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A friend recently pointed out a piece by Jonathan Turley, “Free speech under fire,” and wrote, “Don’t forget, the cure for offensive free speech is more free speech (discussion, debate, dialogue) — not suppression of free speech.”

I don’t disagree in the cases Turley describes — I think the judge got the case he leads with wrong.  (Well, for lack of legal training I guess I should rephrase: I hope the judge got this case wrong.)  An assault is an assault, it can’t be excused by claims (far-fetched ones at that) that the assault was a response to hate speech.  Likewise, I don’t support criminalizing Holocaust or genocide denial, as happens in Europe.

But I think my friend’s statement still begs many questions of what all counts as “suppression” of free speech.  Who is actually capable of it?  Are we talking about legislation and enforcement, or citizens’ and political groups own choices to condemn speech and boycott its supporters?  Does the word “suppression” encompass “discouragement” or “regulation”?  To cut to a couple of chases: “don’t be telling us not to ask people to boycott Rush Limbaugh or oppose Citizens United!  You’re suppressing our speech!”

I’m trying to make a friendly but serious point.   It needn’t be all we consider, but as a starting point, our First Amendment is in this respect strictly and (I think) rightly about government abridgment of free speech — “Congress shall make no law… abridging the freedom of speech.“ It’s not about the rest of us penalizing bad speech, or agitating that others do so; that’s arguably a great deal of the point of free speech.

Moreover, “freedom of speech” and “guaranteed, unregulated, unopposed amplification of speech” are not the same thing; that’s why the former is guaranteed, and the latter is not.  For example, Rush Limbaugh will always be free to say disgusting things about people he disagrees with, even if his radio program dies for lack of advertising — he’ll just be saying them to his drinking buddies at the Lowlife Saloon, not to a nationwide audience.  Likewise — and to recall an example where *my* ox was gored — the Dixie Chicks remain free to make new music and seek new audiences when their fan base got upset about Natalie Maines’s “ashamed of Bush” remark.  I think what happened to the Dixie Chicks was unjustified and even a demonstration of a “fascist impulse.” But I’m for free speech — not consequence-free speech; while a law against criticizing the president would not be fair game, the conservative listeners boycott of their music was.*

Turning to another example of often-offensive free speech, corporations and groups should be able to advertise on behalf of favored candidates — but it’s not “suppressive” to insist on spending limits or transparency.  By contrast, the Citizens United ruling is the very apotheosis of “more speech” — indeed, it’s “all but unlimited speech which no one has a prayer of adequately rebutting in the same volume” – as a supposed cure for the other guy’s speech.  But this particular “more speech cure” is a new and worse disease; true, I can write a blog post or upload a video rebutting some Super PAC lie — yet “more speech” rebutting “bad speech” — but the fifty people who see those rebuttals are a drop in the democratic bucket compared to the millions who see the TV ad or radio spot I’d be responding to.

This kind of issue — how to oppose offensive and/or  free speech — can be fraught even in relatively small-scale, local settings. For example, last fall a letter was circulated to Montgomery County, Maryland politicians asking them to sign a statement condemning an Islamophobic presentation at a local Republican women’s group.  Later on, a second letter requested that an Annapolis hotel not host a conference scheduling a number of Islamophobic speakers.

The first letter — elected officials signing a letter criticizing an event — arguably verged on government abridgement of free speech. But “verging on” and “being” are different things; since the letter merely found the Islamophobic event “inappropriate” and saying rhetoric of the kind “had no place in” the county.  This wasn’t attempted abridgement of free speech so much as free speech of their own.  The second letter was actually an easier case from my perspective: one group of private citizens asks another to reconsider a course of action.  Given the (insultingly overblown) fears this raised for the conference organizers, though, the letter resulted in a small police presence at the conference.  While not arguing against the right to draft and send the letter, a simple counterdemonstration or request to speak as well might have been a better choice of tactics.

In both cases, the group I was a part of took slightly different approaches to those of the lead organizers.  We worked with the circulator of the letter to stage an informational forum about the “Creeping Sharia” myth, and we joined in a counterdemonstration at the Annapolis hotel without signing the letter asking for the hotel to disinvite the convention.  I think those were good choices — but I don’t think drafting or signing either letter would have been beyond the pale, either.  Far from being suppressive of free speech, they were most properly understood as examples of precisely the “more free speech” — nothing more, nothing less — that my friend supports.

As do I.  What I’m saying is that we make it much too easy for ourselves by claiming a “free speech absolutist” mantle when it can’t possibly be true.  I don’t know where my friend stands on the Rush boycott or Citizens United, but the point is that sometimes whichever side one is on, someone’s speech is diminished — Limbaugh’s, or those encouraging a boycott; an Islamophobe’s, or those seeking to mobilize public opinion against him; corporations wanting to engage in unlimited, unregulated advertising, or people rightly feeling their own citizenship is rendered inconsequential by comparison.  In such cases, we must decide what we believe free speech is for, and whether that value is compelling enough for us to intervene.

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* There are other distinctions and issues to to be made in the two cases, e.g., a public figure trying to humiliate a private figure vs. a public renouncing a group who had sought the limelight; the possibility of monopolistic radio station collusion in the Dixie Chicks boycott; etcetera.  But for the purposes of discussing the right to object to their speech by penalizing their businesses, the broad similarities outweigh them.

Binta Coulibaly, Maddie Nephew, Susana Perez

My daughter Maddie Nephew and her friends Binta Coulibaly and Susana Perez have produced what I’m proud to say is an exceptional video documentary titled “The Fight for Student Rights: Student Free Speech in Schools.” The video, based on a paper Maddie wrote earlier in the school year, is their entry in this year’s “National History Day” competition; their school — Eastern Middle School, in Silver Spring, Maryland — has built their superb humanities and communication magnet program around participating in this event.

For her paper, Maddie interviewed both Mary Beth Tinker — one of the defendants in the seminal free student speech case Tinker v. Des Moines — and State Senator Jamie Raskin, who among many other accomplishments literally wrote the book on student rights; the team went back for some very interesting video interviews with both of these civil liberties champions.

Last week, the girls (and I) were thrilled to learn that their work would be featured on the web site of the ACLU of the National Capital Area; the article is titled “Are You Smarter than a Seventh Grader?” I saw how hard they worked on this — and while I suppose I may be biased, I’m honestly very impressed with the result. Thanks very much to Johnny Barnes of the ACLU-NCA for rewarding their work with some very well deserved recognition. As he put it,

The future of civil liberties is in good hands.

Children with “We March for Hope not Hate” sign
at 10/2/10 “One Nation” demonstration
( Click for “One Nation” slide show).

The “One Nation” event — already unimaginably long ago, more than two months! — at least succeeded in discomfiting one fellow who needed it. John Avlon — the smug author of the unbearable “Wingnuts: How the Lunatic Fringe is Taking Over America” — was unaccountably assigned to the rally by the Daily Beast to confirm his superiority over attendees.  He reported:

The signs started off badly as I approached the Washington Mall. “Yes We Can… Bomb Civilians!” read the first sign I saw, held aloft by a 2008 Ralph Nader supporter from Providence, Rhode Island, named Adrian. Behind him, representatives from “The World Can’t Wait” positioned a black-hooded orange-jumpsuited effigy to protest Guantanamo next to signs that read “Stop Occupation and Torture for Empire!”

A pre-game rally south of the Washington Monument featured drum circles and papier maché puppets. President Obama was called an “imperialist president” who was insensitive to the “African community” and “the 2.5 million people in concentration camps called prisons.”

I’ve never been sure what’s wrong with drum circles and paper mache puppets, and I’m pretty sure nothing’s wrong with confronting a supercilious prig or his readers with the facts of mass imprisonment in the U.S., bombing civilians, occupation, torture, or an assertion of empire that matches facts and is actually embraced by leading thinkers on the right.  But if there is something wrong with it, I guess we’ll all just have to live with ourselves.

Next, though, Avlon noticed some more debatable signs — but just as debatably classified them all as anti-Semitic, un-American and beyond the pale:

The curious migration of anti-Semitism to the left was evident in signs that read “End All U.S. Aid to the Racist State of Israel” and “Fund Jobs, Not Israel.” I cringed as these marchers crowded past a group of World War II vets from Columbus, Ohio, being wheeled to their war memorial as part of the excellent “Honor Flight” program.

Why those vets would necessarily care one way or the other — either about Israel or about what protesters think of it — is presumably clear to Mr. Avlon, but was left unexplained for the rest of us.  It’s one thing to say these demonstration participants were somewhat off the main message of the day — jobs, employment, economic help for those needing it rather than for those not needing it.  (Though their signs did arguably match the One Nation principle of providing “greater national investment in new jobs, improved infrastructure, and public education instead of escalating military spending.”)

But Avlon’s objection was broader: these people had no valid point whatever, and their failings indicted the demonstration as a whole.  To me, that’s an insidious sentiment of its own. Read the rest of this entry »

Federal Bureau of Investigation
November 30, 2010

FOIPA Request No.: 1157666-000
Subject: NEPHEW, THOMAS

Dear Mr. Nephew,

This responds to your Freedom of Information/Privacy Acts (FOIPA) request

Based on the information you provided, we conducted a search of the indices to our Central Records System.  We were unable to identify responsive main file records.  [...]

To the extent your FOIPA request seeks access to records that would either confirm or deny any individual’s placement on any government watch list, please be advised that the U.S. Government can neither confirm nor deny whether a particular person is on any terrorist watch list. [...]

Sincerely yours,
etc.

I got the clean bill of surveillance health about two weeks after filing my FOIA request, using forms supplied by the Defending Dissent Foundation. While I thought the odds were somewhere between slim and none that I’d been worth wasting FBI time on, I didn’t know for sure, I’d wondered about it before, and I figured it would be interesting to find out one way or the other.

I’ve been arrested for civil disobedience twice in my life.  Once was way back in 1983, at a mass blockade of Lawrence Livermore Labs, where U.S. nuclear weapons are designed; there were 1300 of us, and we spent 11 days in jail — in our case, a huge circus tent on the grounds of the Santa Rita Jail — before eventually being released en masse.  The other time was on my own, on September 11, 2005, at the Pentagon-sponsored “Freedom Walk” commemorating 9/11 and ’supporting the troops.’  I wore an “Abu Ghraib guy” poncho and hood, and carried a sign reading “For Them, For Us, For Our Troops: Never Again” (in part) on one side and “Freedom?” on the other. Back in 1977, I joined a demonstration against building a gym on the site of the Kent State shootings, but wasn’t arrested.  Besides those incidents, I’ve been involved in various grassroots political groups from time to time, mainly the nuclear freeze and free zone movements in California,  and impeachment efforts in Takoma Park.

I outlined those activities on the Department of Justice “Certification of Identity” Form 360 available via Defending Dissent, following the helpful directions they supply separately.  (As per the example given there, I also included the meeting about the FBI raids on peace activists that I attended in early November.)  I put the envelope in the mail, and figured I’d hear from them in two or three months.

Instead, it was just a couple of weeks.  And — as I suspected I would — I learned that I’m not all that interesting, and that the FBI is not quite so monumentally stupid as to think that I am.

But many other people have been equally peaceful and undeserving of FBI or police attention, yet got it all the same.  The anti-death penalty and peace activists who were infiltrated and reported on by Maryland State Police might have once scoffed to think they were under suspicion as well.  But at some point they filed a FOIA request — and shone a light on serious police abuses of power and infringements of the right of free speech, free assembly, and freedom from surveillance without reasonable cause.

For most of us, most of the time, I think the best way to think of a FOIA request is as a kind of routine citizen checkup: a checkup on your privacy and liberties, and a checkup on the country.  I’m pleased that in my case, the results were good — one unsurprising positive data point to weigh against the negative ones.  I’ve met people who were morbidly and almost certainly unjustifiably paranoid about this kind of thing, and I don’t think that does anyone any good — it deactivates and discourages you for no good reason.  My one little experience pushes back against that at any rate.

So if you’re at all politically active — and even if you’re not — I think you should submit a FOIA request, too, or even organize a FOIA party with your friends.  If you’re like me, it’s likely you’ll find there’s nothing to worry about — and if you’re like me, it’s also likely a request you’ll want to get in the habit of repeating from time to time.  If you do, share the results with Defending Dissent, where great people like Sue Udry stand ready to help with whatever develops.

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* Kit Bonson is mistakenly listed in the video as being part of the National Lawyers Guild; she is affiliated with the Washington Peace Center.

This past Saturday, November 6, I attended an excellent forum — announced earlier on this blog and (mainly) elsewhere — about some very troubling FBI raids on fourteen peace activists in Minnesota, Illinois, and Michigan on September 24th.  The raids sought evidence of their alleged support of terrorist organizations.  In the course of writing about that forum, I’ve decided I need to back up and record some of the basics I’ve been able to learn about the raids, their subjects, and the subsequent legal process.

Many of the fourteen people who were subjects of the September 24 FBI raids are associated to varying degrees with the Freedom Road Socialist Organization (FRSO), an avowedly Marxist-Leninist organization that, not surprisingly, calls for the overthrow of the capitalist system in the jubilee days a-coming, but whose members also apparently engage in slightly more feasible, sometimes gutsy peace- , justice- and labor-related outreach work in the here and now in Colombia, the Middle East, and the U.S. An ad hoc, but doubtless related Committee to Stop FBI Repression has published profiles of the 14 activists to their web site; they include a PIRG activist who traveled to Palestine to meet with NGO members there, a grandmother of five, and a University of Illinois Staff Person of the Year.

Another common bond among at least some of the activists served with search warrants is that they were involved in the 2008 protests around the Republican convention in Minneapolis.  The events in Minneapolis surrounding that convention, mentioned at this blog and elsewhere, seemed to me at the time a veritable negative showcase of police surveillance, infiltration, and abuses.**

An apparently typical search warrant, for Michael Kelly, looks ominous at first glance: it seeks evidence concerning the violation of 18 USC 2339B, or “Providing material support or resources to designated foreign terrorist organizations.” The FTO’s involved are a rogue’s gallery indeed — Colombia’s FARC, and Middle Eastern groups like Hezbollah and the PFLP.

However — as the November 6 forum-goers were to learn — bad laws and a worse Holder v. Humanitarian Law Project Supreme Court ruling have stretched the definition of ‘material support’ beyond common sense, regardless whether any of the subpoenaed activists stepped over today’s absurdly restrictive lines or more serious ones.  As the excellent Defending Dissent October 2010 newsletter wrapup puts it, “The problem is, one can be found guilty of material support for interacting with a group that is not an FTO, but that the government alleges is in cahoots with an FTO.  [...] In Columbia, the government deems any trade union and any group that opposes the government to be allied with FARC.”

Quite as disturbingly as the ever-widening definition of “material support,” the warrant seems to suggest that recruitment of individuals to FRSO is itself an actionable crime — and provides the FBI with a legal driftnet to sweep up Kelly’s address book, e-mail, social network contacts, so that the execution of a search warrant for person A becomes an invasion of privacy, chilling of association, and the beginning of FBI dossiers for persons B to Z.   Again, Defending Dissent: “The expansive list of ‘evidence’ sought led one of the lawyers to deem them “kind of unconstitutional and hideous.””

Read the rest of this entry »

From “Protest of FBI raids” series by Alan
Wilfahrt, on Flickr. (Photo used with permission)

On September 24th, 2010, the FBI raided anti-war and solidarity activists in Chicago (two homes) and Minneapolis (five homes and the office of the Anti-War Committee). During the raids, the FBI took computers, cell phones, documents and personal family items. In total, 14 activists in Minnesota, Illinois, and Michigan were subpoenaed to appear before a Grand Jury. They have subsequently refused to appear.

“Get FISA Right” activists recently decided to add the organization’s name to a petition protesting these raids. Now there’s a chance to learn more about those raids, and lend support to activists opposing such infringements of First and Fourth Amendment rights.

On November 6, civil liberties activists and experts will gather from 1-4 pm the Friends Meeting House in Washington, DC (2011 Florida Ave., NW) to examine the FBI raids and other attacks on activists, our legal rights, and how our community can respond. Admission is free, the event is open to everyone.

The program and other details follow:

The FBI Raids: Activists Respond to Government Intrusion

What’s Going On and What Are the Legal Rules in Place? (1 p.m. to 2:15 p.m)

• Update on the FBI raids and other recent incidents of harassment, infiltration and surveillance of activist groups — Sue Udry, Defending Dissent Foundation
• A look at the tools police and intelligence agencies use to quash dissent and the laws that allow it — Michelle Richardson, ACLU (invited)
• Material support laws and the Supreme Court’s Humanitarian Law Project decision: what every peace, solidarity and union activist needs to know — Kay Guinane, Charity and Security Network
• Function of the Grand Jury — John Hardenbergh, National Lawyers Guild

What Are Our Rights? (2:15 p.m. to 3:00 p.m.)

• Know Your Rights – in the streets, in your home, at your office — Jeff Light, Rachael Moshman, Ann Wilcox, John Hardenbergh, National Lawyers Guild

How Should the Movement Respond? (3:10 p.m. to 4:00 p.m.)

• A discussion led by activists Michael Beer, Nadine Bloch, Raed Jarrar, Gael Murphy
• Solidarity, support and resistance – how should the movement respond to the raids and other recent provocations?
• Advocacy to change the laws that allow unconstitutional surveillance, infiltration and detention.

The event is brought to you by the National Lawyer’s Guild, the American Civil Liberties Union, the Bill of Rights Defense Committee, the Washington Peace Center and Defending Dissent. For more information about this program, contact Malachy Kilbride at 202-841-2230 or by email at malachykilbride@yahoo.com. Organizations can use an online form to co-sponsor the event, and are then expected to help publicize it. Finally, while it’s not necessary, if you have a Facebook account, it will be helpful and encouraging to let us know you’re attending via this event announcement.

I’ve participated in one organizing call so far, and plan to attend. I’ll report back about it here as best as I can; we’re also hoping to videotape the event and post that as well.

[crossposted from "Get FISA Right"]

To be honest, it’s rare that a political debate is even mildly interesting.

But last night’s showdown between Senator Russ Feingold and challenger Ron Johnson was just that — and for about fifteen riveting minutes towards the end of the debate, it was electrifying.

—

The debate was the second one between Feingold and Johnson.  The debate format this time allowed for more give and take between the two — which turned out to be a distinct disadvantage for the Republican candidate, who seemed befuddled at times by Feingold’s sharp questioning.  I’ve added my transcript of selected excerpts to an ongoing record and have posted that online.

Johnson was ready with prepared statements about deficits he blamed on Democrats, and about health care reform he wished had been done piecemeal if at all.  While I think Feingold made a lot more sense on those issues, I didn’t sense that he was finding major openings in Johnson’s armor, or overcoming the Republican’s formidable “folksy millionaire” appeal: a kind of kinder, gentler Ross Perot.

But around the thirty-eighth minute, Johnson — ahead in the polls, with millions of his own money at his disposal, and millions more fighting his battles for him via Americans for Progress ads and the like –suddenly felt a need to land a sharp jab in the midst of a discussion about Afghanistan.  By my scoring, he shouldn’t have:

Johnson (38:58): I would like to ask you, why didn’t you vote — you were one of I think only 25 Senators who refused to vote for the resolution to condemning your supporting group, Moveon.org, when they placed I thought a very shameful ad in the New York Times that talked about General Petraeus.  Why didn’t you vote to condemn that act?

Read the rest of this entry »

The “beer summit” is history; were Obama’s hopes of the Gates-Crowley incident becoming a “teachable moment” realized?  I think it’s unlikely — and whatever small amount of worthwhile learning occurred was despite Obama’s intercession and retreat, not because of it.

The incident
In my view, Obama was right the first time in saying that Cambridge PD officer Mark Crowley “acted stupidly” in arresting Henry Gates.  Of course it was also right and reasonable for a passerby seeing an apparent break-in to report that, and it was reasonable for the Cambridge PD to investigate that report — and it was unreasonable of the Harvard professor to object to that, if that’s what Gates was objecting to.  Despite all that, however, Crowley’s own incident report shows he believed early on that Gates was lawfully in the residence:

While I was led to believe that Gates was lawfully in the residence, I was quite surprised and confused with the behavior he exhibited toward me. I asked Gates to provide me with photo identification  [...] Gates initially refused, demanding that I show him identification but then did supply me with a Harvard University identification card.

Once Gates presented ID sufficient to establish he was a rightful occupant of the house, that should have been the end of the story; instead, when Gates followed Crowley out onto the porch — likely still yelling, though accounts differ — he was arrested with the arch comment,“Thank you for accommodating my earlier request.”

Yet it was Gates’s home and his porch; while there — actually, while anywhere, but certainly on his own property — he could be rude to and shout at whomever he likes,  including police officers, by the ancient principle of “my home is my castle,” by the First and Fourth Amendments, and even by specific Massachusetts case law.**  In one of her typically excellent analyses, digby of “Hullabaloo” sums up (emphasis added):

“Henry Louis Gates may have acted like a jackass in his house that day. But Sergeant Crowley arresting him for being “tumultuous” was an abuse of his discretion, a fact which is backed up by the fact that the District Attorney used his discretion to decline to prosecute. Racially motivated or not he behaved “stupidly” and the president was right to say so. “

Race as red herring, citizen as peon
It’s possible that Crowley was more likely to arrest an ‘uppity’ black man than an ‘uppity’ white one under the same circumstances; we’ll never know.  But I think it would have been a much more interesting discussion to take Crowley’s own documented (some would say alleged) anti-profiling expertise and/or the testimonials of his black colleagues at face value — because that would have led directly to the question why Crowley felt entitled to arrest anyone under the circumstances he described.  Unfortunately, that discussion was short-circuited first by Gates and then by Obama, both describing the case as an incident of “racial profiling” when it never really fit that label per se.

Read the rest of this entry »

A high school student, disappointed in the cancellation of an extracurricular event, organizes an impromptu but energetic email and phone campaign to lobby against that cancellation.  Her principal, extremely annoyed by this, exchanges words with the student, though stories differ on what those words were: the student reports she was told the event was canceled, but that decision might be reversed if she “played her cards right,” while the principal denies she ever said the event was canceled. The student goes home and writes an angry post on her “LiveJournal” public blog in which she describes the event as canceled — and also (regrettably) describes the school central office as “douchebags.”*

As it happens, the event goes forward after all — but a few weeks later, the principal learns of the posting, demands and gets an apology, requires the student to display the post to her parents, which also happens… and demands the student withdraw from a student election, which the student refuses to do.  The student’s eventual write-in victory is annulled.  The student and her mother sue on the grounds that the student’s freedom of speech was violated.

= = =

These are the basic facts of Doninger v. Niehoff,* as argued in March, 2008 and decided in the U.S. Second Circuit Court of Appeals in June, 2008.  Sadly, and in my view wrongly, that court found for the school and against the student, by affirming that a district court was right to deny the student’s motion for relief on the basis that she had “failed to show a sufficient likelihood of success on the merits.”

Sadly, also, one Sonia Sotomayor was one of three Circuit judges who delivered this unanimous judgment; Judge Sotomayor also took no exception whatsoever to the particularly distressing explanation of the judgment — and of the state of freedom of speech today — written by Judge Debra Livingston.

Foreseeable  risk of substantial disruption trumps free speech
Livingston did not deny that Doninger had suffered injury, even ‘irreparable injury,’ nor that her speech was curtailed.
Read the rest of this entry »