The War on Free Expression
Wednesday May 9th, 2007, by
In a post-9/11 climate, the right of free expression
is under attack and endangered in the age of George
Bush when dissent may be called a threat to national
security, terrorism, or treason. But losing that most
precious of all rights means losing our freedom that
18th century French philosopher Voltaire spoke in
defense of saying "I may disapprove of what you say,
but I will defend to the death your right to say it."
Using it to express dissent is what noted historian
Howard Zinn calls "the highest form of patriotism"
exercising our constitutional right to freedom of
speech, the press, to assemble, to protest publicly,
and associate as we choose for any reason within the
law.
Even then, there are times more forceful action is
needed, and Thomas Jefferson explained under what
circumstances in the Declaration of Independence he
authored. When bad government destroys our freedoms,
we the people have the right and duty to disobey
civilly and resist. Henry David Thoreau called it
"Civil Obedience" in 1849, and men like Gandhi and
Martin Luther King practiced it successfully 100 years
later. That’s our challenge today at a time our
constitutional rights are more compromised and
threatened than at any previous time in our history.
Resistance is the antidote to restoring them, and
freedom-loving people have a duty and obligation to do
it.
That’s what democracy is all about and what our
Founders had in mind when they crafted what they
called "the great (democratic) experiment" that became
our Constitution and Bill of Rights, imperfect as they
are with omissions and ambiguities. In words first
written by Thomas Jefferson, they "declared their
independence" in 1776 from the British king who ruled
the colonies with "repeated injuries and usurpations
(by his) absolute Tyranny" using language considered
audacious then or now:
"We hold these truths to be self-evident, that all men
are created equal (and) endowed....with certain
unalienable Rights, that among these are Life, Liberty
and the Pursuit of Happiness. - That to secure these
rights, Governments are instituted among Men, deriving
their powers from the consent of the governed, - That
whenever any Form of Government becomes destructive of
these ends, it is the Right of the People to alter or
to abolish it, and to institute new Government....to
effect their Safety and Happiness." Try doing that
today, and it’s called treason, a capital offense.
Jefferson, Madison, Franklin and others thought
otherwise saying we must act in our own defense when
government won’t do it for us.
Their "experiment" was glorious, even flawed, and
never before tried in the West in any form since its
few decades of existence in ancient Athens under its
system of "demokratia" or rule by the entire body of
Athenian citizens - or at least the non-slave adult
white male portion of it meaning a selective democracy
for an elite minority excluding all others the way
it’s always been here. It began in 1776 with our
Declaration of Independence followed by our
Constitution ratified in 1789 and Bill of Rights in
1791. This extraordinary document’s Preamble said
what our country’s liberties are in 52 historic words
even though the language belied the reality:
"WE, THE PEOPLE of the United States, in Order to form
a more perfect Union, establish Justice, insure
domestic Tranquillity, provide for the common defense,
promote the general Welfare, and secure the Blessings
of Liberty to ourselves and our Posterity, do ordain
and establish this Constitution for the United States
of America." And so it was with all its flaws in a
nation beholden to privileged white male property
owners, doing little for others including women,
nothing for black slaves who were property, and even
less for "original Americans" exterminated to make way
for "newer ones." We called it democracy Winston
Churchill once said was the "worst form of government
except for all those others that have been tried."
Today it’s also called "Western civilization" Gandhi
thought "would be a good idea" when asked what he
thought about it.
At best, our form of it is a flawed, unfinished
project. At worst, it’s heading in reverse at a time
of our single-minded pursuit of empire in an age of:
— Predatory capitalism and corporate dominance,
incompatible with democracy;
— Sparta-like iron-fisted militarism and all its
fallout: mass killing and destruction, occupation,
torture and overall inhuman barbarism;
— The most secretive, intrusive, repressive and
lawless government in our history;
— An unprecedented wealth disparity former US Supreme
Court Justice Louis Brandeis once warned about saying:
"We can either have democracy in this country or we
can have great wealth concentrated in the hands of a
few, but we can’t have both;"
— The rollback of civil liberties and essential human
rights and needs;
— A contempt for the rule of law;
— A deepening social decay;
— The absence of checks and balances and separation
of powers and a president usurping "unitary executive"
powers to claim the law is what he says it is; and
— The loss of our constitutional freedoms heading the
nation toward tyranny and ruin unless reversed.
More than ever, the right to freely express dissent is
crucial to surviving. Lose it, as is happening, and
lose everything.
The Constitution’s First Amendment explicitly bestows
that right no government can lawfully remove, but this
one’s doing it anyway. It states: "Congress shall make
no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition
the Government for a redress of grievances." No other
nation in history ever granted more of these freedoms,
and few, if any, matched them in law or practice.
Nonetheless, there were numerous examples of abusive
earlier laws violating various constitutionally
guaranteed rights including that of free expression.
The Sedition Act of 1798 (with the ink barely dry on
the Bill of Rights) did it making it a crime to
publish "false, scandalous, and malicious writing"
against the president (John Adams) or Congress but
allowed it against the vice-president and Adams rival
(Thomas Jefferson). It thus illegally banned dissent
the Constitution allows.
During WW I, the Espionage Act was passed (under
Democrat Woodrow Wilson) in 1917 imposing a maximum 20
year sentence for anyone causing "insubordination,
disloyalty, mutiny, or (encouraging) refusal of duty
in the military or naval forces of the United States."
It was aimed at First Amendment speech protesting the
war and US participation in it everyone lawfully has
the right to do. The Sedition Act in 1918 went
further criminalizing "disloyal, scurrilous (or)
abusive" anti-government speech. Shamefully, the
Supreme Court upheld the Espionage Act, most notably
in (Eugene) Debs (five time socialist presidential
candidate) v. United States resulting in his serving
prison time for speaking out against militarism and
the US entry into WW I.
Other High Court Rulings Affirming or Infringing on
First Amendment Rights
— On war protests when the Warren Court in 1968
disallowed draft card burning claiming it would
disrupt the "smooth and efficient functioning" of the
draft system. But in 1969 the Court said students had
free speech rights and could wear black arm bands
protesting the Vietnam war. And it ruled for KKK
leader Brandenburg against Ohio in 1969 holding that
government cannot punish inflammatory speech unless it
directly incites lawless action. Then in 1971, the
Court upheld Cohen against California ruling
four-letter word anti-war profanity was permissible on
a jacket in Los Angeles country courthouse corridors.
Don’t try it in the halls of Congress.
— On flag burning in 1989 in Texas v. Johnson when
Justice William Brennan, writing for the majority,
said "if there is a bedrock principle underlying the
First Amendment, it is that government may not
prohibit the expression of an idea simply because
society finds the idea offensive or disagreeable," and
that includes the right to protest by burning the flag
in public.
— On obscenity where Courts ruled against
pornographic speech especially to protect children
from it but held no government can prohibit its
possession in the home.
— On slander and libel impermissible in cases of
intentional instances of "actual malice" or speech
provably false, but acceptable for opinions which
cannot be held legally defamatory.
— On political speech in the famous Buckley v. Valeo
1976 ruling when the High Court held that limits on
campaign contributions "serve the basic governmental
interest in safeguarding the integrity of the
electoral process without directly impinging upon the
rights of individual citizens and candidates to engage
in political debate and discussion." However, the
Court found expenditure limits imposed "substantial
restraints on the quantity of political speech." The
Court also ruled in 2003 upholding provisions barring
the raising of "soft money" contributions to a
political party, not a candidate.
Now the High Court is considering arguments on that
restriction in the five year old McCain-Feingold
campaign finance law and may soon rule to weaken it.
At issue is a provision barring corporations and
unions from funding campaign ads 60 days before an
election and 30 days before a primary naming a
candidate for federal office. In their 5 - 4
December, 2003 decision, the court upheld the
provision, but its new majority may rule otherwise
inviting a tsunami of paid political speech as the
2008 federal elections heat up.
— On press freedom with High Courts ruling for and
against the media on matters of taxes and content
issues involving political speech, religious speech,
"criminal syndicalism," defamation, obscenity,
personal injury, hate or other offensive speech, and
other constitutional issues affecting press freedom.
Various High Courts have had differing notions of free
speech and press rights with some like the current
hard right sitting one unlikely to be shy ruling
they’re not what the Constitution says they are.
The Post 9/11 Climate of Fear and Attack on Dissent
Thomas Jefferson said "What country can preserve its
liberties if their rulers are not warned from time to
time that their people preserve the spirit of
resistance." He also said free speech "cannot be
limited without being lost." Former US Supreme Court
Justice Thurgood Marshall added "Above all else, the
First Amendment means that government has no power to
restrict expression (regardless of its)
ideas...subject matter (or) content....Our people are
guaranteed the right to express any thought, free from
government censorship."
Former Bush White House spokesperson Ari Fleicher’s
response was: "There are reminders to all Americans
that they need to watch what they say (and) watch what
they do...." implying those who don’t at best are
unpatriotic and at worst are terrorists or sympathetic
to them meaning you’ll be targeted for prosecution.
Indeed they will and have been, with a vengeance, with
lots of help from the dominant media, the courts and
even academia, one of the latest examples being
Catholic liberal arts Emmanuel College adjunct
professor Nicholas Winset April 23. He lost his
academic freedom and job when the Massachusetts-based
college fired him by letter ordering him to stay off
campus for holding a five minute classroom
demonstration on the Virginia Tech mid-April shootings
school officials deemed inappropriate even though
students hearing it felt otherwise and seemed
supportive.
Though now unemployed, Professor Winset is a free man.
Other academics like former South Florida University
(USF) Professor Sami Al-Arian are not. He was
arrested, indicted, exonerated in court but remains
imprisoned under harsh conditions in isolation
reserved for dangerous hardened criminals because of
his courageous and effective public advocacy for human
and civil rights and liberation for his Palestinian
people long oppressed for six decades
(http://sjlendman.blogspot.com/2007/...).
Dr. Rafil Dhafir’s fate was the same for his "Crime of
Compassion" (see dhafirtrial.net, Katherine Hughes).
He, too, was arrested, indicted, tried, convicted and
is now imprisoned for violating the Iraqi Sanctions
Regulations (IEEPA) and 58 other trumped up charges
including his public stance against gross injustice
and for using his own funds and what he could raise
through his Help the Needy charity to bring
desperately needed essential to life humanitarian aid
to Iraqi people the Clinton and Bush administrations
disgracefully wished to deny them.
The (Professor) Ward Churchill Solidarity Network web
site defends the academic freedom and right of free
expression for one of the nation’s most courageous
advocates of those rights and much more for his own
Native Indian peoples and all others. Churchill was
viciously and unjustifiably attacked for his essay
analyzing the 9/11 attacks he later included in his
important 2003 book On the Justice of Roosting
Chickens. It detailed the stunning history of US
military interventions since 1776 at home and abroad,
the fact that this nation has been at war every year
since inception (without exception) to the present day
with one or more adversaries as well as our post-WW II
obstruction, subversion and violation of
constitutional and international law proving this
country is and always was arrogant and lawless.
For his public stance on this and other injustices,
Churchill receives a steady stream of death threats,
and his home has been vandalized. He’s also been
viciously vilified in the corporate media and by
University of Colorado (CU) officials (taking orders
from the state’s governor) who announced June 26, 2006
Churchill would be fired even though he’s a
distinguished award-winning tenured professor of
ethnic studies guilty of no misconduct. His case
continues so far unresolved while he remains suspended
on pay from academic duties but backed in his struggle
by CU students, noted academic members of "teachers
for a democratic society," and many other supporters
speaking out publicly in his behalf.
Another noted academic is also under attack and may be
denied his well-deserved tenure because of his
courageous writing and outspokenness. He’s political
science Professor and Israeli-Palestinian history and
conflict expert Norman Finkelstein of DePaul
University in Chicago. As a prominent public figure,
he became a target of the hard right in the age of
George Bush, but it was that way earlier for him as
well. Finkelstein completed his doctoral dissertation
at Princeton in 1988 on the theory of Zionism also
exposing Joan Peters’ "colossal hoax" in her 1984 best
seller From Time Immemorial in which she falsely
claimed Palestine was uninhabited when the Jews
arrived. Ever since, Finkelstein’s been practically
radioactive for supporting the Palestinians’ struggle
for freedom and justice after decades of Israeli
oppression and occupation.
Finkelstein is a major scholar known worldwide and a
highly regarded DePaul academic evaluated by his
students as "truly outstanding, and among the most
impressive" of all university political science
professors. That’s why his Department of Political
Science recommended he be granted tenure when it said
of him his academic record "exceeds our department’s
stated standards for scholarly production (and)
department and outside experts we consulted recognize
the intellectual merits of his work." Nonetheless,
Finkelstein is being attacked and vilified by DePaul
officials making his tenure struggle a much greater
issue. It’s for his academic freedom right to dissent
publicly and in his writings and for his
constitutional right of free expression no one should
be denied use of even when exercised on the most
sensitive of all political issues most public figures
won’t touch - criticizing Israeli policies openly,
harshly and deservedly. For that he should be
praised.
Instead, Finkelstein is assailed and denounced. He’s
called a self-hating Jew, an anti-semite, a Holocaust-
denier and more. Unmentioned is that his now departed
parents survived the Warsaw ghetto and years in
concentration camps including time at Auschwitz, and
that he lost all other family members on both sides at
the hands of the Nazis who exterminated them.
Nonetheless, university officials want to deny him
tenure even though two campus committees voted he be
granted it. For now, the issue is very much in play
with his Department of Political Science and College
Personnel Committee supporting him and administration
officials opposed including College of Liberal Arts
and Sciences Dean Chuck Suchar who incredibly wants
Finkelstein judged according to Vincentian," or
religious, values, not on his merits as a teacher and
scholar. What he’s saying, of course, is that faculty
members expressing views other than ones DePaul
considers acceptable will be punished for them.
Like his CU counterpart, Ward Churchill, Finkelstein’s
struggle continues unresolved thus far with DePaul
students, academics around the world and others
expressing their support through the Norman G.
Finkelstein Solidarity Campaign gathering signatures
on his behalf and on a letter sent to the school’s
administration. It says "Dean Suchar’s letter sets a
dangerous precedent, and also sends the signal that
arts and sciences are now endangered at DePaul
University and in the American academy in general"
where free expression and dissent no longer will be
tolerated.
The Corporate-Controlled Media’s Assault on Free
Expression
The dominant major media have always functioned to
achieve what noted Australian academic, author and
psychologist Alex Carey called "taking the risk out of
democracy" to "protect corporate power against
democracy" by acting as national thought-control
police gatekeepers controlling what information
reaches the public and what’s suppressed. It’s worse
than ever now resulting from virtually uninterrupted
media consolidation with friendly Democrat and
Republican administrations allowing five giant global
media cartels today to control most newspapers,
magazines, radio, television, book publishing, and
films. Other than the internet, they hold a
stranglehold over the kinds of news, information,
entertainment and other programming and material most
people get from which they form their views of the
nation’s state, its government, and the world.
The media giants supplying it are master manipulators.
They make sure the public gets their one-sided
corporate/state-friendly views in their role as
government/business partners instead of their
watchdogs. It’s called censorship, the willful
suppression of free expression, ideas and thought in
an age of sophisticated mind control "manufactur(ing)
of consent" (see Manufacturing Consent - Edward S.
Herman and Noam Chomsky) in a democracy where it can’t
be done by force. It’s an effort to program the
public mind to go along with whatever agenda best
serves wealth and power by effectively suppressing
dissent against it.
The work of three noted print journalists are
prominent cases in point, but shamefully what’s true
for them applies across all the entire dominant media
landscape that ranges from pathetic to appalling. One
example is Washington Post columnist and so-called
dean of the Washington press corps and political
"pundits" at age 77, David Broder. In many ways he’s
the worst of a bad lot because of his ill-deserved
image as a man of integrity, decency, honor and
perceived wisdom. It hides his dark side unprincipled
support for the rogue administration in power and his
willingness to cover for it and suppress its
indisputable record of lawlessness and contempt for
ordinary people everywhere.
Since George Bush took office in 2001, Broder has been
out in front characterizing him as a strong, decisive,
effective, and principled leader protecting the nation
against threats to our national security including
waging just wars for it. His harshest comments are
reserved for Bush critics he attacks maliciously like
calling Senate Majority Leader Harry Reid a "loose
cannon" and "an embarrassment" for daring to say Iraq
is a lost war even though anyone with common sense
knows it is including high present and former
Washington officials unwilling to deny what Broder
does.
Broder is an "award-winning" journalist. It’s long
past time he took his ill-deserved trophies and ended
his morally corrupt and intellectually dishonest
lifetime career of misreporting at the Washington Post
where he’s done it for the past 40 years.
The New York Times never met a Republican president or
US-instigated war of aggression it didn’t love, fully
support and be willing to give plenty of front page
space to journalists like Judith Miller assigned to
wave the flag and lead the journalistic charge.
Miller had the dubious honor leading up to the Iraq
war in 2003 and held it until she was forced to resign
in disgrace in late 2005 ending her controversial 28
year career at the Times but not her presence in the
corporate media where she’s welcomed on the editorial
pages of the Wall Street Journal never shy to publish
material extremist enough at times to make a Nazi
blush.
Miller is picking up there where she left off in shame
across town with her latest near-full page "When
Activists Are Terrorists" piece defending New York
police Gestapo thuggery against anti-war protesters.
Removed from leading the charge to wars of aggression,
Miller’s now out in front supporting police brutality
and illegal political spying against people exercising
their First Amendment right to protest publicly she
can’t tolerate so she’s taking aim against them in a
venue always friendly to her kind of extremist views.
With Miller gone, the New York Times continues its
pro-war stance with military correspondent Michael
Gordon, and former Miller co-conspirator, now putting
out regular propaganda like they both once did
together and Gordon always was comfortable doing
alone. Michael Munk in an online February 11, 2007
After Downing Street.org article calls him "The Ghost
of Judith Miller" citing one example of his reported
"evidence" that Iran is supplying Iraq resistance
fighters with "more effective IEDs" without a shred of
evidence to prove it because there is none. The New
York Times shamelessly ran Gordon’s preposterous piece
February 10 (and all his others prominently) titled
"Deadliest Bomb in Iraq is Made by Iran (and) Used
Against US Troops" citing anonymous sources only to
back up his unsupportable claim.
Like Miller, Gordon excels in state and corporate
supportive Times-speak suppressing the free and open
kind his readers want but never get from him. Most
often he cites as sources unnamed "American
intelligence (or) Western officials (or those old
faithfuls) high administration (or) Pentagon
officials" while almost never quoting others with
contrary views debunking his and theirs. Gordon, like
Miller, is important because he writes lead stories on
what media critic Norman Solomon calls the most
valuable print real estate in the country - the front
pages of the New York Times that are read by
government and business leaders and opinion-makers
everywhere. He’s also the same Michael Gordon who
wrote the false and discredited story on Saddam’s
aluminum tubes. He now continues putting out regular
falsified reports on the Times front pages as an agent
of the state he and his employer serve.
One of his latest efforts is titled "General Says Iraq
Pullback Would Increase Violence." In it he parrots
Iraq military commander General David Petraeus’
administration-friendly line that reducing US forces
would increase "sectarian violence" and increase
internal instability caused, in fact, by the military
occupation the general’s in charge of running.
Without a US presence, the generalissimo says, "It can
get much, much worse (and) right now (with the troop
surge) it’s a good bit better" claiming "sectarian"
killings declined two-thirds since January while
ignoring how out-of-control things really are and the
reverse of how he and Gordon portray them.
Gordon also goes along with Petraeus’ assessment that
"The new hydrocarbon law is of enormous importance,"
ignoring how it’s structured to suck out Iraq’s
enormous oil wealth transferring most of it to Big
(US) Oil from Iraqis who own it. Finally, comes the
key part of the article with Gordon trumpeting the
general’s unsubstantiated claim of continued
(unrevealed) evidence showing Iran is providing Shiite
"militants" military and other support. Citing
computer documents supposedly seized in a March
Karbala raid, Petraeus claims "There are numerous
documents which detailed a number of different attacks
on coalition forces, and our sense is these records
were kept so they could be handed in to whoever it is
who is financing them" - pointing his finger directly
at Iran from his previous comments with Gordon
obligingly implying the same view on the Times front
page.
Along with falsifying news, the Times also excels in
suppressing it as willing Pentagon partners going
along with Department of Defense (DOD) rules on
reporting on Iraq. An absurd one on its face states:
"Names, video, identifiable written/oral descriptions
or identifiable photographs of wounded service members
will not be released without service member’s ’prior’
written consent." Of course, the Times and rest of
the dominant media rarely ever do what this DOD
regulation forbids so, rule or no rule, the Bush
administration’s happy-face-of-war is preserved to
suppress its true ugly hidden one.
One other recent example of intimidation and
censorship also deserves mention. It’s a story
reported April 27 by AP, the Chicago Tribune and
elsewhere that a straight ’A’ Chicago area Cary-Grove
High School senior of Chinese ethnicity, with no
history of disciplinary problems or trouble with the
law, was arrested on charges of disorderly conduct for
comments he made in an assigned creative-writing
classroom essay. Students were told to "write
whatever comes to your mind. Do not judge or censor
what you are writing" and apparently were also told to
exaggerate. Lee followed instructions, made comments
his teacher thought were violent, and she reported it
resulting in his arrest and removal to an off-campus
learning program.
This is a small incident, likely to be easily
resolved, about one student in one school. Yet it
signifies a state-induced climate of fear and
intimidation heightened by TV transmitted color-coded
terror alerts, daily reports of permanent war,
imagined enemies stalking us everywhere, and events
like the over-reported and hyped Virginia Tech
shootings making it worse. Now even freely expressed
creative classroom speech is threatened with
suppression and punishment unless it conforms to
acceptable school content norms, whatever they are.
In the age of George Bush, it’s another reminder of
former press secretary Ari Fleischer’s warning that
Americans (even teenage straight ’A’ high school
students) "need to watch what they say," or else.
Organizations in the Lead for Free Expression
The National Coalition Against Censorship (NCAC) was
founded in 1974 to support our constitutional right of
free expression and defend against the dangers of
censorship. It’s an "alliance of 50 national
non-profit organizations, including literary,
artistic, religious, educational, professional, labor
and civil liberties groups" united for that common
purpose and to promote an open marketplace of ideas
and thought.
It does it through local and national grassroots
organizing and activism on:
— free speech issues;
— educational activities;
— conferences and public meetings;
— publications like its quarterly Censorship News
reaching 25,000 readers;
— providing help, advice, and information to
individuals, organizations and community groups around
the country;
— monitoring and interpreting litigation and
legislation on First Amendment issues;
— and aiding "thousands of artists, authors,
teachers, students, librarians, readers, museum-goers
and others around the country opposing censorship" on
issues ranging from:
— politics and political correctness
— the media and internet
— academic freedom
— race and ethnicity
— religion
— culture
— the arts and entertainment
— sex education and orientation
— class
— science
— obscenity, and more.
NCAC rejects all barriers in a pluralistic society on
any material no matter how controversial or abhorrent
to some. That’s what the free interchange of speech,
ideas and thought are all about in a democratic
society that can’t be one without upholding that
freedom. Today, supporting and telling the truth is
what Orwell called "a revolutionary act" in times of
"universal deceit" now plaguing us. It’s why
organizations like NCAC are important defenders of our
constitutionally protected free speech rights as well
as being bulwarks against the forces effectively
denying them to us.
The Thomas Jefferson Center for the Protection of Free
Expression is in this fight as well to defend "free
expression in all its forms (as) concerned with the
musician as with the mass media, with the painter as
with the publisher, and as much with the sculptor as
the editor." The Center was established in 1990 and
is based near Jefferson’s home in Charlottesville, VA,
also near the University of Virginia he founded in
1819 is and with which it has close ties. Its mission
ranges over a wide range of programs in education, the
arts, and in judicial and legislative matters
involving all forms of free expression. Each year
around Jefferson’s April 13 birthday, "Jefferson
Muzzles" are awarded to individuals or organizations
committing especially outrageous affronts to free
expression. Annual William J. Brennan, Jr. Awards
(honoring the former High Court Justice) are also
given to individuals or groups showing special
commitment to free expression issues and values in the
spirit of the former Justice.
The Free Expression Network (FEN) is another
organization, among many others, in the struggle for
free and open expression. It’s an NCAC financially
sponsored "alliance of organizations dedicated to
protecting the First Amendment right of free
expression and the values it represents, and to
opposing governmental efforts to suppress
constitutionally protected speech." It does it
through its Free Expression Network Clearinghouse web
site as well as maintaining a listserv for private
communications among its members who also meet
quarterly with invited guests to share information and
strategies. Its many member organizations include the
Thomas Jefferson Center, People for the American Way,
ACLU, American Society of Newspaper Editors, Brennan
Center for Justice at NYU School of Law, The Center
for Media Education, Feminists for Free Expression,
and First Amendment Center.
Post-9/11 Constitutional Violations to Our First
Amendment Rights
Organizations like NCAC, the Jefferson Center, FEN and
others courageously defend our First Amendment rights
especially under attack post-September 11, 2001. Six
weeks later, the USA Patriot Act began assaulting
those rights (and Fourth, Fifth, Sixth and Eighth
Amendment ones too) all of which were well eroded
already.
Most disturbing in the law is Section 215 under which
federal investigators may seek a search warrant
relating to an ongoing terrorism or intelligence
investigation without meeting probable cause standards
for it. It can then be used for intrusive
unconstitutional searches without our knowledge for
"any tangible things" about our speech-related
activities in libraries, bookstores, banks and other
repositories of our financial records, places of
worship, medical provider records, internet use
records, floppy disks, computer hard drives and other
documents or places with records or information on our
speech-related activities.
Section 505 of the Patriot Act is about as intrusive
as Section 215 as it authorizes administrative
subpoena targeting of bank and other financial
records, credit reports, telephone and e-mail logs and
more by use of a National Security Letter (NSL).
Again, no probable cause standard is needed, and those
receiving NSLs are gagged from disclosing its issuance
so those targeted never know. Unlike Section 215,
however, NSLs require no judicial oversight, only that
they relate, without corroborating evidence, to an
ongoing terrorism investigation on federal
investigators’ say alone.
A scant two decades longer than Orwell imagined, high
tech surveillance makes it possible for modern-day
thought control police to watch and know our
activities, control our lives, and, if they wish, make
us believe and accept as true "War is Peace, Freedom
is Slavery, (and) Ignorance is Strength" under an
omnipotent state using its will to subvert ours.
Where there’s a "signing statement," there’s a way to
do it on top of complicit congressional pre and
post-9/11 legislation passed to make it simple enough
already.
George Bush is a serial abuser of the presidential
practice of attaching "signing statements" to laws
passed although nothing in the Constitution allows it.
He’s done it around 800 times, more than all past
presidents combined, using his usurped "Unitary
Executive" power to claim the law is what he says it
is. He issued one "statement" shortly after 9/11
authorizing the National Security Agency (NSA) to
eavesdrop, for the first time ever, without legally
required Foreign Intelligence Surveillance Act (FISA)
court warrants on international phone and e-mail
communications originating from or received within the
US.
Then following the passage of the Postal
Accountability Enhancement Act of 2006, he issued
another "signing statement" giving himself broad
authority to order opening US citizens’ mail without a
warrant. In so doing, he violated US law and
regulations including FISA permitting warrantless
surveillance only for foreign intelligence collection
between "foreign powers" for up to one year. With a
warrant, FISA courts nearly always approve requests
allowing surveillance and physical searches of US
citizens’ "premises, information, material, or
property used exclusively by" a foreign power or by an
individual thought to be an "agent of a foreign
power."
Never satisfied, the Bush administration now wants
expanded warrantless spying authority within and
outside the country requesting Congress amend the FISA
law legalizing what it’s already doing anyway, law or
no law. On May 2, director of national intelligence,
Mike McConnell, testified before the Senate
Intelligence Committee claiming the president may
legally authorize warrantless surveillance (under the
Constitution’s Article II making him
commander-in-chief) but wants FISA amended so it can
do it without challenge it’ll ignore anyway. It also
wants to fix and modernize what McConnell calls
"communication gaps" in intelligence gathering
including "monitoring" the internet, cell phones and
other new technology as well as "transit traffic"
international phone calls and emails.
Amendments requested would further erode laws
protecting against illegal searches and seizures and
our First Amendment rights connected to them. They
would also allow surveillance of any non-citizens in
the country "reasonably expected to possess, control,
transmit, or receive foreign intelligence information
while such a person is in the United States," even if
they’re not a target of an investigation. In addition
the administration wants legal cover to spy on anyone
it claims engages in activities related to buying or
developing WMDs, even with no evidence to prove it.
Bottom line: the Bush administration wants Congress to
give it near limitless authority to spy on anyone in
any way in the name of national security, and sadly,
rhetoric aside, this complicit Congress will likely
give in, further eroding what little freedom we still
have.
Post-9-11, other unconstitutional speech-related
monitoring began as well including John Ashcroft’s
short-lived Terrorism Information and Prevention
System (Operation TIPS). The idea was to use civilian
informers like postal employees to report "unusual"
neighborhood activities, police-state style. The
scheme flopped when the postal service refused to be
spies. Then there was the Pentagon’s Total
Information Awareness (TIA) renamed Terrorism
Information Awareness to monitor anything about anyone
under the spurious cover of it relating to
"terrorism." TIA came under considerable
congressional flack but some or all its activities
continue under new names relating to other Pentagon
projects and initiatives so illegal military spying
continues unabated.
One program is called the Threat and Local Observation
Notice (TALON) to conduct domestic intelligence by
amassing a huge data base, again spuriously related to
"terrorism." It focuses on war protesters targeted by
police state monitoring of their constitutional right
to freely oppose the nation’s illegal wars of
aggression, meaning in Pentagon-think they’re threats
to national security in the age of George Bush. Now
the Pentagon has second thoughts after drawing flack
for its illegal intrusions against peace activists.
Under secretary of defense, James Clapper, announced
through his spokesperson in late April TALON’s results
have been disappointing and doesn’t "merit (being)
continued (as) the program (is) currently
constituted...in the light of its image in Congress
and the media."
What he’s likely saying is TALON’s activities will be
rebranded and continued, the same way all improperly
intrusive domestic spying activities drawing flack are
carried out in impressive Orwellian style. What he’s
not saying is all Pentagon domestic
spying/surveillance programs violate the Posse
Comitatus Act’s prohibitions against them. However,
last year’s Public Law 109-364 (HR 5122 - Defense
Authorization Act) revised the 1807 Insurrection Act
and 1878 Posse Comitatus allowing the president
illegal authority to give the military free reign on
claims of a public emergency or that old standby
"national security" in the "war on terror." That
includes monitoring freely expressed speech and
cracking down on it if so ordered.
Scott Horton reports on another Bush administration
assault on free expression in his April Harper’s
magazine article titled "The Plot Against the First
Amendment." In it he notes an important case going to
trial in June in Northern Virginia "that will mark a
first step in a plan to silence press coverage of
(whatever the administration calls) essential national
security issues." It would ban exposing policies like
secret renditioning captives to torture-prisons to be
held without charge, brutalized, denied due process,
tried in military tribunals, and disposed of as the
administration wishes. The scheme to pull this off is
the work of disgraced Attorney General Alberto
Gonzales and his deputy Paul J. McNulty, the central
figures in a "growing scandal over the politicization
of the prosecution process."
Inspiring Gonzales’ scheme is Britain’s Official
Secrets Act, the latest 1989 version of which is quite
detailed but is intended overall to protect against
revealing information the UK government claims relates
to "national security." The act makes it crime for
designated British subjects (in some cases all of
them) under its 16 sections to do whatever that
provision prohibits including disclosing what the
state wants kept secret. Gonzales’ interest is to
devise a scheme based on the UK model to keep print
publications and broadcasters from reporting
information Washington claims is secret and thus
criminal to disclose. In other words, the idea is to
silence the media when government wants it silenced,
as if it wasn’t already secretive enough, except when
it’s dutifully trumpeting state and corporate-friendly
propaganda, lies and distortion not good enough for
Gonzales wanting more restrictions.
Horton reports Gonzales sees this scheme "as a panacea
for his problems....Then you can torture and abuse
prisoners....without fear of political repercussions."
So they won’t have to "close down Guantanamo (just)
Close down the press." Horton explains further
Gonzales wanted to propose the idea in end-run fashion
with no official secrets language headlined he’d never
even get Republican allies to adopt out of fear alone.
So his idea was to "spin it out of whole cloth (by)
reconstru(ing) the (repressive) Espionage Act of 1917"
including in new legislation "the essence of the UK
Official Secrets Act and try getting this version
"ratified in the Bush administration’s ’vest pocket’
judicial districts (of) the Eastern District of
Virginia and the Fourth Circuit."
The sordid tale continues, but it’s coming to a head
in a June Northern Virginia trial the outcome of which
will indicate whether the administration can
criminalize legal acts of journalism on matters it
wants kept secret. If it can, Horton says what all
free press advocates would agree on. It would be a
"dream world for Karl Rove and Alberto Gonzales (and)
a nightmare for the rest of us."
In addition, this scheme and all other Bush
administration assaults on First Amendment freedoms
make a sham out of the president’s galling hypocrisy
May 3 on World Press Freedom Day. Agence
France-Presse (AFP) reported he denounced (with
effrontery) a host of other countries for their lack
of press freedom including China, Cuba, Iran, Syria,
Russia, Belarus and Venezuela (all US targets for
daring to place their own sovereignty above ours)
saying "The United States values freedom of the press
as one of the most fundamental political rights and as
a necessary component of free societies" except
whenever the press anywhere dares criticize his wars
of aggression and other repressive, unjust and illegal
policies.
That’s the way things are by the rules of George
Bush’s Global War on Terror (GWOT) rebranded The Long
War about to undergo another rebranding because the
current name denotes the wrong message of endless wars
and occupation the public is tiring of. The name may
change, but the mission won’t so long as George Bush
remains president. According to him, opposition to
his wars gives aid and comfort to the nation’s enemies
that’s tantamount to treason. So is dissent and any
criticism of his agenda by his reasoning but not
according to the law of the land.
Article 3, Section 3 of the Constitution defines the
strict limits of what George Bush makes light of. It
states: "Treason against the United States, shall
consist only in levying War against them, or in
adhering to their enemies, giving them Aid and
Comfort. No person shall be convicted of treason
unless on the testimony of two witnesses to the same
overt act, or on confession in open court." Crimes of
treason include:
— armed insurrection or rebellion;
— mutiny or unlawfully taking over command of the US
government or military;
— sabotage including damaging or tampering with
national defense material;
— sedition intended to incite rebellion;
— subversion defined as free speech gone too far by
blatantly transmitting false information;
— Syndicalism that’s an act of organizing a political
party or group advocating the violent overthrow of the
government;
— Terrorism defined as the systematic use of violence
or threats of violence to intimidate or coerce the
government or whole societies by targeting innocent
noncombatants.
Speaking for the president, an unnamed White House
spokesman said in January, 2003 George Bush "considers
this nation to be at war, and, as such, considers any
opposition to his policies to be no less than an act
of treason" although he had no legal basis to say it,
and publicly expressed opposition to government
policies is not an act of treason as the Constitution
defines it above. Nonetheless, according to
Bush-think: "Either you are with us, or you are with
the terrorists," and by implication are guilty of
treason. According to Bush, if a US citizen or
foreign state "continues to harbor or support
terrorism (it) will be regarded by the United States
as a hostile power," meaning, justified or not, line
up behind George Bush, or else.
It’s a dangerous and frightening time in America today
as the nation hurtles toward tyranny, and our right to
speak out and protest continues being challenged and
undermined. That makes the battle for the last
frontier of press freedom crucial to preserving our
fragile democracy now somewhere between life support
and the crematorium.
The Last Frontier of Press Freedom and Crucial Battle
to Save It
If the telecom and cable giants prevail, lawmakers
will remove the few remaining regulatory barriers
remaining giving them full control over what they
already have most of plus one remaining free and open
public media space - the online world of internet
communication still able to produce material like this
article free from the censoring power of media giants
or government to prevent.
Jeff Chester, executive director of the Center for
Digital Democracy, says in his book, Digital Destiny,
the telecom and cable companies are lobbying
ferociously for "new national policies....to connect
everyone to what they call a ’superbroadband’ Internet
highway. (If they get their way), the companies vow
that the nation will benefit from advances in
healthcare, improvements in the quality of life for
senior citizens, and major boosts for jobs and the
economy." But to achieve this, government must get
out of the way and give the media giants free reign as
"Competition....will address any problem once handled
by law or regulation and also bring us the promised
digital cornucopia." It’s hard believing any sane
person would buy this argument, but who said lawmakers
invoke reason or the public interest when huge
campaign contributions are the mother’s milk of
politics, and no need guessing where they come from.
Today, the internet is last frontier of press freedom
Net Neutrality supporters, like this writer, are
fighting back to save. We’re up against giant
corporate predators aiming to take from us what’s
ours, and going against them is no easy task. There’s
even an astonishing and threatening report by Steve
Watson (infowars.net) that federal government funded
researchers "want to shut down the internet and start
over, citing the fact that at the moment there are
loopholes in the systems whereby users cannot be
tracked and traced all the time." They call their
proposed substitute Internet 2 claiming it would be
faster and more streamlined for those willing to pay
more for it.
Supporters of this idea won’t say telecom and cable
giants will control it, and they and government
regulation would allow only "appropriate content" in
the fast lane with whatever else is allowed "relegated
to the slow lane internet." What’s even more at stake
is a free and open public internet space, as we know
it, that will almost certainly disappear if this new
scheme is developed with powerful gatekeepers in
charge deciding what’s published, what’s not, and how
much users will be charged.
Also at stake is bipartisan support for "all out
mandatory ISP snooping on all US citizens" plus the
Pentagon’s recently announced "effort to infiltrate
the Internet and propagandize for the war on terror,"
its foreign wars, and all others to come. Further,
there are government efforts to force bloggers and
activists (like this writer) "to register and
regularly report their activities to Congress."
Non-compliance could result in a prison term up to one
year.
These are just some of the threats to the one
remaining public space available to anyone to publish
material free from corporate or government control or
interference so long as the material doesn’t advocate
an armed insurrection to unseat the government the law
says is treasonous.
Congress this year will resume debate from where the
109th Congress left off last year and likely will
decide Net Neutrality’s fate. The battle lines are
drawn with public advocates facing down powerful cable
and telecom giants going all out to gain what we the
people can’t afford to lose - keeping the internet
free and open that’s become a symbol and best hope to
revive our flagging democratic society, structure and
culture close to the tipping edge of tyranny.
If the media giants prevail, they’ll establish
internet toll roads or premium lanes so users wanting
speed and access will have to pay more for it. Those
who can’t or won’t will get slower service or none at
all. Content as well be controlled with whatever is
judged unfriendly to state or corporate interests kept
out in a new age of online thought control.
Organizations like SavetheInternet.com are in the
forefront supporting internet freedom, and it just
marked its first anniversary. It’s a coalition of
more than a million "everyday people....banded
together with thousands of non-profit organizations,
businesses and bloggers to protect Internet freedom."
Its coordinator is FreePress.net, "a national
nonpartisan organization (this writer belongs to and
supports) working to increase informed public
participation in crucial media policy debates, and to
generate policies that will produce a more competitive
and public interest-oriented media system with a
strong nonprofit and noncommercial sector (aiming for)
a more democratic US media system (leading) to better
public policies."
SavetheInternet’s diverse members include Common
Cause, Consumers Union, American Library Association,
Consumer Federation of America, Prometheus Radio
Project, ACLU, and hundreds of other groups and
organizations from unions, women’s groups, religious
organizations, the arts, media, business and more.
SavetheInternet.com members and the public can’t
afford to lose this battle, and already over 1.6
million signatures have been collected on a
congressional petition drive to save the internet as
we know it. However, the outcome of this struggle is
very much up for grabs with media giants outspending
public citizen advocates 500 to 1. Winning in spite
of their effort isn’t everything, it’s the only
acceptable thing, and potential media reform depends
on how it turns out and whether this nation can regain
its democratic moorings now in tatters.
For now, one victory has been won but at a great cost,
and it might end up less than it appears. In late
December, media giant AT & T agreed to observe Net
Neutrality principles for at least 24 months as part
of an FCC deal allowing its $85 billion merger with
BellSouth to be approved. The agreement does not
preclude other media giants from continuing to lobby
for ending Net Neutrality that’s now up to Congress to
prevent by making it permanent by law.
Legislation has been drafted to prevent internet
companies from charging content providers extra for
priority access. In addition, the Internet Freedom
Preservation Act (S.215) was introduced in the Senate
in January with House Subcommittee on
Telecommunications and the Internet chairman Edward
Markey strongly in support saying "Saving the Internet
is vital for civic involvement....and free speech."
It aims to ensure broadband service providers aren’t
gatekeepers and won’t discriminate against internet
content, applications or services by offering
preferential treatment to select customers and not
others. Nonetheless, a final resolution remains an
unfulfilled goal with powerful divergent interests on
either side of this issue vying for which way it will
turn out. It’s crucial the outcome guarantees
permanent Net Neutrality and that our representatives
in Congress make it the law of the land.
New Postal Rate Increases Will Undermine Small
Publications
Free expression in the nation is coming under assault
in numerous ways that must be strongly and effectively
countered if we’re to save it
(http://sjlendman.blogspot.com/2007/...).
Another First Amendment enemy emerged when the US
Postal Service (USPS) for the first time ever in its
215 year history implemented what Free Press founder
and noted professor of media studies at the University
of Illinois’ main Champaign-Urbana campus called "a
radical reformulation of its rates for magazines"
placing a much greater cost burden on smaller
publications than on larger ones standing to benefit
from the policy change.
The new rates are scheduled to take effect July 15
that will force small publications to pay postal rates
as much as 20% higher than the largest ones in a
willful effort to undermine them, weaken competition
further, and make it almost impossible for new
independent magazines or other publications to be
launched. The scheme was secretly crafted without
public involvement or congressional oversight by media
giant Time Warner, the largest magazine publisher in
the country, and postal officials agreed to it
announcing the change protests against which have been
mounted. This is another effort toward media
consolidation that will further erode the most
precious of our constitutional rights - our free and
independent speech without which no democracy can
survive.
McChesney explained how corrupt and sleazy the whole
scheme is that his Free Press organization is taking
the lead to undo. The deadline for USPS comments has
passed, but it’s never too late standing against what
no one constitutionally has the right to take from us.
A good place to start is freepress.net.
Congressional Efforts to Criminalize Speech
Legislation is being introduced in Congress in the
form of an Orwellian "hate crimes" bill that’s being
supported by organizations like People for the
American Way (PFAW), Human Rights Campaign (HRC), and
other action groups for civil and human rights
everyone should support. PFAW makes a credible case
on its web site "urging Congress to expand the current
federal (hate crimes) law to protect victims of hate
crimes based on disability, sexual orientation,
gender, or gender identity. In addition, we have
advocated extending the protections of present law to
’all’ hate crimes victims."
These stated aims are noble, but the problem is
Congress will likely pass a hate crimes bill other
than what PFAW wants though it may appear otherwise,
although it won’t likely override a George Bush veto.
Hate and all other crimes are abhorrent, and laws are
needed protecting us from them, but not ones that harm
more than they help. That’s what’s likely to emerge
from the 110th Congress with legislation on a hate
crimes bill called The Hate Crimes Prevention Act
(H.R. 1592) already passed in the House with the
Senate soon to take it up. In an effort to criminalize
preaching hate against gays, minorities and all other
targeted groups, Congress is likely to produce a
"Thought Crimes Act" that may make dissent a crime
and/or ban any exercise of free expression government
wishes to deny making it punishable by heavy fines,
imprisonment or both.
The 110th Congress will pass a hate crimes bill
because all Democrats will vote for it, and no
Democrat-led body ever failed not to. But what’s
likely to emerge, if it becomes law, may turn out to
be another blow to our First Amendment rights eroding
them further that’s not what PFAW, HRC, other civil
and human rights groups and ones supporting free and
open expression want or should tolerate. In the age
of George Bush, anyone may be prosecuted for
terrorist-related activities without corroborating
evidence because repressive laws were passed making it
possible. If hate crimes legislation gives government
similar latitude against unacceptable speech it calls
"hate," another serious blow will have been struck
against our First Amendment freedoms already reeling
under so many others.
John McCain’s Assault On the First Amendment
Republican presidential candidate John McCain proposed
his "Stop the Online Exploitation of Our Children’s
Act" on December 6, 2006 as another example of what
this hawkish, anti-democratic figure would do if
elected in 2008. If this act becomes law, it will
fine bloggers up to $300,000 for posting offensive
statements, photos and videos online as a thinly
veiled hardball effort exploiting the issue of child
abuse to suppress anti-war voices. This is another
intrusive effort to regulate speech allowing the
federal government the right to decide when our First
Amendment rights apply and when not to stifle
criticism by imposing heavy fines on dissenters. In
John McCain’s world, only government-supportive voices
will be allowed online while critics Homeland Security
Director Michael Chertoff calls "disaffected people
living in the United States (with) radical ideologies
and potentially violent skills" will be heavily fined
and effectively banned.
The War On Free Expression We Can’t Afford to Lose
A play on Thomas Jefferson’s words might be that "All
tyranny needs to gain a foothold is for people of good
conscience" to be denied their First Amendment rights
to speak, write and otherwise communicate freely and
openly without fear of recrimination in a state they
want to remain democratic but won’t without that
right. Today our freedoms are jeopardized in an
atmosphere of heightened fear with too few people
aware how threatened their most important one of all
is at a time there’s risk they all may be lost without
a concerted effort to save them.
It starts by propping up our First Amendment one
without which none of the others are guaranteed or
safe. Freedom of expression is the foundation of a
free society, or as Jefferson put it: "Information is
the currency of democracy (and) If a nation expects to
be ignorant (uninformed or misinformed) and free....it
expects what never was and never will be."
Potentially, it’s never been easier if we can hold
what we have and act to restore what’s eroding.
There’s never been more ways to do it including an
expanding and amazing online world of web sites,
databases, portals, subject gateways, desktops,
laptops, palmtops, "begged and borrowed new and
used-tops," remote access, authentication protocols,
logins, iPods, eservices, ebooks, eresources,
eworld-at-our-fingertips, and a wondrous almost
limitless future online world connecting potentially
everyone to almost anything with a click provided
we’re the gatekeepers, not the corporate predators out
to get what belongs to us.
They’ll do it unless we’re mobilized and energized
enough to stop them in a mega-struggle where they have
the resources and friends in high places, and we’re
the people potentially empowered as famed Chicago
community organizer Sol Alinsky noted saying: "The
only way to beat organized money is with organized
people," and with enough of them committed they’ll
win. It’s our choice, and the stakes are too great
not to go all out for what we can’t afford to lose.
It starts at the grass roots with a well-coordinated
massive outreach effort to bring together educators;
human and civil rights groups; labor; the clergy;
alternative media journalists; writers; artists;
women’s groups; small business; your friends, family
and neighbors; and other organizations and activists
of all stripes concerned enough to build a collective
mass-action movement in numbers too large to be
stopped. History’s lessons are clear. Whenever enough
determined people are set on achieving something and
go about it effectively, no power of government
anywhere can deter them. Is saving our Republic not
incentive enough to go for it? It starts with saving
and preserving our most precious of all First
Amendment rights to speak freely and openly and be
able to spread our ideas, thoughts and beliefs widely
for the things we hold most dear - our rights as free
people.
Stephen Lendman lives in Chicago and can be reached at
Also visit his blog site at sjlendman.blogspot.com and
listen to The Steve Lendman News and Information Hour
on TheMicroEffect.com each Saturday at noon US
central time.
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