Freedom of Speech Under Fire?

A spirited defense of academic freedom from Saturday’s Washington Post takes up the dire Academic Bill of Rights. Peddled by controversialist David Horowitz and his cohorts, the ABOR is couched in the language of academic freedom while promoting its opposite. Claiming as its goal the "protection’" of students from "the imposition of any orthodoxy of a political, religious or ideological nature," ABOR attempts to establish the right of external authorities to police what is taught by lecturers. As the author of Saturday’s op-ed put it: "ABOR's backers argue that professors presenting new ideas might "indoctrinate" or offend students. Their bill denies us the right to evaluate the merits of ideas and arguments for ourselves by banning "political" or "anti-religious" speech from classrooms." Of course the bluster of Horowitz et. al. should not be taken too seriously. Their position is defensive—a recognition of the liberal hegemony that reigns within the university system. In fact, the threat to academic freedom today seems as likely to emerge from students themselves, as argued by Wendy Kaminer in this attack of those she calls "little authoritarians." Discussion is being curtailed, Kaminer argues, on the basis "that there is some right, some civil right, not to be offended, which trumps somebody else’s right to speak in a way that you find offensive." Anybody who has spent time on a campus recently will recognize this trend. Both left and right use the notion of offense to suppress arguments with which they disagree; liberals to suppress homophobic speech, Zionists to suppress criticism of Israel, pro-Palestinian groups to suppress Zionists etc. etc. It is not hard to see how we lose out through this process. Arguments go unheard or unchallenged, and we undermine the notion of our own rationality by underestimating our ability to distinguish between good and bad ideas. Importantly though, this censorious climate does not amount to an attack on freedom of speech in a conventional sense (or the way that Horowitz’s Bill, should it gain more influence, might do). It is authoritarianism from below, not above. According to this fresh and insightful essay by Dolan Cummings, research director for the British-based thinktank, The Institute of Ideas, this last fact partially explains the lackluster defense of freedom of speech that characterizes recent times. Indeed, he argues, at a time when, in the West, most of us enjoy freedom of speech, we have ceased to value it as an absolute. He states that, “[b]izarrely, most of us, most of the time, have free speech in reality, but not in principle, in practice but not in theory.” As we have argued before, people do not experience liberty as necessity today. This extends to the question of freedom of speech. But it would be odd to set out to defend freedom of speech in and of itself. It is an issue that has historically been contested as part of a broader political program. Such contestation took the form of the Protestant struggle against the hegemony of the Catholic Church in reformation Europe, an example Cummings brings up. More closely related to the topic of this blog, would be the original freedom of speech movement that developed at Berkeley during the 1960s. There, students organizing the anti-war movement found their political activities were curtailed by the university authorities. They were forced to create a broad coalition that addressed the new question head on. All of which is to say, a defense of freedom of speech requires that people have something of import to say. In the absence of broader political activity, the concept of free speech, indeed its very value, becomes difficult to discern.Not that the ‘soft’ limitations on free speech are unproblematic. As John Kerry discovered this week, ‘supporting the troops’ is a prerequisite to being a part of any political discussion today. And we have written before about the way that the concept of security acts as a limitation on the contemporary political imagination. The problems for free speech of "little authoritarianism" will only best be understood and combatted, however, when we begin to push the current limits of political possibility. The boundaries of freedom of speech will become apparent when ideas once again take on a concrete aspect.

The Difference Between Democracy and Elections

As part of the run-up to our teach-in this Saturday, we have posted this short essay on the difference between participating in elections and doing democratic politics:

Today in America democracy-talk is everywhere; its invocation a recurrent feature of public life from news anchors on television to the addresses of Presidents. Bill Clinton in his Second Inaugural Address described the U.S. as “the world’s greatest democracy,” which stood poised to “lead a whole world of democracies.” Yet, in practice the idea of democratic life has been truncated, reduced to little more than an electoral process.

This electoral democracy offers citizens the opportunity to vote various leaders in and out of office, but what it does not include is the capacity for individuals to maintain practical control over these structures and the outcomes they produce. A democracy that focuses almost exclusively on electoral politics has created a network of experts and strategists, who work to massage and shape the exercise of political voice. The recipient has no sense of what poll projections or horse race strategies amount to, but does develop the sneaking suspicion that politics has little to distinguish it from buying a car or choosing between retirement plans.

Once every two to four years, the citizen is alternately wooed, coaxed, and mystified by forces beyond his or her control. The citizen appears out of the darkness and once the act of consumption is complete retreats to the confines of private life. Few of the consumer categories that map the voting public under electoral democracy describe collective groups with any sense of shared purpose or consciousness. To speak of men between 18 and 49 or cell phone users is to aggregate individuals with little common interest. Last election, various stories repeatedly stated that the rise of cell phone use created “problems for pollsters” and made the election hard to call. Yet, to divide American citizens into the opposing camps of cell-phone-only voters and landline voters is to establish a distinction with no meaningful political relevance. It inevitably promotes the idea of a public that is atomized and disconnected. It calls into question the possibility groups might organize politically around shared interests and social commitments.

More importantly, the emphasis on the process of voting also suggests that politics does not have any substantive content or goal. The limits to democracy right now are not the absence of participation, but the absence of a coherent set of political ideas that can make participation meaningful. Popular control over the institutional of political life is useless if the public has no sense of collective possibility, no vision for the future, or guiding ideals. Ultimately, participation is simply a means—albeit an incredibly important one—to the end of creating a better, more progressive society. Therefore, the solution is not just to call for greater accountability and public involvement. It is to develop, through political debate and collective action, compelling options and ideas that make the act of participation worthwhile.

This is not to attack the apolitical citizen. Clearly, in a world without significant political ideas, there is little reason to do more than the bare minimum. Only if one actually believes that social change is a real possibility would the exercise of our public freedoms be valuable. In a sense, what we now have is a state of affairs in which the political arena cannot even justify itself as a space for social improvement and thus rouse its citizens from general indifference.

The fact that participation is no longer tied to the possibility of social progress has created a second force in American politics: the obsession with doing, acting (what the editors of LiP magazine call “activistism”). This ethic says “do something,” almost regardless of what that “something” is and what are its consequences. Such a passion for doing undercuts the value of ideas, purposes, or projects. It makes suspect the attempt to link action to a vision of the world as it should be, because action exists only in the moment, in the experience of doing. We see this trend in activisms of all kinds: consumer activism, shareholder activism, environmental activism, human rights activism, anti-globalization activism, etc., etc. All of these efforts share a single, basic message, which is to act or to protest in spite of whether you are entirely clear about your ultimate goals or even who shares those goals. It is this compulsion to “do something” regardless of political coherence that today creates such strange political bedfellows.

In our society, the vote, in effect, has become a Faustian bargain between citizen and leader. The citizen is begged to vote, only so he or she can disappear from the political stage afterwards. Just as importantly, it teaches us that politics is simply about the act of doing rather than any practical goals achieved by that act. It tells us that living a political life is just participating, “getting involved,” instead of developing a set of coherent ideas that can form the basis for collective action and social change. Today, American politics is confronted by a decline of meaningful alternatives, and the activist ethic of “Vote or Die!” and “do or die” is no solution to this fundamental shortcoming. In fact, one can view the breathless call to engage as a product of this decline, and an attempt to conceal the emptiness of American politics under the mask of expended energy. This of course does not mean that politics should just be about thinking and discussing, but it does mean that right now the most pressing political need is to reimagine our collective choices. This can only be done if we interrogate the reasons and implications for action, and provide better accounts of what it is we are actually fighting for rather than just protesting against.

Preying on Our Fears

From this week's Time magazine, an amusing and perceptive piece on the Foley scandal by media critic, James Poniewozik. He claims that Foley’s sleazy advances to a young Capitol Hill staffer have played into the contemporary obsession with pedophilia, giving the events a resonance far beyond the usual government sex scandals. In Poniewozik’s words “It's the difference between “The G.O.P. leadership messed up in a sex scandal” and “The G.O.P. leadership went soft on one of those monsters who are out there waiting to prey on my kids.””

To make his point Poniewozik points to the saturation of mainstream media with pedophilia horror stories, paying particular attention to the Dateline series 'To Catch a Predator'. On this show (for the benefit of our international readership), men are invited to rendezvous with the teenage girls they believe they have been courting online. Needless to say, the ‘girls’ are in fact decoys, and upon their arrival at the specified location, the men are confronted first by Dateline’s presenter Chris Hansen, then by local law enforcement officials. As Poniewozik puts it, the show is “ratings gold, a jaw-dropping combination of public service and blood sport that lets viewers indulge their voyeurism righteously--like the Colosseum, if the lions were allowed to eat only the really, really evil Christians.”

Poniewozik is sensitive to the fact that the contemporary pedophile obsession has been sustained by our politicians; keen to connect with the voters on what seems like an entirely uncomplicated issue. Indeed, Foley himself was chairman of the House Caucus on Missing and Exploited Children and Poniewozik quotes him in that capacity, ““Now, more than ever…we need to stand together and unite cities, communities and states in the effort to stop the assault on America's children,”” before cynically retorting “An assault on our children: that's a consensus builder if ever there was one.”

It is here that a parallel with the war on terror starts to emerge. Politicians seize on the highly unusual phenomena of predatory pedophilia, and elevate it to the proportions of a crisis. This imbues their actions with a sense of urgency and necessity, establishing the agenda they sorely lack. Yet this can unleash a social force that runs out of their control. As mentioned above, Poniewozik correctly points out that, while Foley’s actions might always have attracted attention, the extreme outrage they have provoked is the result of an obsession with pedophilia that men like Foley himself have propagated.

Also analogous to the war on terror is the way in which the perceived crisis is used to stifle political discussion. Poniewozik notes that “arguing in the name of ‘the children’ is an irresistible device” through which numerous authoritarian measures have been adopted. The worst case scenario (child abuse or terrorist attacks) becomes a moral absolute which trumps any defense of even the most fundamental freedom. To leave the last word to Poniewozik (and Foley):

“In 2002, Foley was furious when the Supreme Court ruled it unconstitutional to outlaw computer-generated animations—not actual video—that depict underage characters having sex. “The high court sided with pedophiles over children,” Foley blustered. Or it sided with, you know, the First Amendment. Tomato, tomahto.”

Animal Rights...Terrorists?

The war on terror has about as many fronts as the government can invent for it. It’s so hard to keep up with all of them that many issues fly under the radar until they appear in some new piece of legislation or executive order. We have written about ‘animal rights terrorists’ once or twice before, but, until recently, we did not realize just how much this ‘terrorist threat’ has been preoccupying our leaders on the Hill. Largely un-noticed outside of the websites of animal rights activists in the US and UK, the Senate this week unanimously passed the Animal Enterprise Terrorism Act (AETA).

This bill amended the already draconian Animal Enterprise Protection Act (APEA). The APEA, law since 1992, created a penalty of $10,000 or 10 years to life imprisonment for any physical disruption that leads to $10,000 in damages to an animal enterprise.

The new AETA amends existing law in a number of ways. Firstly, the definition of an animal enterprise has been broadened to include (1) an enterprise that uses or sells animals or animal products for profit for educational purposes; and (2) an animal shelter, pet store, breeder, or furrier. So virtually any enterprise that deals with animals is now included.

Interestingly, AETA goes further by expanding the type of prohibited criminal behaviour. It changes the term used to describe activity in AEPA from "for the purpose of causing physical disruption" to "for the purpose of damaging or disrupting" an animal enterprise. This widening of the kind of prohibited activity means that everything from death threats or serious bodily harm against individuals (including their family members, spouse, or intimate partners) who are involved with animal enterprises, to even benign and peaceful protests that might urge say a consumer boycott of a company are now included. This definition might also apply to a whistleblower seeking to make public what they deem to be harmful or illegal activities by an animal enterprise. The act also allows for Title III federal criminal wiretapping surveillance of animal rights organizations. AETA effectively criminalizes First Amendment activities such as demonstrations, leafleting, undercover investigations, and boycotts.

Passage of the act follows hard on the arrests and convictions of a large number of environmental and animal rights activists. On 7 December 2005, the FBI began 'Operation Backfire', a multi-state sweep of activists. Fifteen people have since been indicted by a Grand Jury on 65 charges in connection with actions between 1996 and 2001. Last month saw the sentencing of three animal rights activists of four to six years in prison and payment of more than $1 million in restitution for 'inciting violence and terror'. The activity involved mainly the administration of a website against Huntington Life Sciences, a contract research organization in the U.S. and U.K. that has long been the target of animal rights activists. Three others were convicted and have been given 30 days to hand themselves into the authorities.

Animal rights activists have been getting it here and abroad. While in the US Federal Authorities are determined to brand animal rights activists as terrorists, UK authorities are reluctant to include animal rights activists in their lexicon of terrorism, still calling them extremists. This is partly a result of a turf war between the police and MI5. Calling these activists terrorists would put them on the radar of MI5 and effectively close down a number of specialist police units.

In fact, the British Police seem to have all the powers they need. Earlier this year four animal rights activists were sentenced to 12 years' imprisonment for conspiracy to blackmail the owners of the Darly Oaks farm in Staffordshire, which bred guinea pigs for medical research. Their campaign against the farm culminated in the theft of the body of the grandmother of one of the owners of the farm from her grave in October 2004. Some of the sentences handed down to those convicted were harsher than those given for manslaughter in UK courts. So proficient have the UK authorities been in dealing with animal rights activists that the police report over half of them are now in jail.

In reality, in both the US and the UK we are talking about small groups of marginalized individuals who are little more than a public nuisance even to those who work on animal research. One may wonder about the moral code of people prepared to attack, harangue or stalk those involved in animal research. However, it’s incumbent on those of us who don't want to live in our bizarre security state to speak up for even this group of misanthropes’ right to protest. This is especially the case because the new law demonstrates how the war on terror has created a permissive environment in which all kinds of authoritarian law and order measures are considered acceptable and even necessary. One suspects the Senate didn’t even need to call these activists terrorists – just asserting the underlying principle of security would likely have been enough to pass this law restricting basic rights.

It's also clear that a battery of new laws and police powers aimed to halt the activities of this motley crew really avoids the issue. The government is not defending science by turning animal rights activists into terrorists. The real issue at hand is society's reluctance to endorse many of the activities of scientists, and rigorously to defend the idea of animal research. Animal rights activists simply leech off that existing suspicion. To deal with that problem, we need a wider cultural shift through a public debate on science and progress, not new laws and a clamping down on the right to protest.

Who Governs? (That Detainee Bill)

The detainee bill that the Senate approved on Friday is undoubtedly a horrible piece of legislation. Since the final language was only approved late last week, there are probably some terrible parts of the bill we haven't even heard about. However, rather than rehearse the various criticisms that have been made of the bill, we think it's more important to think about what this bill reveals about the political process. First, it is rather transparent that this bill was a piece of crass campaigning by the Republicans leading up to the mid-terms. Consider the following from the Washington Post:

"The legislative action prompted extraordinarily blunt language from House GOP leaders, foreshadowing a major theme for the campaign. Speaker J. Dennis Hastert (R-Ill.) issued a written statement on Wednesday declaring: 'Democrat Minority Leader Nancy Pelosi and 159 of her Democrat colleagues voted today in favor of MORE rights for terrorists.'"

Beyond the sheer cynicism and opportunism of this propaganda campaign, one is struck by the emptiness of the Republican 'platform'. As we have discussed before, the Republicans have turned to the national security issue in the last months out of pure political desperation. For the mid-terms, they have substituted fear for political principle.

This is fairly self-evident, but there is more to the political dancing on the Hill. Consider the following action taken by Senator Arlen Specter (R-Pa.):

"Judiciary Committee Chairman Arlen Specter (R-Pa.) voted for the bill after telling reporters earlier that he would oppose it because it is "patently unconstitutional on its face." He cited its denial of the habeas corpus right to military detainees. In an interview last night, Specter said he decided to back the bill because it has several good items, "and the court will clean it up" by striking the habeas corpus provisions.

Specter's position reveals that the abandonment of principle is not merely a product of mid-term electioneering, but has become part and parcel of our governmental structure. Specter has adopted a position that liberals consistently adopt: The Supreme Court will save us from ourselves. With the ideal of nine judges in robes standing astride the Constitution proclaiming 'thou shalt not pass', representatives often feel quite safe in not having to consider or worry about the deeper principles behind their legislation. Rather, they abandon that responsibility to another branch, seeing in judicial review the permission to become absorbed only with pragmatic and symbolic considerations. They think they can have their cake and eat it too - write bad legislation that looks good, and not have to think about or deal with the bad consequences. It is striking that a Senator made the above comment, because the Senate is supposed to be a deliberative body. But in effect, Specter is saying that judicial review absolves the Senate of having to deliberate very carefully about its own legislation: it's enough that there are 'several good items'. The thrust of this kind of attitude, which is equally and even more common amongst liberals, is that the Judiciary should be part of the legislative process, and that representatives don't really represent. It is the Court that really speaks for the nation, the implication being we shouldn't be too hard on our elected representatives, it really isn't their job to worry about the deeper issues. It is a long, slow path to the Supreme Court, however, and it has at best a spotty history in defending liberty. Politically, it is certainly no substitute for an actual democratic body taking responsibility for governing the nation itself.

In the system of political evasion, the Democrats, our cowardly minority party, take the cake. When a few Republican senators and military lawyers objected to parts of the detainee prosecution plans and the pending bill, the Democrats moved to their preferred position of hoping their opponent does the dirty work for them. Rather than mounting a significant campaign against this bill on their own, the Dems seem to have been banking on Republican internal dissension to sink this legislative ship. Not only was this an losing strategy, it suggested a strange allergy towards political leadership. The Democrats show almost no will to rule at all, nor even a will for a principled defeat!

In this bizarre circus, the most problematic thing is not just that we don't know where anybody really stands, but that nobody particularly wants to take responsibility for their own positions. The very minimal democratic activity of holding one's rulers to account is difficult when it is hard to tell who governs.

Whose Liberty is at Stake?

Those in power have always confused criticism of the government with threats to national security. This government has been no different. A flurry of blog activity, at Tiny Revolution, Digby, and editorial activity by Glenn Greenwald at Salon, has noted that the National Intelligence Estimate, which has become a national issue after suggesting the terrorist threat has increased, contains a less noticed passage about who counts as potential terrorist suspects. The now notorious passage says:

"Anti-US and anti-globalization sentiment is on the rise and fueling other radical ideologies. This could prompt some leftist, nationalist, or separatist groups to adopt terrorist methods to attack US interests. The radicalization process is occurring more quickly, more widely, and more anonymously in the Internet age."

The Senate just passed a bill today that permitted treating certain American citizens as enemy combatants, nearly eradicated the civil rights of enemy combatants, and also expanded the category of persons who can be classified as enemy combatants. Put the two together, and one can see why various people on the left are feeling anxious. Indeed, Digby couldn't resist quoting Pastor Martin Niemoller's famous poem about the Nazis, and their progressive eradication of different levels of German society, each indifferent to the other's fate.

Is Bush's SS waiting in the wings to swoop down on the wide swaths of the left? In fact, while there have indeed been some authoritarian extensions of police powers against left-wing groups in the past years, including surveillance of marches, use of brutal tactics against protestors, and greater limitations of free speech, what is noticeable is the relative *lack* of such repressive measures against the 'left' broadly conceived. During World War I, the government shut down thousands of left-wing presses, swept up hundreds of left-wing leaders, and made public criticism of the war illegal, producing some of the most famous first amendment cases in our history. We know how devastating the McCarthy Era was, not just at the national level, but at the state and local level, as thousands of left-wingers and non-conformists were purged from public and private employment, media censored, political association directly criminalized, and domestic spying extensive. Compared to these episodes, what's striking is how non-threatening recent developments are.

The point is not to endorse what is going on. Anyone who reads this blog knows where we stand. However, the point is to try to suggest a different avenue of criticism from what is currently offered - ie, 'next, they're going to come for the left-wing radicals'. For the real lesson of Niemoller's poem about the Nazis, inappropriate as it is for our times, is not that others failed to take account of each prior group's loss of liberty, but rather that those groups failed politically. They failed to demonstrate how everyone's liberty is at stake even if there is little to no threat that the vast majority of (Americans) will be directly threatened by the application of state power. This is the argument that the 'left' has to make. It has to show how the 'liberty-security tradeoff' that the administration offers - dramatic limitation of the liberty of a few, for the security of the many - means no liberty at all.

Winning that argument is harder. It means attacking not just specific policies, but also countering the political logic behind them. That often requires using abstract arguments that might seem removed from the immediate, urgent demands of political engagement. But it is false to oppose abstract argument and direct policy criticism. They depend on each other. For example, in this case, the best argument is not that a few lefties might end up in Guantanamo, it's that nobody is free when they think about their freedom in the way the administration wants them to. Bush et al. want us to think about our freedom entirely in a private, isolated way - as a kind of freedom of choice we enjoy in our personal lives. We all recall how Bush, when asked after 9/11 how best to demonstrate American confidence and freedom, suggested that citizens go shopping and continue travel. For the Administration, private acts of consumption came closest to expressing their account of liberty. The flip-side of thinking about freedom in this way is using the government to protect us from all those social and environmental threats that might interfere with our private freedom. This means looking at other people primarily as threats or at least potential dangers, rather than as a condition for our own freedom. It also means believing that we remain free even while other citizens lose their freedom. That can't be right. We are only free if we live in a society that is really organized around securing everyone's freedom, not ensuring that they are protected from every possible risk. Our society seems to think our public institutions should be about security, and only our private life about freedom. But, since we really live our life in public - at work, in politics, even in the home - that means we really don't live a free life. Can we develop as free beings, develop to our full potential, if our first priority is to protect ourselves from others? If we really want to live in a free society, don't we have to accept that degree of risk that comes with allowing everyone their freedom? After all, we only really experiment with new ideas, new ways of living, new kinds of knowledge when everyone, or at least most, are open to such experimentation.

This is all simply to say that everyone's liberty is at stake in recent events, not because everyone might get thrown in Gitmo, but because these new bills are about trying to redefine our collective expectations, demands, and desires.

The Constitution of Security

The Association of Muslim American Lawyers (AMAL) hosted a forum on racial profiling last Thursday to investigate the “process by which this illegal practice has evolved into a perceived, ‘common sense’ solution to our present day security need.” Thursday’s forum was aimed at examining racial profiling in its newest, post-9/11 context. How and why racial profiling has come to be viewed as a sensible mechanism for securing America’s safety is indeed a worthwhile question for discussion, and the AMAL panel’s approach to the question unwittingly provided many answers. In the various panel presentations and audience comments opposing racial profiling, both implicit and explicit support for the government’s broader security efforts was on display. Among presentations by staff from the ACLU, Council on American-Islamic Relations (CAIR), the FBI, and civil rights attorneys, perhaps the clearest example of why current opposition to racial profiling will fail to achieve its desired ends came from Shayana Kadidal, a staff attorney at the Center for Constitutional Rights (CCR). Kadidal asserts that the strongest political argument against racial profiling is that the practice is not an effective law enforcement strategy. He maintains that while there are many “moral and ethical” arguments against racial profiling, these will not prove as persuasive as demonstrating that racial profiling is itself futile and counterproductive, that it “makes us less safe.” The general public, he claims, is looking at the question primarily through the lens of efficacy, and thus to convince people that the utility of profiling is zero, or even negative, will sap their support for it. Kadidal presents two arguments as to why this is so. First, racial profiling serves to alienate minority and immigrant communities that would otherwise cooperate with authorities and would be the most reliable source for terrorist intelligence. Second, racial profiling creates a “false positives” problem, diverting law enforcement resources away from traditional methods that actually work. Of course, implicit in both of these critiques is the assumption that the war on terror project, which law enforcement has been charged with carrying out, is legitimate. Kadidal’s "ineffectiveness" argument reinforces the notion that the only thing wrong with current law enforcement efforts is the possibility of racial profiling. Indeed, Kadidal spends most of his presentation highlighting the positive role that immigrants and minority groups can play in policing their own communities. As an example of “beneficial” tips that arise from immigrant communities, Kadidal points to the case of the Lackawanna Six. Although Kadidal himself describes the charges in the case as “shady,” and the case was worse than "shady" (see here and here), he states that “whatever you think of the merits,” the example holds because the Buffalo men were turned in to authorities by other Yemenis. Similar tips will not be forthcoming, claims Kadidal, because racial profiling convinces minority and immigrant communities that law enforcement is not a friend. Beyond Kadidal's appalling brush-off of a bad case, his argument is an utterly pragmatic, defeatist conception of public life. What have we gained if our constitutional order becomes a means by which we are encouraged to look at each other with suspicion, and to fulfill our duties of good citizenship by spying on and turning in our neighbors? Whether or not racial profiling contributes to making us safer should be beside the point for a speaker representing an organization whose mission is to defend constitutional rights. Surely once we are checking over our shoulders or looking to snitch on our neighbors we start undermining the solidarity and trust necessary in a free society, and the Constitution starts to lose its value. Kadidal, his fellow panelists, and the audience Thursday night all insisted that we focus on defending against constitutional violations. Yet these activists seems to have lost sight of the substance of the Constitution (living in a free society) for its form (the law). The Constitution as a legal document will not itself guarantee us freedom; there is much that is constitutional yet antithetical to liberty. If it becomes merely a reason to enforce the law, whatever the law may be, the Constitution loses its vitality and reason. It is as a set of principles that inspire thinking about the free society that the Constitution matters most. Yet Kadidal's defense of the Constitution perversely wishes to set aside the principles of a free society so as to improve law enforcement. By attempting to play it safe, and by making the pragmatic argument, Kadidal and others undermine the free society they think they are defending.