Free Speech. Where?

Freedom of speech is easily the most important of the freedoms guaranteed by the Constitution, the most important freedom in any society.  If the people can say and write what they please, a government will have a difficult time becoming repressive, at least against the will of the people.  (There are clearly many who do not care what the government is doing so long as life is comfortable – five thousand years of civilization has not been so much a march towards greater freedom as towards greater comfort.)  Free expression is at the same time a fragile entity, easily damaged by political, economic and even social concerns.  Even liberal governments and politicians are very uncomfortable with free speech.  They do not like to be questioned or criticized or circumvented, and they certainly do not like to be made fun of.


The greatest threat to free expression inevitably appears when a society’s security is being threatened or perceived to be threatened.  Security is far and away the most common justification for enhancing the power of the government and at the same time checking the free speech that might be employed to expose and oppose the state’s actions.  Threats to the country are also the strongest motivation for the people themselves to do the government’s work and curtail the speech of those with unpopular and thus unpatriotic points of view.  Any American publically suggesting in 1942 that the Japanese were not entirely evil and had some reason to attack the US would immediately receive a personal and violent lesson in the limits of expression during wartime.  The popular protests against the war in Vietnam were tolerated in part because the state failed to demonstrate that there was in fact a serious threat to America.  It also allowed its credibility to be shattered by a news media permitted virtually unlimited access to the war, a situation that was corrected during the war against Iraq, when “embedded” reporters were fed carefully crafted reports.


The popular repression of speech that followed the 9/11 attack was particularly virulent, undoubtedly because the United States itself had been assaulted and we were suddenly at war with shadowy figures who might be lurking right around the corner.  Any criticism of government policies constituted a lack of patriotism, and even the barest suggestion that the terrorists had anything to do with our policy in the Middle East or that they were sacrificing their lives for a principle, benighted though it was, was akin to treason.  An admittedly insensitive crack about blowing up the Pentagon resulted in death threats and demands from individuals and state politicians for my dismissal from the university.  Meanwhile, the administration of the university, a place that should be a bastion of free speech, while justifiably criticizing my remark, refused to defend my right to make it and treated me as road kill,  requesting my retirement.  This attitude is of course that accepted by government, and in response to my comment the presidential press secretary publically stated that “Americans need to be careful about what they say!”  This is an outrageous idea and represents the sort of governmental intimidation that was subsequently built into the Patriot Act.

I worked here

I worked here


A more insidious threat to free speech comes with our attempts at social engineering, a questionable enterprise.  The unvoiced premise lurking behind much of this thinking is that freedom of expression means freedom of popular expression or decent expression or socially useful expression, all things that hardly need Constitutional protection.  So we now talk about “hate speech” and “fighting words,” that is, speech that is not popular, decent or socially useful but in fact constitutes a threat to social harmony and public safety.  This is all pernicious nonsense.  The only valid parameter for limiting speech is whether or not it is likely to cause immediate physical danger.  Inciting a crowd to riot would fall into this category, but hate speech that might indirectly lead to some problem in the future does not.  In the second case who would decide when offensive expression is offensive enough to be considered a danger to society?  Some government body?  Popular vote?  Do this and freedom of speech begins to crumble.  Or the “fighting words” notion, which maintains one cannot use speech that is so offensive to an individual that he assaults the speaker.  More nonsense.  You may be stupid for saying such provocative things, but speech can never justify doing violence to someone.


People seem to have a difficult time recognizing the burden of free expression: tolerance.  Your right to say what you please entails tolerating what others choose to say, no matter how disgusting you find it.  In fact, your duty as a citizen is to defend that person’s right to spout hate or nonsense. The grandest moment of the ACLU was defending the right of American Nazis to march through a Jewish neighborhood in Skokie, a principled act that led to the resignation of many members.  These hypocrites were in effect saying “We believe in free speech, but…,” a statement that guarantees that the speaker is ready to limit that free speech.  Many appear to believe there is a clause in the Constitution that guarantees the right to get through life without ever being offended.

Even these idiots have the right to spew their venom

Even these idiots have the right to spew their venom


Truth is clearly not a necessary component of free expression.  If it were, politicians and advertisers would be in trouble.  Apart from the fact that it is often difficult to define precisely what is true and what is not, speaking nonsense is certainly protected by the right of free speech.  There is, however, a specific case of untrue speech being prohibited.  In Germany and Austria denying the Holocaust is a criminal offense, which is an outrageous abridgement of free expression, designed, presumably, to hinder the emergence of obnoxious and threatening groups.  While it is clear why this particular topic is a sensitive one in these countries, this is a dangerous practice.  Who is to decide what bits of history may not be denied or distorted?  When is an event in the past so horrible that one is punished for saying it did not happen?  Why not outlaw all speech which appears stupid or ignorant?


In Israel it is now illegal to publically support any agency or NGO engaged in boycotting Israeli products or services as a protest against the country’s policies regarding the Palestinians.  People who do so are “delegitimizing” Israel, an assertion that now takes a place alongside “anti-Semitism” as a standard reply to critics of Israel.  It may seem a small thing in a society that enjoys wide freedom of speech, but while an Israeli citizen is free to say all sorts of nasty things about his country, he cannot support or approve any boycott directed against Israel, which is to say, there is one traditional form of protest that is denied to him.  Asserting that it is criminal to “delegitimize” the state comes seriously close to punishing people who insult the state.


And now this Israeli – or at least Likud – assault on free speech in the interest of politics may be coming to America.  Opposing Israeli policies in Palestine, the Boycott, Divestment and Sanctions movement has initiated an academic boycott of Israeli institutions and universities, which has now elicited a response from Israel’s many friends in the Congress.  The proposed Protect Academic Freedom Act provides that any academic institution that participates in the BDS movement will be denied federal funds under the Higher Education Act.  This is bad enough, but the definition of “participate” is breathtaking: “The Secretary shall consider an institution of higher education to be participating in a boycott of Israeli academic institutions or scholars if the institution, any significant part of the institution, or any organization significantly funded by the institution adopts a policy or resolution, issues a statement, or otherwise formally establishes the restriction of discourse, cooperation, exchange, or any other involvement with academic institutions or scholars on the basis of the connection of such institutions or such scholars to the state of Israel.”  Whatever one thinks of the BDS movement and the academic boycott, this ironically named bill would obviously put limits on free speech on the American university campus.


The man who introduced this constitutionally questionable act, Rep. Peter Roskam, explained: “These organizations are clearly free to do what they want to do under the First Amendment, but the American taxpayer doesn’t have to subsidize it. The American taxpayer doesn’t have to be complicit in it.  And the American taxpayer doesn’t have to play any part in it.”  (A perfect of example of “I believe in free speech, but…”)  So, federal funding of academic institutions that merely fund an organization that in turn makes a statement against a foreign country is somehow an unreasonable burden for American taxpayers to bear?  And only in the case of this one particular country?  The Congressman does not explain why it is on the other hand fine that the American taxpayer has to be complicit in and play a part in sending $3 billion dollars a year to a country that is universally recognized to be blatantly violating international covenants the civilized world is pledged to uphold.  How far is this from denying federal aid to a university that allows its faculty to publically support a boycott targeting American policy?  Well, probably very far, since the Congress often seems more concerned about Israel than the United States.

A bit frayed these days

A bit frayed these days

I don't need to show you no stinking Constitution

I don’t need to show you no stinking Constitution


Freedom of speech is the most fragile of our freedoms, since it is so easy to slowly pick away at it, to eliminate free expression in this or that seemingly small area in the interest of social and political welfare.  And most Americans will simply not care because it does not affect them.


A final historical observation concerning free expression.  While Athens was engaged in what would be a life and death struggle against Sparta, the Peloponnesian War (431-404 BC), the comic play-write Aristophanes was producing very successful satires of Athenian society and policy.  Not only did he constantly lampoon the leaders of Athens, but he openly attacked the Athenian empire and the war itself, and he did this in a state that lacked any constitutional guarantees whatsoever, a state where the people in their assembly could take virtually any action they pleased.  It is hard to find a greater commitment to free speech.

"Take your war and shove it."

“Take your war and shove it.”



No Worry Unless You Have Something To Hide

(I have nothing novel to say here; even allowing for the technology, no state in antiquity, even Egypt under their god-king, experienced this level of surveillance. I just need to vent on this subject.)


President Obama’s assault on the First and Fourth Amendments is in full swing. (The Second is completely safe.) It was bad enough to learn what our government was doing – in our name – under the Bush administration, but Obama’s security apparatus and his actions to protect it are staggering. We may no longer have renditions and blatant torture (force-feeding and prolonged periods of solitary confinement may qualify), but a Democratic and supposedly progressive President is actually laying the foundations of a police state, and Congress is helping, having found a bipartisan cause.

The public had long been aware, if unconcerned, of the constitutionally and morally questionable things the CIA has been doing, especially in conjunction with our seemingly endless wars, but inasmuch as the operations generally affect only other countries, the American public is mostly unconcerned. The recently revealed surveillance programs of the NSA, however, do affect Americans, and while most of our citizens have probably never heard of the Fourth Amendment, they do understand when they are being spied on. And so do our closest allies, even if their spooks and governments are enthusiastically cooperating with ours.

Amerikanische Reichssicherheitsdienst

Amerikanische Reichssicherheitsdienst

The situation has become even more threatening – and surreal – with the revelation of the Insider Threat Program, something right out of Stalinist Russia. By this directive federal employees and contractors are legally bound to watch for and report “high-risk persons or behavior” among their fellow workers, and failure to do so could result in penalties, including criminal charges. And any leaks concerning the program and its operation will be treated as espionage, even if the leak reveals illegal behavior. The only thing missing to complete the journey back to Moscow in the 1930s is any reference to “counterrevolutionaries, Trotskyites and wreckers.” Will this vigilance be rewarded with medals? Perhaps “Hero of America” or “Order of Washington”?

But wait, there’s more! In the name of security the government will also violate the First Amendment! That’s two Amendments for the price of one administration! No government has been friendly to leakers, not because of the typically stated reason of security but since the leak usually reveals the government has been doing something questionable, like monitoring all private communications. Under the Great Engineer of American Security, however, leakers are now being prosecuted under the Espionage Act of 1917, even though they are not passing information to a foreign government, which I mistakenly thought was part of the basic definition of espionage.
Unless of course the news media is considered a foreign entity, which is certainly the view of every autocrat, even the elected ones, like Recep Erdoğan of Turkey, who is close to setting records for jailing journalists. The traditional method for punishing journalists, like Judith Miller of Valeria Plame fame, is to demand the names of their sources and then jail them for contempt when they will not reveal them. In the case of John Risen, a two-time Pulitzer Prize winner who was threatened with contempt if he did not testify against a former CIA source, a federal appeals court has just ruled that he was not covered by the First Amendment. This means that potentially every reporter is facing jail if he does not reveal sources.

And now there is a new twist: the journalist receiving the leaked information can also be charged with committing a crime, the exact nature of which the administration has not made clear. Journalist Glenn Greenwald was recently threatened with such a charge. Does this mean if you find a pile of classified documents on the ground, read them and talk to your friends about them, you are eligible for criminal prosecution? On the other hand, the government can spy on you all it wants apparently. For years the government has been monitoring Risen’s phone calls and emails, not in pursuit of a terrorist but to discover his sources. So, the security agencies can acquire taps on innocent civilians for the fairly specious reason that someone is revealing things to them.

The public opposes the NSA PRISM program by a 2 to 1 margin, but a recent effort to halt it was defeated in Congress, the amendment to the Defense bill being the subject of intense lobbying by the President (the liberal guy), the spooks and the contractors who make stuff for the spooks. Those who support the NSA of course talk about damaging our security, suggesting they know better than the average American, which has some basis in truth since we can find out virtually nothing about the program – or that it even existed until Snowden popped up. “Trust us” is not very convincing, coming from people who have regularly lied to the public.

The biggest joke of all is the fact that Obama touts his administration as the most transparent ever, when in fact it is actually one of the most opaque in history. The secrecy mania is out of control. In fiscal year 2011 more than 92 million documents were classified at a cost of more than $11 billion; the full numbers are unknown because at some agencies classification and its cost are classified. Are these all secrets that could harm the country if revealed?  That is hard to believe.  Classification covers mistakes, malfeasance, outright criminality and violations of the Constitution and civil rights, and very important, it enhances the status of the bureaucrat doing the classification.

And all this behavior for what? Because without such massive surveillance and secrecy one or two terrorists might blow up some people? Is this a sufficient reason to assault our own Constitution and freedom, especially when innocents are being killed in far greater numbers because of our love affair with the gun and inclination to solve problems with violence? Surveying the increased and constitutionally dubious powers of the government and its security apparatus and the concomitant free fall of America’s image in the world, I can only conclude that the 9/11 terrorist have won.