Before Attorney General Eric Holder oversaw a Justice Department that secretly seized AP journalists’ phone records, he was guilty of something even worse, and closely related to the AP scandal. He argued a little-known case before the Supreme Court called Holder v. Humanitarian Law Project, which found that speech (and other forms of nonviolent advocacy) could be construed as material support for terrorist organizations. The case involved a U.S.-based non-profit organization, the Humanitarian Law Project, which, according to its website, is “dedicated to protecting human rights and promoting the peaceful resolution of conflict by using established international human rights laws and humanitarian law.” It also enjoys a consultive status at the UN; so, in other words, hardly a radical organization.
The Humanitarian Law Project advised groups designated by the Secretary of State as “terror organizations” to enter into peace negotiations and the UN process. Holder argued that such advice was the same as material support for terrorist organizations. Elena Kagan (at the time Obama’s Solicitor General appointee) formally assisted Holder in his argument. Holder and Kagan won the case. Shortly thereafter, Obama promoted her to Supreme Court Justice. Back when he was a Senator, Obama wrote, “There is one way, over the long haul, to guarantee the appointment of judges that are sensitive to issues of social justice, and that is to win the right to appoint them by recapturing the presidency”. To the layperson, social justice and civil liberties would seem to be related; but Harvard-educated constitutional law scholars know better.
The High Court’s decision in favor of the Obama administration prompted criticism from President Jimmy Carter:
“We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The ‘material support law’ – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.”
Noam Chomsky has described Holder v. Humanitarian Law as “the first major attack on freedom of speech in the United States since the notorious Smith Act back around 1940.” I emailed him, asking why things like Obama’s NDAA are getting so much more attention than far more harmful Holder v. Humanitarian Law. Chomsky wrote back, “I agree with you that this is far more important than NDAA, and have been arguing that for some time, with no effect.”
Just as the Obama administration stifled speech in Holder v. Humanitarian Law, they did the same thing when they targeted AP journalists. Quite likely, the journalist’s great sin was exposing the story of a CIA operation in Yemen. We don’t know why the administration needs to know the identity of the journalist responsible for the story, because they won’t say. However, Holder assures us that “This was a very serious—a very serious leak, and a very, very serious leak.”
Very well put, Holder.
Given Obama’s enthusiasm for prosecuting whistleblowers, one might be led to think that he’s opposed to leaks. Not so, as evidenced by Obama’s leak of his “kill list” to the Times for political gain—among other intentional leaks. The “kill list” represented a top-secret leak, unlike the lower security clearance level of so many leaks that the administration has prosecuted with alacrity. The effect of Obama’s leak prosecutions, coupled with his hypocritical employment of leaks, is to concentrate power in his own hands. (History shows how well it turns out when charismatic leaders are permitted to consolidate power.) As constitutional and civil rights litigator Glenn Greenwald’s careful analysis of the topic has argued,
“Their unprecedented attacks on whistleblowers ensures that only the White House but nobody else can disclose classified information to the public, which is another way of saying that they seek to seize the ultimate propaganda model whereby the president and he alone controls the flow of information to the public. That’s what their very selective and self-serving war on leaks achieves.”
By use of the term ‘propaganda model,’ Greenwald is probably referring to Chomsky and Herman’s landmark book, Manufacturing Consent. The book demonstrated empirically that the mainstream media are biased in the favor of elite interests, largely because the information it disseminates is subject to five different filters (things like corporate ownership). Obama is trying to introduce a sixth filter, namely himself. Simply put, Obama is attempting to acquire a monopoly on leaks—a chilling prospect. [++]
Nowhere in Farago’s pro-censorship argument does he address, or even fleetingly consider, the possibility that the ideas that the state will forcibly suppress will be ideas that he likes, rather than ideas that he dislikes. People who want the state to punish the expression of certain ideas are so convinced of their core goodness, the unchallengeable rightness of their views, that they cannot even conceive that the ideas they like will, at some point, end up on the Prohibited List. That’s what always astounds and bothers me most about censorship advocates: their unbelievable hubris. There are all sorts of views I hold that I am absolutely convinced I am right about, and even many that I believe cannot be reasonably challenged. But there are no views that I hold which I think are so sacred, so objectively superior, that I would want the state to bar any challenge to them and put in prison those who express dissent. How do people get so convinced of their own infallibility that they want to arrogate to themselves the power not merely to decree which views are wrong, but to use the force of the state to suppress those views and punish people for expressing them?
The NYPD and other police departments received some international condemnation on Friday by the OSCE (Organization of Security Cooperation in Europe) for its treatment of journalists and protesters during Occupy rallies. The OSCE, of which the US is itself a part, surveyed various countries and their responses to freedom of assembly, and released a report in Vienna on Friday. The report concluded that the practices of kettling protesters and obstructing journalist access, among other actions, amounted to violations of human rights standards based on OSCE member country commitments.
The report, which importantly highlights that in dealing with freedom of the press, police ought not to make distinctions between credentialed journalists and citizen journalists, says this:
Restrictions on the activities of journalists such as the ones imposed during the eviction of the Occupy camps in Los Angeles and New York appear to have been imposed also with the purpose of limiting coverage by the media of these events. As such, they are not in line with relevant OSCE commitments and other human rights standards.
Three Bay Area residents were among nine peace activists cited for trespassing at Beale Air Force Base on Tuesday as they joined a group of 100 people protesting the use of armed drones overseas by the United States military.
The protesters blocked the main gate for four hours before base security officers removed them and issued federal citations. The nine will be assigned federal court dates in the coming weeks. If convicted they could face up to six months in prison.
Today in things that made me check my calendar to see what century I was living in.
In a study of 392 campus speech codes last year, the Foundation for Individual Rights in Education, where I work, found that 65 percent of the colleges had policies that in our view violated the Constitution’s guarantee of the right to free speech.
Take from those numbers what you will — universities are home to either smart, enlivened debate or misguided enthusiasm — but Lukianoff’s op-ed piece is worth a read. In the framing of his piece, university life looks a bit like micro-life. Which is what it should be but usually isn’t.
Civility is nice, but on college campuses it often takes on a bizarre meaning. In 2009, Yale banned students from making a T-shirt with an F. Scott Fitzgerald quotation — “I think of all Harvard men as sissies,” from his 1920 novel “This Side of Paradise” — to mock Harvard at their annual football game. The T-shirt was blocked after some gay and lesbian students argued that “sissies” amounted to a homophobic slur. “What purports to be humor by targeting a group through slurs is not acceptable,” said Mary Miller, a professor of art history and the dean of Yale College.
Where should freedom of speech begin and end when you are a web-based entity with a global audience? That’s the question raised by a couple of recent events, including the furor over a Reddit moderator’s creepy behavior, and now the news that Twitter has blocked an account for the first time at the request of a state government — in this case Germany, which asked the service to take action against a Twitter user posting neo-Nazi sentiments, something that is forbidden by the laws of that country. As the web and social tools become more mainstream, these kinds of battles over the limits that should apply to free speech are only going to become more frequent, but the solution to them remains elusive at best…
…Twitter has said that it will make its own judgments in such cases, as Google does — but what recourse do we have if they decide to do something we disagree with? More than anything, these kinds of cases reinforce how much influence private entities like Twitter and Google now have over what information we receive (or are able to distribute), and the responsibility that this power imposes on them.
Important programming note as you think on this one: In the United States, at least and as Matthew points out, “free-speech protection is something that is only legally or constitutionally required of governments, not corporations.”
If the goal is to promote peaceable coexistence among human beings enjoying equal dignity and respect, isn’t allowing everyone his or her say a reflection of that respect? And isn’t it possible that by tolerating the intolerant, we teach tolerance in the most dramatic and fundamental way? In the United States, a strong First Amendment tradition means that people are free to, and often do, say plenty of outrageous, stupid, malevolent, and hateful things. Just listen to radio talk shows. But what we don’t see in response are riots and violence. The constitutional principle that demands freedom for speech that is offensive may in turn teach and reinforce the tolerance that is at bottom, essential to a functioning diverse society and world.
David Cole, More Speech is Better (via nybooks)
What has always driven repression of speech are the same universal human traits that are now flourishing as part of this latest effort: the tyrannical thirst for the power to silence ideas one dislikes, the self-regarding belief that one can apply objective principles of decency, “community” and Goodness to decide which modes of expression and which ideas should be barred, authoritarian trust in leaders, and – worst of all – the refusal to understand that endorsing repression of ideas leaves one with no principled grounds to object when one’s own ideas end up on the prohibited list.
Throughout history, it has often been the case that today’s “hate speech” becomes tomorrow’s enlightenment. Today’s “incitement” becomes tomorrow’s righteous subversion of unjust authority and flawed orthodoxies.
Add to all that the ignoble tendency to object to - or even recognize the existence of - repression only when it affects one directly (a dynamic I described here when writing about the inability of many passive, obedient western citizens to acknowledge the repression of their own governments because such citizens are never the ones targeted for repression), and it’s clear that the opposition to free expression is grounded in the worst of human attributes.
In sum, it takes a staggering amount of hubris to believe you’re in any position to decide which ideas are so objectively and permanently wrong that they should be barred. It takes an equally staggering amount of childishness to want some central authority to protect you from ideas that you find upsetting. And it takes extreme historical ignorance not to realize that endorsing the maintenance of a list of prohibited ideas and then empowering authorities to enforce it will inevitably lead to abusive applications of that power and, sooner or later, will likely result in the suppression of your own ideas as well.
An excerpt from Brian Terrell’s statement at sentencing, US District Court, Jefferson City, Missouri, October 11, 2012:
[…] On the official website for Whiteman Air Force Base I found the base’s mission statement. It is as brief as it is vicious: “Skilled and proud Airmen providing full spectrum, expeditionary, B-2 global strike and combat support capabilities to geographic commanders and the Commander, USSTRATCOM, while supporting Team Whiteman. We kick down doors and kill targets… Weapons on Target, On Time!”
I have visited Afghanistan and know that eleven years of NATO troops kicking down doors has not brought peace there. Often soldiers don’t seem to know whose door they’ve kicked in or whether the “target” they kill is who they are hunting for. B-2 bombers from a great height or even drones with state of the art video feed do no better. We know that even children are sometimes named as targets to be killed by drones. Children regularly are among their “collateral damage.” The targets themselves are often victims of assassination rather than legitimate casualties of war. Eleven years of kicking down doors has only made the world a more frightening place and has earned our nation more enemies and less security. Whiteman’s mission is not counter-terrorism- it is terrorism.
Judge Whitworth, you told me at the close of our trial that you do not take sentencing someone to prison lightly. This case offers certain challenges. As my presentence report attests, “There are no identifiable victims of the offense.” Beyond your own surmises, there was no suggestion at trial that our conduct threatened any person, property or institution. The question for you is, how to pass a sentence commensurate with harm done when the substance of the “crime” itself is only a good deed without harmful consequences to any?
I expect nothing other than a prison sentence today. I accept this without regret and will, if allowed, surrender myself to a designated prison some weeks from now, but I cannot say that I see justice in this. I admit that my conduct was as the government described it at trial. That conduct, however, does not constitute a crime but was a response to one. It is conduct this court should be protecting.
Mark Twain called free speech the ‘privilege of the grave,’ a privilege never afforded the living save as an empty formality, not to be regarded seriously as an actual possession. ‘As an active privilege, it ranks with the privilege of committing murder: we may exercise it if we are willing to take the consequences. Murder is forbidden both in form and in fact; free speech is granted in form but forbidden in fact….Murder is sometimes punished, free speech always.’ Punishing free speech and letting murder off the hook is the order of the day in this courtroom. How to speak of an appropriate sentence where no crime has been committed? No crime committed, at least, by the defendants? Last month’s trial in this courtroom concerning a protest of killer drones flown from Whiteman Air Force Base left no doubt that this is the case.
Brain Terrell, Nonviolent Protester of Drone Wars Sentenced to Federal Prison
The very right that laid the foundation for Western civilization is increasingly viewed as a nuisance, if not a threat. Whether speech is deemed imflammatory or hateful or discriminatory or simply false, society is denying speech rights in the name of tolerance, enforcing mutual respect through categorical censorship.
As in a troubled marriage, the West seems to be falling out of love with free speech. Unable to divorce ourselves from this defining right, we take refuge instead in an awkward and forced silence. [READ]