by Gene Howington, Guest Blogger

That free speech is under attack by the governments local and Federal should be manifestly apparent from the stories that have appeared of the last few years here at Res Ipsa Loquitur.  In articles from our host, myself and my fellow guest bloggers, we’ve seen open attacks on free speech as a right proper, attacks on anonymous political free speech, the prosecution and persecution of whistleblowers and the erosion of shield laws protecting reporters and attacks on free speech and pluralism  in general in the form of blasphemy laws just to name a few of the threats that have come to our attention. What is most troubling is that the Federal government has stepped up their efforts to outright infringe upon the free speech rights of citizens and the press and chill the right however possible. Free speech is critical for the function of democracy. Without dissent, there can be no debate, only the dictates of the strong over the weak which is by definition tyranny. That is one of the reasons that it was so important that the Founders protected it in the 1st Amendment. However, they felt in particular that the freedom of the press was a not just free speech, but a very special kind of free speech that merited both special mention and protection in the 1st.  The 1st Amendment reads in relevant part:

Congress shall make no law [. . .] abridging the freedom of speech, or of the press”.

As we know, there are legitimate reasonable restrictions on free speech such as defamation, incitement and threats (particularly threats of violence).  So before we look at the two present instances of the chilling of free speech – one a local story about a graduation and one the national story concerning the DOJ accessing the phone records for hundreds of reporters working for the Associated Press – let us first ask examine what is meant by the term “chilling free speech”.

What is the chilling effect? The first use of the term traces to Wieman v. Updegraff, 344 U.S. 183 (1952).   In an unanimous ruling, the Supreme Court held that Oklahoma loyalty oath legislation violated the due process clause of the Fourteenth Amendment. Due process requires that individuals have scienter (knowledge that their membership or support violates the loyalty oath), and the Oklahoma statute did not accommodate this requirement because it did not give individuals the opportunity to abjure membership in subversive organizations. Keep in mind this was at the height of the “Red Menace” when Justice Frankfurter said in his concurrence (joined by Justice Douglas):

Such joining is an exercise of the rights of free speech and free inquiry. By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher’s relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers affects not only those who, like the appellants, are immediately before the Court. It has an unmistakeable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.

The Constitution of the United States does not render the United States or the States impotent to guard their governments against destruction by enemies from within. It does not preclude measures of self-protection against anticipated overt acts of violence. Solid threats to our kind of government — manifestations of purposes that reject argument and the free ballot as the means for bringing about changes and promoting progress — may be met by preventive measures before such threats reach fruition. However, in considering the constitutionality of legislation like the statute before us, it is necessary to keep steadfastly in mind what it is that is to be secured. Only thus will it be evident why the Court has found that the Oklahoma law violates those fundamental principles of liberty ‘which lie at the base of all our civil and political institutions’ and, as such, are imbedded in the due process of law which no State may offend.

That our democracy ultimately rests on public opinion is a platitude of speech, but not a commonplace in action. Public opinion is the ultimate reliance of our society only if it be disciplined and responsible. It can be disciplined and responsible only if habits of open-mindedness and of critical inquiry are acquired in the formative years of our citizens. The process of education has naturally enough been the basis of hope for the perdurance of our democracy on the part of all our great leaders, from Thomas Jefferson onwards.” Id., at 195-196 (cites omitted, emphasis added).

The term was again used and became common usage after Justice Brennan used it in Lamont v. Postmaster General, 381 U.S. 301 (1965) in reference to a “deterrent effect” on freedom of expression. Since then, the chilling effect refers to any legislation or governmental action that places an undue burden upon rights in general and not just upon free speech although it is a term still most often seen associated with free speech cases.

Which brings us to the case Katelyn Campbell and the actions of her high school principal, George Aulenbacher. The senior at George Washington High School in Charleston, West Virginia, recently took Aulenbacher to court over a mandatory “abstinence only” assembly. The mandatory school assembly featured Pam Stenzel, a prominent conservative advocate for sexual abstinence among teenagers. At the assembly, Stenzel allegedly warned students that “if you take birth control, your mother probably hates you,” and that she “could look at any one of you in the eyes right now and tell if you’re going to be promiscuous”.  This did not sit well with Campbell.  She made unflattering comments to the press and protested the assembly which she (rightly) felt spread blatant falsehoods about sex. Aulenbacher then threatened to tell her then prospective college, Wellesley, that the honor student was “of bad character”. Campbell took Aulenbacher to court seeking injunctive relief against him, but lost the suit. She was admitted to Wellesley anyway. But it appears the petty principal wasn’t done there. She has been denied the previously granted permission to speak at her graduation along with seven other students who were expected to speak at the ceremony on May 22.  On Wednesday, Aulenbacher revealed that only the two students with the highest GPAs would be speaking “due to changes in the format of the ceremony”. Although Campbell had learned from a school superintendent that changes were in the works, Aulenbacher conveniently “forgot” to tell the students until a week before the ceremony. Campbell’s response was to the point.  Writing on her Facebook page, the honor student said, “I was shocked to hear from Mr. Aulenbacher today that myself and other highest honor graduates will no longer be permitted to speak at our graduation ceremony next Wednesday … Politics, I suppose, play a greater role in the graduation of seniors than I had previously expected.”

In short, someone in a position of authority took action against a speaker they took exception to based on the content of their speech albeit previous speech.

Contrast this with the recent story about the DOJ obtaining the phone records of hundreds of Associated Press employees. The press and the government have long had an odd relationship, but it was generally accepted that the press would show restraint if information would put lives in danger.  However, since the days of the leak of Pentagon Papers revealed the misdeeds and lies to both Congress and the public by the Johnson administration concerning the Vietnam War, the case of New York Times Co. v. United States, 403 U.S. 713 (1971) settled the issue that the 1st Amendment was not subordinate to a claimed need of the executive branch of government (then under Nixon) to maintain the secrecy of information. “‘Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’  The Government ‘thus carries a heavy burden of showing justification for the imposition of such a restraint.'” Id., at 714 (cites omitted). The Court further to noted:

In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed:

“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.'” Id., at 715.

“In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.” Id., at 717.

The press, however, continued to honor the old system of restraint when prudent.  And what do they get for their cooperation?

It would seem that President Obama, AG Eric Holder and their DOJ have forgotten the lessons of the Pentagon Papers and seek to accomplish by other means what they cannot accomplish by injunction. In addition to seeking the zealous (some would say overzealous) prosecution of whistleblowers like Bradley Manning and organizations and individuals that aid them like Julian Assange and Wikileaks, the DOJ recently obtained phone records for 20 phones used by hundreds of reporters under the guise of “looking for a leak”.  James C. Goodale, an attorney who represented The New York Times on the Pentagon Papers case, said, “We’ve come full circle right back where we were 40 years ago, where the president is mesmerized by classified information and national security — just as Richard Nixon was.”  Bob Woodward of The Washington Post, a man who’s been on the receiving end of many leaks since the Nixon years, suggested Friday that AP phone records seizure could damage the running dialogue between both sides since the Pentagon Papers ruling.  Speaking Friday on MSNBC, Woodward said the action could “chill the relationship, so reporters are going to say, ‘why the hell should I go to the government, they’re just going to go after my records?’” Not to mention in addition to intimidating reporters, it is a move obviously meant to intimidate both current and future whistleblowers. Keep in mind that all of this takes place in the context of the Obama administration actively lobbying to weaken and block so-call “reporter shield” laws that would protect reporters from revealing their sources. It’s a heinous attack on liberty by those sworn to protect liberty.  So heinous that even those on the far right like Senate Minority Leader Mitch McConnell (R. – KY) came out in defense of the President on this matter.

In short, someone in a position of authority took action against a speaker they took exception to based on the content of their speech.

Consider, these two recent stories and the stories before them in context. The pattern is impossible to ignore. The 1st Amendment is under open assault by the government from all levels.

Is it just me or is it getting chilly in here?

I think, to paraphrase Robin Williams in The Survivors, “It’s weather like this that makes you wonder why men have nipples.”

What do you think?

Source(s): Huffington Post (1, 2, 3, 4), WVGazette.com (1), The L.A. Times (1, 2, 3), AP (1), International Business Times (1), Wieman v. Updegraff, 344 U.S. 183 (1952), Lamont v. Postmaster General, 381 U.S. 301 (1965), New York Times Co. v. United States, 403 U.S. 713 (1971)

~submitted by Gene Howington, Guest Blogger