The
War On Free Expression
By Stephen Lendman
10 May, 2007
Countercurrents.org
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/2007/04/long-ordeal-of-sami-al-arian-civil-and.html).
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/2007/04/new-us-postal-rates-undermine-small.html).
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 [email protected].
Also visit his blog site
at sjlendman.blogspot.com and listen to The Steve Lendman
News and Information Hour on The Micro Effect.com each Saturday at noon
US central time.
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