BALANCING ACT

BY FLOYD ABRAMS

In 1993, I wrote an article for The New York Times Magazine shortly after the World Trade Center bombing. My topic was privacy and my theme was that we should prepare regretfully -- very regretfully -- to give up considerable privacy rights in the service of avoiding terrorism in the future.

What never occurred to me then was that the 1993 bombing would lead to almost no new limitations on privacy at all -- or, to put it differently, no serious or meaningful steps to prevent additional acts of urban terrorism at all.

A few years later, I served on a civil liberties advisory committee to a commission, headed by Vice President Gore, on aviation safety and security. Asked by that commission to advise it on a proposal to "implement an automated profiling system for all passengers on all flights," we responded unequivocally. Any profiling system, we said, "should not contain or be based on material of a constitutionally suspect nature -- e.g., race, religion, national origin of U.S. citizens." We had insisted on the inclusion of the words "U.S. citizens."

And now we have seen nineteen suicidal, murderous hijackers -- all from the Middle East, all Arabic-speaking -- attack our nation in conjunction with what appear to be cells of others who are also of Middle Eastern background, also Arabic-speaking. We thus have arrived at a time when we naturally revisit the degree to which national origin may be considered. For it surely can be one of a number of relevant factors in determining who may be questioned, who may be searched, and how to draw the line between protecting individual liberties and protecting our personal and national security. This is a time when we should not allow our correct resistance to ethnic profiling to bar us from taking account, in a measured and careful manner, of what is now the single most relevant identifying characteristic of all the terrorists who have attacked us.

I do not want to fly under false colors. My primary concern at this moment is terrorism. I am more concerned that we will fail to take terrorism seriously enough than that we will fail to protect our liberties diligently enough. We must do both, but I feel more comfortable about the second than the first, which is to say I don't feel terribly comfortable at all.

We now live at a level of vulnerability that requires distressing steps of a continuing nature in an effort to protect ourselves and our nation. We must take steps that will change our way of life in a grim, if necessary, direction. Allowing more wiretaps after a lesser showing of essentiality than is now the case is a dangerous business. Not allowing them is, I think, more dangerous still.

Whatever we do in the privacy area, however, and however close we come to reaching the limits imposed by the Fourth Amendment and due process interests, we should be especially careful to give no ground on First Amendment issues. In fact, the more ground we give on privacy, the more we turn over new power to government, the more we need the closest scrutiny by the press of the behavior of the government.

And on other players as well. As the situation develops in ways we cannot predict, there will surely be abuses by the government in seeking to limit speech as well as abuses of the new investigative tools it is seeking. And there will be punishment by non-governmental actors of unpopular speech which will not, for that reason, violate the First Amendment, but will certainly violate First Amendment values. There will, in short, be enormous pressure on free speech at the very time we need it most.

Let me offer three illustrations of the varieties of such pressure. The first is familiar: in late September, commenting on some on-air remarks of Bill Maher, Ari Fleischer warned -- no other word will serve -- that we should watch what we say. It reminded me of my youth during World War II, when we heard the repeated refrain, "Loose Lips Sink Ships." But Bill Maher wasn't sinking ships. He was making a political statement in a tasteless way at a time of national grieving. What he was saying should have been well outside the bounds of threatening presidential response. In fact, one might well remind Mr. Fleischer himself of the dangers of loose lips.

The second kind of pressure will increase as ground fighting continues. There will obviously be some genuine secrets about military operations that must be withheld from the public. But if, as I fear, the administration is committed to trying to limit reporting about the war to press releases and press conferences, the public will be far less informed -- and ultimately less trusting -- of the conduct of the war.

Finally, a prediction. It would not surprise me to see the rebirth of legislation that threatens the First Amendment. We may see new efforts to amend the Bill of Rights by permitting the criminalization of the burning of the American flag. (How that would terrify would-be terrorists!) We may, as well, see new efforts to enact legislation (previously vetoed by President Clinton) making any leak of any classified information criminal. Congress adopted that proposed legislation last year, without any public hearing, and but for personal lobbying against it by the most senior executives of The New York Times, The Washington Post, and CNN, it would have become law.

There will be lots of First Amendment issues in the days ahead. We can only hope that our press -- print and broadcast -- will be ready to do its share in resisting the inevitable pressures to substitute propaganda for truth-telling.
 
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Floyd Abrams is a partner at Cahill Gordon & Reindel, and a visiting professor at Columbia's Graduate School of Journalism. This article is adapted from remarks at a Columbia Graduate School of Journalism panel on the war and free speech.