The Right to Oppose
Pragmatism and the First Amendment

By Eugene Volokh

Here's what an editorial in The New York Sun has to say:

The editorial goes on to explain that the New York Civil Liberties Union is suing on behalf of the protesters, asserting that they have a First Amendment right to be allowed to march down First Avenue near the U.N. But the Sun doesn't buy it:

So long as the protesters are invoking the Constitution, they might have a look at Article III. That says, "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

There can be no question at this point that Saddam Hussein is an enemy of America. . . . And there is no reason to doubt that the "anti-war" protesters — we prefer to call them protesters against freeing Iraq — are giving, at the very least, comfort to Saddam Hussein. In a television interview aired this week, Saddam said, "First of all we admire the development of the peace movement around the world in the last few years. We pray to God to empower all those working against war and for the cause of peace and security based on just peace for all." After the last big anti-war protest, the one in Washington last month, Saddam hailed the anti-war protests as proof that Americans back Iraq rather than President Bush. . . .

So the New York City police could do worse, in the end, than to allow the protest and send two witnesses along for each participant, with an eye toward preserving at least the possibility of an eventual treason prosecution. Thus fully respecting not just some, but all of the constitutional principles at stake.

To those concerned about civil liberties, we'd cite the pragmatic argument made last night by, of all people, the New York Times's three-time Pulitzer-Prize winning foreign affairs columnist, Thos. Friedman. "I believe we are one more 9/11 away from the end of the open society," Mr. Friedman [said] . . . . His point was that if terrorists strike again at America and kill large numbers of Americans, the pressure to curb civil liberties and civil rights will be "enormous and unstoppable." What we took from that was that the more successful the protesters are in making their case in New York, the less chance they'll have the precious constitutional freedom to protest here the next time around.

This is completely wrong. I firmly support a war against Iraq, but it's vital that the people have a right to oppose it, both as a matter of moral and political principle, and as a matter of medium- and long-term practicality. Today, the war is, I think, wise. But what if it stops being wise? Or what if I'm wrong even now? A democracy needs an opposition, especially in time of war, precisely to keep the government honest, and to point to whatever errors (or possible errors) it finds in the government's actions.

Now it is actually true that this opposition sometimes can help our enemies, by emboldening them, or by weakening the nation's resolve; I have little patience for Pollyanna claims that speech can only do good and never do harm. But antiwar speech must be protected despite this harm, because the harm of suppressing it is greater. During every war that America has fought since 1789, one activity has remained almost entirely intact: elections. Elections, and politicians' fear of not being reelected, are the means by which the people remain the government's masters, not its servants. Criticism of the government, especially in wartime (or in the prelude to war), is vital if the people are to decide whether to reelect the government, and whether to threaten the government with not being reelected.

This is the fundamental truth justifying the First Amendment, and it shows the Sun's error.

First, even if antiwar speech does give aid and comfort to our nation's enemies, the First Amendment limits treason prosecutions as much as it limits sedition prosecutions or hate speech prosecutions. There are always some people, whether in the government or in editorial offices, who are willing to assume the worst about the intentions of those with whom they disagree. But we the voters are entitled to hear the views of those who oppose the war (for whatever reason) as much as the views of those who support it.

But more importantly, the response to the Sun's pragmatic claim is that the First Amendment is a profoundly pragmatic protection. It is justified by the natural tendencies of governments and their allies — tendencies that are only exacerbated in wartime — to assume that they're right, and that their opponents are traitors.

Sometimes, though, the government is wrong — and the only way that we Americans can tell whether the government is wrong is by hearing the arguments on both sides, before the war and during the war. Free speech has persuaded the Sun's editorial board (as it has me) that war is right. But I'm confident in my position precisely because I know that the war's opponents were free to present their best arguments against it. Likewise, to be confident that the government will fight the war the right way, and will end it at the right time, the public needs the freedom to hear the government's critics as well as its supporters. The same First Amendment that protects the Sun and the National Review protects the war's critics as well.

— Eugene Volokh teaches First Amendment law at UCLA School of Law, and runs "The Volokh Conspiracy," a weblog.