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Even at Home, Freedom Isn’t Free

by Osha Gray Davidson

Mar 15, 2012 | Foreign Policy, Legal Affairs


to the collateral constitutional damage of the War on Terror.

But the author, former New York Times correspondent David K. Shipler, is in pursuit of a much larger and more troubling development. Shipler exposes the frayed edges of our “constitutional culture.” Most citizens don’t know much about our liberties, he argues persuasively, and so don’t guard them from an overzealous government. This permissive culture leads, step by painful step, to warrantless wiretaps, indefinite detention, and torture.

Yes, war is a convenient excuse used by governments to curtail liberties. But as Shipler illustrates with dozens of compelling and vivid examples, given a complacent citizenry, the authoritarian mindset doesn’t need the pretense of national security to erode constitutional protections. All it took in Juneau, Alaska, in January 2002, was a group of high school students hoping to get on TV by displaying a banner that read, “BONG HiTS 4 JESUS” as a runner carrying the torch for the Winter Olympics passed by.

The resulting case, Morse v. Frederick, made its way to the Supreme Court in 2007—even though 18-year-old student Joseph Frederick was not on school property when he refused principal Deborah Morse’s command to put away the irreverent banner. Even if the incident had occurred in the schoolroom, the administration would have had to prove that the goofy banner “materially disrupted schoolwork” or infringed on the rights of other students, to prohibit it under the Court’s 1968 landmark Tinker v. Des Moines Independent Community School District decision.

Instead, the 5–4 majority, led by Chief Justice John Roberts, sided with the school by joining two exceptions already carved out by the right-leaning Court in the 1980s. One case involved bawdy speech, for which the court created the dangerously vague category, “socially inappropriate” expression. A later ruling extended a school’s authority to censor a student newspaper—under the equally hazy new classification “school speech.” In Frederick, Roberts argued that the event qualified as school-sponsored because it took place during the school day (students were let out of class to attend) with teachers in attendance. The content was inappropriate—and therefore censorable—Roberts continued, because the message, BONG HiTS 4 JESUS, threatened to undermine the school district’s anti-drug policy.

“It’s hard to escape the sensation, here and in certain other cases,” Shipler wryly observes, “that at least some justices begin at the end they wish to reach and work backward to find constitutional rationalizations.”

The tendency to favor ends over means—even when those methods violate the constitution—is found throughout officialdom, and Shipler does a masterful job of guiding readers through this bleak landscape. Police find ways around their obligation to read suspects their Miranda rights. They extract false confessions by making the accused believe that a judge will view their case more favorably if they “take responsibility”—even for a crime they did not commit. Prosecutors suppress exculpatory evidence on flimsy legal grounds, uncontested by inexperienced or simply incompetent court-appointed defense lawyers. And, always, the powerless are more likely than the powerful, the poor more than the affluent, and members of majorities (racial, political, religious) more likely than minorities to have their constitutional rights trammeled.

At least, in the beginning. What the government is allowed to do to one group today, Shipler points out, it will do to all of us tomorrow.

Rights At Risk is a sobering but engaging account of the steep price we pay for our unwillingness to protect the Constitution. To borrow a slogan from a different context: Freedom isn’t free.

Osha Gray Davidson, author of five books of nonfiction, publishes The Phoenix Sun, a syndicated online news and analysis site covering solar power from the American Southwest.


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