
lowest common denominator of ac-
cepted speech,” Turley contends.
As people monitor the health of free

expression around the globe, here are
some of the questions they’re debating:

Has technology made speech freer?
As Arab protesters took to the streets

— and the Internet — in 2011 in
countries such as Tunisia and Egypt,
everyone from commentators for se-
rious foreign-policy journals to “The

Number of Journalists Killed on the Rise

Seventy journalists were killed in 2012, nearly half of them mur-
dered, a 43 percent increase from 2011. A total of 232 journalists
were imprisoned in 2012, the highest number since the Committee
to Protect Journalists began keeping track in 1990. Experts say a
select group of countries has fueled the increase by cracking down
on criticism of government policies.

Source: “Attacks on the Press,” Committee to Protect Journalists, 2013, www.cpj.org/
attacks/

Journalist Deaths, by Cause, 2012*

36%
Crossfire/combat

17%
Dangerous assignment

46%
Murder

Imprisoned Journalists, 2000-2012

50

100

150

200

250

2012201120102009200820072006200520042003200220012000

* Figures do not total 100 because of rounding.

No. of Journalists

382 CQ Researcher

Daily Show” asked whether the world
was witnessing a “Twitter revolution.”
Social-media sites such as Twitter and

Facebook were used by activists both
as organizing tools and as a means of
communication with the outside world.
“Tunisians got an alternative picture

from Facebook, which remained un-
censored through the
protests, and they com-
municated events to
the rest of the world
by posting videos to
YouTube and Daily-
motion,” Ethan Zuck-
erman, a researcher at
Harvard University’s
Berkman Center for In-
ternet and Society,
wrote in 2011. “It’s like-
ly that news of demon-
strations in other parts
of the country dis-
seminated online
helped others conclude
that it was time to take
to the streets.” 9

Unquestionably, new-
media tools make it
easier for activists to
spread their messages
farther and faster than
was conceivable during
the days of the mimeo-
graph machine, or even
the fax. “What’s hap-
pening with new tech-
nology is that it’s mak-
ing publication of
these stories easier,
and they’re reaching a
bigger audience,” says
Mahoney, the Committee to Protect Jour-
nalists deputy director.
“Twenty years ago, you’d struggle

to get published in a local newspa-
per,” Mahoney says. “Now, as a jour-
nalist, you’ve got far more platforms
open to you, and you can get it out.”
And not just journalists. From Libya

and Iran to Syria and Myanmar, activists
and average citizens are able to dis-

seminate text, images and video all over
the world, ensuring that their voices can
be heard even at moments when regimes
are violently cracking down on them.
Social media and other technolog-

ical tools have become so omnipresent
that former Rep. Tom Perriello, D-Va.,
worries that people become addicted

to the online dialogue rather than reach-
ing out to broader populations. “My
pet peeve is that people think that so-
cial media can replace traditional or-
ganizing,” says Perriello, President of
the Center for American Progress Ac-
tion Fund, part of a liberal think tank
in Washington.
And even free-speech advocates

readily admit that, in a broader sense,

technology can be a two-edged sword.
“Suddenly, you have the ability to
reach people all over the world and
communicate in ways that you never
could before, and that’s wonderful,” says
Eva Galperin, global policy analyst with
the Electronic Frontier Foundation (EFF),
a San Francisco-based group that pro-

motes an unrestricted In-
ternet. “But it also allows
government surveillance on
a scale that was never be-
fore possible.”
Journalists find that their

e-mail accounts have been
hacked by “state-sponsored
attackers” in countries such
as China and Myanmar. 10

Mobile phones become
surveillance devices.
“Modern information

technologies such as the
Internet and mobile phones
. . . magnify the unique-
ness of individuals, further
enhancing the traditional
challenges to privacy,” ac-
cording to a recent study
by researchers from MIT
and other universities that
exposed the ease of track-
ing individual cellphone
users. “Mobility data con-
tains the approximate
whereabouts of individu-
als and can be used to re-
construct individuals’
movements across space
and time.” 11

Authoritarian regimes
also use technology to ac-
cess dissidents’ computers,

installing malware that tracks their
movements online, according to
Galperin. “It records all of their key-
strokes and can use the microphones
and cameras on the computers, cir-
cumventing all attempts to use en-
cryption,” she says.
It’s not just dictatorships. Galperin

notes that EFF’s longstanding lawsuit
against the National Security Agency

FREE SPEECH AT RISK

A free-speech activist in Budapest, Hungary, protests against a
new media law on March 15, 2011. The law set up a regulatory
council with wide control over media outlets and content, a

power that Human Rights Watch says compromises press freedom.
Pictured on the poster is the revered poet of Hungary’s

1848-1849 revolution, Sandor Petofi.

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for using warrantless wiretaps in the
United States is “now old enough to
go to school.” And many of the sur-
veillance tools used by authoritarian
regimes are made by U.S. companies,
she points out.
In the United Kingdom, in response

to a phone-hacking scandal that has
led to government investigations and
a national debate about press abuses,
a communications data bill has been
proposed by Home Secretary Theresa
May to require Internet service providers
and mobile phone services to collect
and retain data on user activity. The
measure is “designed to give the state
blanket rights to look at e-mails and
IMs [instant messages] and requires all
companies to retain the data for a year
and hand it over [to the government],”
says Kampfner, the former editor of
New Statesman magazine. “It was halt-
ed a few months ago, but will be rein-
troduced this year.”
Iran, which saw its own “Twitter

revolution” during a spasm of post-
election protests in 2009, has at-
tempted to keep a “Halal Internet,”
free of unclean influences and infor-
mation from the outside world.
In March, Iran’s Ministry of Infor-

mation and Communications Technol-
ogy blocked software used by millions
of Iranians to bypass the state’s elab-
orate Internet filtering system. “A col-
lection of illegal virtual private net-
works, or VPNs, was successfully closed
off by the ministry, making visits to
websites deemed immoral or politi-
cally dangerous — like Facebook and
Whitehouse.gov — nearly impossible,”
The New York Times reported. 12

Governments and Internet users are
engaged in an unending game of cat
and mouse, Kampfner says, with each
trying to advance technology in ways
that gives its side the upper hand.
“There’s something called Tor, an

open-source project that aims to break
through all those barriers, whether in
China or Iran or anywhere else,” says
Wallach, the computer scientist at Rice

University. “Tor keeps getting more
and more clever about hiding what
they’re doing, and regimes like Iran
get more and more clever about block-
ing them regardless.”
But as many commentators have

noted, free speech online depends not
only on government policies and court
rulings, but on private companies such
as Twitter, Facebook and Google. In-
creasingly, these companies are being
called on to block posts by terrorists and
unpopular or banned political parties.
“At the end of the day, the private

networks are not in any way ac-
countable if they choose to censor or
prevent individuals from accessing
services,” says Katherine Maher, direc-
tor of strategy and communications for
Access, a New York-based digital-
rights group.
“The Internet is not something dif-

ferent,” Maher says. “It is just an ex-
tension of the area in which we live.”

Should religious sensibilities be
allowed to limit free expression?
When an assassin’s bullet narrowly

missed the head of Lars Hedegaard,
suspicion immediately fell on Muslims,
since Hedegaard, a former newspaper
editor in Denmark, has been an anti-
Islam polemicist.
But a number of Danish Muslims

condemned the February attack and
rose to defend Hedegaard. “We Mus-
lims have to find a new way of react-
ing,” said Qaiser Najeeb, a Dane whose
father had emigrated from Afghanistan.
“We don’t defend Hedegaard’s views
but do defend his right to speak. He
can say what he wants.” 13

For free-speech advocates, it was a
refreshing reaction — particularly in a
country where Muslim sensitivities have
run high since the 2006 publication of
cartoons caricaturing the Prophet
Muhammad in a Danish newspaper.
“For those, like me, who look upon

free speech as a fundamental good,
no degree of cultural or religious dis-
comfort can be reason for censorship,”

writes British journalist and author
Kenan Malik. “There is no free speech
without the ability to offend religious
and cultural sensibilities.” 14

In recent years, a growing number
of people around the globe have been
prosecuted on charges of blasphemy
or offending cultural sensibilities
through hate speech. According to the
International Humanist and Ethical
Union (IHEU), only three people were
arrested for committing blasphemy via
social media between 2007 and 2011,
but more than a dozen such arrests
occurred in 10 countries last year. 15

Turkish pianist Fazil Say, for in-
stance, was given a suspended sen-
tence of 10 months in jail on April 15
for posting tweets considered blas-
phemous, while Gamal Abdou Mas-
soud, a 17-year-old Egyptian, was sen-
tenced to three years for posting
blasphemous cartoons on Facebook.
“When 21st-century technology col-

lides with medieval blasphemy laws,
it seems to be atheists who are get-
ting hurt, as more of them go to prison
for sharing their personal beliefs via
social media,” says Matt Cherry, editor
of the IHEU report.
In Pakistan, those accused of blas-

phemy often fall victim to violence —
before they even get their day in court.
— Dozens have been killed after being
charged with blasphemy over the past
20 years. Last November, a mob burned
Farooqi Girls’ High School in Lahore
after a teacher assigned homework
that supposedly contained derogatory
references to Muhammad.
“Repeating the blasphemy under

Pakistan law is seen as blasphemy in
itself,” says Padraig Reidy, news editor
for the Index on Censorship. “You
have these bizarre cases where evi-
dence is barely given but people are
sentenced to death.”
Even criticizing Pakistan’s blasphe-

my law can be dangerous. Sherry
Rehman, the Pakistani ambassador to
the United States, has received death
threats since calling for changes in the

384 CQ Researcher

law, while two like-minded politicians
have been assassinated. 16

In Pakistan, free speech is pretty
much limited to those hanging around
cafes and literary festivals, says Huma

Yusuf, a columnist for the Pakistani
newspaper Dawn. “The threat of blas-
phemy — a crime that carries the
death penalty — has stifled public dis-
course,” she writes. 17

YouTube has been blocked through-
out Pakistan since September, when
an anti-Muslim video was uploaded to
the site. Thousands of other websites
also have been blocked, allegedly for
containing pornographic or blasphe-
mous content. “In truth, most had pub-
lished material criticizing the state,” ac-
cording to Yusuf.
In counties such as Pakistan and

Egypt, the line between blasphemy
laws designed to protect against reli-
gious offense and those meant to pun-
ish minorities and stifle dissent is high-
ly porous. “There have been attempts
to protect religious sensibility which are
in fact a way of curbing press freedom
and expression,” says Mahoney, of the
Committee to Protect Journalists.
In the West, worries about offend-

ing religious and cultural sensibilities
have sometimes trumped free-speech
concerns. “Denigration of religious be-
liefs is never acceptable,” Australian
Prime Minister Julia Gillard stated be-
fore the United Nations in September.
“Our tolerance must never extend to
tolerating religious hatred.” 18

Gillard emphasized her disdain for
speech that incites hatred and violence,
which has become a common concern
among Western politicians. “Western gov-
ernments seem to be sending the mes-
sage that free-speech rights will not pro-
tect you” when it comes to hate speech,
writes Turley, the George Washington
University law professor. 19

Hate speech is intended to incite
discrimination or violence against
members of a particular national, racial
or ethnic group, writes Aryeh Neier,
a former top official with the Amer-
ican Civil Liberties Union, Human
Rights Watch and the Open Society
Institute.
But, Neier notes, “It is important to

differentiate blasphemy from hate
speech. The proclivity of some else-
where to react violently to what they
consider blasphemous cannot be the
criterion for imposing limits on free
expression in the U.S., the United

FREE SPEECH AT RISK

Blasphemy Laws Proliferate

Videos and cartoons mocking the Muslim Prophet Muhammad have
prompted many countries to enact strict anti-blasphemy laws.
Christians and Muslims have used the laws to prosecute people seen
as insulting religion. Blasphemy laws in Muslim countries usually
refer only to defaming Islam, and punishments can include the
death penalty. Many cases involve comments or videos posted on
social media such as Twitter and YouTube.

Examples of Recent Blasphemy Cases

Source: International Humanist and Ethical Union, December 2012

Country Law
Austria Prohibits disparaging a religious object, society or doctrine.

On Dec. 11, 2010, Helmut Griese, 63, was convicted for offending his Muslim neighbor
by yodeling while mowing his lawn; the neighbor claimed Griese was imitating the
Muslim call to prayer. On Jan. 22, 2009, politician Susanne Winter was fined $24,000
for saying Muhammad was a pedophile because he had a 9-year-old wife.

India Allows up to three years in prison for insulting religion or religious beliefs.

On April 21, 2012, the Catholic Church filed a complaint against Sanal Edama-
ruku, the founder of the reason-based organization Rationalist International, after
he exposed a “miracle” by showing water from a statue of Jesus was coming from a
leaky drain. On Nov. 19, 2012, college student Shaheen Dhada and a friend were
arrested for complaining on Facebook that Mumbai had been shut down for the
funeral of the leader of the Hindu nationalist party.

Iran Bars criticism of Islam or deviation from the ruling Islamic standards.

Web designer Saeed Malekpour, 35, a Canadian, served four years on death row in
Iran for “insulting Islam.” He was arrested while visiting his dying father in Iran in
2008 because a photo-sharing program he created while in Canada was used by
others to download pornography. The death sentence was suspended in 2012 after
Malekpour “repented.”

Netherlands Penalizes “scornful blasphemy” that insults religious feelings.

On March 19, 2008, Dutch cartoonist Gregorius Nekschot was arrested for insulting
Muslims in his drawings. On Jan. 21, 2009, politician Geert Wilders was put on
trial because his film “Fitna” compared Islam and Nazism. He was acquitted.

Pakistan Bans blasphemy, including defiling the Quran and making remarks
against the Prophet Muhammad.

In 2011 the governor of Punjab and the minister for minority affairs were assassi-
nated because they opposed the country’s blasphemy laws. On June 22, 2011,
29-year-old Larkana resident Abdul Sattar was sentenced to death and fined
$1,000 for sending text messages and blaspheming the Quran, Muhammad and
other Islamic figures during a phone conversation.

United Kingdom Prohibits “hate speech” against religious groups.

On March 4, 2010, philosophy tutor Harry Taylor was sentenced to six months in
prison, 100 hours of community service and fined €250 ($337 at the time) for
leaving anti-Christian and anti-Islam cartoons in an airport prayer room.

April 26, 2013 385www.cqresearcher.com

Kingdom, Denmark or the Netherlands
(or anywhere else).” 20

In recent months, the human rights
group American Freedom Defense Ini-
tiative (AFDI) has been running anti-
Muslim ads on public transportation
systems around the United States.
Posters that appeared on San Francis-
co buses last month, for example, in-
cluded a picture of Osama bin Laden
and a made-up
quote from “Hamas
MTV” that said,
“Killing Jews is wor-
ship that brings us
closer to Allah.”
After New York’s

Metropolitan Tran-
sit Authority tried
to block the ads
last summer, Feder-
al District Judge
Paul A. Engelmay-
er ruled that the
agency had violat-
ed AFDI’s First
Amendment rights.
“Not only did

[he] rule that the ads
should be ’afforded
the highest level of
protection under the
First Amendment,’ he
went on to offer
some eye-opening examples,” writes San
Francisco Chroniclecolumnist C. W. Nevius.
“Engelmayer said an ad could accuse a
private citizen of being a child abuser.
Or, he suggested, it could say, ’Fat peo-
ple are slobs’ or ’Blondes are bimbos’
and still be protected.” 21

Rather than put up a legal fight,
San Francisco’s Municipal Railway de-
cided to put up peace posters of its
own and donate the AFDI’s advertis-
ing fee to the city’s Human Rights
Commission.

Should the United States promote
free speech abroad?
Because of the First Amendment

and the history of its interpretation,

the United States has what comes
closest to absolute protection of free
speech of any country on Earth. And
many believe free expression is not
only essential to democracy but a
value Americans should help export
to other countries.
At a 2011 Internet freedom confer-

ence in The Hague, then-Secretary of
State Hillary Rodham Clinton said,

“The United States will be making the
case for an open Internet in our work
worldwide.
“The right to express one’s views,

practice one’s faith, peacefully assem-
ble with others to pursue political or
social change — these are all rights
to which all human beings are enti-
tled, whether they choose to exercise
them in a city square or an Internet
chat room,” Clinton said. “And just as
we have worked together since the
last century to secure these rights in
the material world, we must work to-
gether in this century to secure them
in cyberspace.” 22

But the right to free expression that
is taken for granted in the United

States is not shared around the world.
Some people — including some Amer-
icans — worry that the

United States

risks offending governments and citi-
zens in other nations by preserving
free-speech rights — including the right
to racist and blasphemous speech —
above nearly every other consideration.
Such voices have been prominent

when Americans have exercised their
free-speech rights in
ways that offend others.
Threats to burn the
Quran — as well as ac-
tual Quran burnings —
by Florida pastor Terry
Jones led to deadly riots
in the Muslim world in
2010 and 2011. Last fall,
video portions from an
anti-Muslim film called
“Innocence of Muslims”
triggered riots in several
predominantly Muslim
nations.
Speaking to the Unit-

ed Nations two weeks
later, President Obama
explained that the U.S.
government could not
ban such a video because
of free-speech rights en-
shrined in the U.S. Con-
stitution.

“Americans have fought and died
around the globe to protect the right
of all people to express their views,
even views that we profoundly dis-
agree with,” Obama said. “We do not
do so because we support hateful
speech, but because our founders un-
derstood that without such protections,
the capacity of each individual to ex-
press their own views and practice
their own faith may be threatened.” 23

But Obama noted that modern tech-
nology means “anyone with a cellphone
can spread offensive views around the
world with the click of a button.”
While reality, some commentators

said it was foolish to expect other na-
tions to understand the American right

Indians protest against the American-made anti-Muslim video
“Innocence of Muslims” in Kolkata on Oct. 5, 2012. The film incited a
wave of anti-U.S. violence in Libya, Egypt and other countries across
the Muslim world. Speaking at the United Nations after the protests,

President Obama explained that such films could not be banned in the
United States because of the U.S. Constitution’s free-speech rights.

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FREE SPEECH AT RISK

to unbridled speech. “While the First
Amendment right to free expression is
important, it is also important to re-
member that other countries and cul-
tures do not have to understand or re-
spect our right,” Anthea Butler, a
University of Pennsylvania religious
studies professor, wrote in USA Today. 24

Americans must remember that “our
First Amendment values are not uni-
versal,” cautioned Eric Posner, a Uni-
versity of Chicago law professor.
“Americans need to learn that the

rest of the world — and not just Mus-
lims — see no sense in the First
Amendment,” Posner wrote in Slate.
“Even other Western nations take a
more circumspect position on freedom
of expression than we do, realizing that
often free speech must yield to other
values and the need for order. Our
own history suggests that they might
have a point.” 25

Access’ Maher, who has consulted
on technology issues with the World
Bank and UNICEF, notes that even
other Western nations tend to hold
free-speech rights less dear, viewing
them within a context not of person-
al liberty but a framework where they
risk infringing on the rights of others.
“This often leads to robust debates
about incitement, hate speech, blas-
phemy and their role in the political
discourse, often in a manner more
open to possible circumscription than
would be acceptable in the United
States,” she says.
Even some who promote free ex-

pression worry about the United States
taking a leading role in its promotion,
because of the risk of it being seen
elsewhere as an American value being
imposed from without.
“The problem is freedom of ex-

pression has come to be seen as ei-
ther an American or Anglo-Saxon con-
struct, whereas we would all like to
see it as a universal principle,” says
Kampfner, the British journalist. “There
is a danger that if this value is seen
as proselytized primarily by the Unit-

ed States, it will reinforce those who
are suspicious of it.”
But it may be that America’s

staunch adherence to free speech
makes the United States uniquely well-
suited to promote and defend the idea.
“The United States values a free press

and should promote those values abroad,”
says Robert Mahoney, deputy director of
the Committee to Protect Journalists.
“No Western country wants to ap-

pear to be lecturing other countries to
uphold its values, but it’s not an Amer-
ican construct,” he says. “We have a
duty to remind them of that, and we
expect international bodies like the
U.N. and countries like the United King-
dom and the European Union to do
the same thing.”
During his first trip abroad as sec-

retary of State, John Kerry in Febru-
ary defended free speech — includ-
ing the “right to be stupid” — as a
virtue “worth fighting for.” 26

It’s important that individuals and
groups in foreign countries take the lead
in explaining free-speech rights, “so it’s
not seen as a Western concept,” says
Reidy, the Index on Censorship editor.
“Certain human rights are not West-

ern,” he says, “they’re universal. That’s
the whole point of human rights.”

BACKGROUND
Refusal to “Revoco”

T he struggle for free speech hasbeen a long story about testing
limits. Many of the most famous mo-
ments in the development of free
speech in the Western world involved
notable figures such as the French
philosopher Voltaire, the Biblical trans-
lator William Tyndale and the Italian
astronomer Galileo, who were vari-
ously exiled, executed or forced to re-
cant things they had said or written.

“Governments in all places in all
times have succumbed to the impulse
to exert control over speech and con-
science,” writes Rodney A. Smolla, pres-
ident of Furman University. 27

The first great flowering of democ-
racy and free speech occurred 500
years before the birth of Christ in the
Greek city-state of Athens. The city
pioneered the idea of government by
consent, allowing the people the free-
dom to choose their own rules.
“Free speech was an inseparable

part of the new Athenian order,”
Robert Hargreaves, who was a British
broadcaster, writes in his 2002 book
The First Freedom. “Never before had
ordinary citizens been given the right
to debate such vital matters as war
and peace, public finance or crime
and punishment.” 28

But although Athens embraced, off
and on, the concept of government
by consent, it did not yet accept the
idea of individual free speech that
might upset the prevailing order. Athens
now may be remembered less for pi-
oneering free speech than for trying
and executing the great philosopher
Socrates in 399 B.C., after he refused
to recant his teachings.
Demanding that critics and heretics

recant has been a persistent theme
throughout history. After Martin Luther
printed his Ninety-Five Theses in 1517,
which criticized clerical abuses, Cardi-
nal Thomas Cajetan, the papal legate
in Rome, asked him to say revoco, or
“I recant,” and all would be well.
Luther refused.
Cajetan wanted to turn Luther over

to Rome on charges of heresy, but
Frederick III, the elector of Saxony, al-
lowed him to stay. Luther’s works be-
came bestsellers. Not only was he a
celebrity, but his writings helped spark
the Protestant Reformation.
Eventually, Pope Leo X and the

Holy Roman Emperor Charles V also
asked Luther to recant his writings. He
argued that he was defending works

Continued on p. 388

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Chronology
1940s-1980s
New laws, international entities
and court decisions expand
free-speech rights.

1946
French constitution upholds princi-
ple that “free communication of
thought and of opinion is one of
the most precious rights of man.”

1948
United Nations adopts Universal
Declaration of Human Rights, de-
claring “the right to freedom of
opinion and expression” for all.

1952
U.S. Supreme Court extends First
Amendment protections to movies.

1954
Congress effectively criminalizes
the Communist Party.

1961
British jury allows Penguin to
publish the novel Lady Chatterly’s
Lover, which had been on a list
of obscene material.

1964
In landmark New York Times v.
Sullivan decision, U.S. Supreme
Court rules that public officials
must prove “actual malice” on the
part of journalists in order to sue
for libel. . . . Free Speech Move-
ment at University of California,
Berkeley, insists that administrators
allow campus protests.

1968
U.K. abolishes 400-year-old laws
allowing for government censorship
of theater performances.

1971
In the first instance of prior re-
straint on the press in U.S. history,
a court blocks The New York
Times from publishing the Penta-

gon Papers, but the Supreme
Court OKs publication of the clas-
sified Vietnam War history.

1989
Iran’s Islamic government issues a
fatwa, or kill order, against Satanic
Verses author Salman Rushdie forc-
ing him into hiding for years. . . .
Supreme Court upholds the right
to burn the U.S. flag in protest.

•

2000s In response to
terrorist attacks, many Western
countries limit civil liberties.

2000
At the first meeting of the post-
Cold War Community of Democra-
cies, 106 countries pledge to up-
hold democratic principles,
including freedom of expression

2005
George W. Bush administration ul-
timately fails in its year-long cam-
paign to pressure New York Times
not to publish a story about war-
rantless wiretaps

2006
More than 200 people die in vio-
lent protests across the Muslim
world after the Danish newspaper
Jyllands-Posten publishes cartoons
satirizing the Prophet Muhammad.
. . . United Kingdom bans language
intended “to stir up religious hatred.”
. . . In response to July 2005 terrorist
bombings of bus and subway system
that killed more than 50 people,
U.K. enacts Prevention of Terrorism
Act, which curtails speech in the
name of security. . . . Crusading
Russian journalist Anna Politkovskaya,
known for her coverage of the
Chechen conflict, is assassinated.

2010s In an age of

new media, both rich and
developing countries restrict
speech that may offend.

2010
WikiLeaks publishes thousands of sen-
sitive documents related to U.S. diplo-
matic efforts in Iraq, Afghanistan and
elsewhere. . . . Google announces it is
pulling out of China due to govern-
ment censorship of its service.

2012
U.S. Supreme Court finds the Stolen
Valor Act unconstitutional; the 2006
law made it a crime to falsely claim
to have won military decorations. . . .
Members of the Russian punk band
Pussy Riot are convicted of hooli-
ganism for protesting President
Vladimir Putin’s policies in a
Moscow church. . . . “Innocence of
Muslims,” an anti-Muslim video post-
ed on YouTube, triggers riots in sev-
eral Middle Eastern and North African
countries. . . . Twitter blocks German
access to posts by a banned neo-
Nazi party, its first bow to “country-
withheld content” regulations. . . . In-
quiry on press abuses in Britain
spurred by telephone-hacking scandal
by media outlets calls for greater reg-
ulation. . . . Egyptian court sentences
to death in absentia Florida pastor
Terry Jones, who had offended Mus-
lims through Quran burnings and
promotion of an anti-Muslim film.

2013
Pfc. Bradley Manning pleads guilty
to 10 charges of giving government
secrets to WikiLeaks (Feb. 28). . . .
Due to lack of support, Australia’s
ruling party withdraws a proposal to
regulate the press (March 21). . . .
Privately owned newspapers are
distributed in Myanmar for the first
time in 50 years (April 1). . . .
Egyptian court drops charges against
popular comedian Bassem Youssef,
who had been accused of insulting
the president (April 6).

388 CQ Researcher

about the teachings of Christ and
therefore was not free to retract them.
He offered this famous defense: “Here
I stand; God help me; I can do

no

other.” 29 As a result, the pope ex-
communicated him, and the emperor
condemned him as an outlaw.

Controlling the Press

L uther’s writings were spread thanksto the advent of the printing press,
a new technology that governments
sought to control. The Star Chamber of
the British Parliament in 1586 strictly

limited the number of master printers,
apprentices and printing presses that
could operate in London. All books
were required to be licensed by the
archbishop of Canterbury or the bish-
op of London.
A few decades later, members of

Parliament won the ability to speak
and vote without royal restraint. This
led to a freer press, as London print-
ers began publishing journals that
were largely accounts of Parliament
but also contained news. By 1645, the
printers were putting out an average
of 14 separate weekly titles. 30

A year earlier, the English poet John
Milton had published his Aereopagitica,

remembered as one of the most elo-
quent pleas for a free press ever penned.
“Truth is strong next to the Almighty,
she needs no policies, no stratagems
nor licensing to make her victorious,”
Milton wrote in the treatise. “Give her
but room, and do not bind her.”
Although it grew out of ongoing de-

bates about press licensing and limiting
free speech, the Aereopagitica had little
influence in its day. The press remained
heavily regulated both in the United King-
dom and in its American colonies.
In 1734, a German-born printer in

New York named John Peter Zenger
published criticism of royalist Gov.
William Cosby, calling him “a governor

FREE SPEECH AT RISK

Continued from p. 386

A
leksei A. Navalny expects to go to jail. Last month, a
Russian court announced it would schedule a trial
against Navalny, who is accused of embezzling from a

timber company, even though the case was dismissed last year
for lack of evidence. Still, Navalny said, “Honestly, I am almost
certain I am going to prison.” 1

Many of Navalny’s supporters believe his real crimes were
organizing protests in Moscow in 2011 and 2012, blogging and
running a nonprofit group that operates websites that allow
citizens to report incidents of government corruption.
Navalny, who announced on April 4 that he will run for

president, is not the only activist to come under pressure from
Russia’s government. Since Vladimir Putin returned to the pres-
idency last May, new restrictions have been imposed on In-
ternet content, and fines of up to $32,000 have been imposed
for participating in protests deemed illegal.
International nonprofit groups such as Amnesty International,

Human Rights Watch and Transparency International have been
ordered to register as foreign agents. All have refused, and their
offices recently have been raided by government investigators.
Last month, Dmitry Gudkov, an opposition politician and

one of only two members of the Russian parliament to sup-
port public protests such as those organized by Navalny, was
accused of treason by some of his colleagues after he visited
the United States in March. Gudkov’s father was stripped of
his seat in parliament last fall.
While cracking down on opposition voices, Putin’s govern-

ment has been able to rely on friendly state-run media cover-
age, including from Channel One, the nation’s most widely
watched television station. During his U.S. visit, Gudkov noted

that Russian state-controlled media had accused him of trea-
son and selling secrets.
While some countries try to crack down on independent

media outlets through intimidation, Russia for the most part
controls communications directly, with the state or its friends
owning most of the major newspapers and broadcasters.
Arch Puddington, vice president for research at Freedom House,

a Washington-based watchdog group, says what he calls the “Putin
model” is widely practiced. “They buy television stations and turn
them into mouthpieces of the government,” he says.
It’s a case of, “If you can’t beat them, buy them,” says An-

thony Mills, deputy director of the International Press Institute
in Austria.
Russia is not alone. In some Central Asian and Latin Amer-

ican countries, government-owned media are commonly used
for propaganda and to negate foreign criticism.
In Turkey, most of the media are controlled by a few pri-

vate companies, which leads more to collusion than intimida-
tion, says former Rep. Tom Perriello, D-Va. “In Turkey, you have
less of the situation of people being shaken down [or threat-
ened] if they print this story,” he says. “Instead, many of the
TV companies are doing contracts with the government, so
there’s a financial interest in not wanting to irritate people in
the . . . government.”
In other countries, antagonism is the norm. According to

Freedom House, Ecuadoran President Rafael Correa has called
the press his “greatest political enemy,” which he says is “ig-
norant,” “mediocre,” “primitive,” “bloodthirsty” and “deceitful.” 2

“Ecuador under its president of the last five years, Rafael Cor-
rea, has become one of the world’s leading oppressors of free

Free Speech Can Be Deadly in Russia
“Many journalists end up dead, assaulted or threatened.”

April 26, 2013 389www.cqresearcher.com

turned rogue” who was undermining
the colony’s laws. At Zenger’s trial the
following year, attorney Andrew Hamil-
ton argued that the judge and jury
should not separately consider the ques-
tions of whether he had published the
material and whether it was libelous,
as was the practice at the time, but
rather simply determine whether it could
not be libel because it was true.
The jury’s verdict of not guilty was

considered an important precedent, but
it would be 70 years before New York
changed its libels laws so the question
of truth could be entered into evidence.
William Blackstone, in his Com-

mentaries on the Laws of England of

1769, laid the groundwork for the idea
that there should be no licensing or
prior restraint of the press, but that
publishers could still face punishment
after publication. This formed the basis
for the thinking of the American
Founders, who remained skeptical
about a completely free press.
“License of the press is no proof of

liberty,” John Adams wrote in his No-
vanglus Letters of 1774. “When a peo-
ple are corrupted, the press may be
made an engine to complete their ruin
. . . and the freedom of the press, in-
stead of promoting the cause of liber-
ty, will but hasten its destruction.”
As U.S. president, Adams signed the

Alien and Sedition Acts, which led to
multiple arrests and convictions of print-
ers and publicists (all Republicans, or
political opponents of Adams). The
law was overturned under Thomas Jef-
ferson, who had been skeptical about
the need for unbridled press but em-
braced it in his second inaugural, stat-
ing that the press needed no other
legal restraint than the truth.
The principle that there was a right

to disseminate facts in a democracy
was crystallized in British philosopher
John Stuart Mill’s On Liberty of 1859.
“News, independently gathered and
impartially conveyed, was seen to be
an indispensable commodity in a so-

speech,” Peter Hartcher, international
editor for The Sydney Morning Her-
ald, wrote last summer. “Correa has
appropriated, closed and intimidated
many media outlets critical of his gov-
ernment. He has sued journalists for
crippling damages.” 3

Analysts say the Venezuelan gov-
ernment tries to own or control near-
ly all media, while vilifying and jailing
independent journalists.
And in Russia, government ha-

rassment of independent voices is
common. Only a few independent
outlets operate, such as Novaya Gaze-
ta, a newspaper co-owned by for-
mer Soviet President Mikhail Gor-
bachev, but they aren’t widely read
or heard except by law enforcement
agencies that often arrest, beat and
— according to watchdog groups —
even kill journalists. 4

The 2006 killing of Anna Politkovskaya, a Novaya Gazeta
reporter noted for her coverage of the Chechen conflict, drew
international attention, although no one has been convicted of
her murder. “Russia is among the most dangerous countries in
which to be a journalist,” says Rajan Menon, a political scien-
tist at City College of New York. “Many journalists end up dead,
assaulted or threatened for looking into hot-button issues, es-
pecially corruption.”

In some countries, state-owned media
criticize their own governments, says
Robert Mahoney, deputy director of the
Committee to Protect Journalists, citing
the example of the BBC. But when near-
ly all media are owned by a few indi-
viduals or companies, it’s not “good in
the long term for a diverse and vibrant
free press,” he says.
Nor is it good when journalists fear

they might be killed for digging into sto-
ries. In Russia, for instance, journalists
are routinely killed with impunity. “There
are 17 cases where journalists were
killed in the last dozen years or so,” Ma-
honey says, “and there have been no
prosecutions.”

— Alan Greenblatt

1 Andrew E. Kramer, “With Trial Suddenly Loom-
ing, Russian Activist Expects the Worst,” The New York Times, March 28, 2013,
p. A4, www.nytimes.com/2013/03/28/world/europe/with-case-reopened-the-
russian-activist-aleksei-navalny-expects-the-worst.html.
2 “Freedom of the Press 2011: Ecuador,” Freedom House, Sept. 1, 2011, www.
freedomhouse.org/report/freedom-press/2011/ecuador.
3 Peter Hartcher, “Hypocrisy Ends Hero’s Freedom to Preach,” The Sydney
Morning Herald, Aug. 21, 2012, www.smh.com.au/opinion/politics/hypocrisy-
ends-heros-freedom-to-preach-20120820-24ijx.html.
4 Peter Preston, “Putin’s win is a hollow victory for a Russian free press,”
The Guardian, March 10, 2012, www.guardian.co.uk/media/2012/mar/11/putin-
win-russian-free-press.

Russian activist Aleksei Navalny, a
leading critic of President Vladimir
Putin, addresses an anti-Putin rally
in St. Petersburg on Feb. 12, 2012.

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390 CQ Researcher

ciety where the people ruled them-
selves,” Mill wrote.

Expanding Rights

T he U.S. Supreme Court seldom ex-amined the question of free speech
during the 19th century, but justices began
to expand its sense in the 20th century.
During World War I, more than 1,900

Americans were prosecuted under the
Espionage Act of 1917 and the Sedi-
tion Act of 1918, which banned print-
ing, writing and uttering of statements
deemed disloyal or abusive of the U.S.
government.

One case led to the famous formu-
lation of Justice Oliver Wendell Holmes.
“The most stringent protection of free
speech would not protect a man in false-
ly shouting ‘fire’ in a crowded theater
and creating a panic,” Holmes wrote in
his dissent in Schenck v. U.S. in 1919.
“The question in every case is whether
the words used are used in such cir-
cumstances and are of such a nature to
create a clear and present danger that
they will bring about the substantive evils
that Congress has a right to prevent.”
Although fewer dissenters were pros-

ecuted during World War II there were
still dozens. “The Roosevelt administra-
tion investigated suspects for their ‘un-

American’ associations and employed a
variety of legal devices to harass the
dissenters and suppress the dissent,”
writes historian Richard W. Steele. 31

During the 1940s and ’50s, Con-
gress did what it could to ban Com-
munist Party activities in the United
States, but after World War II, the sense
that free speech was an inalienable
right took deep hold in the country
and the courts. It was even included
in Article 19 of the Universal Decla-
ration of Human Rights, adopted by
the United Nations in 1948, which says:
“Everyone has the right to freedom of
opinion and expression; this right in-
cludes freedom to hold opinions with-

FREE SPEECH AT RISK

I
t’s been decades now since China opened up to the West.
But it’s still not completely open, especially with regard to
freedom of speech and the press.
In recent months, angered by coverage it viewed as hos-

tile, such as reports that the families of top government offi-
cials have enriched themselves while the officials have been in
power, China has denied entry visas to reporters from media
organizations such as The New York Times, Al-Jazeera English
and Reuters.
Since October, it has blocked access within China to The

Times’ website, while Chinese hackers have broken into email
accounts belonging to reporters from The Times and The Wall
Street Journal, possibly to determine the sources of stories crit-
ical of government officials.
China has long maintained a “Great Firewall,” blocking its

citizens from accessing critical content from foreign sources.
But the Chinese government is also at pains to block internal
criticism from its own citizens and media, as well.
In any given year, China typically ranks in the world’s top

two or three countries in terms of how many journalists it im-
prisons. 1 “There’s a certain level of very localized dissent al-
lowed, but it can never be expressed directly at the regime,”
says Padraig Reidy, news editor for Index on Censorship, a
free-speech advocacy group.
“You can say a local official is corrupt — maybe,” Reidy

says. “But you can’t say the party is corrupt. That’s the end
of you.”
Besides tracking journalists’ activities, China’s government

also monitors activists’ online postings. A recent study by com-
puter scientist Dan Wallach of Rice University and several col-

leagues found that China could be employing more than 4,000
censors to monitor the 70,000 posts per minute uploaded to
Weibo, the Chinese version of Twitter. 2

The censors tend to track known activists and use auto-
mated programs to hunt for forbidden phrases. “Certain words
you know are never going to get out of the gate,” Wallach
says. “Falun Gong” — a spiritual practice China has sought to
ban —“those three characters you can’t utter on any Chinese
website anywhere in the country.”
Weibo users are “incredibly clever” at coming up with mis-

spellings and neologisms to sneak past the censors, Wallach
says. For instance, a colloquial phrase for China, the Celestial
Temple, is sometimes rewritten as “celestial bastard,” using similar-
looking characters.
But once such usage becomes widespread, the censors are

quick to catch on and such terms also are quickly eradicated
from websites. “China is definitely the market leader in tech-
nical tools for clamping down on free expression,” says British
journalist John Kampfner.
Aside from imprisonment and hacking attacks, China uses

self-censorship to suppress criticism of the state, says Robert
Mahoney, deputy director of the New York-based Committee
to Protect Journalists. Reporters and others constantly worry
about what sort of statements could trigger a crackdown.
“With self-censoring, journalists tend to be more conserva-

tive,” Mahoney says. Such sensitivity to what censors will think
extends even to Hollywood movies. Given the growing im-
portance of the Chinese film market, the country’s censors now
review scripts and inspect sets of movies filmed in China to
make sure that nothing offends their sensibilities.

China Opens Up — But Just a Crack
Journalists’ and dissenters’ activities are still monitored.

April 26, 2013 391www.cqresearcher.com

out interference and to seek, receive
and impart information and ideas through
any media and regardless of frontiers.” 32

A series of lectures by American free-
speech advocate Alexander Meiklejohn
published in 1948 was hugely influen-
tial as a defense of the notion that free
speech and democracy are intertwined.
“The phrase ‘Congress shall make no
law . . . abridging the freedom of speech,’
is unqualified,” Meiklejohn wrote. “It ad-
mits of no exceptions. . . . That prohi-
bition holds good in war and peace,
in danger as in security.” 33

In the 1960s, the U.S. Supreme Court
protected racist speech, as well as speech
by advocates of integration. “A decision

protecting speech by a Ku Klux Klan
member cited a decision that protected
an African-American antiwar state legis-
lator, and the case of the klansman was,
in turn, cited [in 1989] to protect a rad-
ical who burned the American flag as
a political protest,” writes Wake Forest
law professor Michael Kent Curtis. 34

In 1964, the Supreme Court limit-
ed libel suits brought by public offi-
cials, finding that the First Amendment
required “actual malice” — that is,
knowledge that information published
was false. 35 Seven years later, a lower
court blocked The New York Times from
publish further portions of the Penta-
gon Papers, a government history of

the Vietnam War — the first example
in U.S. history of prior restraint.
The Supreme Court lifted the in-

junction. Justice Hugo Black wrote, “In
revealing the workings of government
that led to the Vietnam War, the news-
papers nobly did precisely that which
the Founders hoped and trusted they
would do.” 36

After a long period of expansion,
press freedoms and other civil liber-
ties were challenged following the ter-
rorist attacks of Sept. 11, 2001. Once
again, free speech was seen as possi-
bly undermining the government at a
time when security concerns had be-
come paramount. “Press freedoms are

“There were points where we were shooting with a crew
of 500 people,” said Rob Cohen, director of “The Mummy:
Tomb of the Dragon Emperor,” which kicked off a recent
wave of co-productions between Chinese companies and Amer-
ican studios. “I’m not sure who was who or what, but know-
ing the way the system works, it’s completely clear that had
we deviated from the script, it would not have gone unno-
ticed.” 3 The Academy Award-winning “Django Unchained”
was initially cut to delete scenes of extreme violence, but
censors blocked its scheduled April 12 release due to shots
of full-frontal nudity.
In addition to carefully inspecting Western content coming

into the country, China is seeking to export its model for rigid
media control to other countries. “It’s fascinating to look at Chi-
nese investment in Africa,” says Anthony Mills, deputy director
of the Austria-based International Press Institute. “They’ve
bought into a variety of media outlets in Africa.”
While China can’t impose censorship in Africa, its control

of media outlets there helps ensure favorable coverage. Bei-
jing is actively promoting its image abroad through news-
content deals with state-owned media in countries including
Zimbabwe, Nigeria, Cuba, Malaysia and Turkey, according to
the South African Institute of International Affairs. “Countries
that need Chinese trade, aid and recognition, and those with
tense relations with the U.S., are more likely to be influ-
enced by China’s soft power,” the institute concluded in a
report last year. 4

“China has this model in which the economic welfare and
the perceived welfare of the state as a whole trump individual
freedoms,” Mills says.

Some Western observers, such as Reidy, believe China will
eventually have to become more open, because capitalist in-
vestment demands a free flow of information.
But others wonder whether China’s more authoritarian ap-

proach represents a challenge to the transatlantic model that
has been fairly dominant around the globe since World War II,
with freedom of expression seen as essential to democracy and
economic growth.
Already, says former Rep. Tom Perriello, D-Va., residents of

countries such as Turkey complain less about individual freedoms
while the economy is growing.
“If you actually get to a point where China is associated with

economic prosperity more than Western countries are, then people
look differently at democracy and human rights,” he says. “I wish
they didn’t, but that’s part of the fear, that we can’t assume there’s
this natural march toward more liberalism.”

— Alan Greenblatt

1 Madeline Earp, “Disdain for Foreign Press Undercuts China’s Global Ambition,”
Committee to Protect Journalists, March 11, 2013, www.cpj.org/2013/02/attacks-
on-the-press-china-tightens-control.php.
2 “Computer Scientists Measure the Speed of Censorship on China’s Twitter,”
The Physics arXiv Blog, March 6, 2013, www.technologyreview.com/view/
512231/computer-scientists-measure-the-speed-of-censorship-on-chinas-twitter.
3 Michael Cieply and Brooks Barnes, “To Get Movies Into China, Holly-
wood Gives Censors a Preview,” The New York Times, Jan. 15, 2013, p. A1,
www.nytimes.com/2013/01/15/business/media/in-hollywood-movies-for-china-
bureaucrats-want-a-say.html.
4 Yu-Shan Wu, “The Rise of China’s State-Led Media Dynasty in Africa,”
South African Institute of International Affairs, June 2012, p. 11, www.
saiia.org.za/images/stories/pubs/occasional_papers_above_100/saia_sop_%20117_
wu_20120618 .

392 CQ Researcher

FREE SPEECH AT RISK

positively correlated with greater transna-
tional terrorism,” write University of Chica-
go law professor Posner and Harvard
University law professor Adrian Ver-
meule. “Nations with a free press are
more likely to be targets of such ter-
rorism.” 37

For example, they
cited a 2005 New
York Times story on
the so-called war-
rantless wiretapping
program at the Na-
tional Security
Agency, which they
argue alerted terror-
ists that the United
States was monitor-
ing communications
the terrorists believed
were secure. 38 The
Bush administration
made similar argu-
ments to The Times,
which held the story
until after the 2004
presidential election.
Worried that the

administration would seek a federal
court injunction to block publication,
The Times first published the story on
its website. “In the new digital world of
publishing, there were no printing press-
es to stop,” notes Samuel Walker, a Uni-
versity of Nebraska law professor. 39

CURRENT
SITUATION

Government Secrets

W ith so much speech, commerce— and terrorist activity — tak-
ing place online, Congress is struggling
to find an appropriate balance between
security on the one hand and privacy
and free-speech concerns on the other.

On April 18, the House passed the
Cyber Intelligence Sharing and Pro-
tection Act, known by the acryonym
CISPA. The bill would give military
and security agencies greater access to
Americans’ online activity by making

it easier for private companies to share
cyberthreat information with the gov-
ernment, allowing government and
businesses to help each other out when
they get hacked.
The nation’s networks are already

under attack from countries such as
Iran and Russia, Texas GOP Rep.
Michael McCaul, chair of the House
Homeland Security Committee, told
his colleagues during floor debate. 40

“I think if anything, the recent events
in Boston demonstrate that we have to
come together to get this done,” Mc-
Caul said, referring to the bombs that
exploded near the finish line of the
Boston Marathon three days earlier. “In
the case of Boston, they were real bombs.
In this case, they’re digital bombs.” 41

But the bill’s opponents said it rep-
resented a violation of privacy and
free-speech rights, giving government
agencies such as the FBI and CIA easy
access to online accounts without war-

rants, chilling free expression. On April
16, the Obama administration threat-
ened to veto the bill, if it were to
reach the president’s desk. 42

The bill would allow Internet com-
panies “to ship the whole kit and ca-

boodle” of personal in-
formation to the
government, including
that which does not per-
tain directly to cyberthreats
and “is none of the gov-
ernment’s business,” said
California Rep. Nancy
Pelosi, Democratic leader
of the House. 43

“I am disappointed
. . . we did not address
the concerns of the White
House about personal
information,” Pelosi said.
“It offers no policies and
did not allow any amend-
ments and no real solu-
tions to uphold Ameri-
cans’ right to privacy.”
The measure now goes

to the U.S. Senate. A sim-
ilar bill was unable to muster enough Sen-
ate votes last year to overcome a filibuster,
and this year’s outcome is uncertain.

Information Explosion

T he explosion of information onthe Internet and in online data-
bases has made legal concerns about
free speech more complicated, says
Randall Bezanson, a law professor at
the University of Iowa. For most of
U.S. history, such concerns turned large-
ly on the question of whether the gov-
ernment had the power to censor speech.
Now, he says, regulating speech involves
the government not just quashing the
speech of individuals but in protecting
documents and databases — its own,
and others — from disclosure.
The Obama administration has

learned that lesson well, he says, and
Continued on p. 394

Ku Klux Klan members in Pulaski, Tenn., participate in a march
honoring Nathan Bedford Forrest, a Confederate general who helped
found the Klan, on July 11, 2009. The U.S. Supreme Court has ruled

that even hate groups like the Klan have a constitutional right to
express their racist views publicly.

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April 26, 2013 393www.cqresearcher.com

At Issue:
Should journalists be regulated?yes

yes
STEVEN BARNETT
PROFESSOR OF COMMUNICATIONS,
UNIVERSITY OF WESTMINSTER,
LONDON, ENGLAND

WRITTEN FOR CQ RESEARCHER, APRIL 2013

i n an ideal world, a free press should not be constrainedany more than free speech. Unfortunately, this is not anideal world. Would-be terrorists seek to recruit supporters,
grossly offensive material can reap huge financial rewards and
some publications try to boost circulation and scoop competitors
using immoral and even downright malicious methods.
Some methods, such as hacking into voicemails, are illegal in

Britain. Others are not. Public outrage was sparked by atro-
cious behaviour that some British newspapers have sanctioned
in the name of “journalism,” such as splashing on the front
page the private and intimate diaries of Kate McCann after the
disappearance of her daughter Madeleine. Although Mrs.
McCann begged the News of the World not to publish the di-
aries, the newspaper ignored her pleas. Such callous indiffer-
ence to people’s feelings had become institutionalized in some
of Britain’s best-selling newspapers.
What is required is not state control or statutory regulation.

But the press must be held accountable for egregious abuses
of its own privileged position within a democracy.
In the United Kingdom, Sir Brian Leveson, who chaired a

judicial inquiry into press practices and ethics as a result of
the phone-hacking scandal, recommended the moderate solu-
tion of voluntary self-regulation overseen by an autonomous
body that would assess whether self-regulation was effective
and independent. If so, news organizations choosing to belong
would be entitled to financial incentives such as lower court
costs and exemption from exemplary damages if sued. It is, I
repeat, a voluntary incentive-based system, which is needed to
protect ordinary people from amoral and sometimes vindictive
practices that have no place in journalism.
Such proposals might feel uncomfortable in the land of the

First Amendment, but it is exceptionally mild by European
standards. In Finland, a Freedom of Expression Act mandates,
among other things, that aggrieved parties have a right of
reply or correction without undue delay. In Germany, news-
papers are required to print corrections with the same promi-
nence as the original report. Scandinavian countries have
passed legislation on press ethics.
These countries are not rampant dictatorships. But they all,

as will Britain, find a proper balance between unconstrained
journalism and the rights of ordinary people not to have their
misery peddled for corporate profit.no

ANTHONY MILLS
DEPUTY DIRECTOR, INTERNATIONAL
PRESS INSTITUTE, VIENNA, AUSTRIA

WRITTEN FOR CQ RESEARCHER, APRIL 2013

i n any healthy democracy, the media play a watchdogrole, holding elected officials accountable and serving thepublic interest by satisfying citizens’ right to know what is
being done in their name in the often not-so-transparent corridors
of power. In the United States, for instance, the Watergate
scandal was unearthed and covered, at not inconsiderable risk,
by two young Washington Post reporters.
Not surprisingly, there are those in office for whom such

media scrutiny is, to put it mildly, unwelcome. And, lo and
behold, they become advocates for state regulation of the
media. They may very well point to one or more examples of
egregious, even criminal, journalist behavior as evidence of the
need to exert greater control.
No one suggests that journalists are above the law. But

when they engage in criminal behavior, they should be held
accountable in criminal courts. The profession must not be
overseen by the very elected officials whom it is supposed to
hold to account. Surely, from the perspective of the politicians,
that would be a conflict of interest.
The answer is self-regulation. That could be accomplished

through independent regulatory bodies with the teeth to hold
journalists ethically accountable or through ethical standards
rigorously and systematically imposed by media outlets them-
selves as is the case in the United States, where the First
Amendment right to freedom of the press is fiercely guarded.
Professional peers must lead by example.
In the absence of self-regulation, or where it is not effectively

implemented, the path is easily paved for statutory regulation,
whether direct, or roundabout, in form. The aftermath of the
News of the World phone-hacking scandal in the U.K., and
the ensuing inquiry by Lord Justice Leveson, have amply
demonstrated this. The U.K. press is set to be bound by statu-
tory legislation for the first time in hundreds of years. That
cannot be healthy for democracy, and other countries tend to
follow the lead of their democratic “peers.”
So it is incumbent upon everyone in the profession to re-

sist any efforts to impose statutory regulation of the press by
those upon whom the press is supposed to be keeping its
watchful eye. But it falls upon the press to ensure that the
standards it embraces are of the highest order of professional-
ism and integrity. Anything less offers cannon fodder for those
targeting a free media.

394 CQ Researcher

is doing its best to keep state secrets
secret. “Eric Holder, attorney general
under President Barack Obama, has
prosecuted more government officials
for alleged leaks under the World War I-
era Espionage Act than all his prede-
cessors combined,” Bloomberg News
reported last fall. 44

The administration was disturbed
by the leak of thousands of diplomatic
cables, which were published in 2010
by the whistleblower website Wiki-
Leaks, founded by former Australian
computer hacker Julian Assange. 45

“The Julian Assange episode and
those disclosures of pretty well unfil-
tered information, I think, scared peo-
ple in government and raised a whole
different specter of what could be done
and what the consequences are, and
that has probably triggered a more ag-
gressive approach in the Justice De-
partment,” Bezanson says.
On Feb. 28, Army Pfc. Bradley Man-

ning, who leaked thousands of diplo-
matic, military and intelligence cables
to WikiLeaks, pleaded guilty to 10
charges of illegally acquiring and trans-
ferring government secrets, agreeing to
spend 20 years in prison. Manning
pleaded not guilty, however, to 12 ad-
ditional counts — including espionage
— and faces a general court-martial
in June.
Manning’s case has made him a cause

célèbre among some on the left who
see him as being unduly persecuted.
A similar dynamic is playing out in
memory of American online activist
and pioneer Aaron Swartz, who com-
mitted suicide in January while facing
charges that could carry a 35-year
prison sentence in a case involving
his downloading of copyrighted aca-
demic journals.
In March, the entire editorial board

of the Journal of Library Administra-
tion resigned over what one member
described as “a crisis of conscience”
over the 26-year-old Swartz’s death. 46

The librarians were concerned not

only about the Swartz case but the
larger issue of access to journal arti-
cles, feeling that publishers were be-
coming entirely too restrictive in their
terms of use.
In general, Bezanson says, courts

are becoming less accepting of the
idea that “information wants to be free,”
as the Internet-era slogan has it. The
courts are not only more supportive
of copyright holders but seemingly
more skeptical about free speech in
general, with the Supreme Court in
recent cases having curbed some of
the free-speech rights it had afford-
ed to students and hate groups in
previous decisions.
“The doctrine of the First Amend-

ment is going to be more forgiving of
regulated speech,” Bezanson says.

Regulating the Press?

I n other countries, concern is grow-ing that freedom of speech and of
the press have been badly abused in
recent years. A phone-hacking scan-
dal involving the News of the World,
a British tabloid, shocked the United
Kingdom in 2011 and has led to more
than 30 arrests, as well as a high-
profile inquiry chaired by Sir Brian
Leveson, then Britain’s senior appeals
judge. Leveson’s report, released in
November, called for a new, inde-
pendent body to replace the Press
Complaints Commission, the news in-
dustry’s self-regulating agency. The
recommendations triggered difficult ne-
gotiations among leaders of the Unit-
ed Kingdom’s coalition government,
which announced a compromise deal
in March. (See “At Issue,” p. 393.)
“While Lord Leveson was quite cor-

rect to call for a regulator with more
muscle that can impose substantial fines
for future misconduct, [Prime Minister]
David Cameron pledged that he would
resist the clamor for such measures to
be backed by law,” the Yorkshire Post
editorialized. “Given that to do so would

be to take the first step on the slippery
slope toward censorship of the press,
a weapon that has been employed by
many a corrupt dictatorship around the
globe, he was right to do so.” 47

The U.K. is not the only country
considering new media regulations. In
March, Australia’s government proposed
tighter regulation of media ownership
and a new media overseer with statu-
tory authority. “Australians want the
press to be as accountable as they
want politicians, sports people and
business people,” said Stephen Conroy,
Australia’s communications minister. 48

Media executives argued that the
proposals were draconian and amount-
ed to the government’s revenge for hos-
tile coverage. “For the first time in Aus-
tralian history outside wartime, there will
be political oversight over the conduct
of journalism in this country,” said Greg
Hywood, the CEO of Fairfax Media. 49

In response to such criticisms, Aus-
tralia’s government quickly withdrew
the proposals.

Reporters Under Attack

I f journalists, commentators, artistsand writers are feeling embattled
in the English-speaking world, they
face worse fates elsewhere. According
to the Committee to Protect Journal-
ists, 232 journalists around the world
were imprisoned as of Dec. 1 — the
highest total since the group began its
survey work in 1990. And 70 journal-
ists were killed while doing their jobs
in 2012 — a 43 percent increase from
the year before. 50

According to the group, 49 jour-
nalists were imprisoned in Turkey alone
in 2012, a record high, and more than
were in jail in either Iran or China.
Francis J. Ricciardone, the U.S. am-
bassador to Turkey, has been openly
critical about the country’s approach
to free speech. “The responsibility of
Turkey’s friends and allies is to . . .
to point out, with due respect, the

FREE SPEECH AT RISK

Continued from p. 392

April 26, 2013 395www.cqresearcher.com

importance of progress in the protec-
tion of freedom of expression for jour-
nalists and blog writers,” State Depart-
ment spokeswoman Victoria Nuland said
at a news conference in February. 51

In India freedom of expression is
enshrined in the constitution, but with
many provisos. And lately, India’s ju-
diciary has appeared to show little
concern when the government has ar-
rested people over their Facebook posts
and remarks made at literary festivals.
“Writers and artists of all kinds are
being harassed, sued and arrested for
what they say or write or create,”
writes Suketu Mehta, a journalism pro-
fessor at New York University. “The
government either stands by and does
nothing to protect freedom of speech,
or it actively abets its suppression.” 52

India — the world’s most populous
democracy — has slipped below Qatar
and Afghanistan in Reporters Without
Borders’ press freedom index. 53

In emerging economic powerhous-
es such as Turkey and India, along
with Brazil, Mexico, South Africa and
Indonesia, governments are “kind of
floating” between two different mod-
els, says Kampfner, the Freedom for
Sale author: the open-society approach
favored by transatlantic democracies
and a more authoritarian approach.
“I slightly fear it’s going in the wrong

direction in all of them,” Kampfner says.
But there also have been signs

recently that things may be improving
in places for free-speech advocates.
On April 1, for the first time in half
a century, privately owned daily news-
papers hit newsstands in Myanmar. 54

In Syria, new newspapers have
emerged to cover the civil war, coun-
tering bias from both government-
controlled media and opposition-
friendlysatellite channels based in Qatar
and Saudi Arabia.
“We need to get out of this Face-

book phase, where all we do is whine
and complain about the regime,” said
Absi Smesem, editor-in-chief of Sham,
a new weekly newspaper. 55

OUTLOOK
Shame, Not Laws?

I t’s always impossible to predict thefuture, but it’s especially difficult
when discussing free speech, which is
now inextricably bound up with con-
stantly changing technologies.
“I don’t know what’s next,” says

Reidy, the Index on Censorship news
editor. “None of us five years ago
thought we would be spending our
lives on Twitter.” Still, Reidy says, the
fact that so many people are con-
versing online makes them likely to
equate blocking the Internet with
more venerable forms of censorship,
such as book burning.
“Within the next five years, you will

have a lot of adults in the Western
world who literally don’t know what
life is like without the Internet,” he says.
“That is bound to change attitudes and
cultures.”
Information technology is penetrat-

ing deeper into the developing world,
says Kampfner, the British journalist
and author. For instance, thanks to
mobile technology African farmers can
access more information they need about
crop yields and prices. And with cell
phones, everyone has better access to
information on disasters.
However, “In terms of changing the

political discourse, the jury is out,”
Kampfner says. “Every new technolo-
gy, by its nature, is open to both use
and abuse.”
Activists wanting to use technology

to spread information and governments
trying to stop them play an ongoing
“cat and mouse game,” says Galperin,
of the Electronic Frontier Foundation.
Given how easily commercial appli-

cations can track individuals’ specific in-
terests and movements online, it’s not
difficult to imagine that political speech
will be tracked as well, Belarus-born

writer and researcher Evgeny Morozov,
a contributing editor at The New Re-
public and a columnist for Slate, con-
tends in his 2011 book The Net Delu-
sion. It’s not the case, as some have
argued, he says, that the need to keep
the Internet open for commercial pur-
poses will prevent regimes from stamp-
ing out other forms of online discourse.
“In the not so distant future, a banker

perusing nothing but Reuters and Fi-
nancial Times, and with other bankers
as her online friends, would be left
alone to do anything she wants, even
browse Wikipedia pages about human-
rights violations,” he writes. “In con-
trast, a person of unknown occupa-
tion, who is occasionally reading Fi-
nancial Times but is also connected
to five well-known political activists
through Facebook and who has writ-
ten blog comments that included words
like ‘democracy’ and ‘freedom,’ would
only be allowed to visit government-
run websites, or . . . to surf but be
carefully monitored.” 56

In democratic nations, concerns
about security and offending reli-
gious believers could lead to more
restrictions — although not neces-
sarily in terms of new laws, says
Arch Puddington, vice president for
research at Freedom House, but
through shaming and “other infor-
mal methods” of disciplining un-
popular ways of speaking.
“What you could have over the next

10 years in the U.S. and abroad is a
distinction between rights and norms,”
says former Rep. Perriello, at the Cen-
ter for American Progress Action Fund.
“Having a legal right to say certain things
does not actually mean one should say
certain things.”
Anthony Mills, the deputy director

of the International Press Institute in
Austria, suggests that the more things
change, the more they will stay rec-
ognizably the same. “Unfortunately, in
10 years we’ll still be having similar
conversations about efforts by every-
one from criminals to militants and

396 CQ Researcher

government operatives to target the
media and silence them,” Mills says.
“But at the same time, . . . a vari-

ety of media platforms — of journal-
ists and of media practitioners — will
continue to defy that trend,” he says.
“I have no doubt that in the grand
scheme of things, the truth will always
come out. The dynamic of the flow
of information is unstoppable.”
Wallach, the Rice University com-

puter scientist, is equally certain that de-
spite all legal, political and technologi-
cal ferment, the basic underlying tension
between free expression and repressive
tendencies will remain firmly in place.
“There will always be people with

something to say and ways for them
to say it,” Wallach says. Likewise, “There
will also always be people who want
to stop them.”

Notes

1 Jonathan Turley, “Shut Up and Play Nice,”
The Washington Post, Oct. 14, 2012, p. B1,
http://articles.washingtonpost.com/2012-10-
12/opinions/35499274_1_free-speech-defeat-
jihad-muslim-man.
2 For background, see Peter Katel, “Protecting
Whistleblowers,” CQ Researcher, March 31,2006,
pp. 265-288.
3 “Memorandum to the European Union on
Media Freedom in Hungary,” Human Rights
Watch, Feb. 16, 2012, www.hrw.org/node/105200.
4 For background, see Kenneth Jost, “Unrest
in the Arab World,” CQ Researcher, Feb. 1,

2013, pp. 105-132; and Roland Flamini, “Tur-
moil in the Arab World,” CQ Global Researcher,
May 3, 2011, pp. 209-236.
5 Tom Gjelten, “Shutdowns Counter the Idea
of a World-Wide Web,” NPR, Dec. 1, 2012, www.
npr.org/2012/12/01/166286596/shutdowns-
raise-issue-of-who-controls-the-internet.
6 Jessica Chasmar, “French Jewish Group Sues
Twitter Over Racist, Anti-Semitic Tweets,” The
Washington Times, March 24, 2013, www.wash
ingtontimes.com/news/2013/mar/24/french-
jewish-group-sues-twitter-over-racist-anti-.
7 Jean-Paul Marthoz, “Extremists Are Censor-
ing the Story of Religion,” Committee to Pro-
tect Journalists, Feb. 14, 2013, www.cpj.org/
2013/02/attacks-on-the-press-journalism-and-
religion.php. See also, Frank Greve, “Combat
Journalism,” CQ Researcher, April 12, 2013,
pp. 329-352.
8 Chris York, “Pussy Riot Member Yekaterina
Samutsevich Freed on Probation by Moscow
Court,” The Huffington Post UK, Oct. 10, 2012,
www.huffingtonpost.co.uk/2012/10/10/pussy-
riot-member-yekaterina-samutsevich-frees-pro
bation-moscow-court_n_1953725.html.
9 Ethan Zuckerman, “The First Twitter Revo-
lution?” Foreign Policy, Jan. 14, 2011, www.for
eignpolicy.com/articles/2011/01/14/the_first_
twitter_revolution.
10 Thomas Fuller, “E-mails of Reporters in
Myanmar Are Hacked,” The New York Times,
Feb. 10, 2013, www.nytimes.com/2013/02/11/
world/asia/journalists-e-mail-accounts-targeted-
in-myanmar.html.
11Yves Alexandre de Mountjoye, et al., “Unique
in the Crowd: The Privacy Bounds of Human
Mobility,” Nature, March 25, 2013, www.nature.
com/srep/2013/130325/srep01376/full/srep013
76.html.
12 Thomas Erdbrink, “Iran Blocks Way to By-
pass Internet Filtering System,” The New York
Times, March 11, 2013, www.nytimes.com/2013/

03/12/world/middleeast/iran-blocks-software-
used-to-bypass-internet-filtering-system.html.
13 Andrew Higgins, “Danish Opponent of
Islam Is Attacked, and Muslims Defend His
Right to Speak,” The New York Times, Feb. 28,
2013, p. A8, www.nytimes.com/2013/02/28/world/
europe/lars-hedegaard-anti-islamic-provocateur-
receives-support-from-danish-muslims.html.
14 Kenan Malik and Nada Shabout, “Should
Religious or Cultural Sensibilities Ever Limit
Free Expression?” Index on Censorship,
March 25, 2013, www.indexoncensorship.org/
2013/03/should-religious-or-cultural-sensibili
ties-ever-limit-free-expression/.
15 “Freedom of Thought 2012: A Global Re-
port on Discrimination Against Humanists,
Atheists and the Nonreligious,” International
Humanist and Ethical Union, Dec. 10, 2012,
p. 11, http://iheu.org/files/IHEU%20Freedom%
20of%20Thought%202012 .
16 Asim Tanveer, “Pakistani Man Accuses Am-
bassador to U.S. of Blasphemy,” Reuters, Feb. 21,
2013, http://news.yahoo.com/pakistan-accuses-
ambassador-u-blasphemy-124213305.html.
17 Huma Yusuf, “The Censors’ Salon,” Latitude,
March 14, 2013, http://latitude.blogs.nytimes.
com/2013/03/14/in-lahore-pakistan-the-censors-
salon/.
18 See “Speech to the United Nations Gen-
eral Assembly —“Practical progress towards
realising those ideals in the world,” Sept. 26,
2012, www.pm.gov.au/press-office/speech-
united-nations-general-assembly-%E2%80%9
Cpractical-progress-towards-realising-those-idea.
19 Turley, op. cit.
20 Aryeh Neier, “Freedom, Blasphemy and
Violence,” Project Syndicate, Sept. 16, 2012,
www.project-syndicate.org/commentary/free
dom–blasphemy–and-violence-by-aryeh-neier.
21 C. W. Nevius, “Free Speech Protects Offen-
sive Ads on Muni,” The San Francisco Chron-
icle, March 14, 2013, p. D1, www.sfgate.com/
bayarea/nevius/article/Offensive-ads-on-Muni-
protected-speech-4352829.php.
22 Clinton’s remarks are available at www.state.
gov/secretary/rm/2011/12/178511.htm.
23 Obama’s remarks are available at www.
whitehouse.gov/the-press-office/2012/09/25/
remarks-president-un-general-assembly.
24 Anthea Butler, “Opposing View: Why ’Sam
Bacile’ Deserves Arrest,” USA Today, Sept. 13,
2012, http://usatoday30.usatoday.com/news/
opinion/story/2012-09-12/Sam-Bacile-Anthea-
Butler/57769732/1.
25 Eric Posner, “The World Doesn’t Love the
First Amendment,” Slate, Sept. 25, 2012, www.
slate.com/articles/news_and_politics/jurispru

FREE SPEECH AT RISK

About the Author
Alan Greenblatt covers foreign affairs for National Public
Radio. He was previously a staff writer at Governing mag-
azine and CQ Weekly, where he won the National Press
Club’s Sandy Hume Award for political journalism. He
graduated from San Francisco State University in 1986 and
received a master’s degree in English literature from the
University of Virginia in 1988. For the CQ Researcher, he
wrote “Confronting Warming,” “Future of the GOP” and “Im-
migration Debate.” His most recent CQ Global Researcher re-
ports were “Rewriting History” and “International Adoption.”

April 26, 2013 397www.cqresearcher.com

dence/2012/09/the_vile_anti_muslim_video_and_
the_first_amendment_does_the_u_s_overvalue_
free_speech_.single.html.
26 Eyder Peralta, “John Kerry to German Stu-
dents: Americans Have ’Right to Be Stupid,’ ”
NPR, Feb. 26, 2013, www.npr.org/blogs/the
two-way/2013/02/26/172980860/john-kerry-to-ger
man-students-americans-have-right-to-be-stupid.
27 Rodney A. Smolla, Free Speech in an Open
Society (1992), p. 4.
28 Robert Hargreaves, The First Freedom (2002),
p. 5.
29 Ibid., p. 51.
30 Ibid., p. 95.
31 Richard W. Steele, Free Speech in the Good
War (1999), p. 1.
32 See “The Universal Declaration of Human
Rights,” United Nations, www.un.org/en/docu
ments/udhr/index.shtml#a19.
33 Alexander Meiklejohn, Free Speech and Its
Relation to Self-Government (1948), p. 17.
34 Michael Kent Curtis, Free Speech, ’The People’s
Darling Privilege’: Struggles for Freedom of Ex-
pression in American History (2000), p. 406.
35 David W. Rabban, Free Speech in Its For-
gotten Years (1997), p. 372.
36 “Supreme Court, 6-3, Upholds Newspapers
on Publication of Pentagon Report,” The New
York Times, July 1, 1971, www.nytimes.com/
books/97/04/13/reviews/papers-final.html.
37 Eric A. Posner and Adrian Vermeule, Terror
in the Balance: Security, Liberty and the Courts
(2007), p. 26.
38 James Risen and Eric Lichtblau, “Bush Lets
U.S. Spy on Callers Without Courts,” The New
York Times, Dec. 16, 2005, www.nytimes.com/
2005/12/16/politics/16program.html.
39 Samuel Walker, Presidents and Civil Lib-
erties From Wilson to Obama: A Story of Poor
Custodians (2012), p. 468.
40 For background, see Roland Flamini, “Im-
proving Cybersecurity,” CQ Researcher, Feb. 15,
2013, pp. 157-180.
41 Karen McVeigh and Dominic Rushe, “House
Passes CISPA Cybersecurity Bill Despite Warn-
ings From White House,” The Guardian, April
18, 2013, www.guardian.co.uk/technology/
2013/apr/18/house-representatives-cispa-cyber-
security-white-house-warning.
42 See the “Statement of Administration Policy”
at www.whitehouse.gov/sites/default/files/
omb/legislative/sap/113/saphr624r_20130416 .
43 McVeigh and Rushe, op. cit.
44 Phil Mattingly and Hans Nichols, “Obama
Pursuing Leakers Sends Warning to Whistle-
Blowers,” Bloomberg News, Oct. 17, 2012, www.
bloomberg.com/news/2012-10-18/obama-

pursuing-leakers-sends-warning-to-whistle-
blowers.html.
45 For background, see Alex Kingsbury, “Gov-
ernment Secrecy,” CQ Researcher, Feb. 11, 2011,
pp. 121-144.
46 Russell Brandom, “Entire Library Journal
Editorial Board Resigns,” The Verge, March 26,
2013, www.theverge.com/2013/3/26/41497
52/library-journal-resigns-for-open-access-
citing-aaron-swartz.
47 “A Vital Test for Democracy,” Yorkshire Press,
March 19, 2013, www.yorkshirepost.co.uk/
news/debate/yp-comment/a-vital-test-for-our-
democracy-1-5505331.
48 Sabra Lane, “Stephen Conroy Defends Media
Change Package,” Australian Broadcasting
Company, March 13, 2013, www.abc.net.au/
am/content/2013/s3714163.htm.
49 Nick Bryant, “Storm Over Australia’s Press
Reform Proposals,” BBC, March 19, 2013,
www.bbc.co.uk/news/world-asia-21840076.
50 Rick Gladstone, “Report Sees Journalists
Increasingly Under Attack,” The New York Times,
Feb. 15, 2013, p. A10, www.nytimes.
com/2013/02/15/world/attacks-on-journalists-

rose-in-2012-group-finds.html.
51 “U.S.: American Ambassador to Turkey Re-
iterating What Clinton Previously Said,” Today’s
Zaman, Feb. 7, 2013, www.todayszaman.com/
news-306435-us-american-ambassador-to-turkey-
reiterating-what-clinton-previously-said.html.
52 Suketu Mehta, “India’s Speech Impedi-
ments,” The New York Times, Feb. 6, 2013,
www.nytimes.com/2013/02/06/opinion/indias-
limited-freedom-of-speech.html.
53 “Press Freedom Index 2013,” Reporters
Without Borders, fr.rsf.org/IMG/pdf/classe-
ment_2013_gb-bd .
54 Aye Aye Win, “Privately Owned Daily News-
papers Return to Myanmar,” The Associated
Press, April 1, 2013, www.huffingtonpost.com/
huff-wires/20130401/as-myanmar-new-news
papers/.
55Neil MacFarquhar, “Syrian Newspapers Emerge
to Fill Out War Reporting,” The New York Times,
April 2, 2013, p. A4, www.nytimes.com/2013/
04/02/world/middleeast/syrian-newspapers-
emerge-to-fill-out-war-reporting.html.
56 Eugeny Morozov, The Net Delusion (2011),
p. 97.

FOR MORE INFORMATION

Access, P.O. Box 115, New York, NY 10113; 888-414-0100; www.accessnow.org.
A digital-rights group, founded after protests against Iran’s disputed 2009 presidential
election, that fosters open communications.

Article 19, Free Word Centre, 60 Farringdon Road, London, United Kingdom,
EC1R 3GA; +44 20 7324 2500; www.article19.org. A group named for a section of
the Universal Declaration of Human Rights that designs laws and policies promot-
ing freedom of expression.

Committee to Protect Journalists, 330 7th Ave., 11th Floor, New York, NY 10001;
212-465-1004; www.cpj.org. Documents attacks on journalists; publishes its findings
and works to promote press freedom.

Freedom House, 1301 Connecticut Ave., N.W., 6th Floor, Washington, DC 20036;
202-296-5101; www.freedomhouse.org. An independent watchdog group founded
in 1941 that advocates greater political and civil liberties.

Index on Censorship, Free Word Centre, 60 Farringdon Rd., London, United
Kingdom, EC1R 3GA; +44 20 7324 2522; www.indexoncensorship.org. Founded in
1972 to publish stories of communist dissidents in Eastern Europe; promotes
global free speech through journalistic reports and advocacy.

International Press Institute, Spielgasse 2, A-1010, Vienna, Austria; +43 1 412
90 11; www.freemedia.at. A global network of media executives and journalists
founded in 1950, dedicated to promoting and safeguarding press freedoms.

Reporters Committee for Freedom of the Press, 1101 Wilson Blvd., Suite 1100,
Arlington, VA 22209; 703-807-2100; www.rcfp.org. Provides free legal advice and
other resources to journalists on First Amendment issues.

FOR MORE INFORMATION

398 CQ Researcher

Selected Sources

Bibliography
Books

Ghonim, Wael, Revolution 2.0: The Power of the People
Is Greater Than the People in Power, Houghton Mifflin
Harcourt, 2012.
A Google employee who became a leader in using social
media to organize protests against the government in Egypt
during the so-called Arab Spring of 2011 writes a memoir
about those tumultuous times.

Hargreaves, Robert, The First Freedom: A History of
Free Speech, Sutton Publishing, 2002.
The late British broadcaster surveys the long history of speech,
from Socrates to modern times, highlighting the personalities
and legal cases that eventually led to greater liberties.

Kampfner, John, Freedom for Sale: Why the World Is
Trading Democracy for Security, Basic Books, 2010.
Visiting countries such as Russia, China, Italy and the United
States, a British journalist examines how citizens in recent years
have been willing to sacrifice personal freedoms in exchange
for promises of prosperity and security.

Articles

Erdbrink, Thomas, “Iran Blocks Way to Bypass Internet
Filtering System,” The New York Times, March 11, 2013,
www.nytimes.com/2013/03/12/world/middleeast/iran-blocks-
software-used-to-bypass-internet-filtering-system.html.
Iran’s Ministry of Information and Communications Tech-
nology has begun blocking the most popular software used
by millions of Iranians to bypass the official Internet cen-
soring system.

Malik, Kenan, and Nada Shabout, “Should Religious or
Cultural Sensibilities Ever Limit Free Expression?” Index
on Censorship, March 25, 2013, www.indexoncensorship.
org/2013/03/should-religious-or-cultural-sensibilities-ever-
limit-free-expression/.
An Indian-born British broadcaster (Malik) and an Iraqi art
historian debate whether even the most offensive and blas-
phemous speech should be protected.

Mattingly, Phil, and Hans Nichols, “Obama Pursuing
Leakers Sends Warning to Whistle-Blowers,” Bloomberg
News, Oct. 17, 2012, www.bloomberg.com/news/2012-
10-18/obama-pursuing-leakers-sends-warning-to-whistle-
blowers.html.
Attorney General Eric Holder has prosecuted more gov-
ernment officials for leaking documents than all his prede-
cessors combined.

Posner, Eric, “The World Doesn’t Love the First Amend-
ment,” Slate, Sept. 25, 2012, www.slate.com/articles/

news_and_politics/jurisprudence/2012/09/the_vile_anti_
muslim_video_and_the_first_amendment_does_the_u_s_
overvalue_free_speech_.single.html.
In the wake of violent protests across the globe triggered
by an anti-Muslim video that was produced in the United
States, a University of Chicago law professor argues that
freedom of expression must give way at times to other
values.

Turley, Jonathan, “Shut Up and Play Nice,” The Washing-
ton Post, Oct. 14, 2012, http://articles.washingtonpost.com/
2012-10-12/opinions/35499274_1_free-speech-defeat-
jihad-muslim-man.
A George Washington University law professor argues that
freedom of speech is being eroded around the world as ef-
forts to protect various groups against being offended become
enshrined in law.

Reports and Studies

“Attacks on the Press: Journalism on the Front Lines in
2012,” Committee to Protect Journalists, February 2013,
www.cpj.org/2013/02/attacks-on-the-press-in-2012.php.
The latest edition of this annual report documents how
more journalists are disappearing or being imprisoned in
countries ranging from Mexico to Russia.

“Freedom of Thought 2012: A Global Report on Discrim-
ination Against Humanists, Atheists and the Nonreligious,”
International Humanist and Ethical Union, Dec. 10, 2012,
http://iheu.org/files/IHEU%20Freedom%20of%20Thought%
202012 .
The number of prosecutions for blasphemy is sharply on
the rise, according to a global survey of laws regulating re-
ligious beliefs and expression.

Leveson, Lord Justice Brian, “An Inquiry Into the Culture,
Practices and Ethics of the Press,” The Stationary Office,
Nov. 29, 2012, www.official-documents.gov.uk/document/
hc1213/hc07/0780/0780.asp.
A judge appointed by the British prime minister to exam-
ine press abuses calls for greater regulation. “There is no or-
ganized profession, trade or industry in which the serious
failings of the few are overlooked because of the good done
by the many,” Leveson writes.

Zhu, Tao, et al., “The Velocity of Censorship: High-Fidelity
Detection of Microblog Post Deletions,” March 4, 2013,
http://arxiv.org/abs/1303.0597.
A team of computer scientists examined the accounts of
3,500 users of Weibo, China’s microblogging site, to see if
it was being censored. The scientists found that thousands
of Weibo employees were deleting forbidden phrases and
characters.

April 19, 2013 399www.cqresearcher.com

China

Bradsher, Keith, “In China, Veneer of Consensus Is Break-
ing Down,” The New York Times, Jan. 23, 2013, p. B10,
dealbook.nytimes.com/2013/01/22/appearance-of-con
sensus-is-breaking-down-in-china/.
China is more tolerant of free speech than it was during the
Tiananmen Square crackdown in 1989, says a columnist.

Jennings, Ralph, “Sale of Media Group Worries Taiwan,”
Los Angeles Times, Nov. 30, 2012, p. A8, articles.latimes.
com/2012/nov/29/world/la-fg-taiwan-china-media-2012
1130.
Taiwanese residents are worried that the proposed sale of
one of the country’s media empires to a consortium heavi-
ly invested in China will lead to limitations on free speech.

Richburg, Keith B., “Chinese Activists’ Microblogging
Accounts Are Shut Down,” The Washington Post, Jan. 4,
2013, p. A7, articles.washingtonpost.com/2013-01-03/world/
36211710_1_sina-weibo-chinese-internet-users-internet-
crackdown.
Several influential Chinese bloggers have had their accounts
shut down by Chinese officials.

Religion

Braun, Stuart, “Europe Faces Fight Over Free Speech,”
USA Today, Oct. 5, 2012, p. A8, www.usatoday.com/story/
news/world/2012/10/05/europe-blasphemy-laws/1613057/.
Many Europeans are calling for stricter blasphemy laws
after videos and cartoons mocking the Muslim prophet
Muhammad ignited violent protests.

Clyne, Reginald J., “Making a Case for Limiting Our
Right to Free Speech,” The Miami Times, Sept. 19, 2012,
p. A3, miamitimesonline.com/making-a-case-for-limiting-
our-right-to-free-speech/.
Limitations should be made to free speech if it attacks a reli-
gion or has far-reaching negative consequences, says a columnist.

Richter, Paul, “Egypt’s Morsi Urges Free Speech Curbs,”
Los Angeles Times, Sept. 27, 2012, p. A9, articles.la-
times.com/2012/sep/26/world/la-fg-un-morsi-20120927.
Egyptian President Mohammed Morsi says his country em-
braces freedom of expression except when insults are direct-
ed toward a specific religion or cult.

Technology

Sengupta, Somini, “Twitter’s Free Speech Defender,” The
New York Times, Sept. 3, 2012, p. B1, www.nytimes.com/
2012/09/03/technology/twitter-chief-lawyer-alexander-
macgillivray-defender-free-speech.html?pagewanted=all&_r=0.

Twitter’s chief attorney says allowing users to speak freely
is what gives the company a competitive advantage.

Temple, James, “Technology Can Amplify or Inhibit Free
Speech,” The San Francisco Chronicle, July 22, 2012,
p. D1, www.sfgate.com/technology/dotcommentary/article/
Web-a-double-edged-sword-for-free-speech-3725033.php.
Websites such as YouTube can give exposure to voices of
dissent, but they can also put speakers at risk.

United States

Cohen, Roger, “Our Man in Benghazi,” The New York
Times, Sept. 14, 2012, www.nytimes.com/2012/09/14/
opinion/roger-cohen-chris-stevens-in-benghazi.html.
Efforts by American politicians to defend religious hatred in
the name of free speech are misguided, says a columnist.

Gurwitz, Jonathan, “Team Obama Fails to Defend Free
Speech,”San Antonio (Texas) Express-News, Sept. 23, 2012,
p. A19, www.mysanantonio.com/opinion/columnists/jona
than_gurwitz/article/Tolerance-is-a-two-way-street-38838
90.php.
The Obama administration refused to defend the right to
free speech when it condemned a video mocking the Mus-
lim prophet Muhammad, says a columnist.

Wilson, Scott, and Anne Gearan, “At U.N., Obama Issues
a Challenge,” The Washington Post, Sept. 26, 2012, p. A1,
articles.washingtonpost.com/2012-09-25/politics/354966
19_1_nuclear-weapon-world-leaders-nuclear-program.
Arab countries should not sacrifice values such as free
speech despite the challenges being faced in the information
age, says President Obama.

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Positive and Negative Liberty

First published Thu Feb 27, 2003; substantive revision Mon Mar 5, 2012

Negative liberty is the absence of obstacles, barriers or
constraints. One has negative liberty to the extent that

action

s are
available to one in this negative sense. Positive liberty is the
possibility of acting — or the fact of acting — in such a
way as to take control of one’s life and realize one’s fundamental
purposes. While negative liberty is usually attributed to individual
agents, positive liberty is sometimes attributed to collectivities, or
to individuals considered primarily as members of given
collectivities.

The idea of distinguishing between a negative and a positive sense of
the term ‘liberty’ goes back at least to Kant, and was
examined and defended in depth by Isaiah Berlin in the 1950s and
’60s. Discussions about positive and negative liberty normally
take place within the context of political and social philosophy. They
are distinct from, though sometimes related to, philosophical
discussions about

free will

.
Work on the nature of positive liberty often overlaps, however, with
work on the nature of

autonomy

.

As Berlin showed, negative and positive liberty are not merely two
distinct kinds of liberty; they can be seen as rival, incompatible
interpretations of a single political ideal. Since few people claim to
be against liberty, the way this term is interpreted and defined can
have important political implications. Political

liberalism

tends to presuppose a negative
definition of liberty: liberals generally claim that if one favors
individual liberty one should place strong limitations on the
activities of the state. Critics of liberalism often contest this
implication by contesting the negative definition of liberty: they
argue that the pursuit of liberty understood as self-realization or as
self-determination (whether of the individual or of the collectivity)
can require state intervention of a kind not normally allowed by
liberals.

Many authors prefer to talk of positive and negative
freedom. This is only a difference of style, and the terms
‘liberty’ and ‘freedom’ are normally used
interchangeably by political and social philosophers. Although some
attempts have been made to distinguish between liberty and freedom
(Pitkin 1988; Williams 2001; Dworkin 2011), generally speaking these
have not caught on. Neither can they be translated into other European
languages, which contain only the one term, of either Latin or
Germanic origin (e.g. liberté, Freiheit), where English
contains both.

1. Two Concepts of Liberty

2. The Paradox of Positive Liberty

3. Two Attempts to Create a Third Way

4. One Concept of Liberty: Freedom as a Triadic Relation

5. The Analysis of Constraints: Their Types and Their Sources

6. The Concept of Overall Freedom

7. Is the Distinction Still Useful?

Bibliography

Introductory works

Other works

Academic Tools

Other Internet Resources

Related Entries

1. Two Concepts of Liberty

Imagine you are driving a car through town, and you come to a fork
in the road. You turn left, but no one was forcing you to go one way or
the other. Next you come to a crossroads. You turn right, but no one
was preventing you from going left or straight on. There is no traffic
to speak of and there are no diversions or police roadblocks. So you
seem, as a driver, to be completely free. But this picture of your
situation might change quite dramatically if we consider that the
reason you went left and then right is that you’re addicted to
cigarettes and you’re desperate to get to the tobacconists before it
closes. Rather than driving, you feel you are being
driven, as your urge to smoke leads you uncontrollably to turn the
wheel first to the left and then to the right. Moreover, you’re
perfectly aware that your turning right at the crossroads means you’ll
probably miss a train that was to take you to an appointment you care
about very much. You long to be free of this irrational desire that is
not only threatening your longevity but is also stopping you right now
from doing what you think you ought to be doing.

This story gives us two contrasting ways of thinking of liberty. On
the one hand, one can think of liberty as the absence of obstacles
external to the agent. You are free if no one is stopping you from
doing whatever you might want to do. In the above story you appear, in
this sense, to be free. On the other hand, one can think of liberty as
the presence of control on the part of the agent. To be free, you must
be self-determined, which is to say that you must be able to control
your own destiny in your own interests. In the above story you appear,
in this sense, to be unfree: you are not in control of your own
destiny, as you are failing to control a passion that you yourself
would rather be rid of and which is preventing you from realizing what
you recognize to be your true interests. One might say that while on
the first view liberty is simply about how many doors are open to the
agent, on the second view it is more about going through the right
doors for the right reasons.

In a famous essay first published in 1958, Isaiah Berlin called
these two concepts of liberty negative and positive respectively
(Berlin 1969).[1]
The reason for using these labels is that in the first
case liberty seems to be a mere absence of something (i.e. of
obstacles, barriers, constraints or interference from others), whereas
in the second case it seems to require the presence of
something (i.e. of control, self-mastery, self-determination or
self-realization). In Berlin’s words, we use the negative concept of
liberty in attempting to answer the question “What is the area
within which the subject — a person or group of persons — is or should
be left to do or be what he is able to do or be, without interference
by other persons?”, whereas we use the positive concept in
attempting to answer the question “What, or who, is the source of
control or interference that can determine someone to do, or be, this
rather than that?” (1969, pp. 121–22).

It is useful to think of the difference between the two concepts in
terms of the difference between factors that are external and factors
that are internal to the agent. While theorists of negative freedom are
primarily interested in the degree to which individuals or groups
suffer interference from external bodies, theorists of positive freedom
are more attentive to the internal factors affecting the degree to
which individuals or groups act autonomously. Given this difference,
one might be tempted to think that a political philosopher should
concentrate exclusively on negative freedom, a concern with positive
freedom being more relevant to psychology or individual morality than
to political and social institutions. This, however, would be
premature, for among the most hotly debated issues in political
philosophy are the following: Is the positive concept of
freedom a political concept? Can individuals or groups achieve positive
freedom through political action? Is it possible for the state to
promote the positive freedom of citizens on their behalf? And if so, is
it desirable for the state to do so? The classic texts in the history
of western political thought are divided over how these questions
should be answered: theorists in the classical liberal tradition, like
Constant, Humboldt, Spencer and Mill, are typically classed as
answering ‘no’ and therefore as defending a negative
concept of political freedom; theorists that are critical of this
tradition, like Rousseau, Hegel, Marx and T.H. Green, are typically
classed as answering ‘yes’ and as defending a positive
concept of political freedom.

In its political form, positive freedom has often been thought of as
necessarily achieved through a collectivity. Perhaps the clearest case
is that of Rousseau’s theory of freedom, according to which
individual freedom is achieved through participation in the process
whereby one’s community exercises collective control over its
own affairs in accordance with the ‘general will’. Put in
the simplest terms, one might say that a democratic society is a free
society because it is a self-determined society, and that a member of
that society is free to the extent that he or she participates in its
democratic process. But there are also individualist applications of
the concept of positive freedom. For example, it is sometimes said
that a government should aim actively to create the conditions
necessary for individuals to be self-sufficient or to achieve
self-realization. The negative concept of freedom, on the other hand,
is most commonly assumed in liberal defences of the constitutional
liberties typical of liberal-democratic societies, such as freedom of
movement, freedom of religion, and freedom of speech, and in arguments
against paternalist or moralist state intervention. It is also often
invoked in defences of the right to private property, although some
have contested the claim that private property necessarily enhances
negative liberty (Cohen, 1991, 1995).

After Berlin, the most widely cited and best developed analyses of the
negative concept of liberty include Hayek (1960), Day (1971),
Oppenheim (1981), Miller (1983) and Steiner (1994). Among the most
prominent contemporary analyses of the positive concept of liberty are
Milne (1968), Gibbs (1976), C. Taylor (1979) and Christman (1991,
2005).

2. The Paradox of Positive Liberty

Many liberals, including Berlin, have suggested that the positive
concept of liberty carries with it a danger of authoritarianism.
Consider the fate of a permanent and oppressed minority. Because the
members of this minority participate in a democratic process
characterized by majority rule, they might be said to be free on the
grounds that they are members of a society exercising self-control over
its own affairs. But they are oppressed, and so are surely unfree.
Moreover, it is not necessary to see a society as democratic in order
to see it as self-controlled; one might instead adopt an organic
conception of society, according to which the collectivity is to be
thought of as a living organism, and one might believe that this
organism will only act rationally, will only be in control of itself,
when its various parts are brought into line with some rational plan
devised by its wise governors (who, to extend the metaphor, might be
thought of as the organism’s brain). In this case, even the majority
might be oppressed in the name of liberty.

Such justifications of oppression in the name of liberty are no mere
products of the liberal imagination, for there are notorious
historical examples of their endorsement by authoritarian political
leaders. Berlin, himself a liberal and writing during the cold war,
was clearly moved by the way in which the apparently noble ideal of
freedom as self-mastery or self-realization had been twisted and
distorted by the totalitarian dictators of the twentieth century —
most notably those of the Soviet Union — so as to claim that they,
rather than the liberal West, were the true champions of freedom. The
slippery slope towards this paradoxical conclusion begins, according
to Berlin, with the idea of a divided self. To illustrate: the smoker
in our story provides a clear example of a divided self, for she is
both a self that desires to get to an appointment and a self that
desires to get to the tobacconists, and these two desires are in
conflict. We can now enrich this story in a plausible way by adding
that one of these selves — the keeper of appointments — is superior to
the other: the self that is a keeper of appointments is thus a
‘higher’ self, and the self that is a smoker is a
‘lower’ self. The higher self is the rational, reflecting
self, the self that is capable of moral action and of taking
responsibility for what she does. This is the true self, for rational
reflection and moral responsibility are the features of humans that
mark them off from other animals. The lower self, on the other hand,
is the self of the passions, of unreflecting desires and irrational
impulses. One is free, then, when one’s higher, rational self is
in control and one is not a slave to one’s passions or to
one’s merely empirical self. The next step down the slippery
slope consists in pointing out that some individuals are more rational
than others, and can therefore know best what is in their and
others’ rational interests. This allows them to say that by
forcing people less rational than themselves to do the rational thing
and thus to realize their true selves, they are in fact liberating
them from their merely empirical desires. Occasionally, Berlin says,
the defender of positive freedom will take an additional step that
consists in conceiving of the self as wider than the individual and as
represented by an organic social whole — “a tribe, a race, a
church, a state, the great society of the living and the dead and the
yet unborn”. The true interests of the individual are to be
identified with the interests of this whole, and individuals can and
should be coerced into fulfilling these interests, for they would not
resist

coercion

if they were as rational and wise as their
coercers. “Once I take this view”, Berlin says, “I
am in a position to ignore the actual wishes of men or societies, to
bully, oppress, torture in the name, and on behalf, of their
‘real’ selves, in the secure knowledge that whatever is
the true goal of man … must be identical with his freedom”
(Berlin 1969, pp. 132–33).

Those in the negative camp try to cut off this line of reasoning at
the first step, by denying that there is any necessary relation
between one’s freedom and one’s desires. Since one is free
to the extent that one is externally unprevented from doing things,
they say, one can be free to do what one does not desire to do. If
being free meant being unprevented from realizing one’s desires,
then one could, again paradoxically, reduce one’s unfreedom by
coming to desire fewer of the things one is unfree to do. One could
become free simply by contenting oneself with one’s situation. A
perfectly contented slave is perfectly free to realize all of her
desires. Nevertheless, we tend to think of slavery as the opposite of
freedom. More generally, freedom is not to be confused with happiness,
for in logical terms there is nothing to stop a free person from being
unhappy or an unfree person from being happy. The happy person might
feel free, but whether they are free is another
matter (Day, 1970). Negative theorists of freedom therefore tend to
say not that having freedom means being unprevented from doing as one
desires, but that it means being unprevented from doing whatever one
might desire to do.

Some theorists of positive freedom bite the bullet and say that the
contented slave is indeed free — that in order to be free the
individual must learn, not so much to dominate certain merely empirical
desires, but to rid herself of them. She must, in other words, remove
as many of her desires as possible. As Berlin puts it, if I have a
wounded leg ‘there are two methods of freeing myself from pain.
One is to heal the wound. But if the cure is too difficult or
uncertain, there is another method. I can get rid of the wound by
cutting off my leg’ (1969, pp. 135–36). This is the strategy of
liberation adopted by ascetics, stoics and Buddhist sages. It involves
a ‘retreat into an inner citadel’ — a soul or a purely
noumenal self — in which the individual is immune to any outside
forces. But this state, even if it can be achieved, is not one that
liberals would want to call one of freedom, for it again risks masking
important forms of oppression. It is, after all, often in coming to
terms with excessive external limitations in society that individuals
retreat into themselves, pretending to themselves that they do not
really desire the worldly goods or pleasures they have been denied.
Moreover, the removal of desires may also be an effect of outside
forces, such as brainwashing, which we should hardly want to call a
realization of freedom.

Because the concept of negative freedom concentrates on the external
sphere in which individuals interact, it seems to provide a better
guarantee against the dangers of

paternalism

and authoritarianism
perceived by Berlin. To promote negative freedom is to promote the
existence of a sphere of action within which the individual is
sovereign, and within which she can pursue her own projects subject
only to the constraint that she respect the spheres of others. Humboldt
and Mill, both defenders of the negative concept of freedom, compared
the development of an individual to that of a plant: individuals, like
plants, must be allowed to grow, in the sense of developing their own
faculties to the full and according to their own inner logic. Personal
growth is something that cannot be imposed from without, but must come
from within the individual.

3. Two Attempts to Create a Third Way

Critics, however, have objected that the ideal described by Humboldt
and Mill looks much more like a positive concept of liberty than a
negative one. Positive liberty consists, they say, in exactly this
growth of the individual: the free individual is one that develops,
determines and changes her own desires and interests autonomously and
from within. This is not liberty as the mere absence of obstacles, but
liberty as autonomy or self-realization. Why should the mere absence of state
interference be thought to guarantee such growth? Is there not some
third way between the extremes of totalitarianism and the minimal state
of the classical liberals — some non-paternalist, non-authoritarian
means by which positive liberty in the above sense can be actively
promoted?

Much of the more recent work on positive liberty has been motivated
by a dissatisfaction with the ideal of negative liberty combined with
an awareness of the possible abuses of the positive concept so
forcefully exposed by Berlin. John Christman (1991), for example, has
argued that positive liberty concerns the ways in which
desires are formed — whether as a result of rational reflection on all
the options available, or as a result of pressure, manipulation or
ignorance. What it does not regard, he says, is the content of
an individual’s desires. The promotion of positive freedom need not
therefore involve the claim that there is only one right answer to the
question of how a person should live, nor need it allow, or even be
compatible with, a society forcing its members into given patterns of
behavior. Take the example of a Muslim woman who claims to espouse the
fundamentalist doctrines generally followed by her family and the
community in which she lives. On Christman’s account, this person is
positively unfree if her desire to conform was somehow oppressively
imposed upon her through indoctrination, manipulation or deceit. She is
positively free, on the other hand, if she arrived at her desire to
conform while aware of other reasonable options and she weighed and
assessed these other options rationally. Even if this woman seems to
have a preference for subservient behavior, there is nothing
necessarily freedom-enhancing or freedom-restricting about her having
the desires she has, since freedom regards not the content of these
desires but their mode of formation. On this view, forcing her to do
certain things rather than others can never make her more free, and
Berlin’s paradox of positive freedom would seem to have been
avoided.

It remains to be seen, however, just what a state can do, in practice,
to promote positive liberty in Christman’s sense without
encroaching on any individual’s sphere of negative liberty: the
conflict between the two ideals seems to survive his alternative
analysis, albeit in a milder form. Although not coercing individuals
into specific patterns of behavior, a state interested in promoting
autonomy in Christman’s sense might still be allowed
considerable space for intervention of an informative and educational
nature, perhaps subsidizing some activities (in order to encourage a
plurality of genuine options) and financing this through
taxation. Liberals might criticize this on anti-paternalist grounds,
objecting that such measures will require the state to use resources
in ways that the supposedly heteronomous individuals, if left to
themselves, might have chosen to spend in other ways. Some liberals
will make an exception in the case of the education of children (in
such a way as to cultivate open minds and rational reflection), but
even here other liberals will object that the right to negative
liberty includes the right to decide how one’s children should be
educated.

Other theorists of freedom have remained closer to the negative
conception of freedom but have attempted to go beyond it, saying that
freedom is not merely the enjoyment of a sphere of non-interference
but the enjoyment of certain conditions in which such non-interference
is guaranteed (see especially Pettit 1997, 2001, and Skinner
1998, 2002). These conditions may include the presence of a
democratic constitution and a series of safeguards against a
government wielding power arbitrarily, including the exercise of civic
virtues on the part of citizens. As Berlin admits, on the negative
view of freedom, I am free even if I live in a dictatorship just as
long as the dictator happens, on a whim, not to interfere with me (see
also Hayek 1960). There is no necessary connection between negative
freedom and any particular form of government. On the alternative view
sketched here, I am free only if I live in a society with the kinds of
political institutions that guarantee the independence of each citizen
from exercises of arbitrary power. Quentin Skinner has called this
view of freedom ‘neo-Roman’, invoking ideas about freedom
both of the ancient Romans and of a number of Renaissance and early
modern writers. Philip Pettit has called the same view
‘republican’, and this label has tended to dominate in the
recent literature (Weinstock and Nadeau 2004; Larmore 2004; Laborde
and Maynor 2008).

Republican freedom can be thought of as a kind of status: to
be a free person is to enjoy the

rights

and privileges attached to the
status of republican citizenship, whereas the paradigm of the unfree
person is the slave. Freedom is not simply a matter of
non-interference, for a slave may enjoy a great deal of
non-interference at the whim of her master. What makes her unfree is
her status, such that she is permanently liable to interference of any
kind. Even if the slave enjoys non-interference, she is, as Pettit
puts it, ‘dominated’, because she is permanently subject
to the arbitrary power of her owner.

Contemporary republicans therefore claim that their view of freedom is
quite distinct from the negative view of freedom. As we have seen, one
can enjoy non-interference without enjoying non-domination;
conversely, according to Pettit, one can enjoy non-domination while
nevertheless being interfered with, just as long as the interference
in question is constrained, through republican power structures, to
track one’s interests. Only arbitrary power is inimical to
freedom, not power as such. On the other hand, republican freedom is
also distinct from positive freedom as expounded and criticized by
Berlin. First, republican freedom does not consist in the activity of
virtuous political participation; rather, that participation is seen
as instrumentally related to freedom as non-domination. Secondly, the
republican concept of freedom cannot lead to anything like the
oppressive consequences feared by Berlin, because it has a commitment
to non-domination and to liberal-democratic institutions already built
into it.

It remains to be seen, however, whether the republican concept of
freedom is ultimately distinguishable from the negative concept, or
whether republican writers on freedom have not simply provided good
arguments to the effect that negative freedom is best promoted, on
balance and over time, through certain kinds of political
institutions rather than others. While there is no necessary
connection between negative liberty and democratic government, there
may nevertheless be a strong empirical correlation between the
two.

Ian Carter

(1999, 2008), Matthew H. Kramer (2003, 2008), and
Robert Goodin and Frank Jackson (2007) have argued, along these lines,
that republican policies are best defended empirically on the basis of
the standard negative ideal of freedom, rather than on the basis of a
conceptual challenge to that ideal. An important premise in their
arguments is that the degree to which a person is negatively free
depends, in part, on the
probability with which he or she will be constrained from
performing future acts or act-combinations. People who are subject to
arbitrary power can be seen as less free in the negative sense even if
they do not actually suffer interference, because the probability of
their suffering constraints is always greater (ceteris
paribus, as a matter of empirical fact) than it would be if they
were not subject to that arbitrary power. In reply, Pettit (2008a,
2008b) and Skinner (2008) have insisted that what matters for an
agent’s freedom is the impossibility of others interfering with
impunity, not the improbability of their doing so.

Much of the most recent literature on political and social freedom has
concentrated on the above debate over the differences between the
republican and liberal (i.e. negative) conceptions of
freedom. Critiques of the republican conception that build on, or are
otherwise sympathetic to, those of Carter and Kramer, can be found in
Bruin (2009), Lang (2012) and Shnayderman (2012). Pettit himself has
continued to refine his position, and has further discussed its
relation to that of Berlin (Pettit 2011). Berlin’s own conception of
negative liberty, he argues, occupies an inherently unstable position
between the more restrictive Hobbesian view and the more expansive
view of freedom as non-domination. Pettit’s analysis of freedom has
also inspired further work on the concept of domination itself, most
notably Frank Lovett’s account of domination as a descriptive concept
and of justice as the minimization of domination (Lovett 2010).

4. One Concept of Liberty: Freedom as a Triadic Relation

The two sides identified by Berlin disagree over which of two
different concepts best deserves the name of ‘liberty’.
Does this fact not denote the presence of some more basic
agreement between the two sides? How, after all, could they
see their disagreement as one about the definition of liberty if they
did not think of themselves as in some sense talking about the
same thing? In an influential article, the American legal
philosopher Gerald MacCallum (1967) put forward the following answer:
there is in fact only one basic concept of freedom, on which both
sides in the debate converge. What the so-called negative and
positive theorists disagree about is how this single concept of
freedom should be interpreted. Indeed, in MacCallum’s view, there are
a great many different possible interpretations of freedom, and it is
only Berlin’s artificial dichotomy that has led us to think in terms
of there being two.

MacCallum defines the basic concept of freedom — the concept on
which everyone agrees — as follows: a subject, or agent, is free from
certain constraints, or preventing conditions, to do or become certain
things. Freedom is therefore a triadic relation — that is, a relation
between three things: an agent, certain preventing conditions,
and certain doings or becomings of the agent. Any statement about
freedom or unfreedom can be translated into a statement of the above
form by specifying what is free or unfree, from what
it is free or unfree, and what it is free or unfree to do or
become. Any claim about the presence or absence of freedom in a
given situation will therefore make certain assumptions about what
counts as an agent, what counts as a constraint or limitation on
freedom, and what counts as a purpose that the agent can be described
as either free or unfree to carry out.

The definition of freedom as a triadic relation was first put forward
in the seminal work of Felix Oppenheim in the 1950s and 60s.
Oppenheim saw that an important meaning of ‘freedom’ in
the context of political and social philosophy was as a relation
between two agents and a particular (impeded or unimpeded)
action. This interpretation of freedom remained, however, what Berlin
would call a negative one. What MacCallum did was to generalize this
triadic structure so that it would cover all possible claims about
freedom, whether of the negative or the positive variety. In
MacCallum’s framework, unlike in Oppenheim’s, the interpretation
of each of the three variables is left open. In other words,
MacCallum’s position is a meta-theoretical one: his is a theory
about the differences between theorists of freedom.

To illustrate MacCallum’s point, let us return to the example of the
smoker driving to the tobacconists. In describing this person as either
free or unfree, we shall be making assumptions about each of
MacCallum’s three variables. If we say that the driver is
free, what we shall probably mean is that an agent, consisting
in the driver’s empirical self, is free from external (physical or
legal) obstacles to do whatever he or she might want to do. If, on the
other hand, we say that the driver is unfree, what we shall
probably mean is that an agent, consisting in a higher or rational
self, is made unfree by internal, psychological constraints to carry
out some rational, authentic or virtuous plan. Notice that in both
claims there is a negative element and a positive element: each claim
about freedom assumes both that freedom is freedom
from something (i.e., preventing conditions) and that it
is freedom to do or become something. The dichotomy between
‘freedom from’ and ‘freedom to’ is therefore a
false one, and it is misleading say that those who see the driver as
free employ a negative concept and those who see the driver as unfree
employ a positive one. What these two camps differ over is the way in
which one should interpret each of the three variables in the triadic
freedom-relation. More precisely, we can see that what they differ over
is the extension to be assigned to each of the variables.

Thus, those whom Berlin places in the negative camp typically
conceive of the agent as having the same extension as that which it is
generally given in ordinary discourse: they tend to think of the agent
as an individual human being and as including all of the empirical
beliefs and desires of that individual. Those in the so-called positive
camp, on the other hand, often depart from the ordinary notion, in one
sense imagining the agent as more extensive than in the ordinary
notion, and in another sense imagining it as less extensive: they think
of the agent as having a greater extension than in ordinary discourse
in cases where they identify the agent’s true desires and aims with
those of some collectivity of which she is a member; and they think of
the agent as having a lesser extension than in ordinary discourse in
cases where they identify the true agent with only a subset of her
empirical beliefs and desires — i.e., with those that are rational,
authentic or virtuous. Secondly, those in Berlin’s positive camp tend
to take a wider view of what counts as a constraint on freedom than
those in his negative camp: the set of relevant obstacles is more
extensive for the former than for the latter, since negative theorists
tend to count only external obstacles as constraints on freedom,
whereas positive theorists also allow that one may be constrained by
internal factors, such as irrational desires, fears or ignorance. And
thirdly, those in Berlin’s positive camp tend to take a narrower view
of what counts as a purpose one can be free to fulfill. The set of
relevant purposes is less extensive for them than for the negative
theorists, for we have seen that they tend to restrict the relevant set
of actions or states to those that are rational, authentic or virtuous,
whereas those in the negative camp tend to extend this variable so as
to cover any action or state the agent might desire.

On MacCallum’s analysis, then, there is no simple dichotomy
between positive and negative liberty; rather, we should recognize
that there is a whole range of possible interpretations or
‘conceptions’ of the single concept of liberty. Indeed, as
MacCallum says and as Berlin seems implicitly to admit, a number of
classic authors cannot be placed unequivocally in one or the other of
the two camps. Locke, for example, is normally thought of as one of
the fathers or classical liberalism and therefore as a staunch
defender of the negative concept of freedom. He indeed states
explicitly that ‘[to be at] liberty is to be free from restraint
and violence from others’. But he also says that liberty is not
to be confused with ‘license’, and that “that ill
deserves the name of confinement which hedges us in only from bogs and
precipices” (Second Treatise, parags. 6 and 57). While
Locke gives an account of constraints on freedom that Berlin would
call negative, he seems to endorse an account of MacCallum’s
third freedom-variable that Berlin would call positive, restricting
this to actions that are not immoral (liberty is not license) and to
those that are in the agent’s own interests (I am not unfree if
prevented from falling into a bog). A number of contemporary
libertarians have provided or assumed definitions of freedom that are
similarly morally loaded (e.g. Nozick 1974; Rothbard 1982). This would
seem to confirm MacCallum’s claim that it is conceptually and
historically misleading to divide theorists into two camps — a
negative liberal one and a positive non-liberal one.

5. The Analysis of Constraints: Their Types and Their Sources

To illustrate the range of interpretations of the concept of freedom
made available by MacCallum’s analysis, let us now take a closer look
at his second variable — that of constraints on freedom.

Advocates of negative conceptions of freedom typically restrict the
range of obstacles that count as constraints on freedom to those that
are brought about by other agents. For theorists who conceive of
constraints on freedom in this way, I am unfree only to the extent
that other people prevent me from doing certain things. If I
am incapacitated by natural causes — by a genetic handicap, say,
or by a virus or by certain climatic conditions — I may be
rendered unable to do certain things, but I am not, for that
reason, rendered unfree to do them. Thus, if you lock me in
my house, I shall be both unable and unfree to leave. But if I am
unable to leave because I suffer from a debilitating illness or
because a snow drift has blocked my exit, I am nevertheless free, or
am at least not unfree, to leave. The reason such theorists give, for
restricting the set of relevant preventing conditions in this way, is
that they see freedom as a social relation — a relation
between persons (see Oppenheim 1961; Miller 1983; Steiner 1983;
Kristjánsson 1996; Kramer 2003). Freedom as a non-social
relation is said to be more the concern of engineers and medics than
of political and social philosophers.

In attempting to distinguish between natural and social obstacles we
shall inevitably come across gray areas. An important example is that
of obstacles created by impersonal economic forces. Do economic
constraints like recession, poverty and unemployment merely
incapacitate people, or do they also render them unfree? One way of
supplying a clear answer to this question is by taking an even more
restrictive view of what counts as a constraint on freedom, and saying
that only a subset of the set of obstacles brought about by other
persons counts as a restriction of freedom: those brought about
intentionally. In this case, impersonal economic forces,
being brought about unintentionally, do not restrict people’s
freedom, even though they undoubtedly make many people
unable to do many things. This last view has been taken by a
number of market-oriented libertarians, including, most famously,
Friedrich von Hayek (1960, 1982), according to whom freedom is the
absence of coercion, where to be coerced is to be subject to the
arbitrary will of another. (Notice the somewhat surprising similarity
between this conception of freedom and the republican conception
discussed earlier, in section 3.) Critics of

libertarianism

, on the
other hand, typically endorse a broader conception of constraints on
freedom that includes not only intentionally imposed obstacles but
also unintended obstacles for which someone may nevertheless be held
responsible (for Miller and Kristjánsson this means
morally responsible; for Oppenheim and Kramer it means
causally responsible), or indeed obstacles created in any way
whatsoever (see Crocker 1980; Cohen 1988; Sen 1992; Van Parijs
1995). Thus, socialists and egalitarians have tended to claim that the
poor in a capitalist society are as such unfree, or that they are less
free than the rich, in contrast to libertarians, who have tended to
claim that the poor in a capitalist society are no less free than the
rich. Egalitarians typically (though not always) assume a broader
notion than libertarians of what counts as a constraint on
freedom. Although this view does not necessarily imply what Berlin
would call a positive notion of freedom, egalitarians often call their
own definition a positive one, in order to convey the sense that
freedom requires the presence of abilities, or what Amartya Sen has
influentially called ‘capabilities’ (Sen 1985, 1988,
1992). (Important exceptions to this egalitarian tendency to broaden
the relevant set of constraints are Waldron (1993) and Cohen (2011),
who demonstrate, for the sake of argument, that relative poverty is in
fact empirically inseparable from, and indeed proportional to, the
imposition of physical barriers by other agents.)

We have seen that advocates of a negative conception of freedom tend
to count only obstacles that are external to the agent. Notice,
however, that the term ‘external’ is ambiguous in this
context, for it might be taken to refer either to the location of the
causal source of an obstacle or to the location of the obstacle
itself. Obstacles that count as ‘internal’ in terms of
their own location include psychological phenomena such as ignorance,
irrational desires, illusions and phobias. Such constraints can be
caused in various ways: for example, they might have a genetic origin,
or they might be brought about intentionally by others, as in the case
of brainwashing or manipulation. In the first case we have an internal
constraint brought about by natural causes; in the second, an internal
constraint intentionally imposed by another human agent.

More generally, we can now see that there are in fact two different
dimensions along which one’s notion of a constraint might be broader
or narrower. A first dimension is that of the source of a
constraint — in other words, what it is that brings about a
constraint on freedom. We have seen, for example, that some theorists
include as constraints on freedom only obstacles brought about by
human action, whereas others also include obstacles with a natural
origin. A second dimension is that of the type of constraint
involved, where constraint-types include the types of internal
constraint just mentioned, but also various types of constraint
located outside the agent, such as physical barriers that render an
action impossible, obstacles that render the performance of an action
more or less difficult, and costs attached to the performance of a
(more or less difficult) action. The two dimensions of type and source
are logically independent of one another. Given this independence, it
is theoretically possible to combine a narrow view of what counts as a
source of a constraint with a broad view of what types of obstacle
count as unfreedom-generating constraints, or vice versa. As
a result, it is not clear that theorists who are normally placed in
the ‘negative’ camp need deny the existence of internal
constraints on freedom (see Kramer 2003; Garnett 2007).

To illustrate the independence of the two dimensions of type and
source, consider the case of the unorthodox libertarian Hillel Steiner
(1974–5, 1994). On the one hand, Steiner has a much broader
view than Hayek of the possible sources of constraints on
freedom: he does not limit the set of such sources to intentional
human actions, but extends it to cover all kinds of human cause,
whether or not any humans intend such causes and whether or not they
can be held morally accountable for them, believing that any
restriction of such non-natural sources can only be an arbitrary
stipulation, usually arising from some more or less conscious
ideological bias. On the other hand, Steiner has an
even narrower view than Hayek about what type of
obstacle counts as a constraint on freedom: for Steiner, an agent only
counts as unfree to do something if it is physically
impossible for her to do that thing. Any extension of the
constraint variable to include other types of obstacle, such as the
costs anticipated in coercive threats, would, in his view, necessarily
involve a reference to the agent’s desires, and we have seen that for
those liberals in the negative camp there is no necessary relation
between an agent’s freedom and her desires. Consider the coercive
threat ‘Your money or your life!’. This does not make it
impossible for you to refuse to hand over your money, only much less
desirable for you to do so. If you decide not to hand over the money,
you will suffer the cost of being killed. That will count as
a restriction of your freedom, because it will render physically
impossible a great number of actions on your part. But it is not the
issuing of the threat that creates this unfreedom, and you are not
unfree until the sanction (described in the threat) is carried
out. For this reason, Steiner excludes threats — and with them
all other kinds of imposed costs — from the set of obstacles
that count as freedom-restricting. This conception of freedom derives
from Hobbes (Leviathan, chs. 14 and 21), and its defenders
often call it the ‘pure’ negative conception (M. Taylor
1982; Steiner 1994; Carter and Kramer 2008) to distinguish it from
those ‘impure’ negative conceptions that make at least
minimal references to the agent’s beliefs, desires or values.

Steiner’s account of the relation between freedom and coercive
threats might be thought to have counterintuitive implications, even
from the liberal point of view. Many laws that are normally thought to
restrict negative freedom do not physically prevent people from doing
what is prohibited, but deter them from doing so by threatening
punishment. Are we to say, then, that these laws do not restrict the
negative freedom of those who obey them? A solution to this problem
may consist in saying that although a law against doing some action,
x, does not remove the freedom to do x, it
nevertheless renders physically impossible certain
combinations of actions that include doing x and
doing what would be precluded by the punishment. There is a
restriction of the person’s overall negative freedom
— i.e. a reduction in the overall number of act-combinations
available to her — even though she does not lose the freedom to
do any specific thing taken in isolation (Carter 1999).

6. The Concept of Overall Freedom

The concept of overall freedom appears to play an important role both
in everyday discourse and in contemporary political philosophy. It is
only recently, however, that philosophers have stopped concentrating
exclusively on the meaning of a particular freedom — the freedom to do
or become this or that particular thing — and have started asking
whether we can also make sense of descriptive claims to the effect
that one person or society is freer than another or of liberal
normative claims to the effect that freedom should be maximized or
that people should enjoy equal freedom or that they each have a right
to a certain minimum level of freedom. The literal meaningfulness of
such claims depends on the possibility of gauging degrees of overall
freedom, sometimes comparatively, sometimes absolutely.

Theorists disagree, however, about the importance of the notion of
overall freedom. For some libertarian and liberal egalitarian
theorists, freedom is valuable as such. This suggests that more
freedom is better than less (at least ceteris paribus), and
that freedom is one of those goods that a liberal society ought to
distribute in a certain way among individuals. For other liberal
theorists, like Ronald Dworkin (1977, 2011) and the later Rawls (1991),
freedom is not valuable as such, and all claims about maximal or equal
freedom ought to be interpreted not as literal references to a
quantitative good called ‘liberty’ but as elliptical
references to the adequacy of lists of certain particular liberties,
or types of liberties, selected on the basis of values other than
liberty itself. Generally speaking, only the first group of theorists
finds the notion of overall freedom interesting.

The theoretical problems involved in measuring overall freedom include
that of how an agent’s available actions are to be individuated,
counted and weighted, and that of comparing and weighting different
types (but not necessarily different sources) of constraints on
freedom (such as physical prevention, punishability, threats and
manipulation). How are we to make sense of the claim that the number
of options available to a person has increased? Should all options
count for the same in terms of degrees of freedom, or should they be
weighted according to their importance in terms of other values? And
how are we to compare the unfreedom created by the physical
impossibility of an action with, say, the unfreedom created by the
difficulty or costliness or punishability of an action? It is only by
comparing these different kinds of actions and constraints that we
shall be in a position to compare individuals’ overall degrees
of freedom. These problems have been addressed, with differing degrees
of optimism, not only by political philosophers but also, and
increasingly, by social choice theorists interested in finding a
freedom-based alternative to the standard utilitarian or
‘welfarist’ framework that has tended to dominate their
discipline (e.g. Pattanaik and Xu 1991, 1998; Hees 2000; Sen 2002; Sugden 1998,
2003; Bavetta 2004; Bavetta and Navarra 2012).

MacCallum’s framework is particularly well suited to the clarification
of such issues. For this reason, theorists working on the measurement
of freedom tend not to refer a great deal to the distinction between
positive and negative freedom. This said, most of them (e.g. Steiner,
Carter, Kramer, Sen, Sugden) are concerned with freedom as the
availability of options. And the notion of freedom as the availability
of options is unequivocally negative in Berlin’s sense at least where
two conditions are met: first, the source of unfreedom-creating
constraints is limited to the actions of other agents, so that natural
or self-inflicted obstacles are not seen as decreasing an agent’s
freedom; secondly, the actions one is free or unfree to perform are
weighted in some value-neutral way, so that one is not seen as freer
simply because the options available to one are more valuable or
conducive to one’s self-realization. Of the above-mentioned authors,
only Steiner embraces both conditions explicitly. Sen rejects both of
them, despite not endorsing anything like positive freedom in Berlin’s
sense.

7. Is the Distinction Still Useful?

We began with a simple distinction between two concepts of liberty,
and have progressed from this to the recognition that liberty might be
defined in any number of ways, depending on how one interprets the
three variables of agent, constraints, and purposes. Despite the
utility of MacCallum’s triadic formula and its strong influence
on analytic philosophers, however, Berlin’s distinction
continues to dominate mainstream discussions about the meaning of
political and social freedom. Are these continued references to
positive and negative freedom philosophically well-founded?

It might be claimed that MacCallum’s framework is less than
wholly inclusive of the various possible conceptions of freedom. In
particular, it might be said, the concept of self-mastery or
self-direction implies a presence of control that is not captured by
MacCallum’s explication of freedom as a triadic
relation. MacCallum’s triadic relation indicates mere
possibilities. If one thinks of freedom as involving
self-direction, on the other hand, one has in mind an exercise-concept
of freedom as opposed to an opportunity-concept (this distinction
comes from C. Taylor 1979). If interpreted as an exercise concept,
freedom consists not merely in the possibility of doing
certain things (i.e. in the lack of constraints on doing them), but in
actually doing certain things in certain ways — for example,
in realizing one’s true self or in acting on the basis of
rational and well-informed decisions. The idea of freedom as the
absence of constraints on the realization of given ends might be
criticised as failing to capture this exercise concept of freedom, for
the latter concept makes no reference to the absence of
constraints.

However, this defence of the positive-negative distinction as
coinciding with the distinction between exercise- and
opportunity-concepts of freedom has recently been challenged by Eric
Nelson (2005). As Nelson points out, most of the theorists that are
traditionally located in the positive camp, such as Green or
Bosanquet, do not distinguish between freedom as the absence of
constraints and freedom as the doing or becoming of certain
things. For these theorists, freedom is the absence of any kind of
constraint whatsoever on the realization of one’s true self (they
adopt a maximally extensive conception of constraints on freedom), and
the absence of all factors that could prevent the
action x is, quite simply, equivalent to the realization
of x. In other words, if there really is nothing
stopping me from doing x — if I possess all the means
to do x, and I have a desire to do x, and no desire,
irrational or otherwise, not to do x — then I
do x. An equivalent way to characterize the difference
between such positive theorists and the so-called negative theorists
of freedom lies in the degree of specificity with which they
describe x. For those who adopt a narrow conception of
constraints, x is described with a low degree of specificity
(x could be exemplified by the realization of any of a large
array of options); for those who adopt a broad conception of
constraints, x is described with a high degree of specificity
(x can only be exemplified by the realization of a specific
option, or of one of a small group of options).

What perhaps remains of the distinction is a rough categorization of
the various interpretations of freedom that serves to indicate their
degree of fit with the classical liberal tradition. There is indeed a
certain family resemblance between the conceptions that are normally
seen as falling on one or the other side of Berlin’s divide, and
one of the decisive factors in determining this family resemblance is
the theorist’s degree of concern with the notion of the
self. Those on the ‘positive’ side see questions about the
nature and sources of a person’s beliefs, desires and values as
relevant in determining that person’s freedom, whereas those on
the ‘negative’ side, being more faithful to the classical
liberal tradition, tend to consider the raising of such questions as
in some way indicating a propensity to violate the agent’s
dignity or integrity. One side takes a positive interest in the agent’s
beliefs, desires and values, while the other recommends that we avoid
doing so.

Bibliography

Introductory works

• Feinberg, J., 1973, Social Philosophy, New Jersey:
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• Flickschuh, K., 2007, Freedom. Contemporary Liberal
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  Nozick, Steiner, Dworkin and Raz].
• Carter, I., Kramer, M. H. and Steiner, H. (eds), 2007,
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  liberty].
• Gray, T., 1991, Freedom, London: Macmillan [comprehensive
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Liberalism

First published Thu Nov 28, 1996; substantive revision Thu Sep 16, 2010

As soon as one examines it, ‘liberalism’ fractures into a
variety of types and competing visions. In this entry we focus on
debates within the liberal tradition. We begin by (1) examining
different interpretations of liberalism’s core commitment —
liberty. We then consider (2) the longstanding debate between the
‘old’ and the ‘new’ liberalism. In section (3)
we turn to the more recent controversy about whether liberalism is a
‘comprehensive’ or a ‘political’ doctrine. We
close in (4) by considering disagreements as to ‘the
reach’ of liberalism — does it apply to all humankind, and
must all political communities be liberal?

1. The Debate About Liberty

1.1 The Presumption in Favor of Liberty

1.2 Negative Liberty

1.3 Positive Liberty

1.4 Republican Liberty

2. The Debate Between the ‘Old’ and the ‘New’

2.1 Classical Liberalism

2.2 The ‘New Liberalism’

2.3 Liberal Theories of Social Justice

3. The Debate About the Comprehensiveness of Liberalism

3.1 Political Liberalism

3.2 Liberal Ethics

3.3 Liberal Theories of Value

3.4 The Metaphysics of Liberalism

4. The Debate About The Reach of Liberalism

4.1 Is Liberalism Justified in All Political Communities?

4.2 Is Liberalism a Cosmopolitan or a State-centered Theory?

4.3 Liberal Interaction with Non-Liberal Groups: International

4.4 Liberal Interaction with Non-Liberal Groups: Domestic

5. Conclusion

Bibliography

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Related Entries

1. The Debate About Liberty

1.1 The Presumption in Favor of Liberty

‘By definition’, Maurice Cranston rightly points out,
‘a liberal is a man who believes in liberty’ (1967:
459). In two different ways, liberals accord liberty primacy as a
political value. (i) Liberals have typically maintained that humans
are naturally in ‘a State of perfect Freedom to order
their Actions…as they think fit…without asking leave, or
depending on the Will of any other Man’ (Locke, 1960 [1689]:
287). Mill too argued that ‘the burden of proof is supposed to
be with those who are against liberty; who contend for any restriction
or prohibition…. The a priori assumption is in favour
of freedom…’ (1963, vol. 21: 262). Recent liberal
thinkers such as as Joel Feinberg (1984: 9), Stanley Benn (1988: 87)
and John Rawls (2001: 44, 112) agree. This might be called the
Fundamental Liberal Principle (Gaus, 1996: 162-166): freedom is
normatively basic, and so the onus of justification is on those who
would limit freedom, especially through coercive means. It follows
from this that political authority and law must be justified, as they
limit the liberty of citizens. Consequently, a central question of
liberal political theory is whether political authority can be
justified, and if so, how. It is for this reason that social contract
theory, as developed by Thomas Hobbes (1948 [1651]), John Locke (1960
[1689]), Jean-Jacques Rousseau (1973 [1762]) and Immanuel Kant (1965
[1797]), is usually viewed as liberal even though the actual political
prescriptions of, say, Hobbes and Rousseau, have distinctly illiberal
features. Insofar as they take as their starting point a state of
nature in which humans are free and equal, and so argue that any
limitation of this freedom and equality stands in need of
justification (i.e., by the social contract), the contractual
tradition expresses the Fundamental Liberal Principle.

(ii) The Fundamental Liberal Principle holds that restrictions on
liberty must be justified, and because he accepts this, we can
understand Hobbes as espousing a liberal political theory. But Hobbes
is at best a qualified liberal, for he also argues that drastic
limitations on liberty can be justified. Paradigmatic
liberals such as Locke not only advocate the Fundamental Liberal
Principle, but also maintain that justified limitations on liberty are
fairly modest. Only a limited government can be justified; indeed, the
basic task of government is to protect the equal liberty of
citizens. Thus John Rawls’s first principle of justice: ‘Each
person is to have an equal right to the most extensive system of equal
basic liberty compatible with a similar system for all’ (Rawls,
1999b: 220).

1.2 Negative Liberty

Liberals disagree, however, about the concept of liberty, and as a
result the liberal ideal of protecting individual liberty can lead to
very different conceptions of the task of government. As is well-known,
Isaiah Berlin advocated a negative conception of liberty:

I am normally said to be free to the degree to which no man
or body of men interferes with my activity. Political liberty in this
sense is simply the area within which a man can act unobstructed by
others. If I am prevented by others from doing what I could otherwise
do, I am to that degree unfree; and if this area is contracted by other
men beyond a certain minimum, I can be described as being coerced, or,
it may be, enslaved. Coercion is not, however, a term that covers every
form of inability. If I say that I am unable to jump more than ten feet
in the air, or cannot read because I am blind…it would be
eccentric to say that I am to that degree enslaved or coerced. Coercion
implies the deliberate interference of other human beings within the
area in which I could otherwise act. You lack political liberty or
freedom only if you are prevented from attaining a goal by other human
beings (Berlin, 1969: 122).

For Berlin and those who follow him, then, the heart of liberty is the absence of coercion by others; consequently, the liberal state’s commitment to protecting liberty is, essentially, the job of ensuring that citizens do not coerce each other without compelling justification. So understood, negative liberty is
an opportunity-concept. Being free is merely a matter of what
we can do, what options are open to us, regardless of whether or not
we exercise such options (Taylor, 1979).

1.3 Positive Liberty

Many liberals have been attracted to more ‘positive’
conceptions of liberty. Although Rousseau (1973 [1762]) seemed to
advocate a positive conception of liberty, according to which one was
free when one acted according to one’s true will (the general will),
the positive conception was best developed by the British
neo-Hegelians of the late nineteenth and early twentieth centuries,
such as Thomas Hill Green and Bernard Bosanquet (2001 [1923]). Green
acknowledged that ‘…it must be of course admitted that
every usage of the term [i.e., ‘freedom’] to express
anything but a social and political relation of one man to other
involves a metaphor…It always implies…some exemption
from compulsion by another…’(1986 [1895]:
229). Nevertheless, Green went on to claim that a person can be unfree
if he is subject to an impulse or craving that cannot be
controlled. Such a person, Green argued, is ‘…in the
condition of a bondsman who is carrying out the will of another, not
his own’ (1986 [1895]: 228). Just as a slave is not doing what
he really wants to do, one who is, say, an alcoholic, is
being led by a craving to look for satisfaction where it cannot,
ultimately, be found.

For Green, a person is free only if she is self-directed or
autonomous. Running throughout liberal political theory is an ideal of
a free person as one whose actions are in some sense
her own.In this sense, positive liberty is
an exercise-concept. One is free merely to the degree that
one has effectively determined oneself and the shape of one’s life
(Taylor, 1979). Such a person is not subject to compulsions,
critically reflects on her ideals and so does not unreflectively
follow custom, and does not ignore her long-term interests for
short-term pleasures. This ideal of freedom as autonomy has its roots
not only in Rousseau’s and Kant’s political theory, but also in John
Stuart Mill’s On Liberty. And today it is a dominant strain
in liberalism, as witnessed by the work of S.I. Benn (1988), Gerald
Dworkin (1988), and Joseph Raz (1986); see also the essays in
Christman and Anderson (2005).

This Greenian, autonomy-based, conception of positive freedom is often
run together with a very different notion of ‘positive’
freedom: freedom as effective power to act or to pursue one’s ends. In
the words of the British socialist R. H. Tawney, freedom thus
understood is ‘the ability act’ (1931: 221; see also Gaus,
2000; ch. 5.) On this view of positive freedom, a person who is not
prohibited from being a member of a Country Club but who is too poor
to afford membership is not free to be a member: she does not have an
effective power to act. Although the Greenian autonomy-based
conception of positive freedom certainly had implications for the
distribution of resources (education, for example, should be easily
available so that all can develop their capacities), positive freedom
qua effective power to act closely ties freedom to material
resources. It was this conception of positive liberty that Hayek had
in mind when he insisted that although ‘freedom and wealth are
both good things…they still remain different’ (1960:
17-18).

1.4 Republican Liberty

An older notion of liberty that has recently undergone resurgence is
the republican, or neo-Roman, conception of liberty which has its roots
in the writings of Cicero and Niccolo Machiavelli (1950
[1513]). According to Philip Pettit, ‘The contrary of the
liber, or free, person in Roman, republican usage was the
servus, or slave, and up to at least the beginning of the
last century, the dominant connotation of freedom, emphasized in the
long republican tradition, was not having to live in servitude to
another: not being subject to the arbitrary power of another’
(Pettit, 1996: 576). On this view, the opposite of freedom is
domination. An agent is said to be unfree if she is ‘subject to
the potentially capricious will or the potentially idiosyncratic
judgement of another’ (Pettit, 1997: 5). The ideal
liberty-protecting government, then, ensures that no agent, including
itself, has arbitrary power over any citizen. The key method by which
this is accomplished is through an equal disbursement of power. Each
person has power that offsets the power of another to arbitrarily
interfere with her activities (Pettit, 1997: 67).

The republican conception of liberty is certainly distinct from both
Greenian positive and negative conceptions. Unlike Greenian positive
liberty, republican liberty is not primarily concerned with rational
autonomy, realizing one’s true nature, or becoming one’s higher
self. When all dominating power has been dispersed, republican
theorists are generally silent about these goals (Larmore
2001). Unlike negative liberty, republican liberty is primarily
focused upon ‘defenseless susceptibility to interference, rather
than actual interference’ (Pettit, 1996: 577). Thus, in contrast
to the ordinary negative conception, on the republican conception the
mere possibility of arbitrary interference appears to
constitute a limitation of liberty. Republican liberty thus seems to
involve a modal claim about the possibility of interference, and this
is often cashed out in terms of complex counterfactual claims. It is
not clear whether these claims can be adequately explicated (Gaus,
2003; cf. Larmore, 2004).

Some republican theorists, such as Quentin Skinner (1998: 113),
Maurizio Viroli (2002: 6) and Pettit (1997: 8-11), view

republicanism

as an alternative to liberalism. Insofar as republican liberty is seen
as a basis for criticizing market liberty and market society, this is
plausible (Gaus, 2003b). However, when liberalism is understood more
expansively, and not so closely tied to either negative liberty or
market society, republicanism becomes indistinguishable from
liberalism (Ghosh, 2008; Rogers, 2008; Larmore, 2001; Dagger,
1997).

2. The Debate Between the ‘Old’ and the ‘New’

2.1 Classical Liberalism

Liberal political theory, then, fractures over the conception of
liberty. But a more important division concerns the place of private
property and the market order. For classical liberals —
sometimes called the ‘old’ liberalism — liberty and
private property are intimately related. From the eighteenth century
right up to today, classical liberals have insisted that an economic
system based on private property is uniquely consistent with
individual liberty, allowing each to live her life —including
employing her labor and her capital — as she sees fit. Indeed,
classical liberals and libertarians have often asserted that in some
way liberty and property are really the same thing; it has been
argued, for example, that all rights, including liberty rights, are
forms of property; others have maintained that property is itself a
form of freedom (Gaus, 1994; Steiner, 1994). A market order based on
private property is thus seen as an embodiment of freedom
(Robbins, 1961: 104). Unless people are free to make contracts and to
sell their labour, or unless they are free to save their incomes and
then invest them as they see fit, or unless they are free to run
enterprises when they have obtained the capital, they are not really
free.

Classical liberals employ a second argument connecting liberty and
private property. Rather than insisting that the freedom to obtain and
employ private property is simply one aspect of people’s liberty, this
second argument insists that private property is the only effective
means for the protection of liberty. Here the idea is that the
dispersion of power that results from a free market economy based on
private property protects the liberty of subjects against encroachments
by the state. As F.A. Hayek argues, ‘There can be no freedom of
press if the instruments of printing are under government control, no
freedom of assembly if the needed rooms are so controlled, no freedom
of movement if the means of transport are a government monopoly’
(1978: 149).

Although classical liberals agree on the fundamental importance of
private property to a free society, the classical liberal tradition
itself refracts into a spectrum of views, from near-anarchist to those
that attribute a significant role to the state in economic and social
policy (on this spectrum, see Mack and Gaus, 2004). Towards the most
extreme ‘libertarian’ end of the classical liberal
spectrum are views of justified states as legitimate monopolies that
may with justice charge for their necessary rights-protection
services: taxation is legitimate so long as it is necessary to protect
liberty and property rights. As we go further ‘leftward’
we encounter classical liberal views that allow taxation for (other)
public goods and social infrastructure and, moving yet further
‘left’, some classical liberal views allow for a modest
social minimum.(e.g., Hayek, 1976: 87). Most nineteenth century
classical liberal economists endorsed a variety of state policies,
encompassing not only the criminal law and enforcement of contracts,
but the licensing of professionals, health, safety and fire
regulations, banking regulations, commercial infrastructure (roads,
harbors and canals) and often encouraged unionization (Gaus,
1983b). Although today classical liberalism is often associated with
extreme forms of

libertarianism

, the classical liberal tradition was
centrally concerned with bettering the lot of the working class. The
aim, as Bentham put it, was to make the poor richer, not the rich
poorer (Bentham, 1952 [1795]: vol. 1, 226n). Consequently, classical
liberals reject the redistribution of wealth as a legitimate aim of
government.

2.2 The ‘New Liberalism’

What has come to be known as ‘new’,
‘revisionist’, ‘welfare state’, or perhaps
best, ‘social justice’, liberalism challenges this
intimate connection between personal liberty and a private property
based market order (Freeden, 1978; Gaus, 1983b; Paul, Miller and Paul,
2007). Three factors help explain the rise of this revisionist
theory. First, the new liberalism arose in the late nineteenth and
early twentieth centuries, a period in which the ability of a free
market to sustain what Lord Beveridge (1944: 96) called a
‘prosperous equilibrium’ was being questioned. Believing
that a private property based market tended to be unstable, or could,
as Keynes argued (1973 [1936]), get stuck in an equilibrium with high
unemployment, new liberals came to doubt that it was an adequate
foundation for a stable, free society. Here the second factor comes
into play: just as the new liberals were losing faith in the market,
their faith in government as a means of supervising economic life was
increasing. This was partly due to the experiences of the First World
War, in which government attempts at economic planning seemed to
succeed (Dewey, 1929: 551-60); more importantly, this reevaluation of
the state was spurred by the democratization of western states, and
the conviction that, for the first time, elected officials could truly
be, in J.A. Hobson’s phrase ‘representatives of the
community’ (1922: 49). As D.G. Ritchie proclaimed:

be it observed that arguments used against
‘government’ action, where the government is entirely or
mainly in the hands of a ruling class or caste, exercising wisely or
unwisely a paternal or grandmotherly authority — such arguments
lose their force just in proportion as the government becomes more and
more genuinely the government of the people by the people themselves
(1896: 64).

The third factor underlying the development of the new liberalism was
probably the most fundamental: a growing conviction that, so far from
being ‘the guardian of every other right’ (Ely, 1992: 26),
property rights generated an unjust inequality of power that led to a
less-than-equal liberty (typically, ‘positive liberty’)
for the working class. This theme is central to what is usually called
‘liberalism’ in American politics, combining a strong
endorsement of civil and personal liberties with, at best, an
indifference, and often enough an antipathy, to private ownership. The
seeds of this newer liberalism can be found in Mill’s On
Liberty. Although Mill insisted that the ‘so-called
doctrine of Free Trade’ rested on ‘equally solid’
grounds as did the ‘principle of individual liberty’
(1963, vol. 18: 293), he nevertheless insisted that the justifications
of personal and economic liberty were distinct. And in his
Principles of Political Economy Mill consistently emphasized
that it is an open question whether personal liberty can flourish
without private property (1963, vol. 2; 203-210), a view that Rawls
was to reassert over a century later (2001: Part IV).

2.3 Liberal Theories of Social Justice

One of the many consequences of Rawls’s great work, A Theory of
Justice (1999 [first published in 1971]) is that the ‘new
liberalism’ has become focused on developing a theory of social
justice. For over thirty-five years liberal political philosophers
have analyzed, and disputed, his famous ‘difference
principle’ according to which a just basic structure of society
arranges social and economic inequalities such that they are to the
greatest advantage of the least well off representative group (1999b:
266). For Rawls, the default is an equal distribution of (basically)
income and wealth; only inequalities that best enhance the long-term
prospects of the least advantaged are just. As Rawls sees it, the
difference principle constitutes a public recognition of the principle
of reciprocity: the basic structure is to be arranged such that no
social group advances at the cost of another (2001: 122-24). Many
followers of Rawls have focused less on the ideal of reciprocity than
the commitment to equality (Dworkin, 2000). Indeed, what was
previously called ‘welfare state’ liberalism is now often
described as ‘egalitarian’ liberalism. And in one way
that is especially appropriate: in his later work Rawls insists that
welfare-state capitalism does not constitute a just basic structure
(2001: 137-38). If some version of capitalism is to be just it must be
a ‘property owning democracy’ with a wide diffusion of
ownership; a market socialist regime, in Rawls’s view, is more just
than welfare-state capitalism (2001: 135-38). Not too surprisingly,
classical liberals such as Hayek (1976) insist that the contemporary
liberal fixation on ‘the mirage of social justice’ leads
them to ignore the way that freedom depends on a decentralized market
based on private property, the overall results of which are
unpredictable. In a similar vein, Robert Nozick (1974: 160ff) famously
argued that any attempt to ensure that market transactions conform to
any specific pattern of holdings will involve constant interferences
with individual freedom.

3. The Debate About the Comprehensiveness of Liberalism

3.1 Political Liberalism

As his work evolved, Rawls (1996: 5ff) insisted that his liberalism
was not a ‘comprehensive’ doctrine, that is, one which
includes an overall theory of value, an ethical theory, an
epistemology, or a controversial metaphysics of the person and
society. Our modern societies, characterized by a ‘reasonable
pluralism’, are already filled with such doctrines. The aim of
‘political liberalism’ is not to add yet another sectarian
doctrine, but to provide a political framework that is neutral between
such controversial comprehensive doctrines (Larmore, 1996: 121ff). If
it is to serve as the basis for public reasoning in our diverse
western societies, liberalism must be restricted to a core set of
political principles that are, or can be, the subject of consensus
among all reasonable citizens. Rawls’s notion of a purely political
conception of liberalism seems more austere than the traditional
liberal political theories discussed above, being largely restricted
to constitutional principles upholding basic civil liberties and the
democratic process.

As Gaus (2004) has argued, the distinction between
‘political’ and ‘comprehensive’ liberalism
misses a great deal. Liberal theories form a broad continuum, from
those that constitute full-blown philosophical systems, to those that
rely on a full theory of value and the good, to those that rely on a
theory of the right (but not the good), all the way to those that seek
to be purely political doctrines. Nevertheless, it is important to
appreciate that, though liberalism is primarily a political theory, it
has been associated with broader theories of ethics, value and
society. Indeed, many believe that liberalism cannot rid itself of all
controversial metaphysical (Hampton, 1989) or epistemological (Raz,
1990) commitments.

3.2 Liberal Ethics

Following Wilhelm von Humboldt (1993 [1854]), in On Liberty
Mill argues that one basis for endorsing freedom (Mill believes
that there are many), is the goodness of developing individuality and
cultivating capacities:

Individuality is the same thing with development,
and…it is only the cultivation of individuality which produces,
or can produce, well-developed human beings…what more can be
said of any condition of human affairs, than that it brings human
beings themselves nearer to the best thing they can be? or what worse
can be said of any obstruction to good, than that it prevents this?
(Mill, 1963, vol. 18: 267)

This is not just a theory about politics: it is a substantive,
perfectionist, moral theory about the good. And, on this view, the
right thing to do is to promote development or perfection, and only a
regime securing extensive liberty for each person can accomplish this
(Wall, 1998). This moral ideal of human perfection and development
dominated liberal thinking in the latter part of the nineteenth, and
for most of the twentieth, century: not only Mill, but T.H. Green,
L.T. Hobhouse, Bernard Bosanquet, John Dewey and even Rawls show
allegiance to variants of this perfectionist ethic and the claim that
it provides a foundation for endorsing a regime of liberal rights
(Gaus, 1983a). And it is fundamental to the proponents of liberal
autonomy discussed above, as well as ‘liberal virtue’
theorists such as William Galston (1980). That the good life is
necessarily a freely chosen one in which a person develops his unique
capacities as part of a plan of life is probably the dominant liberal
ethic of the past century.

The main challenge to Millian perfectionism as the distinctly liberal
ethic comes from moral

contractualism

, which can be divided into what
might very roughly be labeled ‘Kantian’ and
‘Hobbesian’ versions. According to Kantian contractualism,
‘society, being composed of a plurality of persons, each with
his own aims, interests, and conceptions of the good, is best arranged
when it is governed by principles that do not themselves
presuppose any particular conception of the
good…’(Sandel, 1982: 1). On this view, respect for the
person of others demands that we refrain from imposing our view of the
good life on them. Only principles that can be justified to all
respect the personhood of each. We thus witness the tendency of recent
liberal theory (Reiman, 1990; Scanlon, 1998) to transform the social
contract from an account of the state to an overall justification of
morality, or at least a social morality. Basic to such ‘Kantian
contractualism’ is the idea that suitably idealized individuals
are motivated not by the pursuit of gain, but by a commitment or
desire to

publicly justify

the claims they
make on others (Reiman, 1990; Scanlon, 1982). A moral code
that could be the object of agreement among such individuals is
thus a publicly justified morality.

In contrast, the Hobbesian version of contractualism supposes only
that individuals are self-interested, and correctly perceive that each
person’s ability to effectively pursue her interests is enhanced by a
framework of norms that structure social life and divide the fruits of
social cooperation (Gauither, 1986; Hampton, 1986; Kavka,
1986). Morality, then, is a common framework that advances the
self-interest of each. The claim of Hobbesian contractualism to be a
distinctly liberal conception of morality stems from the importance of
individual freedom and property in such a common framework: only
systems of norms that allow each person great freedom to pursue her
interests as she sees fit could, it is argued, be the object of
consensus among self-interested agents (Courtland, 2008; Gaus 2003a:
chap. 3; Ridge, 1998; Gauthier, 1995). The continuing problem for
Hobbesian contractualism is the apparent rationality of free-riding:
if everyone (or enough) complies with the terms of the contract, and
so social order is achieved, it would seem rational to defect, and act
immorally when one can gain by doing so. This is essentially the
argument of Hobbes’s ‘Foole’, and from Hobbes (1948
[1651]: 94ff) to Gauthier (1986: 160ff), Hobbesians have tried to
reply to it.

3.3 Liberal Theories of Value

Turning from rightness to goodness, we can identify three main
candidates for a liberal theory of value. We have already encountered
the first: perfectionism. Insofar as perfectionism is a theory of
right action, it can be understood as an account of
morality. Obviously, however, it is an account of rightness that
presupposes a theory of value or the good: the ultimate human value is
developed personality or an autonomous life. Competing with this
objectivist theory of value are two other liberal accounts: pluralism
and subjectivism.

In his famous defence of negative liberty, Berlin insisted
that values or ends are plural, and no interpersonally justifiable
ranking among these many ends is to be had. More than that, Berlin
maintained that the pursuit of one end necessarily implies that other
ends will not be achieved. In this sense ends collide or, in the more
prosaic terms of economics, the pursuit of one end necessarily entails
opportunity costs in relation to others which cannot be impersonally
shown to be less worthy. So there is no interpersonally justifiable way
to rank the ends, and there is no way to achieve them all. The upshot
is that each person must devote herself to some ends at the cost of
ignoring others. For the pluralist, then, autonomy, perfection or
development are not necessarily ranked higher than hedonistic
pleasures, environmental preservation or economic equality. All compete
for our allegiance, but because they are incommensurable, no choice can
be interpersonally justified as correct.

The pluralist is not a subjectivist: that values are many, competing
and incommensurable does not imply that they are somehow dependent on
subjective experiences. But the claim that what a person values rests
on experiences that vary from person to person has long been a part of
the liberal tradition. To Hobbes, what one values depends on what one
desires (1948 [1651]: 48). Locke advances a ‘taste theory of
value’:

The Mind has a different relish, as well as the Palate; and
you will as fruitlessly endeavour to delight all Man with Riches or
Glory, (which yet some Men place their Happiness in,) as you would
satisfy all men’s Hunger with Cheese or Lobsters; which, though very
agreeable and delicious fare to some, are to others extremely nauseous
and offensive: And many People would with reason preferr [sic] the
griping of an hungry Belly, to those Dishes, which are a Feast to
others. Hence it was, I think, that the Philosophers of old did in vain
enquire, whether the Summum bonum consisted in Riches, or
bodily Delights, or Virtue, or Contemplation: And they might have as
reasonably disputed, whether the best Relish were to be found in
Apples, Plumbs or Nuts; and have divided themselves into Sects upon it.
For…pleasant Tastes depend not on the things themselves, but
their agreeableness to this or that particulare Palate, wherein there
is great variety…(1975 [1706]: 269).

The perfectionist, the pluralist and the subjectivist concur on the
crucial point: the nature of value is such that reasonable people pursue
different ways of living. To the perfectionist, this is because each
person has unique capacities, the development of which confers value on
her life; to the pluralist, it is because values are many and
conflicting, and no one life can include them all, or make the
interpersonally correct choice among them; and to the subjectivist, it
is because our ideas about what is valuable stem from our desires or
tastes, and these differ from one individual to another. All three
views, then, defend the basic liberal idea that people rationally
follow very different ways of living. But in themselves, such notions
of the good do not constitute a full-fledged liberal ethic, for an
additional argument is required linking liberal value with norms of
equal liberty. To be sure, Berlin seems to believe this is a very quick
argument: the inherent plurality of ends points to the
political preeminence of liberty. Guaranteeing
each a measure of negative liberty is, Berlin argues, the most humane
ideal, as it recognises that ‘human goals are many’, and no
one can make a choice that is right for all people (1969: 171). But the
move from diversity to equal liberty and individual rights seems a
complicated one; it is here that both subjectivists and pluralists
often rely on versions of moral contractualism. Those who insist that
liberalism is ultimately a nihilistic theory can be interpreted as
arguing that this transition cannot be made successfully: liberals, on
their view, are stuck with a subjectivistic or pluralistic theory of
value, and no account of the right emerges from it.

3.4 The Metaphysics of Liberalism

Throughout the last century, liberalism has been beset by
controversies between, on the one hand, those broadly identified as
‘individualists’ and, on the other,
‘collectivists’, ‘communitarians’ or
‘organicists’ (for skepticism about this, though, see
Bird, 1999). These vague and sweeping designations have been applied
to a wide array of disputes; we focus here on controversies concerning
(i) the nature of society; (ii) the nature of the self.

Liberalism is, of course, usually associated with individualist
analyses of society. ‘Human beings in society’, Mill
claimed, ‘have no properties but those which are derived from,
and which may be resolved into, the laws of the nature of individual
men’ (1963, Vol. 8: 879; see also Bentham: 1970 [1823]: chap. I,
sec. 4). Herbert Spencer agreed: ‘the properties of the mass are
dependent upon the attributes of its component parts’ (1995
[1851]: 1). In the last years of the nineteenth century this
individualist view was increasingly subject to attack, especially by
those who were influenced by idealist philosophy. D. G. Ritche,
criticizing Spencer’s individualist liberalism, explicitly rejected
the idea that society is simply a ‘heap’ of individuals,
insisting that it is more akin to an organism, with a complex internal
life (1896: 13). Liberals such as L. T. Hobhouse and Dewey refused to
adopt radically collectivist views such as those advocated by Bernard
Bosanquet (2001), but they too rejected the radical individualism of
Bentham, Mill and Spencer. Throughout most of the first half of the
twentieth century such ‘organic’ analyses of society held
sway in liberal theory, even in economics (see A.F Mummery and
J. A. Hobson, 1956: 106; J.M. Keynes, 1972: 275).

During and after the Second World War the idea that liberalism was
based on inherently individualist analysis of humans-in-society arose
again. Karl Popper’s The Open Society and its Enemies (1945)
presented a sustained critique of Hegelian and Marxist theory and its
collectivist and historicist, and to Popper, inherently illiberal,
understanding of society. The reemergence of economic analysis in
liberal theory brought to the fore a thoroughgoing methodological
individualism. Writing in the early 1960s, James Buchanan and Gordon
Tullock adamantly defended the ‘individualistic postulate’
against all forms of ‘organicism’: ‘This
[organicist] approach or theory of the collectivity….is essentially
opposed to the Western philosophical tradition in which the human
individual is the primary philosophical entity’ (1965:
11-12). Human beings, insisted Buchanan and Tullock, are the only real
choosers and decision-makers, and their preferences determine both
public and private actions. The renascent individualism of
late-twentieth century liberalism was closely bound up with the
induction of Hobbes as a member of the liberal pantheon. Hobbes’s
relentlessly individualistic account of society, and the manner in
which his analysis of the state of nature lent itself to
game-theoretical modeling, yielded a highly individualist, formal
analysis of the liberal state and liberal morality.

Of course, as is widely known, the last twenty-five years have
witnessed a renewed interest in collectivist analyses of liberal
society —though the term ‘collectivist’ is abjured
in favor of ‘communitarian’. Writing in 1985, Amy Gutmann
observed that ‘we are witnessing a revival of communitarian
criticisms of liberal political theory. Like the critics of the 1960s,
those of the 1980s fault liberalism for being mistakenly and
irreparably individualistic’ (1985: 308). Starting with Michael
Sandel’s (1982) famous criticism of Rawls, a number of critics charged
that liberalism was necessarily premised on an abstract conception of
individual selves as pure choosers, whose commitments, values and
concerns are possessions of the self, but never constitute the self.
Although the now famous, not to say infamous,
‘liberal-communitarian’ debate ultimately involved
wide-ranging moral, political and sociological disputes about the
nature of communities, and the rights and responsibilities of their
members, the heart of the debate was about the nature of liberal
selves. For Sandel the flaw at the heart of Rawls’s liberalism was its
implausibly abstract theory of the self, the pure autonomous chooser.
Rawls, he charges, ultimately assumes that it makes sense to identify
us with a pure capacity for choice, and that such pure choosers might
reject any or all of their attachments and values and yet retain their
identity.

From the mid-1980s onwards various liberals sought to show how
liberalism may consistently advocate a theory of the self which finds
room for cultural membership and other non-chosen attachments and
commitments which at least partially constitute the self (Kymlicka,
1989). Much of liberal theory has became focused on the issue as to
how we can be social creatures, members of cultures and raised in
various traditions, while also being autonomous choosers who employ
our liberty to construct lives of our own.

4. The Debate About The Reach of Liberalism

4.1 Is Liberalism Justified in All Political Communities?

In On Liberty Mill argued that ‘Liberty, as a principle,
has no application to any state of things anterior to the time when
mankind have become capable of being improved by free and equal
discussion’ (1963, vol. 18: 224). Thus ‘Despotism is a
legitimate form of government in dealing with barbarians, provided the
end be their improvement…. ’(1963, vol. 18: 224). This passage
— infused with the spirit of nineteenth century imperialism
— is often ignored by defenders of Mill as an
embarrassment. Nevertheless, it raises a question that still divides
liberals: are liberal political principles justified for all political
communities? In The Law of Peoples Rawls argues that they are
not. According to Rawls there can be a ‘decent hierarchical
society’ which is not based on the liberal conception of all
persons as free and equal, but instead views persons as
‘responsible and cooperating members of their respective
groups’ but not inherently equal (1999a: 66). Given this, the
full liberal conception of justice cannot be constructed out of shared
ideas of this ‘people’, though basic human rights,
implicit in the very idea of a social cooperative structure, apply to
all peoples. David Miller (2002) develops a different defense of this
anti-universalistic position, while those such as Thomas Pogge (2002:
ch. 4) and Martha Nussbaum (2002) reject Rawls’s position, instead
advocating versions of moral universalism: they claim that liberal
moral principles apply to all states.

4.2 Is Liberalism a Cosmopolitan or a State-centered Theory?

The debate about whether liberal principles apply to all political
communities should not be confused with the debate as to whether
liberalism is a state-centered theory, or whether, at least ideally,
it is a cosmopolitan political theory for the community of all
humankind. Immanuel Kant — a moral universalist if ever there
was one — argued that all states should respect the dignity of
their citizens as free and equal persons, yet denied that humanity
forms one political community. Thus he rejected the ideal of a
universal cosmopolitan liberal political community in favor of a world
of states, all with internally just constitutions, and united in a
confederation to assure peace (1970 [1795]).

On a classical liberal theory, the difference between a world of
liberal communities and a world liberal community is not of
fundamental importance. Since the aim of government in a community is
to assure the basic liberty and property rights of its citizens,
borders are not of great moral significance in classical liberalism
(Lomasky, 2007; but cf. Pogge, 2002: ch. 2). In contrast under the
‘new’ liberalism, which stresses redistributive programs
to achieve social justice, it matters a great deal who is included
within the political or moral community. If liberal principles require
significant redistribution, then it is crucially important whether
these principles apply only within particular communities, or whether
their reach is global. Thus a fundamental debate between Rawls and
many of his followers is whether the difference principle should only
be applied within a liberal state such as the United States (where the
least well off are the least well off Americans), or whether it should
be applied globally (where the least well off are the least well off
in the world) (Rawls, 1999a: 113ff; Beitz, 1973: 143ff; Pogge, 1989:
Part Three).

4.3 Liberal Interaction with Non-Liberal Groups: International

Liberal political theory also fractures concerning the appropriate
response to groups (cultural, religious, etc.) which endorse illiberal
policies and values. These groups may deny education to some of their
members, advocate female genital mutilation, restrict religious
freedom, maintain an inequitable caste system, and so on. When, if
ever, is it reasonable for a liberal group to interfere with the
internal governance of an illiberal group?

Suppose first that the illiberal group is another political community
or state. Can liberals intervene in the affairs of non-liberal states?
Mill provides a complicated answer in his 1859 essay ‘A Few
Words on Non-Intervention’. Reiterating his claim from On
Liberty that civilized and non-civilized countries are to be
treated differently, he insists that ‘barbarians have no rights
as a nation, except a right to such treatment as may, at the
earliest possible period, fit them for becoming one. The only moral
laws for the relation between a civilized and a barbarous government,
are the universal rules of morality between man and man’ (1963,
vol. 21: 119). Although this strikes us today as simply a case for an
objectionable paternalistic imperialism (and it certainly was such a
case), Mill’s argument for the conclusion is more complex, including a
claim that, since international morality depends on reciprocity,
‘barbarous’ governments that cannot be counted on to
engage in reciprocal behavior have no rights qua
governments. In any event, when Mill turns to interventions among
‘civilized’ peoples he develops an altogether more
sophisticated account as to when one state can intervene in the
affairs of another to protect liberal principles. Here Mill is
generally against intervention. ‘The reason is, that there can
seldom be anything approaching to assurance that intervention, even if
successful, would be for the good of the people themselves. The only
test possessing any real value, of a people’s having become fit for
popular institutions, is that they, or a sufficient proportion of them
to prevail in the contest, are willing to brave labour and danger for
their liberation’ (1963, vol. 21: 122).

In addition to questions of efficacy, to the extent that peoples or
groups have rights to collective self-determination, intervention by a
liberal group to induce a non-liberal community to adopt liberal
principles will be morally objectionable. As with individuals,
liberals may think that peoples or groups have freedom to make
mistakes in managing their collective affairs. If people’s
self-conceptions are based on their participation in such groups, even
those whose liberties are denied may object to, and perhaps in some
way harmed by, the imposition of liberal principles (Margalit and Raz,
1990; Tamir, 1993). Thus rather than proposing a doctrine of
intervention many liberals propose various principles of

toleration

which specify to what extent liberals must tolerate
non-liberal peoples and cultures. As is usual, Rawls’s discussion is
subtle and enlightening. In his account of the foreign affairs of
liberal peoples, Rawls argues that liberal peoples must distinguish
‘decent’ non-liberal societies from ‘outlaw’
and other states; the former have a claim on liberal peoples to
tolerance while the latter do not (1999a: 59-61). Decent peoples,
argues Rawls, ‘simply do not tolerate’ outlaw states which
ignore human rights: such states may be subject to ‘forceful
sanctions and even to intervention’ (1999a: 81). In contrast,
Rawls insists that ‘liberal peoples must try to encourage
[non-liberal] decent peoples and not frustrate their vitality by
coercively insisting that all societies be liberal’ (1999a:
62). Chandran Kukathas (2003) — whose liberalism derives from
the classical tradition — is inclined to almost complete
toleration of non-liberal peoples, with the proviso that there must be
exit rights.

4.4 Liberal Interaction with Non-Liberal Groups: Domestic

The status of non-liberal groups within liberal societies has
increasingly become a subject of debate, especially with respect to
some citizens of faith. We should distinguish two questions: (i) to
what extent should non-liberal cultural and religious communities be
exempt from the requirements of the liberal state? and, (ii) to what
extent can they be allowed to participate in decision-making in the
liberal state?

Turning to (i), liberalism has a long history of seeking to
accommodate religious groups that have deep objections to certain
public policies, such as the Quakers, Mennonites or Sikhs. The most
difficult issues in this regard arise in relation to children and
education (see Galston, 2003) Mill, for example, writes:

Consider … the case of education. Is it not almost
a self-evident axiom, that the State should require and compel the
education, up to a certain standard, of every human being who is born
its citizen? Yet who is there that is not afraid to recognize and
assert this truth? Hardly any one indeed will deny that it is one of
the most sacred duties of the parents (or, as law and usage now stand,
the father), after summoning a human being into the world, to give to
that being an education fitting him to perform his part well in life
towards others and towards himself … . that to bring a child
into existence without a fair prospect of being able, not only to
provide food for its body, but instruction and training for its mind,
is a moral crime, both against the unfortunate offspring and against
society … . (1963, vol. 18)

Over the last thirty years, there has been a particular case that is
at the core of this debate — Wisconsin vs. Yoder: [406
U.S. 205 (1972)]. In this case, the United States Supreme Court
upheld the right of Amish parents to avoid compulsory schooling laws
and remove their children from school at the age of 14 — thus,
according to the Amish, avoiding secular influences that might
undermine the traditional Amish way of life. Because cultural and
religious communities raise and educate children, they cannot be seen
as purely voluntary opt-outs from the liberal state: they exercise
coercive power over children, and so basic liberal principles about
protecting the innocent from unjustified coercion come into play. Some
have maintained that liberal principles require that the state should
intervene (against groups like the Amish) in order to [1] provide the
children with an effective right of exit that would otherwise be
denied via a lack of education (Okin, 2002), [2] to protect the
children’s right to an autonomous and ‘open future’
(Feinberg, 1980) and/or [3] to insure that children will have the
cognitive tools to prepare them for their future role as citizens
(Galston, 1995: p. 529; Macedo, 1995: pp. 285-6). Other liberal
theorists, on the other hand, have argued that the state should not
intervene because it might undermine the inculcation of certain values
that are necessary for the continued existence of certain
comprehensive doctrines (Galston, 1995: p. 533; Stolzenberg, 1993: pp.
582-3). Moreover, some such as Harry Brighouse (1998) have argued that
the inculcation of liberal values through compulsory education might
undermine the legitimacy of liberal states because children would not
(due to possible indoctrination) be free to consent to such
institutions.

Question (ii) — the extent to which non-liberal beliefs and
values may be employed in liberal political discussion— has
become the subject of sustained debate in the years following Rawls’s
Political Liberalism. According to Rawls’s liberalism —
and what we might call ‘public reason liberalism’ more
generally — because our societies are characterized by
‘reasonable pluralism’, coercion cannot be justified on
the basis of comprehensive moral or religious systems of belief. But
many friends of religion (e.g., Eberle, 2002; Perry, 1993) argue that
this is objectionably ‘exclusionary’: conscientious
believers are barred from voting on their deepest convictions. Again
liberals diverge in their responses. Some such as Stephen Macedo take
a pretty hard-nosed attitude: ‘if some people…feel
“silenced” or “marginalized” by the fact that
some of us believe that it is wrong to shape basic liberties on the
basis of religious or metaphysical claims, I can only say “grow
up!”’ (2000: 35). Rawls, in contrast, seeks to be more
accommodating, allowing that arguments based on religious
comprehensive doctrines may enter into liberal politics on issues of
basic justice ‘provided that, in due course, we give properly
public reasons to support the principles and policies that our
comprehensive doctrine is said to support’ (1999a: 144). Thus
Rawls allows the legitimacy of religious-based arguments against
slavery and in favor of the United States civil rights movement,
because ultimately such arguments were supported by public reasons.
Others (e.g., Greenawalt, 1995) hold that even this is too
restrictive: it is difficult for liberals to justify a moral
prohibition on a religious citizen from voicing her view in liberal
political debate.

5. Conclusion

Given that liberalism fractures on so many issues — the nature
of liberty, the place of property and democracy in a just society, the
comprehensiveness and the reach of the liberal ideal — one might
wonder whether there is any point in talking of
‘liberalism’ at all. It is not, though, an unimportant or
trivial thing that all these theories take liberty to be the grounding
political value. Radical democrats assert the overriding value of
equality, communitarians maintain that the demands of belongingness
trump freedom, and conservatives complain that the liberal devotion to
freedom undermines traditional values and virtues and so social order
itself. Intramural disputes aside, liberals join in rejecting these
conceptions of political right.

Bibliography

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Other Internet Resources

• Liberty Fund Online Library of Liberty

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