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Bad Arguments the Left is Using to Destroy Conservative Speech
Some Bad Arguments the Left is Using to Destroy Conservative SpeechThe graced haiku of the First Amendment was defeated in this current age not by jack booted thugs but by Terms of Service.
It wasn’t supposed to be this way. From 1984 through every dystopian movie, as well as the sordid history of real dictatorships past, the loss of free speech was supposed to come from the top down. A powerful man crushes the press, brown shirts take over TV stations, that sort of thing. Nobody foresaw the loss of free speech in a once great democracy would come – by popular demand – from many of The People themselves.
But that is what is happening in these extraordinary times here in Post-Constitutional America. Before this, the other great losses of rights once confirmed in blood followed dark tradition: after killing four Americans by drone, Barack Obama’s attorney general claimed the president’s personal deliberation constituted enough due process to satisfy the Fifth Amendment. Exaggerated fear of terrorists saw the Fourth Amendment rights to privacy obliterated by the NSA and welcomed by the frightened masses.
What Americans once saw as our highest values became luxuries that in a time of fear, first 9/11, then Trump, the country believed it could ill afford. Justice, fairness, and free speech became a risk, their indulgence a weakness.
Among the rights lost, free speech is arguably the most dear. Without free speech people stop thinking, losing all but a narrowing band of ideas. Open discussion, debate, and argument are the core of democracy, good ideas defeating bad ones in the marketplace of the mind. Fascism seeks to close off all ideas except its own, falsely labeling dissent as disloyal, insubordinate, seditious, insurrectionist, and ultimately unlawful.
Any discussion of free speech must acknowledge despicable people and their ideas have always existed. These people will use any freedom they have to promote the worst of ideas. Yet it is equally important to remind how at different times in our history speaking out against slavery, against war, against or for one politician or another, have all been seen as despicable. Restrictions on free speech have been used to ban great literature, books about women’s reproductive health, and photos once deemed “pornographic” now displayed as art. Someone will always find an idea or word offensive. Allowing that person to judge for all of us has never proven to be on the right side of history. The times when America stepped back from free speech – the WWI era Sedition Act, the McCarthy Years – are not the years we are proud of.
Trumpism, neo-Nazis, alt-right, white supremacists, QAnon, Pepe, and the racists is sadly nothing new. Indeed many of those groups in different forms have been around for decades. What is new is Leftists are aggressively embracing many of the same tools once used to try and stop the anti-war movement, feminists, and other progressive groups in the past. Those tools which directly offend the Bill of Rights include violence, suppression, censorship, and twisty quasi-legal reasoning about incitement and sedition. In addition are the tools of the bully, including misuse of the No Fly List to ban pro-Trump travelers for their political beliefs, “canceling” by mustered mobs, and blacklists to bar people from earning a living due to their politics.
But something else new turns up the dial: technology, coupled with the metastisization of new global media unabashedly willing to take advantage of not being under the control of the 1A. Combine that technological reach with liberal autocratic zeal all hidden behind the justification that Because Trump, Nazis, white supremacists, etc. the ends justifies the means and you have trouble. The justification is Everything Is Different and the old rules don’t apply. The democratic ideal of free speech is now a threat to democracy.
The literal first shot was fired, er, thrown, at the Trump inaugural. Richard Spencer was explaining live on camera the meaning of Pepe the Frog, a silly cartoon figure somehow adopted as a mascot by the movement Spencer promoted. An anonymous black-clad antifa protester ran into the scene and sucker punched Spencer. His free speech was ended by that act of violence.
There followed tens of thousands of comments on the YouTube videos of the attack. The standard response was “I don’t condone violence but…” and then go on to condone violence if it was directed against “Nazis.” It only got worse. In 2021 the Leftists of social media cheered the shooting death of unarmed Trump supporter Ashli Babbitt at the hands of the Capitol Police. “She earned that bullet…” read one typical remark. “Don’t forget that she was participating in a domestic terrorist attack!”
Another popular sentiment which echoed from 2017 into 2021 is to claim violence is justified as a leftist response to hateful speech by the right, and that if perhaps more people had punched Hitler in the early days the world would be a better place. More than a few people also suggest punching someone in the head is in fact a form of protected free speech itself, and others seem to think whatever they label as “hate speech” is a crime. Others used phrases along the lines of “the end justifies the means” and “by any means necessary.” It was if half the nation had simultaneously flunked AP Government.
Following the Spencer attack, similar violence landed at Middlebury College, then at a rally where one protester who displayed a Confederate flag was attacked, and at the University of California Berkeley (the university was ironically home to the Vietnam War protest-era Free Speech Movement.) Institutions, including Berkeley, Ohio State, Penn State, and New York University, canceled, postponed, or scheduled into dead zones speeches by conservative speakers, citing public safety concerns.
The undergirding philosophy was in place. The stage was set for a series of arguments to sate the desire to restrict speech. Let’s look at some, and why they do or not hold up.
The First Amendment Only Applies to Government
The First Amendment only applies to government, and so corporations are free to censor, restrict or shut down speech altogether.
Short Answer: True. The interplay between the 1A and corporations like Facebook is the most significant challenge to free speech in our lifetimes. It can only be resolved by a landmark Supreme Court challenge.
Until very recently no entity existed that could censor at scale other than the government. The arrival of global technology controlled by mega-corporations like Twitter, Facebook, Google, and Amazon brought first the ability the control speech and soon after the willingness to do so. The rules are their rules, so we see the permanently banning the president of the United States from tweeting to his 88 million followers while allowing the Iranian and Chinese governments to speak freely to those same people. At the same time Trump was suspended from social media for inciting violence Twitter allowed the hashtag #HangMikePence to trend. Violence in one location is a threat to democracy while similar violence is valorized if under a BLM flag.
The ability of a handful of people nobody voted for to control the mass of public discourse has never been more clear. It represents a stunning centralization of power. It is this power which negates the argument of “why not start your own web forum.” Someone did – Parler – until Amazon withdrew its server support, and Apple and Google banned the app, and silenced them. The same thing happened to The Daily Stormer, driven offline through a coordinated effort by multiple tech companies, and 8Chan, deplatformed by Cloudflare (Parler is suing Amazon under antitrust laws to regain its platform, and may seek a new provider in the interim.)
Try an experiment. Google “Peter Van Buren” with the quotes. Most of you will see on the first page of results articles I wrote four years ago for Leftist outlets like The Nation and Salon. Almost none of you will see the scores of weekly columns I wrote for The American Conservative over the past four years. Google buries them, like they never even happened. Try the same on the tiny DuckDuckGo search engine and the conservative articles appear.
Currently safe from the 1A as private companies, and with the legal shield of Section 230 of the Communications Decency Act, there is nothing to stop Twitter and the others even as new technologies create new opportunities to control speech. The election of 2020, when they hid the story of Hunter Biden’s laptop from voters, and the election’s aftermath, when they banned the president and other conservative voices, was their coming-of-age moment, the proof of concept for media giants. Many on the Left cheered the companies’ actions. No surprise. Presciently, Senator Chris Murphy, seeing the power available, had earlier demanded social media censor even more aggressively for the “survival of our democracy.”
While there are few things to currently prevent corporate censorship, whether for their own purposes or as a proxy for the Democratic Party as Murphy demands, there are some counter-veiling legal currents which recognize the need to extend the 1A.
One victory confirmed the status of social media, when the Supreme Court struck down a law prohibiting sex offenders from using Facebook. Justice Kennedy wrote in Packingham v North Carolina social media is now part of “the modern public square” so denying access violated the First Amendment. The Court concluded in a separate case “public access cable TV channels constituted a public forum, notwithstanding that they were operated by a private company.” Recognizing new media, even if administered by private companies, as the modern equivalent of the public square is an important step.
The next step is recognizing the civic responsibility of those providing public forums as part of the process of chipping away at the public-private divide shielding the big media companies.
The Supreme Court recognizes two categories of public fora: traditional and limited public forums. Traditional public forums are places like streets, sidewalks, and parks. Limited public forums are not traditionally public, but ones the government has purposefully opened to some segment of the public for “expressive activity.” By inviting the public to Facebook for comment, the government transforms a private place into a limited public forum which should be covered by the 1A. The Court only requires a “forum” for 1A purposes “to be private property dedicated to public use” or when the government “retains substantial control over the private property.” Like how the government cannot censor public library books even if the library is located in a private storefront.
In other words, by providing a public forum Facebook, et al, assume a new role. It seems reasonable that some protections for the public speech there be offered. They may not apply to Aunt Lisa’s cat pictures but should apply to her posting in favor of some local legislation on the ballot.
Bottom Line: Pretending a corporation with the reach to influence elections through the forum it provides is just another company that sells stuff is to pretend the role of unfettered debate in a free society is outdated. There are legal arguments to extend limited 1A protections to social media. Section 230 could be amended. However, given Democrats disproportionately benefit from corporate censorship and current Democratic control of the government, no legislative solution appears likely.
Hope rests instead with the Supreme Court expanding the 1A to social media, as it did when it grew the 1A to cover all levels of government, down to the hometown mayor, even though the Constitution specifically only mentions Congress. The Court has long acknowledged the flexibility of the 1A in general, expanding it over the years to acts of “speech” as disparate as nudity and advertising. But don’t expect much change any time soon. Landmark decisions on speech, like those on other civil rights, tend to be more evolutionary than revolutionary.
Free Speech May Provoke Violence (A Clear and Present Danger)
Some claim conservative speakers who use anti-LGBT or racist slurs to fire up their audiences can be banned or shut down. They say such speech is the equivalent of yelling Fire! in a crowded movie theater.
Short Answer: The standards for shutting down speech are purposefully restrictive, and well-codified. Most pundits and politicians come nowhere close. This excuse is over-used.
The Fire! line from Supreme Court decision Schenck v. United States is often cited as justification for limiting free speech. Here’s what Justice Oliver Wendell Holmes wrote:
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.”
The full decision says the First Amendment doesn’t protect speech that meets three conditions: 1) the speech must be demonstrably false; 2) it must be likely to cause real harm, not just offense or hurt feelings, and 3) must do so immediately. Words in these decisions have hyper-specific legal meanings, often defined through multiple cases, which is why simply Googling a term and passing judgment on its vernacular via Twitter usually is wrong.
This interpretation of the First Amendment imposed restrictions on speech. But Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer opposing WWI to stop free speech, not protect it. The case was eventually overturned, and in truth Holmes’ statement was better understood not as a 21st century test but to simply mean that while the First Amendment is not absolute, restrictions on speech should be narrow and limited.
It was the later case of Brandenburg v. Ohio (below) that refined the modern standard for restricting speech past Fire! But Holmes’ “fire in a crowded theater” line sticks around as a kind of inaccurate shorthand.
Bottom Line: The Supreme Court set a very high bar against restricting speech based on the idea that what was being said leading to harm, then in a later case moved the bar even higher. Offense or general threats alone are insufficient to justify silencing someone. People who cite “fire in a crowded theater” miss the fact that a more nuanced version of restrictions followed which currently controls speech.
Speech Can or Should Be Restricted Based on Content (Hate Speech)
There are no laws against “hate speech.” A speaker can insult people by their race, sexual orientation or religious beliefs. Often words are carefully chosen to inspire and promote hate or to appeal to crude and base instincts. Indeed, that is their point.
Short Answer: You cannot restrict hate speech. Hate speech per se does not exist in American law. Free speech means just that, with carefully limited restrictions sketched out by the Court.
Brandenburg v. Ohio (Clarence Brandenburg was a KKK leader in Ohio who used the N-word with malice) precludes hate speech from being sanctioned as incitement to violence unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intends their speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of the speech.
A hostile reaction of a crowd does not automatically transform protected speech into incitement. Listeners’ reaction to speech is thus not alone a basis for regulation, or for taking an enforcement action against a speaker. The speaker had to clearly want to, and succeed in, causing some specific violent act to take place. Intent in particular is purposely hard to prove.
The Brandenburg test is the Supreme Court’s final statement to date on what government may do about inflammatory speech that seeks to incite others to lawless action. It was intended to resolve the debate between those who urge greater control of speech and those who favor as much speech as possible before relying on the marketplace of ideas to sort things out. Yet corporate censors have simply created their own definition of incitement, with Twitter suppressing the speech of 70,000 users simply for retweeting material with “the potential to lead to offline harm” under its Orwellian named Civic Integrity Policy.
A second type of speech is categorically excluded from First Amendment protection and often erroneously labeled hate speech: “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace… [and is] “likely to provoke the average person to retaliation.” Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual.
The law is similar for sedition. Sedition broadly refers to seeking to overthrow the U.S. government by force. It is intimately tied to the concept of free speech in that any true attempt at overthrow will need to be preceded by persuasion, rabble rousing, and the stirring up of crowds. The line between criticizing the government and organizing for it to be overthrown is a critical juncture in a democracy.
Current law requires the government prove someone conspired to use force. Simply advocating broadly for the use of violence is not the same thing as violence and in most cases is protected as free speech. For example, suggesting the need for revolution “by any means necessary” is unlikely to be seen as conspiracy to overthrow the government by force. But actively planning such an action (distributing guns, working out the logistics, actively opposing lawful authority, etc.) could be considered sedition.
All of this may soon change, however. Joe Biden and other Leftist thinkers have been active considering new laws against “domestic terrorism” which will likely draw from and enlarge the current definition of sedition, so expect to hear more about all this. The new laws may seek to define beliefs such as “whites are a superior race” not as bad science or an unsavory opinion but as an actual threat, an illegal thought. Proposals include prohibiting people with such beliefs from joining the military or law enforcement.
The upshot is apart from some very narrow exceptions the obligation to free speech exists independent of the content of that speech. This is one of the most fundamental precepts of free speech in a democracy. There is no need for protection for saying things people agree with, things that are not challenging or debatable or offensive. Free speech is not needed for the weather and sports parts of the news. Instead, free speech is there to allow for the most rude, offensive, hateful stuff someone can imagine. The true tests for a democracy come at the edges, not in the middle.
That is why it should make a college age ACLU donor proud to know her $25 contribution helps both BLM and Nazis to say what they think, but it apparently does not. Some 69 percent of American college students believe hate speech (defined as “language intentionally offensive to certain groups”) should be (unconstitutionally) banned.
A professor at New York University wrote plainly, albeit as if he was unaware of the Constitution, “Freedom of speech means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community. Free-speech protections — not only but especially in universities, which aim to educate students in how to belong to various communities — should not mean that someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned… [I]nvoking a pure model of free speech that has never existed, the dangers to our democracy are clear and present.”
The good people at NYU who believe in censoring speech have some opposition. Justice Oliver Wendell Holmes declared unpopular ideas should have their opportunity to compete in the “marketplace of ideas,” understanding free speech is not an ends but a means in a democracy. Justice Louis Brandeis held people must discuss and criticize ideas, that free speech is not only an abstract virtue but also a key element that lies at the heart of a democratic society. Even the fact that speech is likely to result in “violence or in destruction of property is not enough to justify its suppression.” Brandeis concluded “the deterrents ordinarily to be applied to prevent” violence and disruption “are education and punishment for violations of the law, not abridgment of free speech.”
Bottom Line: There is no justification for restricting speech so that people are not offended. Speech may offend, indeed that may be its point, but bad ideas are then defeated by better ideas. It’s the law.
What’s Said May Provoke Violence (Public Safety)
The idea a university or other venue cannot assure a speaker’s safety, or that the speaker’s presence may provoke violent protests, or that the institution just doesn’t want to go to the trouble or expense of protecting a controversial speaker has become a go-to justification for canceling or restricting speech. Berkeley cited this in canceling and then de-platforming (rescheduling her when most students would not be on campus) Ann Coulter, and New York University cited the same justification for canceling a conservative speaker.
Short Answer: Canceling a speaker to protect them or public safety is the absolute last resort, and some risk to safety is part of the cost to a free society for unfettered speech.
The most glaring misuse of this argument is when such a justification is applied only toward one strain of speech, say unilaterally against conservative speakers and not against others. The conclusion can only be danger comes from unpopular ideas based solely on their being presented on a left-leaning campus. The argument of restricting a speaker “for their own safety” who is otherwise willing to take on certain risks to make their voice heard can thus be applied in a biased manner. Restricting speech for safety needs to be content neutral.
Public safety has been long (mis)-used to silence otherwise protected speech. Such thinking has been used to deny permits for civil rights marches, with law enforcement saying they could not protect the black protesters from the KKK. Both sides in the abortion debate have used this argument as well outside clinics.
While institutions do have an obligation to public safety, that obligation must be balanced against the public’s greater right to engage with free speech. The answer is rarely to ban speech outright simply to maintain order.
One landmark case from 2015 provides some of the clearest guidance yet. The case involved a group called the Bible Believers who used crude language (“Turn or Burn”) at an LGBT gathering. The Court held:
“When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals. Nor can an officer sit idly on the sidelines — watching as the crowd imposes, through violence, a tyrannical majoritarian rule — only later to claim that the speaker’s removal was necessary for his or her own protection. Uncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of that right.”
The understanding that law enforcement, or any institution, can turn first to shutting down speech that requires physical protection, has failed the courts’ tests in cases as diverse as Occupy to a Christian group bringing a pig’s head to a Muslim Arts festival. The court has long recognized content-based regulation of speech in a public forum is permissible only when the regulation “is narrowly drawn to achieve that end.”
Bottom Line: An institution cannot cite avoiding public disruption as the initial or sole reason to restrict speech. The problems of having an unpopular person speak are outweighed by the obligation to protect free speech. Maintenance of the peace should not be achieved at the expense of the free speech.
Free Speech May Be Challenged by the Heckler’s Veto
Another misargument is the Heckler’s Veto is in itself protected speech. Some on the Left feel while someone may have a right to speak, someone else has the right to shout them down and prevent them from being heard.
Short answer: Free speech is not intended to mean whomever can literally “speak” the loudest. The natural end of such thinking is mob rule, online or off.
Legitimate ways exist to challenge speakers, including engaging them or ignoring them entirely. In contrast, using a Heckler’s Veto to keep unpopular speakers from expressing their views not only stifles a particular idea, but threatens to chill public discourse generally by discouraging others with controversial ideas from sharing them. Who wants to stand up only to be shouted down by a mob, online (for example, via hacking or denial of service attackers) or offline? Protesters cannot unduly interfere with communication between a speaker and an audience. The Supreme Court concluded the government’s responsibility in these circumstances is to control those who threaten or act out disruption, rather than to sacrifice the speaker’s First Amendment rights.
The most insidious use of the Heckler’s Veto is to have audience members create a disruptive situation that compels law enforcement to shut down a speaker for them, abusing their own freedom of speech to get the government to shut down someone else’s.
Bottom Line: Balancing the rights of the speaker, those who wish to hear them, and those who wish to protest is complicated. But simply shutting down one party entirely, or allowing one party to block the rights of the others, is illegal.
It is nearly professional suicide today to defend rude or racist speech on principle, that the right to speak exists almost fully independent of what one says. It is easy in divided post-Trump America to claim the struggle against fascism (racism, misogyny, white supremacy, etc.) overrules the old norms.
But imagine your views, which today match @jack and Zuck’s, change. Imagine Zuck finds religion and uses all of his resources to ban legal abortion. Consider a change of technology which allows a Russian or Chinese company to replace Google in dictating what you can read. Instead of the outright glee the Left showed over the end of Parler and the misuse of the already evil No Fly List against Trump supporters in DC imagine the same used against something you personally believe in. Imagine the criminalization of certain thoughts and beliefs.
There may be some hope. The American Civil Liberties Union warned the suspension of Trump’s social media accounts revealed “unchecked power.” The ACLU said the decision could set a precedent for big tech companies to silence less privileged voices if they chose. Once a leading voice for unfettered speech, the ACLU started applying a “woke” political litmus test to its chosen fights during the Trump years. It seems the organization finally figured out that censoring speech anywhere, even with Trump, is a threat to speech everywhere.
Censorship is inherently wrong. People demand it when it supports their point of view (anything to dump Trump) but can’t seem to understand it will never stop there. As one former ACLU director explained “Speech restrictions are like poison gas. They seem like they’re a great weapon when you’ve got your target in sight. But then the wind shifts.”
Free speech protection covers all the things people want to say, from the furthest left to the furthest right. It’s messy as hell, and it is our essential defense against fascism and control, whether from the left or the right, from the government or from corporate actors.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
At Cleveland Repub Convention, ‘First Amendment Zones’ Will Detain Protesters Far Away From Trump
Once upon a time, all of America was a First Amendment Zone. That’s now as dead as Alexander Hamilton.
The city of Cleveland revealed part of its security plan for theNuremberg rallyRepublican National Convention. Securing the convention will require a heavily policed, fenced off 3.3 square-mile First Amendment Zone. A fun fact is that the First Amendment Zone is about the same size as Baghdad’s Green Zone.(Pictured above is the free speech zone from the 2012 Democratic Convention)
The Zone concept in Cleveland is to ensure that the people’s rights to free speech are “preserved,” only someplace far enough away that no one can hear them, and surrounded by police so that the speech stays in line.The ACLU of Ohio filed a lawsuit to change or block the Zone; the result was only a slight enlargement of the area allotted.
“What the city has done here is draw a gigantic blanket area that covers most of downtown Cleveland,” says Elizabeth Bonham, staff attorney for the American Civil Liberties Union of Ohio. “When the government takes the extreme step of limiting speech and assembly in any way, the burden is on them to justify that those restrictions are reasonable.”
Access into the Cleveland Zone will be controlled by law enforcement, who also will regulate protests and other activity (no details available on what that means; I guess people will need to experiment with what free speech will get them Tasered.) No tennis balls, baseballs, umbrellas with metal tips, ladders, sticks, poles, strollers, flashlights, balloons (?) or bike locks will be allowed. The Zone will be overseen by the Cleveland police, the FBI, FEMA, and the U.S. Secret Service.
Cleveland mayor Frank Jackson has said the Zone and other crowd control measures are “an attempt to balance between safety, security and constitutional rights of people and ensure we have a successful convention.”
Ah yes, the old standby of “balancing” security and inalienable rights. Gotta love that. Now let’s go bust some hippie heads!
BONUS: The use of First Amendment Zones is Constitutional under many circumstances. The Supreme Court, via Ward v. Rock Against Racism, developed a four-part analysis to evaluate the constitutionality of time, place and manner (TPM) restrictions. To pass muster under the First Amendment, TPM restrictions must be neutral with respect to content, narrowly drawn, serve a significant government interest, and leave open alternative channels of communication. The test case had to do with a concert that people nearby felt was too loud, and has been expanded to cover the use of First Amendment Zones.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
New ACLU App Auto-Uploads Video of Police Encounters
It comes down to things like this as citizens fight to preserve their basic rights in the face of militaristic police encounters. So let us use technology to fight back.
A new smartphone app from the ACLU (available in iPhone and Android versions) does two very good things. It allows citizens to exercise their right to video police encounters in the public space, and it guards against the cops unlawfully destroying that video to cover up their own crimes. The ACLU app accomplishes this by allowing people to auto-upload cellphone videos of police encounters to the ACLU. The ACLU will then review and preserve the video footage, even if the cops seize the phone and delete the video or destroy the phone.
In addition, once the video is uploaded, the user can delete the information from his/her phone, lessening the chance of retaliation by the cops if they discover the “evidence” during a post-arrest search.
The app features a large red “Record” button in the middle of the screen. When it’s pressed, the video is recorded on the phone and a duplicate copy is transmitted simultaneously to the ACLU server. When the “stop” button is pressed, a “Report” screen appears, where information about the location of the incident and the people involved can also be transmitted to the ACLU. The video and the information are treated as a request for legal assistance and reviewed by staff members. No action is taken by the ACLU, however, unless an explicit request is made, and the reports are treated as confidential and privileged legal communications. The videos, however, may be shared by the ACLU with the news media, community organizations or the general public to help call attention to police abuse.
The app is available in English and Spanish. It includes a “Know Your Rights” page, a library of ACLU materials in your pocket.
“People who historically have had very little power in the face of law enforcement now have this tool to reclaim their power and dignity,” said the director of the Truth and Reinvestment Campaign at the Ella Baker Center, which is working with the ACLU of California to support the launch of the app.
Who will guard the guards? We will.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What to Do if You Think You’re on the No-Fly List
It has come to this. There is a self-help guides from the ACLU on what to do if you think you are on the U.S. government’s no-fly list. Oh, and the TSA says 99 percent of the people who contact them about no-fly have been denied boarding only because their names are similar to a real bad guy. In most applications, a 99 percent failure rate is cause for alarm for an organization. In America, it is cause for alarm for us.
Background
On September 10, 2001, there wasn’t any formal no-fly list, though the FBI held a folder of 16 names of suspicious flyers. Among the many changes pressed on a scared population starting September 12 was the creation of two lists: the no-fly list and the selectee list. The latter was for person who would undergo additional scrutiny when they sought to fly. The former, like its name, meant if your name was on the list you simply could not board a flight inside the U.S., out of the U.S. or from some other country into the U.S.
The flight ban can also extend far outside of America’s borders. The no-fly list is shared with 22 other countries.
Names are nominated for no-fly or selectee by one of perhaps hundreds of thousands of government officials: an FBI agent, a CIA analyst, a State Department visa officer and so forth. Each nominating agency has its own criteria, standards and approval processes, some strict, some pretty sloppy. Your name may end up on the list based on scraps of online postings or as the result of a multi-year detailed investigation or because of a bureaucratic typo. The nominated name is sent to The Terrorist Screening Center (TSC), located in a classified location in suburban Northern Virginia. TSC is a multi-agency organization administered by the FBI, staffed by officials from the Department of Homeland Security, the Department of State, and all of the intel community.
A key issue is that people are never notified they are on the no-fly list. The only way to even get a hint is to buy an airplane ticket and be prevented from boarding once you arrive at the airport after at check-in the airline receives a “no-fly” message. Through the interrogation process you may (or you may not) learn you might live in the list. You will never have any idea why you are on the list; maybe you share a similar name with some real or imagined bad guy. Still on the list? The only way to tell is to buy another ticket and see if you can board. Repeat.
What Do You Do?
For the most part, once denied boarding, you are on your own to get home. It is a long walk home from L.A. if you live in New York. But, in the topsy-turvy post-9/11 world, though the U.S. will not let you on an airplane (Twin Towers!) you can, for now, as a suspected terrorist, travel by ship, train, bus, rental car, horseback, donkey cart, unicycle or other means. Of course none of those conveyances have even rudimentary screening or security.
One option if you find yourself denied boarding is to contact the Transportation Security Administration (TSA) via their TRIP Program and ask them to remove your name from the no-fly list. You might succeed just by asking nice; the TSA itself says that 99 percent of individuals who apply for redress are not on the terrorist watchlist, but are misidentified as people who are. To start, you simply use DHS’ online form. They strongly encourage an online submission, warning on their web site that “if documents are mailed, it may take 10-15 business days to receive your submission due to federal government mail screening requirements,” something left over from the very small and long ago anthrax powder letters mailed to a handful of people in 2001. Careful though– proving you are not a terrorist must be done in a 10 meg attachment or less or DHS will reject your request.
If DHS agrees you are not a terrorist, you get a redress number which you can use when booking a ticket. There is never an explanation, and DHS is not allowed to tell you you are still on the no-fly list, or ever were, or why they did or did not issue you a redress number. If you never hear back from DHS and wonder if you are allowed to fly, the only way to tell is to buy another ticket and see if you can board. Repeat. Even with a redress number, DHS advises arriving at the airport extra early in anticipation of extra screening and questioning.
What If You Stranded Overseas?
One popular trick the government likes to occasionally use is to wait for someone to depart the U.S., then slap him/her on the no-fly. The traveler, stuck abroad, clearly has fewer resources to challenge anything or file internet forms and wait by the post box.
A nice scheme, but since U.S. citizens have a right under the Fourteenth Amendment of the Constitution to return to U.S. territory after traveling abroad, and lawful permanent residents (“green-card holders”) have a similar right to return under the Immigration and Nationality Act, in fact such a move by DHS is essentially unconstitutional and/or illegal.
So, as one part of the government says you are a terrorist and cannot fly to America, another part of the government is constitutionally obligated to get you back to America. Denied boarding overseas due to the no-fly? Someone in the U.S. (can be a lawyer) must call the State Department and ask that they help you. The ACLU has a handy cheat-sheet with all the details. At some point you will visit the American Embassy in your country of no-fly exile, and, after an average two week delay, re-book your ticket to return to the United States. The cost of all this is on you, and you can expect a detailed welcome from the FBI and others when you touch down in the Homeland. Coming “home” may then mean your mom’s place in Cleveland, or it can mean a jail cell near the airport in Cleveland.
Bad Guys?
We’ll admit that there probably are some really bad people out there who’d we would just prefer not sitting next to us on a flight. But who ends up on the no-fly instead?
The Associated Press reported in 2012 that the federal no-fly list had “more than doubled in the past year” and had grown to about 21,000 people, including some 500 Americans. CBS’ news show, 60 Minutes, states the no-fly list actually has 44,000 names on it. A CBS reporter claims to have seen a portion of the names on no-fly in 2007, and noted Saddam Hussein was on the list, as well as 14 of the 19 September 11th hijackers, all of whom were very dead at the time. Osama bin Laden was also on the list on the off-chance he would have decided to fly to the U.S. under his real name for some reason.
Represented by the American Civil Liberties Union, a group of thirteen Americans who were barred from boarding domestic flights or planes leaving or bound for the U.S. between June 2009 and November 2012 is suing. One of the plaintiffs in that case is Army veteran Raymond Earl Knaeble, who found himself unable to fly coincidentally after converting to Islam. Four others in the no-fly lawsuit are also military veterans. One was forced to return to the U.S. from Columbia by bus, a long and dangerous trip. Another plaintiff was placed on the list only after he flew from California to the U.S. Virgin Islands. He was forced to take a five-day boat trip and a four-day train ride home.
How Can This Be Legal?
Like much of the (known) legislation passed after 9/11, it has been very hard to challenge the no-fly in courts. One significant issue is standing, the right to sue. Persons typically never know for certain they are on the no-fly list, the government will never confirm or deny someone is on the list, and so, absent proof, one may not be able to sue the government. The government has and likely will also continue to cite national security and classified information to block cases from even entering the court system.
In the lawsuit noted above, the ACLU is arguing that the no-fly list is a violation of the due process clause of the Fifth Amendment. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The meaning is that all levels of American government must operate within the law and provide fair procedures. For example, you cannot be arrested and tried without having legal counsel, being informed of the charges, having the chance to review the evidence against you and so forth. Creating a secret list without any clear means of challenging placement on that list, is, the ACLU contends, unconstitutional.
The government argues in return that national security prevents a more open system– we can’t tip off the terrorists– and that limited judicial review covers any due process requirement. No-fly list appeals may ultimately go to a federal appellate court, but that court makes decisions based only on government input. The person affected is not even present and will never know what evidence the government presented against him in this secret court.
The ACLU’s case against the no-fly list is currently being heard in U.S. District Court, in front of a judge who at least appears to be asking serious questions of the government, and who has stated she holds not being able to fly is indeed a case of the government depriving someone of their “liberty,” as stated in the Fifth Amendment. The outcome of the case is of course uncertain, and will no doubt be appealed as far as it can go.
Until then Americans, happy travels!
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Federal Judge Says U.S. Must Release Abu Ghraib Photos
The few photos publicly seen of the abuses American soldiers committed inside the Abu Ghraib prison are only a tiny portion of the whole (former Senator Joe Lieberman said in 2009 that there were nearly 2,100 more photographs.)
The photos, such as the ones you see here, were released by a whistleblower. A significant number of photos, said to show acts of sodomy and brutality far worse than what is already known, have been kept from the public by the U.S. government for eleven years now, ostensibly to protect American forces from retaliation. Since the American Civil Liberties Union first filed a lawsuit against the government in 2004 seeking the release of the photographs, the government has been successful in blocking them. That may — may — change.
A federal judge ruled March 20 that the U.S. government must release photographs showing the treatment of detainees in U.S. custody at the Abu Ghraib prison in Iraq and other sites. However, Judge Alvin Hellerstein in Manhattan ruled that his order would not take effect for 60 days to give the U.S. Department of Defense time to decide whether to appeal.
“The photos are crucial to the public record,” ACLU’s deputy legal director said. “They’re the best evidence of what took place in the military’s detention centers, and their disclosure would help the public better understand the implications of some of the Bush administration’s policies.”
Keep in mind Hellerstein first ordered the government to turn over the photographs in 2005, but while that order was being appealed, Congress passed a law allowing the Secretary of Defense to withhold the photographs by certifying their release would endanger U.S. citizens. Then remember Hellerstein already ruled last August that the government had failed to show why releasing the photographs would endanger American soldiers and workers abroad, but then immediately gave the government until March 20 a chance to submit more evidence. The judge’s most recent order said the additional evidence had failed to change his decision. Yet Hellerstein has still left open a further appeal.
Meanwhile, the horrors of Abu Ghraib done in our names, and well-known to the Iraqi victims, remain shielded from only the American public by their own government.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Police Militarization: Fish Rot from the Head
We were warned we might become this way.
In the 1928 case of Olmsted v. The United States, at issue before the Supreme Court was whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the defendant’s rights under the Fourth and Fifth Amendments. In a 5-4 decision, the Court held that rights were not violated and the evidence obtained without a warrant could be used.
In his dissent, Justice Louis Brandeis wrote:
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law…
Like Father, Like Son
In an era where Big Government acts in open contempt of the rule of law, killing its own citizens without due process, torturing its people, recklessly spying on them and taking away their right to free speech, it is little surprise that Small Government seeks to do the same. Petty is what petty does. Much of this all manifests itself in the militarization of our police coupled with their criminalization of everything.
Militarization of the Police
There are too many examples of violence for even a short list: a defendant killed by police at his own trial; a lengthy and detailed report that found the Albuquerque, New Mexico Police Department engages in the practice of excessive force, including deadly force, in violation of the Fourth Amendment; a false-postive drug test leading to a SWAT assault on an innocent family; a baby burned into a coma by a flash-bang grenade thrown by another SWAT team in another unnecessasry home raid; a woman sexually assaulted by a cop in a courthouse who then arrested her for reporting it; LA sheriffs beating a chained inmate; cops choking a non-resisting drunk into unconsciousness; police blindsiding a woman with a nightstick at basketball celebration; police killing a 93 year old woman in her own home; cops tasering and beating a deaf man trying to communicate with them in sign lanaguage and on and on.
Criminalization of Everything
Concurrent with the increasing acts of unwarranted violence by police against the citizens they are sworn to protect and serve are attempts to criminalize as much behavior as possible, whether it represents any threat to society at large (long sentences for minor marijuana possession) or is simply an excuse to bust heads (not dispersing immediately equating to resisting arrest.)
But here’s how it has morphed into even more, an assault on First Amendment rights. And even though the cops lost in some of the following cases, the pattern is too clear to ignore, too dark to high-five over a win.
Flashing Lights
Cops in multiple states– cases have been tried in Maryland, Florida, Tennessee, Missouri and Oregon– have arrested drivers for flashing their headlights. It is not uncommon for drivers to flash their lights at incoming traffic to warn of a police speed trap ahead. The result of the flashing is that incoming drivers slow down, precisely the real point of the law. Cops, however, claim the flashing lights are an interference with law enforcement.
In the most recent case, in Oregon, a judge did find that motorists flashing their headlights amounts to speech protected by the First Amendment, similar to when people honk their horns to welcome home the troops. “The citation was clearly given to punish the Defendant for that expression,” the judge wrote. “The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct.”
Videotaping the Police
Reaching back to the 1992 Rodney King beating in Los Angeles, police have been caught on camera in a seemingly-endless-string of beatings. The typical pattern is that before the video is shown, the beaten person is accused of resisting arrest and the cops claim the violence they visited on him was unfortunate, but necessary and appropriate. Then the video comes to light and the brutality is revealed.
So it is little surprise that the cops have tried to criminalize videotaping the cops. Evil only works well in the dark after all. A recent case in New Hampshire, however, may help forestall the dark a bit.
A woman was following a friend’s car to his house when an officer pulled him over. From about 30 feet away, after getting out of her car, the woman announced she was going to audio-record the police stop of her friend. The cops arrested her and charged her with wiretapping, along with disobeying a police officer, obstructing a government official, and unlawful interception of oral communications. Though the woman was never prosecuted, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights.
An appeals court sent the case back to trial. The cops settled for $57,000 (using taxpayer money to pay off the suit; small change really. In 2012 Boston paid a citizen $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his felony arrest for videotaping police roughing up a suspect) before the case when to full trial, allowing for a minor victory albeit at the cost of not having a court declare war on the abuse of a citizen’s First Amendment rights.
Another woman was not so successful. She was charged with using a mobile phone “hidden” in her purse to audio-record her own arrest. The cops charged her with wiretapping under Massachusetts law, which says people may record police officers only in public places, and only if the officers are aware that a recording is taking place.
Bigger
The ACLU asserts “since 9/11, a disturbing pattern of innocent individuals being harassed by the police for taking still and video photographs in public places has emerged across the country.” ACLU has a long list of specific cases.
The ACLU also notes “Another disturbing trend is police officers and prosecutors using wiretapping statutes in certain states (such as Florida, Illinois, Maryland, Massachusetts, New Jersey and Pennsylvania) to arrest and prosecute those who attempt to record police activities using videocameras that include audio.”
Again in Massachusetts, a woman who videotaped a cop beating a motorist with a flashlight posted the video online. Afterwards, one of the cops caught at the scene filed criminal wiretapping charges against her, though she was never prosecuted.
There are many, many more examples of the criminalization of the First Amendment. Even when charges don’t stick, the act of being arrested, possibly mistreated, often serves the cops’ purpose.
Fish rot from the head they say, and as Justice Louis Brandeis tried to warn us some 80 years ago. When the federal government claims itself exempt from the Constitution, don’t be surprised when your local cops say the same.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
No-Fly List Appeals System Declared Unconstitutional
No-Fly is No Fair.People on the government’s no-fly list are denied their constitutional right to due process, because the government’s procedures to challenge inclusion on the secretive roster are “wholly ineffective,” U.S. District Judge Anna Brown declared in a case brought by thirteen American citizens and supported by the ACLU.
Important: The court did not declare the no-fly list itself unconstitutional per se, but did say that the lack of any effective system for knowing you are on the list (absent showing up at the airport and being denied boarding) and especially the lack of any real procedure for trying to clear your name and get off the list, are unconstitutional under the Fifth Amendment, as they deny people the Constitutional right to due process. Due process basically means the government cannot punish you, or take something away from you, without giving you the right to challenge that decision, typically in court with a lawyer.
Specifically, in a 65-page opinion, the Oregon judge ordered the government to come up with a new way for the thirteen plaintiffs to contest their inclusion on the no-fly list that prohibits them from flying in or through U.S. airspace. The government must provide notice to the plaintiffs that they are on the list and give the reasons for their inclusion. The judge also ordered that the government allow the plaintiffs to submit evidence to refute the government’s suspicions.
There is nothing, however, in the judge’s decision that negates or otherwise does away with the no-fly list. Because her decision took place only in a District Court, the government may appeal the case, perhaps as far as the Supreme Court.
What is the Current Appeals Process Like for the No-Fly List?
Understanding the importance of the judge’s decision requires understanding how the no-fly List “appeals” process works currently.
If you find yourself denied boarding, you must contact the Transportation Security Administration (TSA) via their TRIP Program and ask them to remove your name from the no-fly list. You might succeed just by asking nice; the TSA itself says that 99 percent of individuals who apply for redress are not on the terrorist watchlist, but are misidentified as people who are. To start, you use DHS’ online form. They strongly encourage an online submission, warning on their web site that “if documents are mailed, it may take 10-15 business days to receive your submission due to federal government mail screening requirements,” something left over from the very small and long ago anthrax powder letters mailed to a handful of people in 2001. Careful though– proving you are not a terrorist must be done in a 10 meg attachment or less or DHS will reject your request.
You are not currently allowed to know why, or based on what information, you are on the no-fly list. You just are. While you can ask a lawyer to help you prepare whatever you submit to DHS, you cannot be represented because you cannot otherwise interact with DHS.
The government argues in return that national security prevents a more open system– they can’t tip off the terrorists– and that limited judicial review covers any due process requirement. No-fly list appeals may ultimately go to a federal appellate court, but that court makes decisions based only on government input. The person affected is not even present and will never know what evidence the government presented against him in this secret court.
What if You’re Not a Terrorist?
If DHS agrees you are not a terrorist, you get a redress number which you can use when booking a ticket. There is never an explanation, and DHS is not allowed to tell you you are still on the no-fly list, or ever were, or why they did or did not issue you a redress number. If you never hear back from DHS and wonder if you are allowed to fly, the only way to tell is to buy another ticket and see if you can board. Repeat. Even with a redress number that clears your name in theory, DHS advises arriving at the airport extra early in anticipation of extra screening and questioning.
There are no deadlines for an answer from DHS. They may take weeks, months or forever to reply to you. Meanwhile, you, as an official dangerous person, will be able to travel by ship, train, bus, rental car, horseback, donkey cart, ferry, private rented plane, unicycle or other means. Of course none of those conveyances have TSA screening or security.
How Do You Get on No-Fly in the First Place?
On September 10, 2001, there wasn’t any formal no-fly list, though the FBI held a folder of 16 names of suspicious flyers. Among the many changes pressed on a scared population starting September 12 was the creation of two lists: the no-fly list and the selectee list. The latter was for person who would undergo additional scrutiny when they sought to fly. The former, like its name, meant if your name was on the list you simply could not board a flight inside the U.S., out of the U.S. or from some other country into the U.S.
The flight ban can also extend far outside of America’s borders. The no-fly list is shared with 22 other countries.
Names are nominated for no-fly or selectee by one of perhaps hundreds of thousands of government officials: an FBI agent, a CIA analyst, a State Department visa officer and so forth. Each nominating agency has its own criteria, standards and approval processes, some strict, some pretty sloppy. Your name may end up on the list based on scraps of online postings or as the result of a multi-year detailed investigation or because of a bureaucratic typo. The nominated name is sent to The Terrorist Screening Center (TSC), located in a classified location in suburban Northern Virginia. TSC is a multi-agency organization administered by the FBI, staffed by officials from the Department of Homeland Security, the Department of State, and all of the intel community.
A key issue is that people are never notified they are on the no-fly list. The only way to even get a hint is to buy an airplane ticket and be prevented from boarding once you arrive at the airport after at check-in the airline receives a “no-fly” message. Through the interrogation process you may (or you may not) learn you might live in the list. You will never have any idea why you are on the list; maybe you share a similar name with some real or imagined bad guy. Still on the list? The only way to tell is to buy another ticket and see if you can board. Repeat.
Want to read about the ultimate No-Fly list nightmare?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Stung: Government Disappears Stingray Spying Records
We’ve heard variations on the phrase “If you have nothing to hide, you have nothing to fear” from the government for quite some time. It appears this may be true, at least if you are the government.In the case of Stingray, a cell phone spying device used against Americans, the government does have something to hide and they fear the release of more information. Meanwhile, the Fourth Amendment weeps quietly in the corner.
Stingray
Cell phone technology is very useful to the cops to locate you and to track your movements. In addition to whatever as-yet undisclosed things the NSA may be up to on its own, the FBI acknowledges a device called Stingray to create electronic, “fake,” cell phone towers and track people via their phones in the U.S. without their knowledge. The tech does not require a phone’s GPS. This technology was first known to have been deployed against America’s enemies in Iraq, and it has come home to be used against a new enemy– you.
Stingray, also known as an International Mobile Subscriber Identity, or IMSI, catcher, works like this. The cell network is designed around triangulation and whenever possible your phone is in constant contact with at least three towers. As you move, one tower “hands off” your signal to the next one in your line of motion. Stingray electronically inserts itself into this process as if it was a (fake; “spoofed”) cell tower itself to grab location data before passing your legitimate signal back to the real cell network. The handoffs in and out of Stingray are invisible to you. Stingrays also “inadvertently” scoop up the cell phone data of anyone within several kilometers of the designated target person. Though typically used to collect location metadata, Stingray can also capture conversations, texts and mobile web use if needed.
Stingray offers some unique advantages to a national security state: it bypasses the phone company entirely, which is handy if laws change and phone companies no longer must cooperate with the government, or simply if the cops don’t want the phone company or anyone else to know they’re snooping.
This has led the Electronic Frontier Foundation (EFF) to warn “A Stingray— which could potentially be beamed into all the houses in one neighborhood looking for a particular signal— is the digital version of the pre-Revolutionary war practice of British soldiers going door-to-door, searching Americans’ homes without rationale or suspicion, let alone judicial approval… [Stingray is ] the biggest technological threat to cell phone privacy.”
Trying to Learn about Stingray
Learning how Stingray works is difficult.
The Electronic Privacy Information Center filed a FOIA request for more information on Stingrays, but the FBI is sitting on 25,000 pages of documents explaining the device that it won’t release.
The device itself is made by the Harris Corporation. Harris makes electronics for commercial use and is a significant defense contractor. For Stingray, available only to law enforcement agencies, Harris requires a non-disclosure agreement that police departments around the country have been signing for years explicitly prohibiting them from telling anyone, including other government bodies, about their use of the equipment “without the prior written consent of Harris.”
A price list of Harris’ spying technology, along with limited technical details, was leaked online, but that’s about all we know.
Though the non-disclosure agreement includes an exception for “judicially mandated disclosures,” there are no mechanisms for judges even to learn that the equipment was used at all, thus cutting off any possibility they could know enough demand disclosure. In at least one case in Florida, a police department revealed that it had decided not to seek a warrant to use the technology explicitly to avoid telling a judge about the equipment. It subsequently kept the information hidden from the defendant as well. The agreement with Harris goes further to require law enforcement to notify Harris any time journalists or anyone else files a public records request to obtain information about Stingray and also demands the police department assist Harris in deciding what information to release.
Something to HideAn evolving situation in Florida shows how hard the government is working to keep the details of its Stingray spying on Americans secret.
The ACLU originally sought Stingray records in Sarasota, Florida after they learned a detective there obtained permission to use the device simply by filing an application with a local court, instead of obtaining a probable-cause warrant as once was required by the Fourth Amendment of the Constitution. It became clear that the Sarasota police had additionally used Stingray at least 200 times since 2010 without even the minimal step of even notifying a judge. In line with the non-disclosure agreement, very rarely were arrested persons advised that Stingray data was used to locate and prosecute them.
The ACLU, which earlier in 2014 filed a Florida state-level FOIA-type request with the Sarasota police department for information detailing its use of Stingray, had an appointment with the local cops to review documents. The local police agreed to the review. However, the June 2014 morning of the ACLU’s appointment, U.S. Marshals arrived ahead of them and physically took possession of the files. The Marshals barred the Sarasota police from releasing them. The rationale used by the federal government was that having quickly deputized a Sarasota cop, all Sarasota records became federal property.
“This is consistent with what we’ve seen around the country with federal agencies trying to meddle with public requests for Stingray information,” an ACLU spokesperson said, noting that federal authorities have in other cases invoked the Homeland Security Act to prevent the release of such records. “The feds are working very hard to block any release of this information to the public.”
A Court Says the Feds Can Hide the Records
Following the feds’ seizure of the Stingray records, the ACLU filed an emergency motion with a Florida court that would require Sarasota to make its Stingray records available. However, in a decision issued June 17, 2014, a Florida state circuit court judge found that his court lacked jurisdiction over a federal agency, allowing the transfer of the Stingray documents to the feds and de facto blocking their release.
The ACLU plans further appeals. Unless and until they succeed, details of another way of spying on Americans will remain secret. The government does indeed have something to hide.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
FBI Again Creates, then “Stops” a Terror Attack, Refutes Constitution
Sleep safe Citizens, for the rough men of your national security state are guarding the walls.
Wait. Those rough men are actually clowns. The truth is more that the FBI is creating its own terror plots using some of the dumbest, most gullible would-be internet jihadis on the planet, and then claiming it stopped another attack on Das Homeland. This is the equivalent of a firefighter committing arson so he could look like a hero for putting out the fire.
We talked recently here about one plot involving a make-believe death ray. Today’s silliness involves a fake bomb attack in Chicago.
So this guy, probably based out of his parents’ basement, posts some stuff on a jihadi web site. The NSA takes note. Then he emails himself a link to the al Qaeda online magazine Inspire. The NSA spends billions of dollars to snoop and take note. With the incriminating evidence of unallowed actions of free speech in hand, two FBI undercover employees posing as jihadists contacted the guy, met up with him in Chicago, gave him fake explosives and a bum detonator, and helped him plan an attack. The FBI then arrested him when he tried to blow up a Chicago bar with the non-working gear supplied to him by the FBI. Senator Diane Feinstein raised this very case last year as justification for extending the existing surveillance laws.
But Wait, There’s More!
You’d think that was enough heroism for one case. However, in a sleazy attempt to avoid creating the grounds for a Constitutional challenge to the surveillance laws, the government is refusing to acknowledge that those laws were employed in this case. See, if the government admits it used its super snooping powers in a particular case, the defendant gains standing to pursue the issue all the way to the Supreme Court. The government dearly wishes to avoid having its actions tested for Constitutional legitimacy. Yeah, democracy!
Indeed, the most serious attempt, by the ACLU and others, to challenge the Constitutionality of the surveillance laws was denied by the courts because the ACLU lacked standing. The ACLU could not prove it had been surveilled and thus could not sue. Neat.
Remember, if you see something (you children especially, keep an eye on your parents’ internet use!), say something. Seriously, just say it out loud, because the NSA is listening.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Government Dumps on First Amendment
Jess Radack wrote this, with some added info in italics by me for ya’:
The Washington Post has an article on how Daniel Carter Jr. was fired for “liking” a page on Facebook. This was not a pornographic, racist, or other prohibited website – it was a Facebook page for a candidate who was challenging his boss.
This is just the tip of the iceberg of workplace free speech rights. I represent a client, State Department whsitleblower Peter Van Buren, who was not only prohibited from using any social media – on his own time, on his personal computer – but the State was actively monitoring anything he did: blog, Tweet, update his status of Facebook, etc. (here’s the letter the State Department compelled me to sign acknowledging they would be violating my First Amendment rights)
Both Carter and Van Buren’s behavior is protected free speech (the ACLU aggressively defended my First Amendment rights in front of the State Department).
Carter filed a lawsuit claiming that his First Amendment rights had been violated, which is now before the U.S. Court of Appeals for the 4th Circuit. Both Mr. Carter and Mr. Van Buren’s “speech” raise substantial constitutional questions and create the appearance of impermissible retaliation for their criticism – Carter’s so tacit that you can’t even call it “criticism,” and Van Buren’s more open – of the head of the sheriff’s department and the State Department, respectively.
The Supreme Court has made clear (Pickering v. Bd. or Educ., 1960 and its progeny) that public employees are protected by the First Amendment when they engage in speech about matters of public concern. These rights can be overcome only if the employee’s interest in the speech is outweighed by the government’s interest in the orderly operation of the public workplace and the efficient delivery of public services by public employees.
The Supreme Court has also held that public employees retain their First Amendment rights when speaking about issues directly related to their employment, as long as they are speaking as private citizens (Garcetti v. Ceballos, 2006). It is clear in both these cases that both Mr. Carter and Mr. Van Buren were “speaking” in their own voice and not on behalf of the local Police Department or the federal State Department.
If the lower court’s ruling that “liking” a page does not warrant protection because it does not involve “actual statements” is upheld, a plethora of Web-based actions – from clicking ‘like” on Facebook to re-tweeting something – won’t be protected as free speech.
The Hampton, Virginia sheriff’s actions and the State Department’s actions are unconstitutional. Carter and Van Buren used various computer technologies to communicate matters of public concern – in Carter’s case, who is to be elected Sheriff, and in Van Buren’s case, the reconstruction effort in Iraq.
As new technologies emerge daily, the law struggles to keep apace, but the First Amendment must be interpreted to protect these new modalities of communicating. As the ACLU points out:
Pressing a ‘like’ button is analogous to other forms of speech, such as putting a button on your shirt with a candidate’s name on it.
Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation’s leading whistleblower protection and advocacy organization.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
On Social Media, State Department Stands Alone
(This article was originally published on the Huffington Post, June 1, 2012)
As other parts of the Federal government begin to examine their own practices toward social media and publication review, the State Department stands alone in clinging to a 19th century model emphasizing lack of transparency and message control. That State seeks this modus in a largely unclassified world and while other agencies move toward change makes even more ripe State’s policies for a judicial challenge.
Introspection at the CIA
The CIA, for example, has begun a voluntary internal investigation into whether a process designed to screen books by former employees for classified information is wrongly and unconstitutionally being used to censor agency critics. The investigation is aimed at determining whether some redactions have been politically motivated. The target of the probe is the agency’s Publications Review Board, which is supposed to focus on whether publication of material would threaten national security interests. CIA critics said the disparities in the review process are particularly apparent in books that deal with controversial subjects, including waterboarding and other forms of “authorized” torture. (The Washington Post story on the CIA’s internal reform was of course not included in the State Department’s own internal press summary of the same day’s “Federal News.”)
Embracing Social Media in the Army
The State Department’s regulations also trail behind other government agencies, particularly the military. Military regulations concerning blogging and social media are not onerous and do not involve pre-clearance requirements. The Army encourages blogging in both official and private capacities, and has published glossy brochure-ware highlighting best practices for each. Though the Army heavily regulated military blogging briefly in 2008, it quickly reversed course. Military Law statutes, regulations, and cases available do not contain any references to pre-clearance requirements.
In fact, the Army social media guidelines are all online, in a colorful, user-friendly slideshow. They begin with the stated premise that “It is important to be as transparent as possible. As communicators, we need to be the first with the truth, whether it’s good or bad.” The emphasis in the Army guidelines is on good judgement– don’t post things online that could endanger soldiers’ lives– with not a word mentioned about the need to pre-clear (indeed, the Army emphasizes the value of social media is in its immediacy) or the requirement to say only “nice things.” Indeed, the introduction to the social media guidelines emphasizes displaying the good with the bad, with “truth” as the goal. The Army guidelines provide lots of examples and include easy-to-understand (“soldier-proof”) checklists of Do’s and Don’t’s.
State Stands Alone
And then, standing alone, is the State Department.
State has its own regulations (not “guidelines”) on social media. No slick slide shows at State. The social media regs start with 15 pages of text, and begin by citing 27 Executive Orders, OMB decisions and Federal laws the user is responsible for following, including 18 U.S.C. 713 and 1017, Use of Department and Government Seals (rather than prohibiting the use of Seals and logos, as State does, the Army includes links to web-ready artwork so social media users get the images right) and whatever the Anti-Lobbying Act of 1913, is.
The secret sauce hidden in State’s hefty social media regulations is 3 FAM 4170, Official Clearance of Speaking, Writing, and Teaching. That reg is State’s requirement that all social media, even when posted as a private citizen, be pre-cleared, and that the State Department is allowed up to 30 working days to act.
That means the State Department demands of all of its thousands of employees that they seek pre-clearance for every blog post, update and Tweet, every day, 24/7. An exaggeration on my part? Sorry, no– have a look at the compliance letter I was forced to sign as a condition of employment, which specifically mentions these things even when done by an employee in his or her private capacity.
Obviously State cannot pre-clear what must add up to millions of social media utterances each week, and so it does not. In many instances when I have sought pre-clearance for a blog post on some timely matter, State simply sat on a response until, weeks later, the blog post was so irrelevant that it was not usable anymore. The law anticipated this type of government-foot-dragging-as-shadow-censorship, and in a seminal case on the free speech rights of Federal workers, stated:
But even then insistence on advance approval would raise a further question, as before-the-fact condemnation of speech raises special concerns such as undue delay-the review itself plus time needed for a speaker to secure judicial relief-and stifling of expression that in hindsight would have been viewed as harmless or not worth the enforcement effort.
Droppin’ Some Law On ‘Ya
It was actions such as this that lead the American Civil Liberties Union (ACLU) to assert that the State Department violated my First Amendment free speech rights and acted unconstitutionally. My attempts to clear items for publication were met with lengthy delays and periods of no contact. It was indeed such actions by the Department that often lead me to publish without preclearance so that the material was relevant to breaking news.
Want some law? Specifically on the issue of foot dragging on pre-clearance as a clever technique to kill a story, in Weaver the Court noted “if the prior review were extensive, of course, it might delay constitutionally protected speech to a time when its only relevance was to historians.” In Crue v. Aiken, the 7th Circuit found a pre-clearance directive without a schedule for the review of proposed communications problematic because nothing prevented the reviewing official from delaying approval of communications until they were no longer relevant. (Crue v. Aiken, 370 F.3d 668, 679 (7th Cir. 2004)).
In Davis v. New Jersey Dept. of Law & Pub. Safety, the NJ Superior Court recognized that “before-the-fact review and approval requirements restrict employee speech—and raise special concerns such as undue delay and stifling of expression that in hindsight may be viewed as harmless or not worth the enforcement effort.” (Davis v. New Jersey Dept. of Law & Pub. Safety, Div. of State Police, 742 A.2d 619, 628-29 (Ch. Div. 1999)). Davis citing the Supreme Court in Freedman v. State of Maryland, notes that the danger present when a regulation “is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor’s determination may in practice be final.” (Freedman v. State of Md., 380 U.S. 51, 58, 85 S. Ct. 734, 738, 13 L. Ed. 2d 649 (1965)).
I know, I know, too heavy Doc. It took the ACLU five dense pages to spell out in legal detail all the ways the State Department social media regulations were unconstitutional and violated my First Amendment free speech rights.
Bottom Line
So it is not as simple as some claim, broadly announcing that Federal employees give up their First Amendment rights, or that social media and the responsibilities of a classified job are incompatible. Federal employees do not give up their First Amendment rights, and there is plenty of law to substantiate that.
The bottom line is this: If the hyper-classified CIA recognizes the need for an internal review of its pre-clearance process, why doesn’t the State Department? If the military, with its obvious day-to-day operational need for secrecy and its immediate impact on soldiers’ lives, can co-exist without pre-clearance restraints on blogs, why can’t State?
Given the chance to make sane, voluntary changes to an obviously out-dated social media policy that stands outside the boundaries of other Federal agencies with a whole lot more secrets to protect, State appears ready to instead insist on having those changes dictated to it by a court. That is an expensive, and in this case, unnecessary way to change out-dated regulations.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
US Ambassador: State Dept. promotes freedom abroad but supresses whistleblower here
In addition to the ACLU, the Government Accountability Project, the Project on Government Oversight and others chastising the Department of State for hypocritically supporting web freedom abroad while planning to fire me here at home for writing this blog, former US Ambassador to Mozambique and Peru Dennis Jett now joins the growing list of prominent critics.
Ambassador Jett writes:
Secretary of State Hillary Clinton forcefully intervened recently on behalf of Chen Guancheng, the blind Chinese dissident, who has been hounded by his government for criticizing official policy. It’s too bad she won’t afford the same consideration to the employees of her own department.
Secretary Clinton has made defending the kind of freedom of expression that Chen tried to practice one of the hallmarks of her time in office. In a speech at the Newseum in Washington in early 2010, she insisted citizens must have the right to criticize their governments not just in the public square, but also in blogs, emails, social networks, text messages and other new forums for exchanging ideas. Governments should not attempt to censor or limit such activity she asserted, noting proudly that the State Department was working in more than 40 countries to help individuals silenced by oppressive governments.
Why, then, is the State Department trying to silence one of its employees for remarks it does not like and attempting to criminalize his exercise of freedom of speech? The book and a blog by Van Buren were apparently more freedom-of-expression than the State Department could tolerate however.
The chilling effect on State Department employees of such a blatant attempt to silence unwelcome opinions is apparently not limited to Van Buren’s case. The American Foreign Service Association, the professional association of the Foreign Service, gives four annual awards each to recognize employees who have “exhibited extraordinary accomplishment involving initiative, integrity, intellectual courage and constructive dissent.” In three of the last four years, there has been no winner of the award for either junior officers or senior officers.
Read Ambassador Jett’s full article online now.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Mrs. Clinton, you have a problem.
It was with great pleasure that I saw my friend at the Washington Post, Lisa Rein, bring more daylight on the latest anti-free speech action by the State Department, State’s censoring of a blog because it mentioned the writer’s battle with breast cancer. Lisa Rein has written about my own efforts to reform State’s unconstitutional practices, and I was pleased to bring the latest act of the Department to her attention. I am very glad she took the story.
It is now time for the Department of State to stand up and admit it: I have a problem with blogs. I need help.
The State Department has pressured numerous employees to quit blogging at the risk of their career. When I refused to cave in, they began termination proceedings.
Yet the State Department tries to use employee blogs it agrees with as bait to attract new recruits, even listing some on its own US Government website. State turns a blind eye to the fact that not all of those blogs include the proper disclaimer, and that not all of those blog adhere to the same pre-clearance regulations I am being fired for and which the ACLU has declared unconstitutional. I doubt all of those “acceptable” bloggers have been forced to sign a Compliance Letter as a condition of continued employment. Blogger Jen did not get pre-permission from State to speak to the Post yesterday, though I am being fired for not getting pre-permission from State to speak to the Post in the past.
All this double-talk because State wants the advertising bang such first-hand accounts provide to its recruitment efforts.
In Jen’s case, State was happy to pimp her blog on its own web site as long as she was writing plucky tales of life abroad. But, as soon as she mentioned her battle with breast cancer, State deep sixed her blog, disappeared it. State will break the rules for verbiage it likes, and enforce the rules right up to termination when it does not like what someone says.
Another State Department blogger puts it this way:
Simply put, the State Department has two completely opposite opinions when it comes to social media (like blogging). One side of State wants nothing more than to shut down all State blogs. Period. Blogs by employees, blogs by spouses, it doesn’t matter – all of them should be GONE.
My husband has personally seen this side of State many, many times, via many different official people, during the course of an uncountable number of official meetings over the last few years. As many of my readers know, my blog has been shut down twice…most recently, just a couple of months ago. The only reason why my blog is up now and still exists today is because my DS Special Agent husband feels most emphatically that: I am a private U.S. citizen, and my blog represents/is protected by my right to freedom of speech.
Believe me when I say that he has endured much in defense of his position.
Being on The Official Blog List actually painted an even bigger bulls eye on my back. And not just on my back, but on the backs of other State bloggers on The List. To date, to my knowledge, at least three State bloggers (and perhaps even up to five) on The List have since been shut down. And there were probably, oh, I don’t know, only about a dozen or so blogs on that List when it began. So, you know, not the best odds of bloggy survival.
So there it is. This is not an isolated incident, a disgruntled employee or two who can be disappeared to fix the problem.
Mrs. Clinton, you now have the Washington Post– twice– pointing out the hypocrisy your Department visits upon social media. You have the American Civil Liberties Union stating your policies are unconstitutional and that you violate the First Amendment rights of your own employees. You have droids in your organization who mistreat people with breast cancer because of blogs. This story is spreading now via breast cancer awareness sites. You have a lot of employees who think it is time for a more rational policy, one that is applied equally to all.
Mrs. Clinton, you have a problem. Admit it, and seek a solution. It won’t go away by itself. You have to do something about it.
(Inside baseball extra bonus: The State Department publishes daily an internal-only summary of Washington Post articles. Curiously, the WaPo article on Jen’s blog was omitted. One can guess why such self-censorship seems to make sense to the ever-skittish State Department)(Extra, extra bonus: In a statement to the Washington Post, State Department spokesman Mark C. Toner said the blog “has been restored” on the State Department’s recruitment page. “It had been taken down as part of a periodic effort by a contractor to review and freshen the blog links on the site.” Like everyone believes that. OMG, does he kiss his mother with that mouth?)
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
ACLU: State Department Violates Van Buren’s Constitutional Rights
(This article also appeared on the Huffington Post, May 17, 2012)
The American Civil Liberties Union (ACLU), in a letter to the Department of State, said today that the Department’s actions against my book and this blog are unconstitutional, that State’s actions “constitute a violation of Van Buren’s constitutional rights.”
Straight up, no qualifiers.
The ACLU reminds the State Department that the Courts have said that “Speech concerning public affairs is more than self-expression, it is the essence of self-government” and citing the numerous legal challenges the State Department has willfully ignored that grant government employees the same First Amendment rights all Americans enjoy.
Which is what we’ve been saying all along, here, in the New York Times, on NPR, CNN and elsewhere.
After reviewing the State Department’s policies and regulations, the ACLU states that “The State Department’s pre-publication review process, as it applies to blogs and articles raises serious Constitutional questions,” then goes on to detail those questions. The ACLU notes that State’s actions toward me are but one example of its unconstitutional actions and apply to other employees as well. They conclude that “it is highly unlikely that the State Department could sustain its burden of demonstrating that its policy is constitutional… There is no justification for such expansive prior restraint on State Department employees’ speech.”
Now them’s fightin’ words, folks.
Read the entire letter on the ACLU’s website. It is powerful stuff.
What It Means
The ACLU’s announcement that the Department of State has violated the Constitutional rights, the First Amendment rights, of one of its own employees comes to the day, 225 years later, that the Constitutional Convention opened in Philadelphia and the founders began writing an extraordinary document. The First Amendment was added later, but the spirit of free speech underlies every clause and sentence of the original document. It is embedded in the very parchment.
The Founders would retch to see what has become of the spirit of the Enlightment that drove them, simply because America got frightened after 9/11. Those beautiful words of the First Amendment, almost haiku-like, are the sparse poetry of the American democratic experiment. The Founders purposely wrote the First Amendment to read broadly, and not like a snippet of tax code, in order to emphasize that it should encompass everything from shouted religious rantings to eloquent political criticism. Madison and Jefferson were strong enough to give away the power of a government they would run, and place it in the hands of the people that government would serve. There’s courage most of us can never fully understand.
Now, very sadly, our first Cabinet agency, the Department of State, the part of the US government that speaks most directly to people abroad about freedom and democracy, is run by much smaller men and women. They are afraid of their own employees and afraid of what you– The People– will know the way they go about their wretched business. Hillary Clinton, herself a candidate to take over the seat once held by giants like Jefferson, Adams and Madison, has turned her internal security against a blog, and ordered her frightened followers to get rid of one employee because of a book. Her acts now have a label that will follow her and her Department long past my departure: Unconstitutional.
Every fluffy speech she makes to Syrian bloggers, or Chinese dissenters, will carry an asterisk– but Madame Secretary, as you criticize oppressive regimes for shutting down free speech, didn’t you order your own followers to silence a critic? Didn’t your Department act unconstitutionally? Are your actions somehow different than Bejing’s?
Did not you violate, willfully, clearly and repeatedly Madame Secretary the First Amendment rights of an American Citizen? How will you answer them Madame Secretary? Will you lie? Will you defame the ACLU? Will you apply your own legal skills to the analysis of your wrongs? Mumble about a disgruntled employee? Or will you remain silent?
Of course the State Department has not responded to all this. They have not answered me, they have not answered your letters and emails, they have not answered Members of Congress and they have not answered the ACLU. Why not? There is the ACLU letter, five dense pages of legal justification that leads to the core statement:
State’s actions constitute a violation of Van Buren’s constitutional rights.. That is the issue. Now, finally, Madame Secretary, how will you answer?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Wanna Know a Secret? Ask the State Department
A brief recap: Bradley Manning or someone released a bazillion classified State Department cables to the world via Wikileaks, State Department would not confirm any of the cables as genuine, blocks access inside Foggy Bottom where people do have security clearances and could thus legally read the cables, and takes away my security clearance for linking to one of those cables on this blog.
Then those bad, bad boys and girls at the ACLU file a Freedom of Information Act (FOIA) request and lawsuit seeking twenty-three cables that had been previously disclosed by WikiLeaks and widely distributed online and in the press.
And what does the State Department do?
It released eleven of the ACLU-requested documents, with redactions. That means that all you or anyone on earth need to do is compare the State-released version with the Wikileaks-released version, and you’ll know exactly what information
is, er, was considered secret.You could do a lot of Googling around to compare the two sets of documents, but if you don’t want to, someone has already made the pairing for you.
In the words of the ACLU:
The State Department has reversed course and acknowledged that at least some of the cables can be released to the public without harming national security. That’s what we’ve been saying all along (and, according to reports, what some government officials have been saying too).
The State Department’s response is particularly astounding because it reveals a roadmap of the government’s classification decisions. The information released by the State Department is perhaps more sensitive than the cables themselves, revealing what the government thinks the public should and should not be able to see.
Even the staid New York Times was mildly gobsmacked:
Of course, by redacting passages the public is free to read, the State Department has called attention to what it considers the most diplomatically touchy parts of cables. At a glance, its reasoning is not obvious.
ACLU’s conclusion after comparing the redactions with the full texts is not pretty:
At its most harmless, [State’s] selectivity reveals a penchant for superficially advancing national image at the cost of transparency. At its worst, it is yet another instance of the government making false claims of secrecy to avoid legal and political accountability.
And special thanks to the ACLU for mentioning my own struggles with State; it is comforting to know they have my back.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Blocking Objectionable Web Sites: Tehran and State Department
Iran has blocked ”Virtual Embassy Tehran”, within 24 hours of its launch by the US, accusing the State Department of “meddling” in the internal affairs of the country.The State Department launched the virtual online embassy Tuesday to provide (fairly bland) information to Iranians, despite the lack of diplomatic ties, and to “work as a bridge between the American and Iranian people.”
Accusing the US of “meddling” in the internal affairs of the country, Iran barred the website. US officials responded they were expecting this move by the Iranian government. A State spokesperson said “Many Iranians do have software and virtual private networks that allow them to work around these kinds of blocks. I think, for example, there are millions of Iranians who have access to Facebook and they”ll also be able to use these so-called VPNs to access this site.”
It is indeed a sad State of affairs when governments block information they find politically objectionable.
Oh yes, and this:
The Department of State continues to block access on its own networks to any Wikileaks-related website, including select news and comment sites that have commented about Wikileaks. The cables released by WikiLeaks are of course available to anyone sober enough to operate an internet connection. But, according to the ACLU, the government has spent the last year insisting, over and over, that the WikiLeaks cables are still classified, going so far as interrogating a State Department employee (me) who linked to one of the cables from his personal blog. Now, the State Department has reversed course and acknowledged without comment that at least some of the cables can be released to the public without harming national security.
The use of specialized software and VPNs that State recommends to Iranians to circumvent the firewall block is prohibited by the State Department to its own employees to get around State’s own firewall blocks.
Also, a regular reader, whom we’ll call, what the hell, “Popeye,” reports that my blog is now blocked on the Navy’s unclassified network.
Of course, sailors, State Department officials and Iranians worldwide can still watch this:
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
No Free Speech at Mr. Jefferson’s Library
(Originally posted at TomDispatch.com)
Here’s the First Amendment, in full: “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.”
Those beautiful words, almost haiku-like, are the sparse poetry of the American democratic experiment. The Founders purposely wrote the First Amendment to read broadly, and not like a snippet of tax code, in order to emphasize that it should encompass everything from shouted religious rantings to eloquent political criticism. Go ahead, reread it aloud at this moment when the government seems to be carving out an exception to it large enough to drive a tank through.
As the occupiers of Zuccotti Park, like those pepper-sprayed at UC Davis or the Marine veteran shot in Oakland, recently found out, the government’s ability to limit free speech, to stopper the First Amendment, to undercut the right to peaceably assemble and petition for redress of grievances, is perhaps the most critical issue our republic can face. If you were to write the history of the last decade in Washington, it might well be a story of how, issue by issue, the government freed itself from legal and constitutional bounds when it came to torture, the assassination of U.S. citizens, the holding of prisoners without trial or access to a court of law, the illegal surveillance of American citizens, and so on. In the process, it has entrenched itself in a comfortable shadowland of ever more impenetrable secrecy, while going after any whistleblower who might shine a light in.
Now, it also seems to be chipping away at the most basic American right of all, the right of free speech, starting with that of its own employees. As is often said, the easiest book to stop is the one that is never written; the easiest voice to staunch is the one that is never raised.
It’s true that, over the years, government in its many forms has tried to claim that you lose your free speech rights when you, for example, work for a public school, or join the military. In dealing with school administrators who sought to silence a teacher for complaining publicly that not enough money was being spent on academics versus athletics, or generals who wanted to stop enlisted men and women from blogging, the courts have found that any loss of rights must be limited and specific. As Jim Webb wrote when still Secretary of the Navy, “A citizen does not give up his First Amendment right to free speech when he puts on a military uniform, with small exceptions.”
Free speech is considered so basic that the courts have been wary of imposing any limits at all. The famous warning by Justice Oliver Wendell Holmes about not falsely shouting “Fire!” in a crowded theater shows just how extreme a situation must be for the Supreme Court to limit speech. As Holmes put it in his definition:
“The question in every case is whether the words used… are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
That’s a high bar indeed.
The Government v. Morris Davis
Does a newspaper article from November 2009, a few hundred well-reasoned words that appeared in the conservative Wall Street Journal, concluding with these mild sentences, meet Justice Holmes’s high mark?
“Double standards don’t play well in Peoria. They won’t play well in Peshawar or Palembang either. We need to work to change the negative perceptions that exist about Guantanamo and our commitment to the law. Formally establishing a legal double standard will only reinforce them.”
Morris Davis got fired from his research job at the Library of Congress for writing that article and a similar letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court ruled that the suit could go forward.
The case is being heard this month. Someday, it will likely define the free speech rights of federal employees and so determine the quality of people who will make up our government. We citizens vote for the big names, but it’s the millions of lower-ranked, unelected federal employees who decide by their actions how the laws are carried out (or ignored) and the Constitution upheld (or disregarded).
Morris Davis is not some dour civil servant. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis had stated he would not use evidence obtained through torture back in 2005. When a torture advocate was named his boss in 2007, Davis quit rather than face the inevitable order to reverse his position.
In December 2008, Davis went to work as a researcher at the Library of Congress in the Foreign Affairs, Defense and Trade Division. None of his work was related to Guantanamo. He was not a spokesperson for, or a public face of, the library. He was respected at work. Even the people who fired him do not contest that he did his “day job” as a researcher well.
On November 12, 2009, the day after his op-ed and letter appeared, Davis was told by his boss that the pieces had caused the library concern over his “poor judgment and suitability to serve… not consistent with ‘acceptable service'” — as the letter of admonishment he received put the matter. It referred only to his op-ed and Washington Post letter, and said nothing about his work performance as a researcher. One week later, Davis was fired.
But Shouldn’t He Have Known Better Than to Write Something Political?
The courts have consistently supported the rights of the Ku Klux Klan to use extreme and hateful words, of the burners of books, and of those who desecrate the American flag. All of that is considered “protected speech.” A commitment to real free speech means accepting the toughest cases, the most offensive things people can conceive of, as the price of a free society.
The Library of Congress does not restrict its employees from writing or speaking, so Davis broke no rules. Nor, theoretically at least, do other government agencies like the CIA and the State Department restrict employees from writing or speaking, even on matters of official concern, although they do demand prior review for such things as the possible misuse of classified material.
Clearly, such agency review processes have sometimes been used as a de facto method of prior restraint. The CIA, for example, has been accused of using indefinite security reviews to effectively prevent a book from being published. The Department of Defense has also wielded exaggerated claims of classified material to block books.
Since at least 1968, there has, however, been no broad prohibition against government employees writing about political matters or matters of public concern. In 1968, the Supreme Court decided a seminal public employee First Amendment case, Pickering v. Board of Education. It ruled that school officials had violated the First Amendment rights of teacher Marvin Pickering when they fired him for writing a letter to his local paper criticizing the allocation of money between academics and athletics.
A Thought Crime
Morris Davis was fired by the Library of Congress not because of his work performance, but because he wrote that Wall Street Journal op-ed on his own time, using his own computer, as a private citizen, never mentioning his (unrelated) federal job. The government just did not like what he wrote. Perhaps his bosses were embarrassed by his words, or felt offended by them. Certainly, in the present atmosphere in Washington, they felt they had an open path to stopping their own employee from saying what he did, or at least for punishing him for doing so.
It’s not, of course, that federal employees don’t write and speak publicly. As long as they don’t step on toes, they do, in startling numbers, on matters of official concern, on hobbies, on subjects of all sorts, through what must be an untold number of blogs, Facebook pages, Tweets, op-eds, and letters to the editor. The government picked Davis out for selective, vindictive prosecution.
More significantly, Davis was fired prospectively — not for poor attendance, or too much time idling at the water cooler, but because his boss believed Davis’s writing showed that the quality of his judgment might make him an unsuitable employee at some future moment. The simple act of speaking out on a subject at odds with an official government position was the real grounds for his firing. That, and that alone, was enough for termination.
As any devoted fan of George Orwell, Ray Bradbury, or Philip K. Dick would know, Davis committed a thought crime.
As some readers may also know, I evidently did the same thing. Because of my book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, about my experiences as a State Department official in Iraq, and the articles, op-eds, and blog posts I have written, I first had my security clearance suspended by the Department of State and then was suspended from my job there. That job had nothing to do with Iraq or any of the subjects I have written about. My performance reviews were good, and no one at State criticized me for my day-job work. Because we have been working under different human resources systems, Davis, as a civil servant on new-hire probation, could be fired directly. As a tenured Foreign Service Officer, I can’t, and so State has placed me on indefinite administrative leave status; that is, I’m without a job, pending action to terminate me formally through a more laborious process.
However, in removing me from my position, the document the State Department delivered to me darkly echoed what Davis’ boss at the Library of Congress said to him:
“The manner in which you have expressed yourself in some of your published material is inconsistent with the standards of behavior expected of the Foreign Service. Some of your actions also raise questions about your overall judgment. Both good judgment and the ability to represent the Foreign Service in a way that will make the Foreign Service attractive to candidates are key requirements.”
There follows a pattern of punishing federal employees for speaking out or whistle-blowing: look at Davis, or me, or Franz Gayl, or Thomas Drake. In this way, a precedent is being set for an even deeper cloud of secrecy to surround the workings of government. From Washington, in other words, no news, other than good or officially approved news, is to emerge.
The government’s statements at Davis’s trial, now underway in Washington D.C., do indeed indicate that he was fired for the act of speaking out itself, as much as the content of what he said. The Justice Department lawyer representing the government said that Davis’s writings cast doubt on his discretion, judgment and ability to serve as a high-level official. (She also added that Davis’s language in the op-ed was “intemperate.” One judge on the three-member bench seemed to support the point, saying, “It’s one thing to speak at a law school or association, but it’s quite a different thing to be in The Washington Post.” The case will likely end up at the Supreme Court.
Free Speech is for Iranians, not Government Employees
If Morris Davis loses his case, then a federal employee’s judgment and suitability may be termed insufficient for employment if he or she writes publicly in a way that offends or embarrasses the government. In other words, the very definition of good judgment, when it comes to freedom of speech, will then rest with the individual employer — that is, the U.S. government.
Simply put, even if you as a federal employee follow your agency’s rules on publication, you can still be fired for what you write if your bosses don’t like it. If your speech offends them, then that’s bad judgment on your part and the First Amendment goes down the drain. Free speech is increasingly coming at a price in Washington: for federal employees, conscience could cost them their jobs.
In this sense, Morris Davis represents a chilling precedent. He raised his voice. If we’re not careful, the next Morris Davis may not. Federal employees are, at best, a skittish bunch, not known for their innovative, out-of-the-box thinking. Actions like those in the Davis case will only further deter any thoughts of speaking out, and will likely deter some good people from seeking federal employment.
More broadly, the Davis case threatens to give the government free rein in selecting speech by its employees it does not like and punishing it. It’s okay to blog about your fascination with knitting or to support official positions. If you happen to be Iranian or Chinese or Syrian, and not terribly fond of your government, and express yourself on the subject, the U.S. government will support your right to do it 110% of the way. However, as a federal employee, blog about your negative opinions on U.S. policies and you’ve got a problem. In fact, we have a problem as a country if freedom of speech only holds as long as it does not offend the U.S. government.
Morris Davis’s problem is neither unique nor isolated. Clothilde Le Coz, Washington director of Reporters without Borders, told me earlier this month, “Secrecy is taking over from free speech in the United States. While we naively thought the Obama administration would be more transparent than the previous one, it is actually the first to sue five people for being sources and speaking publicly.” Scary, especially since this is no longer an issue of one rogue administration.
Government is different than private business. If you don’t like McDonald’s because of its policies, go to Burger King, or a soup kitchen, or eat at home. You don’t get the choice of federal governments, and so the critical need for its employees to be able to speak informs the republic. We are the only ones who can tell you what is happening inside your government. It really is that important. Ask Morris Davis.
Addendum
After publishing the piece above, TomDispatch and I received two emails (both were signed but names removed here):
I enjoyed your piece on the Davis case and largely agree with your point of view, but am surprised to see you repeatedly refer to Davis as a “researcher.” He was a senior manager at CRS (my boss, in fact) and research was at no time among his job duties. Also, my understanding is that CRS does, indeed, restrict outside writing by employees when such writing takes policy positions on any issue that may be or come before Congress. This can be taken as harmful to the central CRS mission of objectivity. So Davis wasn’t fired for his position, he was fired for taking a position.
Second email, different author:There was no free speech violation against Moe Davis at LC and anybody who comes in actual contact with Davis realizes he is quite a fraud and liar. I worked at LC over 20 years and ran, on my own, the LCPA Veterans Forum. I brought 50 speakers of the Left and Right and it was a very respected program. I had scheduled Lynndie England as well as her prosecutor (at a later date) who had also published a book. Davis told me I should cancel her appearance (!). I told him both were coming and, since she had the guts to appear in public, he should tell her what he thought of her.
I am a Viet Vet with my own opinion about her behavior, but that is beside the point in bringing speakers to LC. Davis then went to the WSJ, which then interviewed me, making him look like an ass. He then resorted to threats and getting others to send threats to me and LC. I forwarded all to the police and IG. The event was cancelled over my objections, I then cancelled the Forum due to lack of free speech and retired early out of disgust. Davis wrote on LC time and stated who he was, as well as calling me in print a “veteran without values.” Yeah, I did a year in Vietnam and was a paratrooper with 27 jumps; he never mussed his hair in 25 years. David violated all the rules and laws and was told he would be fired if he did not follow the rules. CIA, FBI, etc., all have to conform to rules on publishing and have writings vetted. Davis simply refused. Read what he said about Khadr while at Gitmo as that is much different than his story now. He also tried to have a defense attorney arrested, resulting in a rebuke from the judge. Davis belongs in Iran issuing fatwas against authors he does not like.
One last point: Davis likes to say “popular outrage” cancelled Lyndie, but tons of calls came in support of free speech and condemning Davis and his violence-threatening pals. I received quite a few calls from other vets, who wrote complaints to their Senators about Davis. NOTE: you may publish all or any of my response.
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