Posted by Eugene Volokh:
Criticizing People Who May Have Inadvertently Helped the Enemy:
http://volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#1137009443
My [1]Deterring Speech: When Is It �McCarthyism�? When Is It Proper?
(93 Cal. L. Rev. 1413 (2005)) is finally out; I thought I'd blog an
excerpt here, on criticizing people who may have inadvertently helped
the enemy. I omit the footnotes, but they're all [2]in the PDF; if you
question whether one of my assertion is well-supported, please check
the footnotes first to see if they may answer your question.
�To those who scare peace-loving people with phantoms of lost
liberty,� Attorney General Ashcroft famously said not long after
September 11, �my message is this: Your tactics only aid
terrorists, for they erode our national unity and diminish our
resolve. They give ammunition to America�s enemies . . . .� That�s
McCarthyism, some replied.
Here�s another quote, this one from the president: �Our nation has
felt the lash of terrorism. . . . We can�t let [a certain group]
turn America into a safehouse for terrorists. Congress should get
back on track and send me tough legislation that cracks down on
terrorism. It should listen to the cries of the victims and the
hopes of our children, not the back-alley whispers of the [group].�
The president was Bill Clinton, and the group that he was
condemning was the �gun lobby,� which opposed some gun-control
proposals that Clinton favored.
Likewise, following the Oklahoma City bombing, President Clinton
argued on national television that violence is caused �not just
[by] the movies showing violence. It�s the words spouting violence,
giving sanction to violence, telling people how to practice
violence that are sweeping all across the country. People should
examine the consequences of what they say and the kind of emotions
they�re trying to inflame.� He might have meant to condemn only
those who actually urge violence, and not those who simply �giv[e]
sanction to violence� by harshly criticizing the government. But
his words could also have been interpreted (and were interpreted,
by at least one sympathetic commentator) as a criticism of strident
anti-government rhetoric more broadly.
Similarly, consider Winston Churchill�s lament that his critics�
wartime statements were (among other things) �weaken[ing]
confidence in the Government,� �mak[ing] the Army distrust the
backing it is getting from the civil power,� and �mak[ing] the
workmen lose confidence in the weapons they are striving so hard to
make,� all �to the distress of all our friends and to the delight
of all our foes.� And, finally, consider this quote from George
Orwell during World War II: �Pacifism is objectively pro-fascist.
This is elementary common sense. If you hamper the war effort on
one side, you automatically help out that of the other.� Orwell�s
message, I take it, was this: The pacifists� tactics only aid the
Nazis, for they erode the Allies� national unity and diminish their
resolve. They give ammunition to the Allies� enemies.
Such statements have some things in common. They accuse people of
doing things that help the enemy. The great majority of the accused
are probably decent people, who have no desire to help terrorists
or Nazis.The statements may also deter dissenters: People don�t
like to be told that they are helping the nation�s mortal enemies,
especially when the charge comes from an official to whom millions
listen. Even if the accused think the accusation is unjust, they
may keep quiet, or at least tone down their arguments, to avoid
such attacks in the future. The accusers likely intended to deter
dissent by making potential dissenters feel embarrassed to make
certain criticisms that the accusers thought baseless and harmful.
And the accusations may also have been factually correct.
Pacifists� opposition to the Allied war effort may have helped the
Nazis as much as pro-Nazi opposition would have. Excessive
insistence on gun owners� rights might likewise help terrorists.
Similarly, criticisms of the administration�s actions may well
erode national unity, diminish national resolve, give ammunition to
our enemies, and aid terrorists. This is especially true when the
criticisms come from legislative leaders. Recall that Ashcroft�s
statement came at a hearing organized by Senator Patrick Leahy,
then-chair of the Democrat-run Senate Judiciary Committee and a
leading adversary of Ashcroft.The hearing had apparently been
called in part to criticize the administration�s antiterrorism
policy on civil liberties grounds. Enemies who see our political
leaders divided on the war on terror may well be em-boldened, and
foreign neutrals may see us as less likely to prevail than if we
seemed united. Such internal division may well �distress . . . all
our friends and . . . delight all our foes.� And if Senator Leahy�s
and others� criticisms were indeed unfounded or at least
exaggerated (a hotly contested position, of course, but one that
Ashcroft defended on the merits in his testimony), then Ashcroft
could have reasonably concluded that the critics� actions were both
unjustified and dangerous.
Good intentions may sometimes yield bad results. That�s true of
well-intentioned administration actions, which the party out of
power often warns about. It�s also true of well-intentioned
criticisms of such actions. If such bad results seem likely, then
the public ought to be warned of this danger, though of course
those who disagree should likewise argue that the danger is itself
a �phantom.�
And government officials are as entitled as anyone else to note
such dangers. The administration, which is responsible for keeping
the country safe, has a responsibility to warn of a wide range of
dangers. People who ignore the danger, if the danger is real, may
well deserve to be criticized. And when political leaders debate
questions of liberty and national security, plausible claims that
one side�s actions may jeopardize liberty may reasonably be met by
plausible claims that the other side�s actions may jeopardize
security.Now it�s true, as many critics argue, that such
accusations try to move people through fear. But terrorists ought
to be feared. Many groups rightly try to influence voters by making
them afraid of environmental catastrophe, crime, gun violence,
terrorism, war, special interests, or suppression of civil rights.
Well-founded fear is better than foolish fearlessness. Some fear is
excessive or even irrational, but some is eminently justified, or
is at least a reasonable response to uncertainty.
It�s also true that politicians sometimes harness fear for
political advantage. That�s what they�re supposed to do in a
democracy. When national security is a big part of an election
campaign, each side likely believes that its program will protect
the nation, and the other side�s will (at least comparatively)
endanger the nation�and each side then has the right and even the
duty to make these arguments to the voters.
In 2004 Democrats sincerely believed that reelecting George W. Bush
would endanger America, because they thought that Bush�s national
security policy was dangerous. House Minority Leader Nancy Pelosi,
for instance, argued that �the president has failed in how he has
tried to protect America. . . . We are less safe�we are less safe
because he is president . . . .� Republicans sincerely believed the
same of Kerry, and argued accordingly. One might find one side�s
case to be erroneous or even dishonest, but making fear of
terrorism an �underlying theme of domestic and foreign policy� is
quite proper when terrorists are doing frightening things.
Yet at the same time, pointing out (even if accurately) that
criticism of the administration is helping America�s foreign or
domestic enemies has costs. To begin with, it can distract from the
legitimate arguments that the critic is making. Perhaps paying more
attention to civil liberties will actually help the war effort by
showing us to be a humane and tolerant nation and thus making us
more popular throughout the world. Or maybe broadly protecting
civil liberties will hurt the war effort, but some cost to the war
effort is a tolerable price to pay for preserving our traditional
rights.
Moreover, arguing that critics of the government are helping our
enemies can wrongly tar people with the implication of bad purpose,
even if no such charge is explicitly made. This may be unfair. It
may breed unnecessary political hostility�not just disagreement but
contempt or hatred� that is itself harmful to the nation. It can
overdeter speech by making speakers afraid to level even those
criticisms that, on balance, help the country more than hurt it. As
Orwell himself wrote, just two years after the lines I quote above,
We are told that it is only people�s objective actions that matter,
and their subjective feelings are of no importance. Thus pacifists,
by obstructing the war effort, are �objectively� aiding the Nazis;
and therefore the fact that they may be personally hostile to
Fascism is irrelevant. I have been guilty of saying this myself
more than once. . . .
In my opinion a few pacifists are inwardly pro-Nazi . . . . The
important thing is to discover which individuals are honest and
which are not, and the usual blanket accusation merely makes this
more difficult. The atmosphere of hatred in which controversy is
conducted blinds people to considerations of this kind. To admit
that an opponent might be both honest and intelligent is felt to be
intolerable. It is more immediately satisfying to shout that he is
a fool or a scoundrel, or both, than to find out what he is really
like.
Now perhaps Orwell�s change of mind was occasioned by the change
from the dark days of 1942 to post-D-day, post-Stalingrad 1944. It
is easier to be generous to those who, in your view, helped Hitler
(even unintentionally) when Hitler is nearly defeated. Yet I think
that Orwell�s second thoughts, whatever their reason, were
objectively the right ones. Explaining why your adversaries�
arguments unintentionally help the enemy is legitimate. But
expressly acknowledging that this effect is likely
unintentional�even when you�re tussling with a senator who you
think has unfairly attacked you�is fairer, less politically
divisive, and often more rhetorically effective. I suspect John
Ashcroft�s quote alienated more Americans than it persuaded.
Likewise, the vitriolic Bush-the-Nazi attacks from some parts of
the Left probably, on balance, helped Bush in the 2004 election.
So it seems to me that, first, the quotes with which I began this
Part could have been put better. Second, because people tend to
overestimate the bad effects of their adversaries� speech, we
should often be skeptical about allegations of such bad effects.
And third, such allegations provide a convenient way to evade
(deliberately or subconsciously) the substantive criticisms leveled
by the adversaries� speech.
Nonetheless, responding to such allegations with charges of
McCarthyism is likewise a convenient way to evade the merits of
those allegations. If Ashcroft, Clinton, Orwell, and Churchill were
wrong in their estimates of the harm that their adversaries�
arguments were causing, one should certainly call them on that. One
should do likewise if the harms are exceeded by the benefit of the
remedies that the adversaries propose. But these arguments need to
be made on the merits. Labeling allegations as �McCarthyism� is
likely to distract listeners more than it helps them assess which
allegations are sound and which aren�t.
References
1. http://www.law.ucla.edu/volokh/mccarthyism.pdf
2. http://www.law.ucla.edu/volokh/mccarthyism.pdf
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