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James Pinkerton

James Pinkerton

Posted: December 17, 2005 11:43 PM

A First Amendment for All Seasons


Let’s stipulate that many, perhaps most, Huffington Post readers think that Tom DeLay is a bad person.

But how far would they want to go to see him pursued and hounded? Should the end justify any means? And how much collateral damage should be done to the First Amendment—including freedom of association as well as freedom of speech—in the meantime?

The collateral issue at hand is the effort by the Austin, Texas-based district attorney, Ronnie Earle, to scour up documents of the Free Enterprise Fund, a Washington DC-based group that advocates free markets and limited government (of which I’m a senior fellow). Earle gained an indictment of Tom DeLay on September 28, and his investigation has been ongoing since. For its part, the Free Enterprise Fund has been harsh in its assessment of Earle’s actions; the FEF has even run TV ads in Texas comparing Earle to a circling shark and to an attack dog.

Earle doesn’t like it. And so now he is poised to issue a subpoena to the Free Enterprise Fund, demanding that the FEF turn over documents and materials related to our TV spots.

In so doing, Earle is doing much more than waging legal war against the Free Enterprise Fund’s right to express itself. He is waging war on a long line of cases that established the right of private groups to operate freely and without undue interference from the government; the most notable is the 1958 case of NAACP v. Alabama, in which the U.S. Supreme Court held unanimously that the State of Alabama could not force the National Association for the Advancement of Colored People to turn over its membership list—on the perfectly valid ground that NAACP members would not be legally and physically safe if Jim Crow-ish officials and their goons got hold of such information. Writing for the Court, a half century ago, Justice John Marshall Harlan declared that “privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

Today, Theodore Olson, a former Solicitor General of the United States, is equally emphatic about the case of Ronnie Earle vs. Freedom of Association: “These subpoenas are utterly unnecessary and manifestly calculated to punish advocacy protected by the First Amendment.” Explained Olson, “The information ostensibly sought by these subpoenas concerning when and where television messages were broadcast could readily be obtained without burdening and harassing those who would dare to challenge the methods and motives of this prosecutor.” He concluded, “This is intimidation, plain and simple.” So the FEF will fight Earle's intimidation effort. And I will add that Earle epitomizes the unfortunate tendency of government officials to seek to suppress disagreeing viewpoints—a tendency that itself never seems to be suppressed.

Some will be so eager to see DeLay hurt that they will be happy to see the Free Enterprise Fund hurt as well. That’s a mistake civil libertarians sometimes make: they let ideological sectarianism blind them to the need for civil-liberties solidarity. And the Earle precedent could prove ominous; if a government lawyer can sue a private group, exercising a combination of harassment and coercion—and, by the way, imposing huge legal costs—then who’s next? What other political groups, left, right, or center, could be targeted by some future prosecutor? We're not out of the woods: It Could Happen Here.

Americans can and will disagree about politics and ideology. But fair-minded Americans should unite around the proposition that private groups should be free from the heavy fist of the state. If not, then we are all at risk of being smashed.

But of course, some will say that Tom DeLay is a special case—that he is especially heinous. But under our Constitution, even the heinous have rights. As Supreme Court Justice Oliver Wendell Holmes observed, the First Amendment is not concerned with the speech we love, it’s concerned with the speech we hate.
Indeed, even those who would go so far as to label DeLay as diabolical should keep in mind that the same laws that protect the devil also protect them.

That was the argument made by Robert Bolt in his 1961 play, A Man for All Seasons, about the life and martyrdom of Sir Thomas More. The character of Roper, who serves as a foil for More, is incredulous at the thought of giving “the Devil” his rights. More asks Roper, “You’d cut a great road through the law to get after the Devil?” To which Roper exclaims, “I’d cut down every law in England to do that!”

More answers, “Oh? And when the last law was down, and the Devil turned 'round on you where would you hide, Roper? . . . This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down . . . do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.”

Never has the argument for the equal-handed rule of law been better said. Opposition to Earle’s rogue law-chopping expedition should unite all civil libertarians, regardless of partisanship. The fate of Tom DeLay is a matter to be argued; the preservation of our freedoms should be beyond debate—in this time, or in any time.