December 21, 2005
Wednesday

President Bush should quit his legally unauthorized eavesdropping on Americans, and no one should argue, as some conservatives have, that there is an understanding buried deep in the Constitution that grants him the privilege of doing whatever he darned well pleases if we are involved in a war.

This understanding is buried so deep that, to detect it, you have to go into a trance-like state of imagining that constitutional language implies meanings contrary to what that language actually states. Give it up, friends.

But the leftists who are contending this abridgement of law is the final proof of Bush's disregard of civil liberties ought to grant, for starters, that listening to an al Qaeda terrorist abroad during a conversation with someone over here may very well have paid national-security dividends. Then, out of respect for intellectual integrity, they ought to concede that the anti-liberty enthusiasms of many of their fellow leftists have far less justification and pose far more a threat to the American way of life.

The eavesdropping, after all, would have been permissible had the president found a way to have Congress legalize it without signaling the enemy or had lived with the difficulties of judicial review. Neither has he gone so far astray in his advocacy of the Patriot Act as some contend. It consists mostly of perfectly reasonable, well-advised, rights-benign grants of law-enforcement power, with a major exception: national security letters.

These are devices under which the FBI can obtain extensive information about you or me or anyone at financial institutions - which are so broadly defined as to include just about everything but your local McDonald's, and maybe that - without first going to a court. There need be no allegation that you were a terrorist, and the institution may not blab a word about the investigation to anyone. Last year, press reports tell us, 30,000 of these letters were issued. That's too much Big Brother for me.

"Big Brother," by the way, is a phrase introduced as meaning endlessly intrusive, prying government by George Orwell in his novel, "1984." Another word he introduced in that great book was "doublethink," which means believing a thing and its opposite simultaneously, as many liberals do on the subject of free speech. They insist that through the Campaign Finance Act that limits political speech, they further political speech. It is a transparently goofy position, endorsed by the likes of Common Cause, a do-good group that does much bad. The First Amendment may know no enemy greater than this act, though several are in the running.

One is the insistence that some speech, namely "commercial" speech, isn't really speech of the kind that deserves protection. The Supreme Court does now say that commercial speech should be protected as long as it is not misleading, but opinions are of a nature that seldom allows final, definitive judgments about whether they are misleading. To see how absurd this rule is, imagine saying that political opinions are legal only as long as they are not misleading, and then look at the Nike case. Nike tried to defend itself from charges that it was exploiting foreign labor in the manufacture of its shoes, but was sued and found in violation of law by lower courts. The Supreme Court refused to hear the case. Nike later settled by paying $1.5 million to a nonprofit labor group.

The left is more a foe of commercial speech than the right, but both left and right have joined forces on occasion in restricting the speech rights of people on broadcast TV and radio through the government's licensing powers. Those clearly unconstitutional powers used to be excused because airwaves are limited and supposedly belong to the public, but given the advent of cable and satellite transmissions, that's a joke. Some leftists nevertheless want to bring back the "fairness doctrine" to reduce the presence of conservative radio talk-show hosts.

The left is also the primary creator of university speech codes and university restrictions on the freedom of association. Example: The Foundation for Individual Rights in Education recently reported on its Web site how California State University at San Bernardino "refused to recognize a Christian student organization for requiring its members to live according to the group's religious faith." Think about that for a minute.

None of what I've said is meant to excuse Bush, but it is meant to tell you that many of his critics are either blithering hypocrites or wouldn't know a real civil-rights issue if it bit them on the nose. It's meant to do something else, as well: to say that people who really care about their rights being run over ought to look both left and right before they cross the street.

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