Is It Getting Cold In Here?

Stock Photo of the Consitution of the United States and Feather Quillby 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), (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

42 thoughts on “Is It Getting Cold In Here?”

  1. All the regs/edicts/laws/mandates/etc of politicians are NOTHING but WORDS except for the Enforcers who do the actual HARM. Politicians sitting in federal and state/provincial capitals are nothing but a passel of WORDMONGERS resulting in no HARM IF they had few Enforcers to carry out the intent of those WORDS.

    Do NOT be a Gov Enforcer, domestic or military, and dissuade others from being part of those “legal” HARM-causing groups. If an Enforcer insists on maintaining such a position despite reasoned logic, the only appropriate response is to withdraw voluntary association, making it clear to him/her and everyone why you are doing so. Continuing to voluntarily associate with Gov Enforcers is to support and enable the HARM they do locally and abroad, the latter or which has definite harm causing effects at “home” also. As an example:

  2. The beast has broken from its chains. The fascist government we suffer, with Dempublicans being the single ruling party, recognizes no limits on its powers and perogatives. The government has effectively ruled that our Bill of Rights is no constraint, and that our rights are merely privileges that can be suspended at any time. Consider the Patriot Act, the NDAA, and more. The president declaring he can kill any of us at any time, any place, without any due process at all. Free speech? We are getting arrested just because of wearing a tee shirt to school advocating the Second Amendment or Jesus Christ… or for posting a political opinion on a website! Live free or die trying!

  3. UPDATE: AP Scandal: Plurality Disapprove Of DOJ’s Actions, Poll Finds

    “The Pew Research Center released a poll on Tuesday that showed the public was following the AP story less than the controversies over the IRS or Benghazi. While 26 percent said they were tracking the IRS closely, and 25 percent said the same for Benghazi, just 16 percent said the same of the AP.

    Broadly speaking, Pew said, ‘public interest in a trio of controversies connected to the Obama administration has been limited.’

    Even so, the study also showed a plurality of people disapproving of the Justice Department’s actions, by a margin of 44 to 36 percent. (20 percent had no opinion.) Among people following the story closely, 55 percent disapproved.

    There was a sharp political split in the response; Democrats narrowly supported the DOJ, whereas Republicans backed the AP”.

  4. Those are a lot of words to disagree without saying anything of meaningful substance, David. Especially when you in the end agree that “tech savy people will find ways to circumvent censorship”. Which was the point of what I said to Bron in the first place. So apparently you don’t hate to disagree as much as you claim.

  5. Dissent or Terror: New Report Details How Counter Terrorism Apparatus Was Used to Monitor Occupy Movement Nationwide

    by PRW Staff — May 20, 2013 – 9:00am

    MADISON, WI — DBA Press and the Center for Media and Democracy today released the results of a year-long investigation: “Dissent or Terror: How the Nation’s Counter Terrorism Apparatus, In Partnership With Corporate America, Turned on Occupy Wall Street.”

    The report, a distillation of thousands of pages of records obtained from counter terrorism/law enforcement agencies, details how state/regional “fusion center” personnel monitored the Occupy Wall Street movement over the course of 2011 and 2012. Personnel engaged in this activity at fusion centers include employees of municipal, county and federal counter terrorism/homeland security entities. Such entities include local police departments, the FBI and the U.S. Department of Homeland Security (including U.S. DHS components such as the Transportation Security Administration).

    The report also examines how fusion centers and other counter terrorism entities that have emerged since the terrorist attacks of September 11, 2001 have worked to benefit numerous corporations engaged in public-private intelligence sharing partnerships.

    While the report examines many instances of fusion center monitoring of Occupy Wall Street activists nationwide, the bulk of the report details how counter terrorism personnel engaged in the Arizona Counter Terrorism Information Center (ACTIC, commonly known as the “Arizona fusion center”) monitored and otherwise surveilled citizens active in Occupy Phoenix, and how this surveillance benefited a number of corporations and banks that were subjects of Occupy Phoenix protest activity.

    While small glimpses into the governmental monitoring of the Occupy Wall Street movement have emerged in the past, there has not been any reporting — until now — that details the breadth and depth of the degree to which the nation’s post-September 11, 2001 counter terrorism apparatus has been applied to politically engaged citizens exercising their Constitutionally-protected First Amendment rights.

  6. Bron,
    I had not checked my download and upload speeds recently. Not sure what is going on, but their premium speed package is 30 Mbps; however, the test I just ran shows I have a download speed of 50.87 Mbps, and an upload speed of 4.14 Mbps.

    Based on what the office guy told me, that is still just loafing compared to what they can provide if they were so inclined.

  7. OS:

    they just want to be able to charge you for the increased speed. I just paid to up mine to 25 mbps. 10 bucks per month is what it cost me.

  8. I just went down to pay my cable bill. I had been watching TV three to five hours or so per week, on average, so couldn’t justify a hundred dollars a month for that. We turned off the TV part and kept the internet. The cable office was not busy, and the clerk was in a chatty mood. We started talking about being able to get a lot more information over the Internet than on TV. He told me the handwriting is already on the wall, that cable television will eventually be all Internet based.

    Then, he told me something I did not know. He said his company has the capability of sending signals well in excess of 100 Mbps download speed over the fiber optic cable which I am using at home. Their premium package is choked down to 30 Mbps, which means it is just loafing compared to what they can provide. I will have to check when I get to the office, but I think my DSL at the office is less than 10 Mbps.

    Having to charge more for more bandwidth used is hokum, as is slowing down competitor’s signals. At the present time, 100 Tbps (terabits per second) per single strand of cable is possible. The only thing that needs improving is the switching at either end.

  9. “I guess their next step is to start censoring the internet.”

    A near impossible task, Bron. But they can certainly hobble it. The network backbone is owned by a very small group of very large companies, not all of them directly subject to U.S. jurisdiction: CenturyLink (and their subsidiary Savvis), Verizon, Sprint, AT&T, NTT Communications, Level 3 Communications (all primarily American but some international in scope), TeliaSonera International Carrier, Tinet, and Tata Communications. Some countries own their local backbone like China. Most of these networks rely upon traditional copper. Google looks ready to expand and possibly dominate in the nascent fiber network being built out. To totally censor the web, however, would essentially require a rebuild from the ground up as well as seizing control of the backbone from these corporations, none of whom would take it lying down since they built it and own the physical assets involved. However, most of these companies are fairly compliant to government “requests” even without warrants. Consider though that wireless networks are changing everything, making it possible for small groups and individuals to control fairly large independent networks and that there are “open” DNS systems (used to resolve IPs) not controlled y either bid business or government. No, at this point total censorship is a practical impossibility, you can regularly read about the ways people circumvent such censorship in places like China and Saudi Arabia, but the government could restrict many people’s easy access to open information.

    1. Gene H –
      Hate to disagree with you over something again, given our history, but it is not at all an impossible task. The Chinese are doing it already. Even for my family members, I can block or allow websites for my children from here at the office on a completely different network. I can get reports of every web site they visited and lists of every word and phrase they have searched for on web search engines, without installing anything at all on their computer. This comes through Microsoft’s Family Safety feature which is part of Windows Live. The login methodology for Windows 8 has been changed from local accounts to global based email login, which makes all of this much easier to do. The technology exists to snoop and intercept every single bit of information flowing through to a particular IP number. Now granted that tech savy people will find ways to circumvent censorship methods through using VPN’s to proxy servers and the like, but normal people will not avail themselves of such, and government is likely to have resources to prevent too much of that in the same way that right now the government somewhat successfully keeps hackers out of their own internal computer networks.

  10. Gene H:

    that was interesting. what I come away with is that because of the internet it is becoming almost impossible to keep stuff quiet. the government cant make a move without someone finding out. I imagine before too long the names of those government employees who mess around with citizens will be found on the net for people to see who they are.

    God help them when that starts to happen, it wont be a pretty site.

    I guess their next step is to start censoring the internet. What else can they do?

  11. Yeah, LK, I caught that OS had beat me to the punch after I posted that. 😀

  12. The Brennan Center warned us:

    “Grading the Obama Administration” April 29, 2009

    “The administration also has made important strides in reducing the executive branch’s reliance on secret law.

    But in cases where people seek accountability for government misconduct—whether through the courts, Congress, or an independent commission—the administration’s commitment to transparency falls by the wayside in every instance. Thus, the administration has asserted the “state secrets” privilege to block litigation, opposed an independent commission of inquiry to learn the full truth about torture and other abuses, and asserted the right to disregard a statutory provision designed to protect executive branch whistleblowers who provide information to Congress.”

    Excellent and timely article Gene. Your crack about McConnell was choice.

    OS’s comment bears re-reading; co-conspirator to espionage as a legal charge to levy against reporters- even FOX (spits) reporters- puts the administration right up there with the old Soviets and today’s worst and most repressive governments.

  13. wow, that is really bad. the result of the irs shenanigans is to almost shut down republican giving out of fear of reprisal. now this.

    not good.

  14. Holder and Obama need to take a quiet moment and reflect on Nixon’s Atty General, John Mitchell, who spent 19 months in prison thanks to the Watergate affair and was quite famous for the line to Carl Bernstein: “Katie Graham’s gonna get her tit caught in a big fat wringer if that’s published.”

  15. “The Secret Service is following up on recent comments by right wing radio host Pete Santilli, who claimed to want to shoot former Secretary of State Hillary Clinton in the vagina and see President Obama tried and shot for treason.

    “We are aware of Mr. Santilli’s comments and will take the appropriate follow up action,” Edwin M. Donovan, a Secret Service spokesperson, told TPM on Monday. “He certainly has a right to free speech, but the Secret Service has a right and an obligation to determine what a person’s intent is when making comments like this.”

    He made the threatening comments the week before last on his eponymous Internet based radio program. Santilli is a fringe figure who has made threatening comments on his program in the past. But he’s gained some quasi-mainstream attention recently with guests like Ted Nugent and Gun Owners of America director Larry Pratt.

    ‘Miss Hillary Clinton needs to be convicted, she needs to be tried, convicted and shot in the vagina,” he said. “I wanna pull the trigger. That ‘C U Next Tuesday’ has killed human beings that are in our ranks of our service. I want to remind you that in Benghazi, Miss Hillary ‘the fricken’ biggest vagina on the face of the planet’ told troops to stand down and to not go in and interfere with the operation that they set up because they’re moving arms; Barack Obama is moving drugs through the CIA out of Afghanistan and Barack Obama needs to be tried, convicted, and shot for crimes against the United States of America.”

    The website Hypervocal has posted the audio.” Talking Points Memo

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