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Free Speech & G.W. Bush
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<-- Return To TerrorSpeak

Source: Truthout

Free Speech & G.W. Bush

by Jennifer Van Bergen

t r u t h o u t | Commentary

Friday, 15 October, 2002

Prince Hamlet, watching an actor portray the death of the King of Troy, wonders what the actor would do if he had had his father murdered and mother seduced like Hamlet's.

Hamlet declares that the actor would:

...... drown the stage with tears, And cleave the general ear with horrid speech, Make mad the guilty, and appall the free, Confound the ignorant, and amaze indeed The very faculties of eyes and ears.

In other words, Hamlet believed that hearing true words spoken from the heart would drive the guilty mad and would shock free citizens. The ignorant would be further confounded and confused. People would be amazed. The actor's "horrid speech" would be too much to hear.

Make mad the guilty, and appall the free.... It works as well today. The truth is what liars and criminals do not want anyone to know, and it is sometimes equally as hard for citizens to hear.

No one listened to Hamlet. To this day, he is seen as an angry young man whose rush to avenge his father's murder was driven by grief, not righteousness. Indeed, the end of the play brings death to all. All is the fault of Hamlet's rebellion.

But, what if Hamlet could have spoken the truth to - and been believed by -- a court of law with power to mete justice? Hamlet, the angry, disbelieved cynic would have been Hamlet the revered truth-bringer. No further innocent person would have died an untimely death.

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Sometimes in history, as in daily life, - too often, for many -- there is no one and nothing to whom to appeal. Powerful wrong-doers grab power and retain it, their lies running in the rivers from which we must drink. Those wronged remain unheard and uncompensated, living in an underworld of reverberating silence and pain.

This, in my opinion, is not far from what is happening in the United States today.

The U.S.A. Today

Nancy Chang of the Center for Constitutional Rights, writes in her new book "Silencing Political Dissent" that the Bush administration pushed the PATRIOT Act through a panic-stricken Congress, and where it "has lacked authorization from Congress for its domestic antiterrorism measures, it has authorized them by executive fiat." (Here's the power grabbing.)

Chang continues: "The administration has also engaged in a campaign to restrict access to government information that has blocked the press, the public, and even Congress in their efforts to hold the executive branch accountable for its actions." (Is secrecy proof of a guilty mind?)

Furthermore, the government "has admitted that its failure to heed the warnings [about 9/11] was not because of a lack of law enforcement powers. Rather, the failure was the result of an information overload." Chang concludes that "[t]he recently announced reorganization of the FBI and the loosening of FBI domestic intelligence-gathering guidelines [under the PATRIOT Act] ... are likely to result in an even greater overload of information."

Thus, the PATRIOT Act, enacted for the purpose of fighting terrorism, is, along with the related antiterrorism measures, "unlikely to make us safer, and could even make us less safe." (This is information worth obscuring, isn't it?)

One hopes this does not end like Hamlet.

This week on truthout, C. William Michaels, in Part II of his two-part retrospective on the PATRIOT Act, notes eleven trends to watch for. Michaels' points are right on. If anything, Michaels has not emphasized them enough.

Let us play devil's advocate for a moment and turn his propositions on their head:

Michaels says that under the PATRIOT Act, judicial review is limited. Well, who cares that judicial review is reduced? Aren't the courts corrupt anyway? Michaels says that Congressional oversight is limited. Well, so what? They passed the Act. If they didn't want to provide for review, they didn't have to. That's perfectly constitutional.

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Michaels notes that many states are passing copy-cat PATRIOT Acts. So what? Aren't we fighting terrorism here and isn't the danger grave? We need protection on the state level, too, don't we?

Following the rest of Michaels points, who cares if a few bad guys get labeled enemy combatants and are kept in jail forever? Don't they deserve it? Or locking up illegal aliens? They take our jobs, don't they? (So what it may also be forever!) The improved surveillance provisions: they're just bringing us up to date. The mixing of foreign intelligence investigations with domestic criminal investigations - well, what do we have to worry about? We're not foreign.

Let me tell you, if judicial review is reduced any more, it may as well be lost, and if it is lost, the United States goes the way of the Roman Republic.1 If Congress stops reviewing - and if we stop insisting they review - what do we have left? An Executive run by an oil baron. And how long do you think we can keep throwing innocent people in jail for the sake of preventing crime before we have total enslavement of the masses? If you think that targeting Arabs or Muslims, any more than African-Americans, will make our country safer, you need only look back to our very own Civil War, fought as much over slavery as southern cotton. And if we allow the Fourth Amendment to be eradicated merely by calling a criminal investigation by another name, we will deserve our chains.

Michaels refers to backlash, by which he means that the PATRIOT Act has sparked some civil rights activist efforts. However, I think there is another kind of backlash we need to be worried about. As International Law Professor Jim Wilets recently noted at a conference held in Florida, we need the cooperation and good will of other countries if we want to fight terrorism successfully. If we refuse to uphold international human rights norms - which is the case under our current antiterrorism measures -- we expose our own soldiers and citizens abroad to the same abuses. Indeed, we risk worse than this. We risk sparking even further terrorism against us.

Citing the outcomes of several international court cases, Wilets pointed out that the Bush administration has not only gone out of its way to be unilateralist at every opportunity, but is in some respects, legally speaking, an international outlaw. When the United States breaches or ignores international law, "our credibility then for using international law to pursue our foreign policy is compromised," says Wilets.

First Amendment Zones, Free Speech, and Subversive Advocacy

Credibility, of course, is not the most we have to worry about. Our very own freedoms are at stack.

Freedom. That is, after all, what it is about, right? Freedom to speak. Freedom to assemble. Freedom to protest.

If indefinite detention and no judicial review is scary, what about the so-called First Amendment Zones? When and where Bush got the idea to put these into effect, I do not know, but the moment he was in office, he began cordoning off chain-linked pens for protesters. No one could come to within a mile of Bush, unless he or she was a supporter.

The Supreme Court has consistently ruled that while the right of public assembly and protest may be regulated, it may not be abridged or denied. (Well, I guess Bush can argue that he is not denying protesters the right to assemble or protest.)

Permits must not discriminate among groups on the basis of their views. (Hm. Well, First Amendment Zones do not involve permits, do they?)

Breach of peace laws may not be used to shut down even mass assemblies, on the pretext that violence might occur, as long as the marchers are peaceful. (Okay, the Bush protest assemblies are not shut down. They are just penned in.)

"Time, place, and manner" restrictions on demonstrations, if enforced in a neutral (nondiscriminatory) way, are constitutional. (The First Amendment Zones are hardly enforced neutrally. They restrict only those who are against Bush.)

If the restriction is "narrowly tailored to serve a significant government interest" and leaves open "ample alternative channels of communication," the Court will likely view it as constitutional.2 (Here, Bush triumphs. His rationale is the well-worn but sure-fire "national security" one. National security is always considered at least a significant government interest.)

And, of course, if Bush is speaking on private property (such as that football stadium in Tampa, Florida), citizens have no inherent right to assemble or protest there. (But why not directly outside of it?)

I am sure that Bush had legal advice about the First Amendment Zones. Their idea is to make the cost of challenging too high for the average citizen. As far as I know, no one, not even the ACLU, has yet brought legal action against any government entity for depriving citizens of their rights to assemble and protest in public open space on the First Amendment Zones issue.

There is, by the way, another constitutional doctrine which comes into play in the freedom-to-protest issue. It is known as subversive advocacy. Subversive advocacy involves "the right to advocate unlawful conduct, to incite people to act unlawfully, and to promote highly unpopular ideas that might promote radical political and social change."3 It is constitutional, as long as (in the words of Oliver Wendell Holmes) it does not create "a clear and present danger" to the government or polity.4 In the more recent formulation of this doctrine, subversive advocacy is NOT constitutional only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."5

Would Bush have to prove only that there is some obscure national security concern to succeed in penning protesters? Or would he have to prove that there was a clear and present danger of unlawful action? The distinction revolves around whether the protest is subversive advocacy or merely peaceful protest.

Thus, it appears that if the protest is advocacy of unlawful conduct the barrier is LOWER than if the protest is mere picketing. In other words, for subversive advocacy, there is at least a court determination of whether lawless action is imminent, but for peaceful picketing, there is essentially NO determination, since whenever the government plays the national security card, courts become timorous and compliant.

Naturally, a subversive advocacy case could also involve national security concerns, but that does not obviate the ludicrously diverging result just outlined.

Free speech -- subversive possibly, from the heart hopefully, and always from those who speak because they believe in their words, because they need to be heard, and because they want to know and to speak the truth -- not only deserves protection. It deserves reverence. Free speech is sacred. It is the only thing that has the power to make mad the guilty and amaze the eyes and ears of citizens.

The silencing of dissent under the PATRIOT Act and such related measures as First Amendment Zones are anathema to free speech and assembly.

-------

1 The Roman Republic became the Roman Empire, which ultimately over-extended itself and fell to "barbarian" invasions. Dick Minnerly of Tucson, AZ, in a letter to the New York Times in response to its September 22 magazine article on Lynne Stewart ("Left Behind," by George Packer), writes: "The Antifederalists, the genuine leftists of more than two centuries ago, warned that our elitist constitution would only create another Roman Empire. Well, under the control of rightist liberals and conservatives, our nation has indeed become inhuman, immoral, and a more terrible aggressor than Rome ever was."

2 Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981).

3 Jethro Lieberman, "A Practical Companion to the Constitution," 1999.

4 Schenck v. U.S., 249 U.S. 47 (1919).

5 Brandenburg v. Ohio, 395 U.S. 444 (1969).

<-- Return To TerrorSpeak

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