Graham: “Free speech is a great idea, but we’re in a war.”

Sen. Lindsey Graham appeared to confirm this week one of the greatest fears for civil libertarians in the aftermath of the burning of the Qu’ran (Koran) by Rev. Terry Jones. With Muslims murdering innocent people as a protest to the book burning, Senator Graham has called for Congress to go hold people accountable for such acts. The message is clear and predictable: if someone’s exercise of free speech has caused problems, limit the free speech.

In the video above, Graham states “I wish we could find a way to hold people accountable.” He stresses “[f]ree speech is a great idea, but we’re in a war.” Of course, neither he nor his colleagues ever bothered to declare war. Likewise, Obama did not even consult with Congress before going to war in Libya.

Fortunately, the Constitution still exists to bar such impulses against free speech. Notably, however, China is arresting people who are viewed as destabilizing the country with their art and ideas. Now some members of Congress want to join countries in a type of criminal blasphemy law — an idea that Obama appeared to accept in supporting a resolution under pressure from Arab allies on protecting religion from critics.

Free speech is designed to protect us against our own leaders — like Sen. Graham. It is not enjoyed at the whim of the U.S. Senate. And, by the way, the diaper genie is a “great idea.” Free speech is what defines us as a people.

Jonathan Turley

303 thoughts on “Graham: “Free speech is a great idea, but we’re in a war.””

  1. Further evidence you were forum shopping and violating both court procedures and valid orders.

    Further evidence that your wound is self-inflicted.

    Further evidence you are a selfish and annoying parasite.

  2. § 1512 of Title 18 constitutes a broad prohibition against tampering with a witness, victim or informant. It proscribes conduct intended to illegitimately affect the presentation of evidence in Federal proceedings or the communication of information to Federal law enforcement officers. It applies to proceedings before Congress, executive departments, and administrative agencies, and to civil and criminal judicial proceedings, including grand jury proceedings. See 18 U.S.C. § 1515(a)(1). In addition, the section provides extraterritorial Federal jurisdiction over the offenses created therein. See 18 U.S.C. § 1512(g); 128 Cong. Rec. H8469 (daily ed. Oct. 1, 1980); H. R. Rep. No. 1369, 96th Cong., 2d Sess. 20-22 (1980).

    Section 1512 protects potential as well as actual witnesses. With the addition of the words “any person,” it is clear that a witness is “one who knew or was expected to know material facts and was expected to testify to them before pending judicial proceedings.” United States v. DiSalvo, 631 F.Supp. 1398 (E.D. Pa. 1986), aff’d, 826 F.2d 1054 (3d Cir. 1987). Under § 1512, an individual retains his/her status as a witness even after testifying. United States v. Wilson, 796 F.2d 55 (4th Cir. 1986), cert. denied, 479 U.S. 1039 (1987) (protection of witness under § 1512 continues throughout the trial); United States v. Patton, 721 F.2d 159 (6th Cir. 1983) (witness retains status while defendant’s motion for a new trial is pending); United States v. Chandler, 604 F.2d 972 (5th Cir. 1979) (witness retains status while case is pending on direct appeal). Cf. United States v. Risken, 788 F.2d 1361 (8th Cir.), cert. denied, 479 U.S. 923 (1986) (party was a witness after asserting his Fifth Amendment privilege and being dismissed from the stand since he could be recalled at any time). Section 1512 of Title 18 contains two significant additions to the types of tampering barred by Federal law. First, it forbids “misleading conduct,” as defined in 18 U.S.C. § 1515. Such conduct was not covered in those circuits that had narrowly construed the omnibus clauses of 18 U.S.C. §§ 1503 and 1505 under the rule of ejusdem generis. See United States v. Metcalf, 435 F.2d 754 (9th Cir. 1970); United States v. Essex, 407 F.2d 214 (6th Cir. 1969). see generally, 128 Cong. Rec. H8203 (daily ed. Sept. 30, 1982). Second, 18 U.S.C. § 1512 makes intentional harassment a misdemeanor. This offense is intended to reach conduct less egregious than the corrupt, threatening or forceful conduct required for a violation of former 18 U.S.C. §§ 1503 and 1505. Harassing conduct has been defined as that intended to badger, disturb or pester. Wilson, supra.

    “Congress limits the coverage of § 1512 to official proceedings. 18 U.S.C. 515(a)(1) defines “official proceeding” as [including] a proceeding before a judge or
    court of the United States or…. a proceeding involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency or agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce.”

    “This definition is in large part, a restatement of the judicial interpretation of the word “proceeding” in §§ 1503 and 1505. However the case law interpreting these provisions also required that the proceeding had to be pending. (See US Attorneys Manual at 1722 and 1727) 18 U.S.C. § 1512 does away with the pending proceeding requirement for judicial matters and matters within the jurisdiction of Congress and Federal agencies. In the words of § 1512, “an official proceeding need not be pending or about to be instituted at the time of the offense.” 18 U.S.C. § 1512(e)(1). See United States v. Scaife, 749 F.2d 338 (6th Cir. 1984). See also United States v. Shively, 927 F.2d 804 (5th Cir. 1991).See
    U.S. Attorneys Manual 1730 Protection of Government Processes—”Official Proceeding” Requirement—18 U.S.C. § 1512” US Attorney Criminal Resource Manual

    Sections 1512(a) and 1512(b) require, in addition to general intent, a specific intent, for example, the intent to influence testimony in an official proceeding. These requirements of specific intent are self-explanatory. In contrast, § 1512(c) does not require specific intent but specific results, for example, preventing a witness from testifying at an official proceeding. However, this distinction is probably without a difference, and the specific results should be read as forms of specific intent. Section 1512(d) codifies existing case law that holds that influencing a witness is not a strict liability offense. See United States v. Johnson, 585 F.2d 119, 128 (5th Cir. 1978). One may influence a witness to tell the truth. See id. However, under 18 U.S.C. § 1512(d), the burden of proving this benign intent, which is an affirmative defense, is on the defendant. A preponderance of the evidence is the standard of proof.

    Section 1512(f) of Title 18 contains an important qualification of the mens rea required under the statute: it obviates the need to prove that the defendant was aware of the official nature of the proceedings or investigation with which he/she interfered. A reference to congressional proceedings, however, is omitted from the proceedings enumerated in 18 U.S.C. § 1512(f).
    Section 1512(a) proscribes conduct intentionally undertaken, section 1512(b) proscribes conduct “knowingly” undertaken, and section 1512(c) proscribes conduct “intentionally” undertaken. A state of mind commonly referred to as “general intent” was prescribed by the use of the terms “knowingly” and “intentionally.” General intent means that the person is aware of the nature of his/her conduct and those circumstances incident to his/her conduct that make the conduct criminal. Beyond this, the mental states referred to in §§ 1512(a), 1512(b), and 1512(c) differ slightly.
    Section 1513 of Title 18 embraces two types of conduct heretofore beyond the purview of Federal law. First, the statute reaches threats of retaliation. Second, it reaches attempts to retaliate. Section 1513 complements 18 U.S.C. § 1512 by proscribing conduct amounting to retaliation for participation in Federal legislative, administrative, or judicial proceedings or for the communication of information to Federal law enforcement officers. With the exception of the omnibus clauses of §§ 1503 and 1505, the express prohibitions against retaliating against witnesses, parties, and informants contained in former 18 U.S.C. §§ 1503, 1505, and 1510 are now in 18 U.S.C. § 1513(a) and (b).
    1731 Protection of Government Processes—State of Mind — 18 U.S.C. § 1512US Attorneys > USAM > Title 9 > Criminal Resource Manual 1731

  3. On 08/10/2006, Christopher Beall, a lawyer then employed by Faegre & Benson LLP under a Mutual Insurance of Bermuda insurance policy, filed a motion to Judge Nottingham in a civil docket, 02-cv-1950, in Colorado that included:

    “In light of Mrs. Sieverding’s renewed efforts to litigate pro se civil actions that this Court has already found to violate its filing restrictions, Mrs. Sieverding should be ordered to appear before the Court and show cause why she should not be held in contempt of court and committed to the custody of the U.S. Marshal’s Service until such time as she fully complies with this Court’s order to terminate all litigation that violates the Court’s filing restrictions.

    “Wherefore, the Newspaper Defendants respectfully request that the Court enter an order setting a show cause hearing and direct that Mrs. Sieverding appear personally at such hearing and show cause why she should not be held in contempt of court. See D of Colorado 02-cv-1950 Document 862 Filed 08/10/06 page 4.”

    On 9/08/06, Christopher Beall filed:

    “The absence of criminal information in this case is meaningless…the remedy that the Newspaper Defendants seek, coercive incarceration will end as soon as Mrs. Sieverding establishes compliance with this Court’s orders to withdraw the Kansas and D.C. cases…no statement of probable cause, under oath or otherwise, is required… The Court has made it clear to Mrs. Sieverding that she is required to terminate all litigation against all of the defendants, including the Newspaper defendants, when such litigation is filed pro se…Rule 65 has no bearing on this matter…the Anti-Injunction Act only prohibits a federal court from order a stay of a state court proceeding and neither the D.C. nor Kansas litigation is in state court … The Court’s instruction to Mrs. Sieverding to “dismiss’ or “withdraw” the D.C. and Kansas litigation necessarily included a prohibition against…filing motions or any other paper besides of notice of dismissal …she may effect her release from incarceration under such a contempt citation by actually “withdrawing” the Kansas and D.C. litigation.” 9/8/06 District of Colorado 02-1950 document 883 Christopher P. Beall

    On 9/22/06, Christopher Beall said:

    “She filed motions for reconsideration in the District of Columbia cases 0501283, 0501672 and 0052122. She has also now filed, Your Honor—before the hearing I checked Pacer half an hour ago, and she has filed something called a motion for clarification as to the status of her actions….in D.C., in all three D.C. cases…we would ask the Court to in its issuance of a bench warrant in this matter”. 9/22/06 transcript Christopher P. Beall

    “She knows that she is not to pursue those lawsuits. And for her to suggest that I told her to dismiss those lawsuits, and that does not cover her appeals from those lawsuits is silly…she might dismiss everything before those marshals get to her…once she’s in custody she will not get out of custody until those are actually dismissed…She was told in unequivocal terms to dismiss both those lawsuits…What has to happen is those lawsuits have to be dead, lifeless…She is not to do anything to pursue them on appeal, motion for reconsideration or anything else …what has to happen is those lawsuits have to be dead, lifeless, and she is not to do anything to pursue them on appeal, motion for reconsideration, or anything else… she faces a real possibility of incarceration as she knows because it’s happened before” 9/22/06 transcript Judge Edward Nottingham.

  4. re John Thompson quotation

    When I was growing up my father said quite a lot about the power of positive thinking.

    A lot of problems that once seemed insurmountable have been solved.

    Prosecutors could be asked to sign a statement before every trial under penalty of perjury that they have complied with various obligations such as turning over all evidence.

    Congress could pass a special bill about the duties of prosecutors with an extended statute of limitations.

    I’d like to see the Feds prosecute 18 USC section 242 more broadly. The FBI website says that judges and “law enforcement officials” can be prosecuted under 242.

    It looks like what happened with the John Thompson case is that the criminal statute or limitations expired. Most of the federal crimes must be prosecuted within 5 years.

    The statute of limitations for federal criminal prosecution of the people who hurt me has not yet expired. I would just love to see at least some of them criminally prosecuted.

  5. Things could always be worse — the “justice” system is rife with corruption, as many know. A case in point:

    Op-Ed Contributor
    The Prosecution Rests, but I Can’t

    By JOHN THOMPSON
    April 9, 2011

    I SPENT 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won against them and the district attorney who oversaw my case, ruling that they were not liable for the failure to turn over that evidence — which included proof that blood at the robbery scene wasn’t mine.

    Because of that, prosecutors are free to do the same thing to someone else today.

    (…it continues and ends with the following)

    I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.

    Worst of all, I wasn’t the only person they played dirty with. Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct. Because we were sentenced to death, the courts had to appoint us lawyers to fight our appeals. I was lucky, and got lawyers who went to extraordinary lengths. But there are more than 4,000 people serving life without parole in Louisiana, almost none of whom have lawyers after their convictions are final. Someone needs to look at those cases to see how many others might be innocent.

    If a private investigator hired by a generous law firm hadn’t found the blood evidence, I’d be dead today. No doubt about it.

    A crime was definitely committed in this case, but not by me.

    John Thompson is the director of Resurrection After Exoneration, a support group for exonerated inmates.

  6. Mike Spindell:

    thanks for that explanation. I am going to buy that book.

  7. Mike S., In reading your first comment, any errors went unnoticed by this reader. The content is what jumped off the page. All good points…

    Kay, I echo the sentiment about feeling your pain.

  8. kay,

    The day I let you lecture me about how I should behave is the day Hell freezes solid. You’re one of the most offensive people I’ve ever seen on the Internet or anywhere else for that matter. If you don’t like that I’m offensive? Too bad, honey.

    Go screw yourself.

    It is, after all, what you are best at.

  9. Yeah bil….DO NO HARM….Geeze what did they teach you in that K-9 Class….not much is apparent… Did you take the Hippo Oath per chance? To Crush Your Opponents wherever they may be found?

  10. Bil

    I get email from a few lawyers. One of them emailed this to me this morning.

    THINKING LIKE A LAWYER
    by Judge John Kane
    THINKING LIKE A LAWYER
    By
    John L. Kane
    United States Senior District Judge
    Commencement Address
    University of Colorado School of Law
    May 7, 2004

    “you will have the power to destroy with a complaint or a motion or a letter what it took someone a lifetime or even generations to build. You will obtain information in transactions that if divulged improperly could result in disaster – not only for your client, but for you, your associates and the public as well. Do no harm!

    you will take an oath that will bind you for life. Included in that oath is the provision that you will abstain from all offensive personality. That obligates you to practice civility with respect to other lawyers, to opposing parties and to your clients. I suggest that practicing civility in all of your relationships will also contribute mightily to your personal success and the advancement of your professional career. Another provision of that oath is the promise that you will advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which you are charged.”

  11. “If you should go skating
    On the thin ice of modern life
    Dragging behind you the silent reproach
    Of a million tear-stained eyes
    Don’t be surprised when a crack in the ice
    Appears under your feet.
    You slip out of your depth and out of your mind
    With your fear flowing out behind you
    As you claw the thin ice.” – Pink Floyd, The Thin Ice

  12. Mike Spindell 1, April 9, 2011 at 7:29 pm

    Kay,

    I feel your pain.

    Kay, I’ll second that. I was gonna post this earlier today before family activities began. I don’t have the complete thought i had and I am happily under the influence at the moment.

    Kay you may have been completely wronged and if you were I am sincerely sorry for you. I hope and pray that I never find myself wearing an orange jumpsuit standing in front of someone who controls my freedom. Obviously you feel strongly about what has happened to you. Through history we’ve seen time and time again that people who refuse to give up sometimes become vindicated. With all the things that have transpired in this thread, one thing for sure, you one tough cookie.

    I hope that one day you will reach a point where you may find peace within yourself. Hope it all works out.

  13. Free speech is designed to protect us against our own leaders…. Free speech is what defines us as a people.

    That sounds good to me.

  14. Kay,

    Unfortunately we all feel your pain…its hard to see a inevitable wreck occur…You will not take anyones advice to either drop the matter or seek assistance an attorney…

  15. Mike Spindell

    I get something out of keeping up w current news and having an opportunity to be on-line looking possibly like I am not totally retarded.

    Since earlier today, I did read a 2010 speech by Colorado Federal Judge Kane and he claimed that 25% of the litigants there are now pro se. He estimated the initial cost of an attorney for a lawsuit at $100 K. And he said that many pro ses who seem knowledgeable in their writings have problems questioning witnesses and can’t complete the whole process.

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