The War on Free Expression
by Stephen Lendman
www.zmag.org, May 10, 2007
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
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
-- 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;
-- 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
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
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
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
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
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
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,"
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
-- 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
-- politics and political correctness
-- the media and internet
-- academic freedom
-- race and ethnicity
-- the arts and entertainment
-- sex education and orientation
-- 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
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
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
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
-- 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
-- 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
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
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
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
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
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 firstname.lastname@example.org.