On the Loss of Freedom of Speech
by aaron david
From the Federalist:
Defense Distributed, a pro-Second Amendment non-profit organization that provides blueprints, plans, and machinery to fabricate or finish firearm components, has been at war with the State Department for nearly two years.
According to a complaint it filed in federal court last month, the organization began to make its data, compiled entirely from publicly available information, available for free on the Internet in December of 2012. Just a few months later, in May of 2013, Defense Distributed received a letter from the State Department alleging that the group was illegally exporting technical data. The federal government then demanded, in contravention of long-standing policy dating back to 1984, that Defense Distributed submit its proposed speech to the federal government for pre-approval.
You read that right: the Obama administration demanded that a pro-Second Amendment non-profit submit its proposed speech, consisting of publicly available information, to the federal government for approval prior to publishing.
Last week, a source provided me with a federal grand jury subpoena. The subpoena1, issued by the U.S. Attorney’s Office for the Southern District of New York, is directed to Reason.com in Washington, D.C.. The subpoena commands Reason to provide the grand jury “any and all identifying information”2 Reason has about participants in what the subpoena calls a “chat.”
The grand jury subpoena specifies that it is seeking “evidence in regard to an alleged violation of: Title 18, United States Code, Section 875.” In other words, the U.S. Attorney’s Office is looking for evidence of violations of the federal law against interstate threats. That’s the same statute that was at issue in the Supreme Court’s decision in Elonis v. U.S. last week, in which the Court decided that to be a “true threat” in violation of Section 875, the speaker must have some level of knowledge or intent that the hearer will take the threat seriously.
It matters not what you feel about firearms and it matters not how you feel about Silk Road. What matters is how our government is using the power of its prosecutors and bureaucrat rulemaking to stifle speech.
While these two cases may seem different on the face, they both involve the use of government power to stifle the free speech of US citizens in an online, distributed world. The fact that these advances of government intrusion are taking place during the Obama administration signals to me at least that the American left has lost sight of one of its cornerstones.
Free Speech Movement
The mid-sixties in Berkeley California was an intense time and place, not the least of which were the demands of students to be allowed to engage in political discussions that the university administration deemed inappropriate. At the time, these discussions centered around Cuba and its revolution. The December 1964 protests of thousands of people at Sproul hall, leading to hundreds of arrests, formed a spring board for student rights, civil rights and anti-war movements around the United States and possibly the world. As these movements were increasingly focusing on the war in Vietnam, they were leading to the protests at the 1968 Democratic convention, where 10,000 people took part. This has led to a changing of the guard in the Democratic Party as this anti-war/pro civil rights generation has come embody the party.
In the wake of the sixties counter culture coming into its own, other battles were fought, vying for our rights to read and hear and watch what we would like, to make our own decisions. From sex to violence, the seventies especially were an era of expanding rights in media. As such movies as Last Tango in Paris and Midnight Cowboy pushed the boundaries as to what is permissible to watch, open and legal sales of both pornography and erotica became the norm.
In the wake of 9/11, the Bush administration in its misguided war on the Axis of Evil, invaded the nation of Iraq due to the belief that he country was manufacturing or attempting to manufacture Weapons of Mass Destruction. And at the same time, a new anti-war movement was building, and it was taking to the streets. Or it was attempting too. The Bush admin was setting up “free speech zones,” limiting speech only to certain area. The ACLU has put together a list of the most egregious examples here. Forcing protesters into specific areas goes to the heart of the first amendment, which states that “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.”
What could be more peaceable than a Peace Rally? And as they should, the ACLU filed suit:
The American Civil Liberties Union filed a federal lawsuit against Gregory Jenkins, a former high-level White House staffer who enacted a policy that unlawfully excluded individuals perceived to be critical of the administration from public events where President Bush was present. The policy is laid out in an October 2002 “Presidential Advance Manual” obtained by the ACLU.
The ACLU filed today’s lawsuit, Rank v. Jenkins, after obtaining a heavily redacted version of the Presidential Advance Manual from the Justice Department. This manual is the Bush administration’s guide for planning presidential events around the country, and it repeatedly instructs organizers about “the best method for preventing demonstrators,” “deterring potential protestors from attending events,” “designat[ing] a protest area . . . preferably not in view of the event site or motorcade route,” and the like.
The lawsuit names as plaintiffs Jeff and Nicole Rank, who were arrested at a Fourth of July presidential appearance at the West Virginia State Capitol because they were wearing T-shirts critical of the president, and Alex Young and Leslie Weise, Denver residents who were thrown out of a town hall meeting with President Bush because they had an anti-war bumper sticker on their car.
Again, progress in the fight for free speech in light of government abuse. “To which I say, along with civil libertarians, that, no, in fact, the entire country is a free speech zone. This is something to keep fighting for,” noted Randian of the Daily Kos.
This progress has come to a halt, starting with Citizens United vs. FEC:
In the case, the conservative lobbying group Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or “BCRA”). Section 203 of BCRA defined an “electioneering communication” as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions. The United States District Court for the District of Columbia held that §203 of BCRA applied and prohibited Citizens United from advertising the film Hillary: The Movie in broadcasts or paying to have it shown on television within 30 days of the 2008 Democratic primaries. The Supreme Court reversed this decision, striking down those provisions of BCRA that prohibited corporations (including nonprofit corporations) and unions from making independent expenditures and “electioneering communications”. The majority decision overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003). The Court, however, upheld requirements for public disclosure by sponsors of advertisements (BCRA §201 and §311). The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties, which remain illegal in races for federal office.
During its oral arguments, Obama administration “Deputy Solicitor General Malcolm L. Stewart (representing the FEC) argued that under Austin v. Michigan Chamber of Commerce, the government would have the power to ban books if those books contained even one sentence expressly advocating the election or defeat of a candidate and were published or distributed by a corporation or union. In response to this line of questioning, Stewart further argued that under Austin the government could ban the digital distribution of political books over the Amazon Kindle or prevent a union from hiring a writer to author a political book.” (Wikipedia) In light of the battles for speech in both the print and public listed above, the idea that the government, led by a president of the Democratic Party would even assume that they had the power to ban books is both terrifying and indicative of the direction the party was heading in.
Free speech zones revisited
H.R. 347, benignly titled the Federal Restricted Buildings and Grounds Improvement Act, passed the House 399-3 in 2012. To quote Dalia Lithwick “Simply put, the way the bill will “improve” public grounds is by moving all those unsightly protesters elsewhere. The law purports to update an old law, Section 1752 of Title 18 of the United States Code, that restricted areas around the president, vice president, or any others under the protection of the Secret Service. The original law was enacted in 1971 and amended in 2006. At first blush, the big change here is that while the old law made it a federal offense to “willfully and knowingly” enter a restricted space, now prosecutors need only show that you did it “knowingly”—that you knew the area was restricted, even if you didn’t know it was illegal to enter the space.” In other words, Obama has doubled down on the Bush administrations use of free speech zones, quietly and with little fanfare on the left, who had passionately gone after the previous assaults.
At the top of the post, I noted two articles describing where free speech is being attacked. In both cases the speech in questions is by groups that run counter to the current administrations politics, and this is possibly the worst aspect of these attacks. Political speech is one of the most important aspects of the first amendment, and quite possibly reason for its enactment. In both these cases, dissenting chat comments that are often pugnacious and online publishing of already free materials, in areas where the free speech movement has made some of its greatest gains, our government is trying to shut down speech that it doesn’t like. This isn’t being done by a Republican administration, but by the party that had moved to the ideas of freedom as one of its core tenets. An administration that has been called the “least transparent in history” even though they campaigned on being the most.
Freedom of speech is many things to many people. It will bring things they love (anti-war protests) and things they hate (online plans on how to build firearms.) It allows us to share things of beauty (sexuality and art) and things of hate (“Why do it out back? Shoot them out front, on the steps of the courthouse.”) If you ever described to a friend what you would like to see done to Dick Cheney, you too are guilty of these actions. If freedom of speech only protected the things we agree with, there would be no need of a law.
[Picture: Freedom of Speech by Norman Rockwell, via Wiki Commons.]