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
Gene H, I have no doubt that nobody’s opinion matters to you, but as someone who thinks they are supporting and upholding free speech and its importance, you are a miserable failure. I do not need for you to admit that for it to be true. You validate my point, whether you intend to or not.
It used to be the law that slavery was legal and women couldn’t vote.
Laws can be and are capable of repeal and revision.
Nothing is a done deal.
Jurisprudence and legislation are a continuum.
Otteray Scribe said, “vigilance is one thing. Data mining of citizens is quite another. Warrantless searches and gratuitous surveillance of the press is quite another”. I absolutely agree they are very different things but I think that boat has sailed as well. How do you unring a bell? Ten years of “Patriot Act” America is a done deal. How we get those genies back in a bottle is the 64 thousand dollar question and I do not see how anyone gets it done. Too bad people refused to listen as we took those steps.
Everyone knows Caliban is a Mexican, OS. 😉
More on the problems of free speech and “is our children learning,” the Tucson, AZ school district has banned a number of books and instructional materials, including Shakespeare’s Tempest. The ban includes ALL materials about Mexican-American history.
Schools that violate the ban face fines that could run into fortunes.
http://www.nydailynews.com/news/ethnic-studies-book-ban-arizona-include-shakespeare-tempest-article-1.1007105
Sandi,
In case you didn’t notice, I don’t care if you’re offended.
“Gene H, you prove what a true lightweight you are.”
Really? I’m not interested in your opinion of me.
“I am not only not wrong, I am proving your “incompetence” with every rebuttal I offer and it is patently obvious.”
You saying something is obvious doesn’t constitute proof.
“Saying that something is “the beauty of free speech” is not excluding any other attribute of free speech unless of course you are comprehension impaired.”
The only one with comprehension impairment here is you, Sandi. You don’t get to control how or what others say, End of story. If that offends you, offense is entirely your reaction and your problem.
“Only with thugs and tyrants has your manner of response been acceptable. Free speech is not just about ‘getting attention’.”
According to you, it’s about meeting your standards. I say fuck your standards. They aren’t mine and you aren’t capable of dictating to me how I should speak. You don’t have any control over what or how others speak. Getting a clue yet?
“In offering an opinion, I have not tried to “dictate how people talk”. Did Professor Turley make me the new moderator? I have a different interpretation of free speech rights and no, I do not consider yelling or typing insults to be remarkable feats deserving of protection.”
And I said your opinion was wrong and hypocritical bullshit on top of being wrong. Try to back off it all you want. You just said others speaking in certain modes don’t deserve the protection of free speech. That’s the very essence of trying to control other’s speech, Sandi. Explicit, implicit, your message is still the same: others should conform to your standards.
“I do not believe it is remotely true that ‘When you limit how people say something, you are also limiting what they say’.”
And I believe that you are blind to a manifest truth. Editorial control is control. Free is not controlled by definition. When you limit how people say something you are indeed limiting what they say.
“Oh please, it is not “on me” if I am offended. The very purpose of your insults is to elicit a certain reaction. Who are you trying to kid? Your words are just that, your words and entirely in your control. That you are so proud to be a boor is on you.”
Boor? Awwwww. Like I care what you think of me, Sandi. And, yeah, it is on you if you’re offended. Offense is a reaction. Provocation is an action. The very primary purpose of my provocative purple prose was proving exactly how wrong you are and how hypocritical your provincial protestations. That I did manage to offend a prudish hypocrite is just entertaining gravy, but in the end it makes no difference to me if you’re offended or not.
“Many blogs and public forums curtail the insults, profanity and racist comments as they like precisely because they do not believe they add to the communication, inspire the debate or encourage comments. When you come into a host site, you are subject to their rules for a reason. Those without rules run people off when allowing the abuse that adds nothing to the conversation.”
Too bad for you this isn’t one of those moderated places. This is a free speech zone and by design. It takes an excessive amount of bad behavior to get moderated here – like threatening physical harm or assuming another poster’s identity. If you have a problem with that, feel free to leave at any time or take up the issue with the Professor. You are right about one thing though. You aren’t the moderator here.
“Yours was a sad, angry and totally ineffective defense of free speech.”
Actually, it was neither sad nor ineffective in demonstrating that you don’t know what you are talking about, Sandi. In fact, it made you even further reveal that you don’t know what constitutes “control” or “free speech”. And angry? Nope. Not in the slightest. Hypocrites don’t make me angry. They make me laugh.
Well, I fatfingered that HTML, but everyone knows what I meant.
Sandi, vigilance is one thing. Data mining of citizens is quite another. Warrantless searches and gratuitous surveillance of the press is quite another.
And make no mistake, electronic media and blogs are the press. The “press” has evolved to be far more than dead tree media. A 12-year-old kid with a cell phone camera is as legitimate as a news reporter as a grizzled old war reporter for <em)Life(/em) magazine.
our right to free speech and to petition the government for grievances is gone. Gone! Try making an “anti government” statement and see what happens. DHS is on public transportation, bullying passengers to try and make them engage in conversation. They are on our Metro Light Rail here in Arizona also similar events happening on Los Angeles Metro light rail- DHS agents in plainclothes riding the public trains and busses-I bet they are doing this to arrest “troublemakers”. These DHS agents are not uniformed or identify themselves as DHS/TSA but they are slightly obvious in their demeanor. Is there a website or article that addresses this issue happening now?
Mike Spindell, said “There is a difficult line to be drawn between government protection and government intervention into people’s rights of dissent. Mostly, the government historically has step over the line into the dark side.” I totally agree with you on this and of course vigilance goes both ways. Government abuse is worse than citizen abuse but vigilance is not out of order for either IMO.
Gene H, you prove what a true lightweight you are. I am not only not wrong,
I am proving your “incompetence” with every rebuttal I offer and it is patently obvious. Saying that something is “the beauty of free speech” is not excluding any other attribute of free speech unless of course you are comprehension impaired. Only with thugs and tyrants has your manner of response been acceptable. Free speech is not just about “getting attention”.
In offering an opinion, I have not tried to “dictate how people talk”. Did Professor Turley make me the new moderator? I have a different interpretation of free speech rights and no, I do not consider yelling or typing insults to be remarkable feats deserving of protection. I have been very specific about what I find objectionable and still I have not advocated for anyone to limit anything on their own blogs because I have no right to do so, but pretending that the posts have no reflection on the blog host or the poster (however anonymous you believe you are) is laughable.
I do not believe it is remotely true that “When you limit how people say something, you are also limiting what they say”. Unless someone is truly of inferior intellect and cannot communicate with nominal language skill; cursing, insulting and demeaning because you can is not communicating, it is bullying, intimidation and priggish behavior and the lowest form of communication. No, “The right to free speech doesn’t come with a guarantee that you won’t be offended or insulted or intimidated” but it does not mean I will or should celebrate receiving such.
Oh please, it is not “on me” if I am offended. The very purpose of your insults is to elicit a certain reaction. Who are you trying to kid? Your words are just that, your words and entirely in your control. That you are so proud to be a boor is on you.
Many blogs and public forums curtail the insults, profanity and racist comments as they like precisely because they do not believe they add to the communication, inspire the debate or encourage comments. When you come into a host site, you are subject to their rules for a reason. Those without rules run people off when allowing the abuse that adds nothing to the conversation.
Yours was a sad, angry and totally ineffective defense of free speech.
Gene, I am not sure wallflower is accurate!
Bdaman,
Now that’s good reporting! lol
Civil Disservice
John Oliver interviews Froma Harrop, the president of the National Conference of Editorial Writers, to find out how to restore civility to America’s public discourse.
http://www.thedailyshow.com/watch/thu-january-12-2012/civil-disservice?xrs=share_copy
raff,
Gene is only doing what they do best in LA…..That is being a wallflower….Ask Edwin……
I know, raff. I really need to work on that whole being a wallflower thing. 😀
Gene,
I wish you weren’t so wishy washy. Tell us what you really mean! 🙂
Sandi sez, “IMO, “the beauty of free speech” is respecting the right of everyone to have their opinion and rebutting what we disagree with in a respectful non-threatening and demeaning manner.”
That’s where you’d be totally and completely fucking wrong and demonstrating your incompetence to discuss what the right of free speech entails.
Did I get your attention?
The very idea that you think you can dictate how people talk indicates that you have no problem whatsoever of limiting others rights to free speech. When you limit how people say something, you are also limiting what they say. The right to free speech doesn’t come with a guarantee that you won’t be offended or insulted or intimidated. Those are your reactions. And they are entirely in your control. Others free speech rights are not curtailed simply because you don’t like what they say or how they say it. Free speech includes the right to be offended or insulted (both your reactions) or denigrated and hated (other people’s feelings toward you or a subject to which you also have no control over). Slander (lies), however, are a crime but the defense to slander is truth. If the truth of the matter offends or insults or denigrates you? Again, too bad. Free speech also comes with the right ignore others and the right to refute what they’ve said and to do so in any manner the speaker sees fit absent the previously noted exceptions like slander.
If that “ticks you off”?
Too bad.
Buy a jock.
Grow thicker skin.
Toughen up, buttercup.
The arena of free speech is indeed a cage fight.
Free speech means free. Free as in “not under the control or in the power of another; able to act or be done as one wishes.” Free as in “not subject to your personal approval for courtesy or content.”
If you’ve got a problem with that?
That’s your problem.
But don’t try to tell me you’re not interested in abridging others rights after that fine display of hypocritical “do as I say because I’m Mrs. Manners” bullshit.
If your problem is anonymity? Considering that most people don’t know the difference between anonymity and privacy or that anonymity is the weak cousin to privacy, it is even sadder that you’d want to abridge yet again others rights because your widdle feelin’s got hurt.
Grow the fuck up, Sandi.
And I mean that in the nicest way possible.
I’ve either demonstrated my point or offended you by this point, Sandi.
Either way is fine with me.
Mike Spindell,
Would you show us all where I said that any of the groups I mentioned could not legally believe any of those “Isms”? Or that anyone’s beliefs were “against the law”? Although I believe some of them are. I said we and the government have a right to be horrified, anxious and vigilant because words have a way of turning into action and hate groups, anarchists and militant groups have a history of causing violence. It is not a matter of not caring for them or supporting their positions. I said they should be monitored, they have always been monitored and they will always be monitored. It is not a new phenomenon, there are just more tools for doing so.
I am old enough to be familiar with the McCarthy era, I am also aware of the actions during the American Revolution, the Civil War, “No Irish Need Apply, the Jim Crow South, the internment of the Japanese Americans, and GITMO, so again, the sentiment and phenomenon is not new. This is and has been “the kind of America” we have had. The FBI, CIA and local law enforcement have been “monitoring” this or that group for more administrations than I have lived through. Civil Rights have been trampled since this nation was born. My point was merely that people who speak can and do go too far and yes, in such instances need to be held accountable. Whether that is a warning from a blog moderator, or a visit from the government is not my call, but pretending there is nothing to see here is not fair IMO. I defend free speech; I do not defend the abuse of it nor agree that we cannot decide the difference.
“I said we and the government have a right to be horrified, anxious and vigilant because words have a way of turning into action and hate groups, anarchists and militant groups have a history of causing violence. It is not a matter of not caring for them or supporting their positions. I said they should be monitored, they have always been monitored and they will always be monitored. It is not a new phenomenon, there are just more tools for doing so.”
Sandi, within your statement lies the problem. Then anti-war movement and the civil rights movement were both monitored by the FBI under the claim there might be communists within them. However, they were not only monitored but unconstitutionally interfered with under a program called COINTELPRO.
http://en.wikipedia.org/wiki/COINTELPRO
Dr. King, who we celebrate today was surreptitiously taped and wiretapped by the FBI. The activities by the government were illegal, but authorized purportedly to fight communism. That was a joke, because I knew many communists and they were the most ineffective political leaders one could imagine. The real reason was that Hoover didn’t believe Black people should have civil rights, or that people had a right to protest the Viet Nam War. What is so amusing about Hoover’s activism to save our country was that for years the FBI denied there was a Mafia, until the NY State Police raided a “Cosa Nostra” meeting in Westchester. Hoover in fact was gambling “buddies” with many a Mafia figure.
There is a difficult line to be drawn between government protection and government intervention into people’s rights of dissent. Mostly, the government historically has step over the line into the dark side.
Gene H,
I do not believe I said anything about sacrificing my rights (although a diverse and civil society often means some sacrifice) and it is not because I “don’t like the consequences of free speech” that I made my comments. I have never tried to “dispose of others rights” but no, I do not believe that the “unwritten corollary” of free speech is plotting against the government, spreading lies, insulting people or inciting fear and irrational beliefs. I have no problem with “political opinions” being expressed anonymously, I said I was sick of the way people hide in anonymity and attack, insult and demean others opinion, parrot lies and take the truth out of context and twist the meaning. That is abuse of free speech not exercise of it IMO. Much of it would be assault if done in person to someone’s face.
IMO, “the beauty of free speech” is respecting the right of everyone to have their opinion and rebutting what we disagree with in a respectful non-threatening and demeaning manner. The hideousness of free speech is using it to hate, debase, lie, slander, insult, intimidate and denigrate whether that is the government or a fellow blogger. I have not asked that anything I say should be “free from having what you say challenged by logic, reason and evidence”. Show me where I advocated such? The “battlefield of ideas” does not have to resemble a cage fight. “The quality of the ideas under the scrutiny of critical thinking” suffers when a pejorative, insults, attacks and intimidation of ideas is supported or enabled with anonymity to hide behind. If you do not believe free speech can be abused, that is your choice, I find it abused and demeaned on a daily basis, even here and yes, it ticks me off. Any right we have ever had impinged was due to abuse not use.