• Five Bad Arguments to Restrict Speech

    August 10, 2017 // 20 Comments »


    Without free speech people stop thinking, losing out on all but a narrowing band of ideas. Open discussion, debate, and argument are the core of democracy. Bad ideas are defeated by good ideas. Fascism seeks to close off all ideas except its own.

    Yet all of these most basic concepts of free speech in our nation are under threat, and too many of them are under threat from the left. I never thought I would write that last phrase, just as I never thought I’d need to explain five bad arguments the Left is using to restrict speech from the Right.

     

    Despicable People

    Despicable people and their ideas have always existed, though it is essentially a quick summary of the whole point of free speech to remind that at different times in our history speaking out against slavery, against war, against one president 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 “pornopgraphic” 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 arrival in 2017 of neo-nazis, alt-right, white supremacists, racists, and the many flavors of ‘phobes is sadly nothing new. The current poster children for hate, Richard Spencer, Milo Yiannopoulos, Ann Coulter, and Charles Murray, are no one new either (Coulter’s first book came out in 1998; Murray published his loathed book on welfare in 1984 and both have spoken publicly ever since.) What does seem to be new is that their opposition — the antifa, the anti-fascists — is now 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. The justification is Everything Is Different since November’s election, and the old rules not only don’t apply, but that wishy-washy democratic ideals of free speech are now a threat to democracy.

     

    Punching Nazis

    And so an incident at the Trump inaugural set “Is it OK to punch a Nazi for what he said?” bouncing around the media, including in the New York Times and The Nation, two venerable outlets which have otherwise long fought for free speech, and whose writers have long risked jail time in the practice of it.

    What happened was that alongside the inauguration Neo-Nazi Richard Spencer was explaining live on camera the meaning of Pepe the Frog, a silly cartoon figure somehow adopted as a mascot by the anti-immigrant, anti-Semitic, and anti-feminist movement Spencer promotes. 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. Another popular comment was to invoke Hitler, claiming violence is now 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 online also suggested 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.”

    A popular meme was to put different songs, many calling for more violence, behind the punching video. Jon Favreau, a former speechwriter for Barack Obama, tweeted “I don’t care how many different songs you set Richard Spencer being punched to, I’ll laugh at every one.”

    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 and New York University, canceled, postponed, or scheduled into dead zones for attendance speeches by conservative speakers, citing public safety concerns.

    What grew out of the Spencer incident and those in Berkeley, Middlebury and elsewhere are a series of inaccurate and/or weak arguments from too many in favor of restricting speech. Let’s look at some, and why they do not hold up.

     

    1. The First Amendment Only Applies to Government?

    The first fallacious argument used to shut down free speech is that the First Amendment of the Bill of Rights in our Constitution only applies to government, and so universities or other entities are entitled to censor, restrict or shut down altogether speech willy-nilly.

    Short Answer: Not really. Public funding invokes the First Amendment for schools, and free speech runs deeper than the Bill of Rights. It’s as much a philosophical argument as a legal one, not a bad thing for a nation founded on a set of ideas (and ideals.)

     

    Free speech in America is an unalienable right, and goes as deep into the concept of a free society as any idea can. Though cited as far back as 1689 in England, the American version of this was laid out most clearly by Thomas Jefferson, in the mighty Declaration of Independence, where he wrote of rights that flowed from his notion of The Creator, not from government, and thus were fixed.

    Jefferson’s invocation of the Creator is understood now as less that free speech is heaven-sent and more that it is something that exists before and after our time. Government thus did not give us the right to free speech and therefore cannot take it away. The First Amendment simply codifies that latter part, laying out like much of the Bill of Rights what the government cannot do. So the argument that the First Amendment does not necessarily apply to all public speaking can be both true and irrelevant at the same time, and the latter is more important. Abetting free speech is an obligation in a democracy in general, and to an institution devoted to truth and education in the particular.

    And though the fundamental argument is the controlling one, there does also exist a legal one that extends the First Amendment restrictions to institutions that accept Federal funding (which means most of them); in the 1995 case Rosenberger v. University of Virginia, the Supreme Court held that the University could not fund all student publications except those addressing religious views because such a policy violated the institution’s constitutional obligation not to discriminate against particular viewpoints.

    Bottom Line: Universities are not free to restrict speech simply because they are not the government. They should be ashamed of themselves for trying to find ways to circumvent free speech instead of promoting it.

     

    2. What’s Said May Provoke Violence in the Room (A Clear and Present Danger)

    Some claim that certain conservative speakers, such as Milo Yiannopoulos, who purposefully use anti-LGBTQ slurs to provoke their audiences, should be banned or shut down. Their speech is the equivalent of yelling Fire! in a crowded movie theatre when there is no actual danger, provoking a deadly stampede for the exits.

    Short Answer: The standards for shutting down speech are very restrictive, and well-codified. Milo comes nowhere close.

     

    The Fire! line from a Supreme Court decision Schenck v. United States by Justice Oliver Wendell Holmes is often cited as justification for limiting free speech. Here’s what Holmes wrote:

    The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre 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 false 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. That’s the “clear and present danger.”

    This interpretation of the First Amendment has been adjudicated to impose a high barrier to restrictions on what can be blocked or banned, and over the years has allowed flags to be burned in front of veterans, Nazis to march among Holocaust survivors, artists to make religious sculptures from their own body waste.

    Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer, to stop free speech, not protect it (in other words, the pamphleteer was determined to be a clear and present danger in wartime and rightfully arrested.) The case was eventually overturned, and in truth Holmes’ statement was originally intended to mean the First Amendment is not absolute, that restriction is lawful, along with the developing idea that restriction on speech should be narrow and limited.

    It was the later case of Brandenburg v. Ohio that refined the modern standard for restricting speech to that “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” But we talk about Holmes’ “fire in a crowded theatre” line as a kind of shorthand for all that.

    Justice Holmes, perhaps as an act of contrition, later wrote in another landmark case:

    The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

    Bottom Line: The Supreme Court has set a very high bar against restricting speech based on the idea that what is being said leading to violence. Concerns, offense or general threats alone are insufficient to justify silencing someone as a solution.

     

    3. What’s Said May Provoke Violence Outside (Public Safety)

    The idea that 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 the go-to justification for canceling or restricting speech. Berkley cited this in canceling and then de-platforming (rescheduling her when most students would not be on campus) Ann Coulter, whose campus sponsors are now suing, and New York University cited the same justification for canceling an appearance by Milo Yiannopoulos.

    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. Recently the town of Urbana, Illinois arrested someone burning an American flag (an act long-held to be a form of protected speech) claiming he was in danger from bystanders. Such thinking has in the past been used to deny permits for civil rights marches, with law enforcement saying they could not protect the protestors. 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. Though there exists opinion on the proper balance, the answer is rarely to ban speech outright simply to maintain order.

    One landmark case from 2015 provides some of the clearest guidance yet:

    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 case involved a group called the Bible Believers who used crude langauge (“Turn or Burn”) at an LGBTQ gathering. The judges continued in their opinion allowing the Bible Believers to speak:

    We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested; or allowing the Bible Believers to speak from the already constructed barricade to which they were eventually secluded prior to being ejected from the Festival.”

    “If none of these measures were feasible or had been deemed unlikely to prevail, the officers could have called for backup… prior to finding that it was necessary to infringe on the group’s First Amendment rights. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.

    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 are diverse as Occupy and where a Christian group brought a pig’s head on a stick to a Muslim Arts festival.

    In sum, the court has long recognized that content-based regulation of speech in a public forum (the “health and safety” restrictions) is permissible only “to serve a compelling state interest” and 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 Ann Coulter speak on campus are outweighed by the obligation to protect free speech. Maintenance of the peace should not be achieved at the expense of the free speech. Getting rid of the speaker is expedient but unconstitutional. There are plenty of laws that legitimately protect against violence on their own.

     

    4. Speech Can or Should Be Restricted Based on Content (Hate Speech)

    There are no laws against “hate speech.” A speaker can call people names, and insult them by their race, sexual orientation or religious beliefs. What many people think and say is hateful. It is carefully thought out to inspire hate, to promote hate, to appeal to crude and base instincts. Indeed, that is their point. But there is no law or other prohibition against hate speech. Even restrictions on “hate speech” meant to prevent violence, often cited as the justification to restrict such speech, are by design extremely narrow.

    Short Answer: You cannot restrict hate speech. Free speech means just that, with any limited restrictions content-neutral.

     

    The Brandenburg case test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intends that 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 transform protected speech into incitement. Listeners’ reaction to speech is thus not a content-neutral basis for regulation, or for taking an enforcement action against a speaker.

    A second type of speech that is categorically excluded from First Amendment protection and often erroneously labeled hate speech are “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.” No advocacy can constitute fighting words unless it 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 upshot is that apart from some very narrow definitions of violence-inducing words, the obligation exists to the concept of free speech independent of the content of that speech. This is also one of the most fundamental precepts of free speech in a democracy. There need be no protections for saying things that people agree with, things that are not challenging or debatable or offensive; free speech is not really needed for the weather and sports parts of the news. Instead, free speech is there to allow for the most rude, offensive, hateful, challenging stuff you (or your neighbor, your political party, your government) can imagine.

    This is why, in the midst of Berkeley seeking to ban Ann Coulter from campus, Elizabeth Warren said “Let her speak. If you don’t like it, don’t show up.” Same for Bernie Sanders, who said “What are you afraid of, her ideas? Ask her the hard questions. Confront her intellectually. Booing people down or intimidating people or shutting down events — I don’t think that that works in any way.”

    More? The ACLU also supports Coulter’s right to speak. And so the ACLU supports the rights of all groups, to include Nazis and the Klu Klux Klan, to speak.

    It should make a college age ACLU donor proud to know her $25 contribution helps both Black Lives Matter and the Klan to stand up and say what they think, but it apparently does not.

    The president of the Newseum goes as far as arguing some people have developed an “alternate understanding” of free speech, with students in particular believing “offensive” speech is or should not be protected, particularly when the offense is directed at groups defined by race, ethnicity, gender or sexual orientation.

    Ulrich Baer, vice provost for faculty, arts, humanities, and diversity, and professor of comparative literature at New York University, wrote plainly “Universities invite speakers not chiefly to present otherwise unavailable discoveries, but to present to the public views they have presented elsewhere. When those views invalidate the humanity of some people, they restrict speech as a public good. In such cases there is no inherent value to be gained from debating them in public.”

    Baer is worth quoting at length, because his views capture the view of many progressives toward the now-threatening concept of unfettered speech:

    The idea of freedom of speech does not mean a blanket permission to say anything anybody thinks. It 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.

    He ends without irony this way:

    Freedom of expression is not an unchanging absolute. When its proponents forget that it requires the vigilant and continuing examination of its parameters, and instead invoke a pure model of free speech that has never existed, the dangers to our democracy are clear and present.

    Baer could not be more wrong. There is no legal or other justification for banning speech based on who it may offend or threaten, in fact, quite the opposite. Justice Oliver Wendell Holmes declared unpopular ideas should have their opportunity to compete in the “marketplace of ideas.” Free speech is not an ends, it is a means, in a democracy.

    Justice Louis Brandeis held that 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.

     

    5. Free Speech Should Not Be Subject to the Heckler’s Veto

    Another argument used by some progressives is that the so-called Heckler’s Veto is in itself protected speech. Someone may have a right to speak, but someone else has the same 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 gets to control what is said. The natural end of such thinking is mob rule, where Speaker A gets a bigger gang together to shout down the gang Speaker B controls.

     

    While protestors have an obligation not to abuse their rights of free expression by harassing or intimidating speakers in ways that unduly interfere with communication between a speaker and an audience, there does exist a balancing process.

    Agreed upon is that numerous 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?

    The most insidious use of the Heckler’s Veto is to have audience members create a 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. The law allows for law enforcement to act this way, but also makes clear it is wrong for “regulations to allow a single, private actor to unilaterally silence a speaker.”

    It is also quite sad to note the same tactic used at Middlebury College to silence speaker Charles Murray was employed during the civil rights movement when whites threatened violence if civil rights marches were permitted to take place. The tactic is also used by abortion foes to try and shut down clinics. 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. Unfortunately, that was not what happened in Middlebury College, as Murray was run out of town for his own safety and the mob won.

    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 wrong.

     

    Flipping the Argument

    It is hard today to be seen as defending the nasty words of a guy like Richard Spencer when one is defending his right to speak independent of what he says. It is easy for some in Trump’s America to claim the struggle against fascism overrules the old norms, that freedom must be defended and that defense justifies violence. Flipping an argument makes it easier to see the fallacy. So:

    So this guy beat the air out of this Black Lives Matter woman; she was spewing out hate speech, really racist stuff, and the guy acted in what he perceived as self-defense. Then some people who opposed Trump’s travel ban started calmly laying out their views on a street corner, and the same guy, who believes deep into his soul that Muslims are a threat to democracy and allowing them into America is a step toward fascism, got a bunch of his buddies together and by sheer force of numbers shouted down the pro-Muslim people, forcing them to run away for fear for their safety.

    Justification? The dude was pretty clear he was just exercising his First Amendment rights, that it was wrong for those protesters to have a platform and hey, he isn’t the government and the First Amendment only applies to the government. Sure violence is bad in isolation, but in defense of freedom, well, by any means necessary. While he was beating on the activists, he shouted he “understands the moral and practical limitations of wholly free discourse.”

    You get it.

    Free speech protection covers all the things people want to say, from the furthest left to the furthest right. You can burn a flag, display a nude body, fill a fish tank with urine and call it art, put on a KKK uniform and march past a Black church, and say whatever Richard Spencer says. Free speech means a lot of things, including that I can write this article, and you can say what you want about it and me. It is messy as hell, and it is our essential defense against fascism and control, whether from the left or the right.

     

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    Posted in Post-Constitution America

    Police Militarization: Fish Rot from the Head

    July 22, 2014 // 4 Comments »



    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.













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    Shipping Up to Boston: BBC, Brandeis, Brewery

    May 22, 2013 // 6 Comments »

    I was privileged while in Boston to sit at the WGBH PBS studios for an interview with the BBC Radio World Service.

    Our topic was the simmering chaos in free Iraq. With over 290 dead in the past month, the interviewer questioned me on whether things might get as bad as in 2006. My reply: They will get worse, because unlike in 2006 the American Army is not sitting in between the angry Sunnis and the Shias, meaning no third party is available to intercede. In addition, the sort of successful Sunni rebels in Syria (ironically supported by the US against the Shia government assisted by Iran, politics makes strange bedfellows) are at least an inspiration in Iraq and perhaps a source of arms. The Sunnis in Iraq appear now to be strong enough not to lose while not being strong enough to win, a prescription for more and more violence.

    I also noted for the BBC audience that the U.S. still maintains the world’s largest and most expensive embassy, in Baghdad, some 11,000 American personnel. Their role in abating chaos is of course zero. No one really knows why they are even there anymore; the embassy’s last role is simply as an artifact of our errors.



    Also while in Boston I had a chance to meet some of the students and faculty of Brandeis University. My hat tips to them for maintaining a broad curriculum that emphasizes social justice at its core, in every subject from Biology to Literature.



    Lastly, it must be noted that Boston is the source of America’s original patriots, the ones who truly believed in creating a nation based on the rights of people, and who were willing to stake their lives in pursuit of those inalienable rights. These men stand as a reminder to modern Americans that the real meaning of commitment means more than just making it to the gym three times a week.

    I thus dropped by the Sam Adams Brewery for a tour and tasting session, held under the oil-painted gaze of namesake Samuel Adams, Brewer and Patriot. Just because you believe in freedom doesn’t mean you can’t have a good time.





    Bonus: Those of you who don’t get the reference to Shipping Up to Boston better go get a beer and click here.



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