Speaking truth to power? Civil liberties debates and the language of law review articles during the post-9/11 period

Abstract

Few researchers have analyzed post-9/11 alterations in the opinions or discourse of the legal community, despite this community's influence on public opinion and legal policy. In fact, to date, no source of data exists capturing the opinions of this community across the post-9/11 period. However, their writings in law review articles provide one source of longitudinal data regarding the issues and concerns that were salient to this influential community during the years of the post-9/11 era. A content analysis of law review articles is performed to examine meaningful shifts in the expert discourse related to civil liberties issues pre- and post-9/11 and across the post-9/11 period. The analysis – the first of its kind – demonstrates significant alterations over the post-9/11 period, including greatly intensified efforts at providing policy leadership. The analysis also reveals the year 2006 as a key turning point in legal scholarship, after which these articles adopted a highly aggressive, confrontational, and non-deferential tone. These findings are important because they inform scholarly debates regarding the role of elites in maintaining expansive civil liberties protections following terrorist attacks.

Keywords:

• terrorism
• law review
• content analysis
• civil liberties
• lawyers
• deference

Acknowledgements

The author would like to thank Drs. Clyde Wilcox, Douglas Reed, and James Lengle and the editors and anonymous reviewers for their advice and guidance throughout the course of this research and in preparing this article.

Notes

A LexisNexis keyword search for articles containing the terms “civil liberties” (at least five occurrences) and “terror” (at least one occurrence) was used in order to identify a list of possible articles for inclusion in the database. The author then reviewed at least the title and opening content of each article to ensure that the article contained substantive coverage of a post-9/11 civil liberties question. Once a list of potential articles was created, the author selected a random sample from the list.

A LexisNexis keyword search for articles containing the term “civil liberties” (at least five occurrences) was used in order to identify a list of possible articles for inclusion in the pre-9/11 database. The author began with the year 2001 (pre-9/11) and then repeated this procedure for the years 1995 through 2000. Once a master list of possible articles was created, the author reviewed at least the opening content of each article to ensure that the article contained substantial coverage of a topic related to civil liberties. Following this process, the author then selected a random sample of articles from this list for inclusion in the pre-9/11 database.

All DICTION variable definitions are discussed in further detail in the discussion section and also in Hart (2000).

The threat dictionary includes terms (and all of their derivations) referring to: threat, danger, risk, hazard, peril, warnings, caution, vigilance, alerts, alertness, preparedness, attention, awareness, watchfulness, disaster, calamity, catastrophe, anxiety, nerves, trouble, worry, trepidation hesitation, dread, apprehension, shock, disgust, horror, foreboding, scares, fright, alarm, panic, fear, concern, intimidation, bullying, terror, evil, menace, jeopardy, chance, lack of safety, exposure, security, risk, treachery, vulnerability, insecurity, radicalism, fanaticism, extremism, militancy, uncertainty, lack of protection, defenselessness, vulnerability, exposure, death, demise, fatality, casualty, pain, injury, damage, hurt, harm, zeal.

Levene's test of sphericity was significant. Since these analyses considered law review articles across the years of the post-9/11 period, it is not surprising that knowledge of 1 year would influence expected results during each successive year. As a result, all significance levels and degrees of freedom reported are adjusted to account for this sphericity.

This media analysis demonstrated significant differences between the coverage of threat found in the broadcast sample as compared with the print sample. Detailed discussion of these differences may be found in Merola (2011).