Submitted by Gene Howington, Guest Blogger
Freedom of speech is a well established right in this country and rooted in the 1st Amendment. “Congress shall make no law [. . .] abridging the freedom of speech, or of the press”. The U.N.’s Universal Declaration of Human Rights Article 19 reads, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Within the United States and our jurisprudence there are some exceptions to this freedom, but by in large (up to this point in history) the restrictions are both reasonable and necessary: the Miller test for obscenity, child pornography laws, laws prohibiting speech that incites imminent lawless action, restrictions on fighting words, regulation of commercial speech such as advertising, copyright and patent laws protecting authors and inventors control over their work, and the prohibition of slander and defamation.
Let’s be clear here that the subject isn’t just free speech, but anonymous political free speech.
Here at Res Ipsa Loqitur, there is a long standing policy of allowing anonymous posting to comments and protecting poster’s anonymity. The decision to post under your own name or not is entirely yours. This policy encourages free speech while allowing that having an unpopular or minority point of view should not have negative political consequences for the speaker or unnecessarily complicate their lives simply for expressing their views. Many political insiders and Washington professionals have told Professor Turley that they enjoy reading this blog and have enjoyed posting anonymously. The only posters here required to use their real identities are the guest bloggers and the requirement is voluntary. None of us were coerced into using our real names. When offered the honor of being a guest blogger, it was simply (and I think I speak for all the guest bloggers when I say fairly) a requirement in assuming editorial responsibilities. However, all of this raises an important question.
Do you have a right to anonymous political free speech?
According to the Supreme Court, you do. According to the Department of Homeland Security, you don’t. They’ve hired General Dynamics to track U.S. citizens exercising this critical civil right.
The history of anonymous political free speech in America dates back to our founding. The seminal essays found in “The Federalist Papers” were written by Alexander Hamilton, James Madison and John Jay under the nom de plume of “Publius” although this was not confirmed until a list of authorship complied by Hamilton was posthumously released to the public. As previously discussed on this blog, the right to anonymous political free speech has been addressed by the Supreme Court. Most notably in the cases of Talley v. California, 362 U.S. 60 (1960) and McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). In Talley, Justice Hugo Black writing for the majority said that, “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” In McIntyre, Justice John Paul Stevens writing for the majority said that, “Anonymity is a shield from the tyranny of the majority. [… ] an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” That seems clear enough in defining that citizens do have a Constitutionally protected right to anonymous political free speech.
The full DHS policy statement regarding its activities can be viewed in the DHS Privacy Compliance Review of the NOC Media Monitoring Initiative (November 15, 2011), but rt.com’s summary spells out the basics:
“Under the National Operations Center (NOC)’s Media Monitoring Initiative that came out of DHS headquarters in November, Washington has the written permission to retain data on users of social media and online networking platforms.
Specifically, the DHS announced the NCO and its Office of Operations Coordination and Planning (OPS) can collect personal information from news anchors, journalists, reporters or anyone who may use “traditional and/or social media in real time to keep their audience situationally aware and informed.”
According to the Department of Homeland Security’s own definition of personal identifiable information, or PII, such data could consist of any intellect “that permits the identity of an individual to be directly or indirectly inferred, including any information which is linked or linkable to that individual.” Previously established guidelines within the administration say that data could only be collected under authorization set forth by written code, but the new provisions in the NOC’s write-up means that any reporter, whether someone along the lines of Walter Cronkite or a budding blogger, can be victimized by the agency.
Also included in the roster of those subjected to the spying are government officials, domestic or not, who make public statements, private sector employees that do the same and “persons known to have been involved in major crimes of Homeland Security interest,” which to itself opens up the possibilities even wider.
The department says that they will only scour publically-made info available while retaining data, but it doesn’t help but raise suspicion as to why the government is going out of their way to spend time, money and resources on watching over those that helped bring news to the masses.” – rt.com
This question about the right to anonymous political free speech is also asked over the background of the Electronic Privacy Information Center filing a FOIA request against the DHS to find out the details of the agency’s social network monitoring program. On April 12, 2011, EPIC submitted a FOIA request to the DHS regarding agency records detailing the media monitoring program and seeking the following documents:
- “All contracts, proposals, and communications between the federal government and third parties, including, but not limited to, H.B. Gary Federal, Palantir Technologies, and/or Berico Technologies, and/or parent or subsidiary companies, that include provisions concerning the capability of social media monitoring technology to capture, store, aggregate, analyze, and/or match personally-identifiable information.
- All contracts, proposals, and communications between DHS and any states, localities, tribes, territories, and foreign governments, and/or their agencies or subsidiaries, and/or any corporate entities, including but not limited to H.B. Gary Federal, Palantir Technologies, and/or Berico Technologies, regarding the implementation of any social media monitoring initiative.
- All documents used by DHS for internal training of staff and personnel regarding social media monitoring, including any correspondence and communications between DHS, internal staff and personnel, and/or privacy officers, regarding the receipt, use, and/or implementation of training and evaluation documents.
- All documents detailing the technical specifications of social media monitoring software and analytic tools, including any security measures to protect records of collected information and analysis.
- All documents concerning data breaches of records generated by social media monitoring technology.”
EPIC asked the DHS to expedite the processing of its request, citing extraordinary public interest in the plan and the public’s right to comment on the measures. The DHS response can best be categorized as stonewalling. The DHS acknowledged receipt of EPIC’s FOIA request on April 28, 2011, but denied the request for expedited processing. At that time, the DHS did not disclose any records in response to the FOIA request. On May 18, 2011, EPIC appealed the DHS’s failure to make a timely substantive determination and the agency’s denial of EPIC’s expedited processing request. The DHS did not respond to EPIC’s administrative appeal and again did not disclose any records. Left with no other recourse, EPIC filed a lawsuit against the DHS on December 20, 2011 to compel the disclosure of documents relating to the agency’s media monitoring program. In response to EPIC’s FOIA lawsuit, the DHS disclosed 285 pages of agency records earlier this month (January, 2012).
As part of recent disclosures related to the EPIC suit, it is revealed that the DHS has hired and instructed General Dynamics to monitor political dissent and the dissenters. The range of websites listed as being monitored is quite impressive. Notably, jonathanturley.org is not on this list, but equally of note is that this list is by the DHS’ own admission “representative” and not “comprehensive”.
“8. Appendices
8.1 Social Media Web Sites Monitored by the NOC’s MMC-SN Desk
This is a representative list of sites that the NOC’s MMC-SN Desk will start to monitor in order to provide situational awareness and establish a common operating picture under this Initiative. Initial sites listed may link to other sites not listed. The NOC’s MMC-SN Desk may also monitor those sites if they are within the scope of this Initiative.This list is based on Appendix A of the ‘Publicly Available Social Media Monitoring and Situational Awareness Initiative” PIA, dated June 22, 2010.'” DHS Response to EPIC FOIA Request, p. 191.
The representative list can be found on page 191-194 of the DHS Response to EPIC FOIA Request. Notably, jonathanturley.org is not on this list, but equally of note is that other WordPress blogs are on the list. Some of the more high profile and highly trafficked sites being monitored include the comments sections of The New York Times, The Los Angeles Times, Newsweek, the Huffington Post, the Drudge Report, Wired, and ABC News. In addition, social networking sites Facebook, MySpace and Twitter are being monitored. For the first time, the public not only has an idea who the DHS is pursuing with their surveillance and where, but what they are looking for as well. General Dynamics contract requires them to “[identify] media reports that reflect adversely on the U.S. Government, DHS, or prevent, protect, respond government activities.” The DHS also instructed General Dynamics to generate “reports on DHS, Components, and other Federal Agencies: positive and negative reports on FEMA, CIA, CBP, ICE, etc. as well as organizations outside the DHS.” In other words, the DHS wants to know who you are if you say anything critical about the government.
Anybody thinking of the name “Goebbels” at this point is not out of line. It is a sad commentary on the degradation of civil rights in this country since 9/11 that a blog better protects your right to anonymous political free speech than the government. Conversely, it speaks volumes about Professor Turley’s commitment to the Constitution and the wisdom of this blog’s anonymity policy.
Is the DHS overstepping in adopting a policy that is counter to the jurisprudence surrounding anonymous free speech?
Is the DHS tracking of bloggers and journalists – the gathering of such information obviously being used for investigative and possibly prosecutorial actions – going to have a chilling effect on political free speech?
Is this yet another argument for repealing the Patriot Act and dismantling the Department of Homeland Security for blatant abuses of civil rights?
What do you think?
Source(s): DailyKos, rt.com, U.S. Constitution, U.N. Universal Declaration of Human Rights, DHS Privacy Compliance Review of the NOC Media Monitoring Initiative (November 15, 2011) (.pdf), EPIC.org, DHS Response to EPIC FOIA Request (.pdf)
Kudos: Otteray Scribe for pointing out the DailyKos article.
~ Submitted by Gene Howington, Guest Blogger
Just assume that every email you write, every comment to a blog (perhaps especially this one,) every letter through the mail, every telephone call – all are monitored by the federal government. If you want to have a private conversation, best to travel by a borrowed car to some open location by a random route, and then speak quickly and in low tones. Or write your conversation down on paper passed between you , and then rip it up and flush it down the toilet.
“In an age when people in this nation are avowed Anarchists, Socialists, Communists, Militia Members, Sovereign Citizens, Black Panthers, Nazis, and other groups that are anathema to open government and democracy as well as our supposed Representative Republic, I believe that to ignore such folks and their “postings” is asking for domestic terrorism”
Sandi,
All of the groups you mention can legally believe any of those “Isms”, they are not against the law. That you or I don’t care for them and also might think them dangerous does not make them illegal. Were you old enough to clearly remember the McCarthy era, as I do, you would understand the problem more clearly. Communism for instance is a legally held political philosophy and in truth can be legally implemented in the US if a majority of citizens agree. Now I would personally be against that happening, because I have known real communists in my life and do not like the philosophy/economics. However, there is no doubt a government file somewhere showing that I even shared a meal or two with communists. Their record won’t show though that the meal(s) were spent in heated disagreement. In the McCarthy Era I could have lost my job and perhaps freedom for breaking bread with “subversives”. Is that really the kind of America you’d want to see?
Mike S.,
Being on that list is a badge of honor!
Mike,
A valid quibble, but I chose Goebbels because of his express role as Reich Minister of Propaganda. I will stipulate that Himmler is an acceptable substitute and/or supplement.
Gene,
Good topic, but I have one quibble you should substitute Himmler for Goering.
Himmler ran the Gestapo.
As far as this blog not being on the list, I believe that we are being monitored and each of us who comments here has their own security file. One of the reasons I use my own name is that if I am going to stand up for my rights by exercising my free speech, I won’t try to hide my opinions. The truth is that if the security forces in government wants to get any one of us, they don’t even need real evidence, manufacturing it works just as well.
To those who may say there is nothing insidious in this government effort, they are fooling themselves. This is done not only for information gathering (scary in itself) but also to institute a climate of fear to discourage disagreement with
Military/Industrial Complex operations.
Sandi,
Just because you are willing to sacrifice your rights because you don’t like the consequences of free speech doesn’t give you the right to dispose of others rights. Free speech has an unwritten corollary. People are free to say what they like (within the reasonable and established guidelines mentioned at the start of this article), but if you don’t like that they can express political opinions anonymously, you are perfectly free to ignore them or offer a rebuttal. That’s the beauty of free speech, but especially political free speech. You are free to say what you like (anonymously or not), but you are not free from having what you say challenged by logic, reason and evidence. It’s a battlefield of ideas, the name tag on the thinker is ultimately not at issue. The quality of the ideas under the scrutiny of critical thinking is at issue.
I think Doug Casey said it best when he said, “your considered enimies of the state just being here”. Referring to the people attending a libertarian rally, but it’s fitting the walls off the national security state just keep closing in.
LDG,
“First – it doesn’t sound like the DHS is actually abridging anything.”
Except for the right to anonymous political free speech as guaranteed by the 1st Amendment and the precedents of Talley v. California and McIntyre v. Ohio Elections Commission.
“Second – so DHS is reading “Drudge Report”; them and 50 million other people. I don’t see any T’s & C’s that would restrict the US Govt from reading the site, and I imagine Drudge is happy for the traffic. I don’t see a foul here – let alone any harm.”
That’s because you don’t understand the nature of the problem or the right being violated as evidenced by your first faulty point. They aren’t just reading the posts and comments. They are tracking down identifying information of anonymous posters. Posters who have the Constitutional right to remain anonymous.
“Third – if you are publicly condemning the govt’s actions (say, for example, the TSA’s grope-n-scope), doesn’t this fall under “petition for redress”? The people have a right to petition (even anonymously) … ergo the govt must have the power to hear the petition. The govt may choose to change nothing (again, grope-n-scope), but sometimes things do happen – like the rules around filming on-duty cops.”
No, it falls under the rubric of an express policy that blatantly disregards the 1st Amendment and the relevant precedent. Contrast this to the issue of filming the police where most often there was no express policy in place and that absence of policy allowed for the violation of rights. One violation is an overt and express action, the other sets of violations were allowed to happen due to a void in both code and case law, a hole that is being closed by precedent.
The only epic failure here is yours in failing to both understand your rights and know when they are purposefully being ignored and infringed upon. Just because you choose not to post anonymously (assuming you’ve used your real name) does not mean that you and other citizens do not have that right. Just because you choose not to assert that right doesn’t mean others don’t and won’t. Just because you choose not to assert that right doesn’t invalidate that it is a right of others.
If this blog proves nothing else, it proves how “far left” I am not. My liberal credentials are in jeopardy because I am neither a fan of anonymous speech nor worried about the government monitoring the exercise of it. I am sick of anonymous tearing someone down and “revealing” things that should be verifiable.
As I see it, what has always gone on has been codified. Nothing more. In an age when people in this nation are avowed Anarchists, Socialists, Communists, Militia Members, Sovereign Citizens, Black Panthers, Nazis, and other groups that are anathema to open government and democracy as well as our supposed Representative Republic, I believe that to ignore such folks and their “postings” is asking for domestic terrorism and deliberate misinformation that could get a lot of people killed, the wrong people elected and the public further confused.
Not sure how anyone stops a blog from being read by anyone, nor how anyone can track an anonymous blogger but I have no respect for any anonymous blogger who attacks, lies, insults and demeans others from the safety of anonymity. It ruins many a discussion and deescalates the debate with certainty. It sure does here.
You should own what you say and be prepared to back it up or answer for it. It is how I conduct my own life and how “one world” has to operate. Fighting known enemies is hard enough, the unknown, untraceable, unsuspected enemies are insidious and while you can say they are only bent on “expressing” themselves, the words often belie that excuse. Someone needs to be watching IMO.
Jonathan Turley can disavow anything that is said here, but this is a blog that allows some pretty incredible posts and thinking he does not lend them credibility is to misread the public and underestimate the bloggers IMO.
The lynch mobs who morphed into the Fred Phelps Organization, the TEA Party and the blogosphere have shown me that free speech is abused because of our belief that it is sacred and that is a darned shame. When everyone is yelling, no one is heard.
First – it doesn’t sound like the DHS is actually abridging anything. Okay, they’re reading al Qaeda’s Facebook page. DHS probably clicked “like” so they can get invited to whatever events are coming up. Good on DHS! We need intelligence to catch the bad guys, criminals like to brag, and FB is all about feeding the ego.
Second – so DHS is reading “Drudge Report”; them and 50 million other people. I don’t see any T’s & C’s that would restrict the US Govt from reading the site, and I imagine Drudge is happy for the traffic. I don’t see a foul here – let alone any harm. Because if you speak out in a public location, you cannot restrict people from listening to you. You cannot stop them from deciding it might be worth listening to you in the future, and/or seeking out your other public performances. There are affirmative actions you can take on the Internet to block govt viewers, just as in real life you can refuse to talk to a police officer, but if those steps aren’t being taken why blame the govt?
Third – if you are publicly condemning the govt’s actions (say, for example, the TSA’s grope-n-scope), doesn’t this fall under “petition for redress”? The people have a right to petition (even anonymously) … ergo the govt must have the power to hear the petition. The govt may choose to change nothing (again, grope-n-scope), but sometimes things do happen – like the rules around filming on-duty cops.
Listen – there *** ARE *** real examples of folks’ rights being abridged because of their lawfully protected speech – and such abuses must be brought into the light and stamped out. But all you’ve done here is tell us that, in addition to ye-olde newspapers, tv, and radio reports, the govt folks have bookmarked a bunch of web sites to their news feeds. Sorry, dude – EPIC fail.
Gene,
Who Dat? (Culture also plays a role)
Monitoring speech helps the govt. control the discourse. People will self-censor. People who have opinions that govt. does not like have reason to be afraid and shut up. This leads to a shrinking of political discourse. It is part of the govt.’s propaganda network.
Take a site like Common Dreams which presents itself as a progressive site. Articles which were too critical of the govt. are often not allowed to be published on that site. Those responding to articles who were also critical of the govt. or who mentioned that posts were being censored had not just their “incorrect thinking” post removed from the site, but all of their posts completely stripped out. Banning people for “incorrect thinking” keeps other people from realizing there are critiques of the govt. which they will not hear. The discourse shrinks.
Most people have only heard a right wing criticism of this govt. This criticism is easily and correctly ridiculed. Unfortunately, left wing criticism has been systematically written out of existence. It is not that left wing critics do not exist, we simply have difficulty being heard. Because the left only hears bizarre right wing criticism, they will lump left wing critiques into that field and ridicule or dismiss those of us who are on the left. OWS has, for example, been called a tea party front by Democratic operatives. I’m pretty certain there are many Democrats who will believe such a thing.
It is the shrinking of discourse which is a large part of how Democrats came to accept a candidate who commits murder, torture, indefinite detention, etc.
On the bright side, at least my headline didn’t read “Dewey Beats Truman”.
Joseph,
Actually, no offense taken at all. I wrote most of that late last night and before my daily dose of coffee this morning. If I am guilty of anything as a writer, it’s falling into homophone traps (especially when I’m tired). Thanks for the spot.
It’s “…who’s spreading the news,” not whose.
I sincerely hope I don’t come off as arrogant, but I so fully agree with you in all respects, that it makes me wince to see such embarrassing grammar and spelling errors of so fundamental nature. Although the yahoo right –as opposed to the Koch Brothers right or the Goldwater right– has failure to master the language as a point of pride, we on the other end are held suspect if we fall shy of the William F. Buckley standard.
Then again, there’s no reason why we should.
“The DHS response can best be categorized as stonewalling.”
“Is this yet another argument for repealing the Patriot Act and dismantling the Department of Homeland Security for blatant abuses of civil rights?
What do you think?”
YES
Great job Gene. It does appear that Big Brother is listening and watching our every move.
File a complaint with the Hague Court.
Google this: The Nuremberg Trials:
The Justice Trial
United States of America v. Alstötter et al.
(“The Justice Case”) 3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948).
The Justice Trial is one of the most interesting of the Nuremberg trials. The trial of sixteen defendants, members of the Reich Ministry of Justice or People’s and Special Courts, raised the issue of what responsibility judges might have for enforcing grossly unjust–but arguably binding–laws. The trial was the inspiration for the movie Judgment at Nuremberg. The movie presented a somewhat fictionalized view of the trial.
[end]
Ach, but Amerikanzers have no memory.
The Patriot Inquisitor had the prisoner hauled to the desk in handcuffs and feet chains. State your name: Jackmehoff. No! Not your internet name, your real name! GeorgeW.
And so it went. Same thing goes on at Gitmo.
Deustchland, Deustchland, uber alles,….
Just another aspect of the Reichstag Fire Decrees. Or is it grounded on the Patriot Act?
Maybe our group needs to change its moniker to Deutschland uber alles.