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Speaking Freely

A visit with Christina Wells, Professor of Law

By LuAnne Roth
Published: - Topics: civil liberties fear and prejudice government decision-making secrecy constitutional law
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Christina Wells speaks freely about political and legal issues, for as Professor of Law at MU, her research falls under the auspices of constitutional law, especially freedom of information and access to government information, both of which relate to the First Amendment. Wells “cut her teeth” as a law professor, so to speak, on matters related to protest law, looking specifically at how the government uses national security rationales to limit freedom of speech, for example by keeping protestors “penned in one area…more than one would think the law would allow.” While her early work focused on protests at medical and abortion clinics, she has recently begun to examine funeral protest laws, not only because both the protests and the laws governing them are bound up in First Amendment issues but also, coincidentally, because the protests that spawned this legislative action took place in Westboro, Kansas, the state in which Wells grew up.

At these infamous protests, begun during the summer of 2005, congregation members from the Westboro Baptist Church assembled at the funerals of soldiers killed in Iraq. “They weren’t protesting the war,” Wells clarifies. “They were condemning the U.S. for ‘embracing a gay lifestyle’ and saying things to the effect of ‘your son or daughter was killed because America likes homosexuals’.” Understandably, people were deeply upset about these homophobic and hurtful remarks. Reacting to the ensuing public outrage, “like wild fire” twenty-six states and the federal government enacted laws that limited the timing and placement of demonstrations near cemeteries. However, challenges have begun to arise; in fact, lawsuits have already been filed in Missouri and Kentucky. Wells says she would be surprised if eventually one of these cases doesn’t make it to the Supreme Court: “This raises really significant questions about whether they’re going to survive under existing freedom of speech principles…and is going to pose a question for protest law that extends beyond anything the court has dealt with so far.”

In another area of her research, Wells has brought an interdisciplinary approach to bear upon an understanding of how people make decisions in times of crisis, in particular how fear and prejudice can skew one’s decision-making. As she explains, “these psychological principles help explain how government actors can fall prey to over-estimating risk based on fear, or how they can whip up fears to cause the public to over-estimate risk.” Wells presents several well-known cases to illustrate the dangers that have resulted from such decision-making. For example, during World War I U.S. citizens “were prosecuted simply for criticizing the war,” and the Wilson administration convinced the public that German saboteurs and spies proliferated throughout the country. “Deliberately linking radical labor organizations with this foreign threat,” the administration sought to drum up support for the war as well as to break apart the unions.

The internment of American citizens of Japanese descent during World War II provides another reminder of how government officials overplayed the threat to national security, getting the public to support the mass incarceration of over 110,000 individuals (more than half of them children). And many people have pointed to the rhetoric of the current Bush administration, accusing it of drumming up fear of foreign threats to similarly manipulate the public. “What often happens,” Wells explains, “is a linkage between a foreign threat and something that may happen domestically…. That fear of something foreign often causes Americans to give a lot of deference to whatever the executive is saying.” History has shown that this engendered fear and prejudice, when combined with a lack of accountability, often lead to poor decision-making.

Accountability, as it turns out, is also a psychological principle--holding that people who aren’t called to defend and explain their actions are at risk of making bad decisions. Consider the current debates percolating in the realm of constitutional law in regard to the “war on terrorism” and civil liberties problems arising from it. Wells points out that executive officials “fall prey to the same sorts of biases.” In response to this tendency, she argues that “we need to take into account the role that fear and prejudice often play in decision-making and argue for stronger judicial review of those actions that often infringe upon civil liberties.” She suggests that the best way to improve the government’s decision-making, and to avoid some of the mistakes of the past, “is to be sure that somebody makes executive officials explain their behavior and account for it.” The judicial courts, according to Wells, would appear to be in the best position to hold executive officials responsible for their decisions, at least when civil liberties are involved.

Along similar lines, another aspect of Wells’ research suggests that the current Bush administration has overused a national security rationale that has resulted in excessive secrecy. The state secrecy privilege, along with the assertion of executive privilege, has been invoked more by the current Bush administration than ever before. “Secrecy is really a dangerous thing,” she cautions. “It is clearly necessary at times, but secrecy is used so broadly right now to keep people in the dark about so many things, and in the past it has proven to be so dangerous and damaging.” Such excessive secrecy causes worry, because “you can’t effectively govern or speak about what the government is doing if you don’t have access to the information,” and without input from advisors and the public there are no longer checks and balances.

And there are further implications: “Now the Bush administration is moving toward prosecuting reporters [under the Espionage Act] for revealing information, which has never been done before. That’s a road we really don’t want to go down…to see reporters prosecuted for revealing classified information when so much of that information is wrongly classified in the first place. So you’re in this ugly tug-of-war,” she says, “with the system being badly abused by the government. It really needs to stop.”

Wells enjoys thinking about these difficult and controversial constitutional issues. As she puts it, “sometimes the law is absolutely clear and every scholar will agree, but usually you’ll find some disagreement about the answer to it. That’s the good thing about hard cases – they involve a public discussion and some sort of public resolution…. That’s what I see as the great thing about the First Amendment--that you are allowed to talk about these things.”