Is Criticizing the President Good?
In 1798, President John Adams passed a series of acts that came to be known collectively as the Alien and Sedition Act. The Act was intended in part to prevent the public from criticizing the government on the theory that such criticism effectively weakens it. Historians have consistently argued that the Act was an unconstitutional violation of the First Amendment and the Supreme Court, in the seminal case of NY Times v. Sullivan, noted that “although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”
Many of us may take the freedom of speech as such a necessity in any civilized society that we may forget to fully appreciate why. In so doing, we may be turning a blind eye to some inherent downsides to free speech as we understand it. Democracy, it is said, depends upon the free flow of information and opinion in the “marketplace of ideas.” As John Stewart Mill explained, the search for truth requires the equal acceptance of all opinions, whether true, partially true, or false. But what about when government has already made and implemented a policy decision of far reaching national consequence and now must ensure that it gets properly managed and handled? Does the suppression of opposing opinion then become more justifiable and less problematic?
War provides an appropriate frame of reference. Once the decision to go to war is made, the government, and perhaps the country in general, might have some interest in the suppression of anti-war publications. At such point, further public discourse will not lead to a different result since the decision has already been made. The fighting of the war itself may be hindered by incessant debate on the merits of fighting it. Making fragmented public opinion prominent in the national headlines projects an image of internal weakness and illegitimacy. Such speech might even embolden and encourage the country’s enemies. In short, there seems to be a national security interest in suppressing ex post facto criticisms of an initial decision to go to war.
Of course, the people have an interest in such debate in order to ensure the propriety of future, similar choices. But does this alone outweigh the national security interests described above? I don’t think it necessarily does. What does tip the scale against such suppression laws is that the government itself is the suppressor. It is this fear of big and powerful government that is embedded in the First Amendment’s guarantee of free speech. No matter how legitimate the government’s interests may be, it cannot suppress ex post facto criticisms of its own policies because that is precisely what the First Amendment is designed to guard against. The framers didn’t think that government was incapable of properly restricting speech in appropriate contexts. But the fear of abuse resulting from empowering government to regulate speech was enough to give free speech in America the ultimate safeguard.
I bet President Bush would have loved a little Alien and Sedition Act of his own. The merits of the initial invasion of Iraq are criticized to this very day, perhaps with good reason. President Obama and future presidents will also have to deal with that thorn that is free speech. In the face of the First Amendment then, the only antedote to the potential downsides of free speech is a population that excercises that right responsibly.
