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Congress Should Not Censor Citizen Speech

Public outrage over the advertisement in The New York Times is understandable. By smearing the character of Gen. David Petraeus under the banner “General Petraeus or General Betray Us? Cooking the Books for the White House,” the ad fell seven grades short of sophomoric and a gutter below sidewalk civility. [IMGCAP(1)]

Members of Congress had every right to speak out forcefully against the ad in their respective chambers, in the media and back home. What I do question, however, is the propriety of Congress as an institution condemning the speech of any American citizen or group — no matter how despicable or hateful that speech may be.

Yet that’s just what Congress did last month by including language in the continuing appropriations law that “condemns in the strongest possible terms the personal attacks made by the advocacy group impugning the integrity and professionalism of General David H. Petraeus.”

Never mind that it’s a “sense of Congress” expression or that it expires Nov. 16. The precedent has been set. Congress places itself and the country on a slippery slope when it sets itself up as censor-in-chief of citizen speech.

James Madison warned about the dangers of factions combining in Congress to produce a tyranny of the majority, capable of taking away the rights of minorities. In 1794, just seven years after he penned that warning in Federalist No. 10, Madison witnessed firsthand an attack on a fledgling political movement that nearly drove it to extinction, notwithstanding his artful interventions. The controversy swirled around a 1791 federal excise tax on whiskey and the refusal of distillers in four western counties of Pennsylvania to pay the tax. In July 1794, the resisters surrounded the home of a federal tax collector and began to fire on it. While the agent escaped with his life, the rebels proceeded to burn down his house and barn.

Secretary of State Edmund Randolph saw the “Whiskey Rebellion” as an opening for President George Washington to take forceful action not only against the rebels but also against local “democratic societies” that had opposed the tax. After unsuccessful attempts to avoid confrontation, Washington sent 15,000 militia into western Pennsylvania in September to quash the uprising. The rebellion dissolved in the face of overwhelming force. Twenty rebels were captured and two subsequently were convicted of treason and sentenced to death. (Washington later pardoned both on grounds that one was “insane” and the other a “simpleton.”)

In his annual message to Congress in November 1794, Washington reported on the affair, charging that certain “self-created societies assumed the tone of condemnation” of federal laws and had whipped up the passions of the people to produce “symptoms of riot and violence.” In fact, most society members opposed the violence and many marched with Washington’s militia. But all were implicated by Washington’s words.

The Senate responded swiftly, adopting a resolution condemning “certain self-created societies” for engaging in activities “calculated, if not intended, to disorganize our Government.” Washington thanked the Senate for its response to his speech.

The House, however, did not rush to judgment. Instead, it engaged in five days of debate over such basic questions as the constitutional right of such societies to exist, whether their rhetoric provoked the insurrections and whether Congress had the right to condemn the societies. Madison was one of three Members appointed to a committee to draft a response to Washington’s address. The letter they reported back to the House was silent on the issue of the societies. A debate ensued over attempts to amend the letter to condemn the societies, limit the condemnation to their “abuses” or abolish the groups.

On the fourth day of debate, Madison delivered what may have been the decisive speech when he pointed out that the issue was not the societies, but the precedent that was being set for future governments that might apply it in other situations to limit free speech and press. “Opinions are not the object of legislation,” he argued. “If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.”

The House finally agreed to a compromise that condemned the actions of certain “combinations” of men, and not of the “self-created societies.” Nevertheless, by the end of 1795, most of the societies had disbanded, chilled in part, no doubt, by Congress’ censure.

Madison’s fears about the censure’s implications were confirmed further by the 1798 enactment of the alien and sedition laws that, among other things, made it a crime to criticize a public official. Several opposition newspaper editors subsequently were convicted for libelous sedition.

Public reaction against the laws, however, led in 1800 to the elevation of Thomas Jefferson to the presidency and his Republican Party to majority status in Congress. The alien and sedition laws were allowed to expire shortly thereafter (and the excise tax on whiskey was repealed).

The potential dangers of Congress as speech censor are not difficult to fathom. While the Senate was considering the amendment last month to condemn the ad, another amendment was offered to condemn all attacks on current or former military personnel, with specific reference to earlier campaign ads that questioned the patriotism of former Sen. Max Cleland (D-Ga.) and Sen. John Kerry (D-Mass.). The amendment fell 10 votes short of the 60 needed for adoption. With the 2008 presidential campaign just heating up, it doesn’t take much imagination to foresee a busy season ahead for Congressional speech censors.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.

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