University of Missouri - Columbia.
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Posted 10.27.05

National Security Trumps Civil Liberties, MU Law Professor Finds

Recommendation Made to Develop New Doctrine for Courts to Follow

COLUMBIA, MO -- In times of national crisis, such as September 11, passion and fear can fuel the government to take oppressive actions detrimental to civil liberties of those allegedly threatening groups. When those actions are challenged in court, many expect judges to rise above the politics and emotions and resolve these cases based purely on the law and facts of the case. According to University of Missouri-Columbia law professor Christina Wells, the courts have consistently granted the government permission to conduct illegitimate actions in the name of national security.

"It is one thing for us to say that the courts should take a more active role in protecting civil liberties, but it is quite another to say that they will," Wells said. "Judges are, after all, human. They remain subject to the same passions, fears and prejudices that sweep the rest of the nation."

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In an article recently published in the Wisconsin Law Review, Wells points to several cases in the past 60 years that examine the issue of civil liberties and national security. The case Wells focused on was the Cold War prosecution of Eugene Dennis and other Communist Party USA (CPUSA) leaders. According to Wells, in this "trial of ideas," the defendants in Dennis v. United States were convicted of conspiring to advocate the forcible overthrow of the government, which was a violation of the Smith Act.

There was no proof that the defendants agreed to overthrow the government or advocate for such an act. Rather, the trial proceeded on the theory that, as CPUSA leaders, the defendants taught Marxist-Leninist doctrine, which allegedly involved forcible overthrow as a necessary aspect of a communist revolution, Wells said.

While conventional wisdom provides few answers regarding how to guard against the case's failings in the future, Wells recommends that a doctrine is created to counteract the effects of fear and prejudice that lead to these actions. She developed a list of questions that the courts should incorporate into its decision-making when trying to determine whether the government has satisfactorily shown a need to restrict such liberties as speech.

Those questions include:

  • What is the specific harm allegedly resulting from the speech or what is the specific government interest in restricting the speech?
  • Does the government have direct evidence of a causal link between the speech at issue and the government's interest in regulating it, or is it indirect evidence?
  • What is the imminence of the stated harm or alleged result of the speech?
  • What is the speaker's intent to cause the harm or result alleged?

Wells believes a doctrine containing these questions will make the court's inquiries become more focused on actual wrongdoings and less on public and government opinion.

"Even though the courts have been swayed by emotion and politics in the past doesn't mean they have to be, which is why this new doctrine could help solve those problems," Wells said. "Furthermore, we need courts to play a role because executive officials tend to overreact to perceived national security threats. Thus, judges can serve as an important forum of accountability for executive officials who have a tendency to take draconian action against people they erroneously perceive to be threatening."



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