“Fire!” in Our Bill of Rights

When I was in Mrs. Kurkowski’s third-grade class, we studied a quaint subject that might now be called “Civics,” including the United States Constitution and the Bill of Rights. The concepts had to be simplified a bit for third-graders.

I was fascinated with the idea that in the United States, I was legally allowed to stand on any public street corner and denounce the sitting President of the United States. Insult him. Hand out written flyers ranting about his incompetence and cronyism. I could call him a Poopy-Head if I liked.

No, I wasn’t allowed to make threats against the President (this, the Secret Service tends to frown on). And, as a practical matter, my parents would have quickly put paid to any radical schemes I hatched that involved standing around on street corners, handing out firebrand leaflets.

All the same, this was my elementary-school understanding of the First Amendment of the United States Constitution. And that understanding has not changed to this day. I used to try to impress upon my middle- and high-school students the utter, astonishing exceptionality of our American right to Freedom of Speech in this way. “If you like,” I would say, “You can run down to Spring Street and scream outlandish insults about the President of the United States! Just think of that!” (They yawned.)

But I am worried, now, about our First Amendment. I am genuinely and deeply afraid for our cherished American right to Freedom of Speech.

Leftists aren’t willing to attack Freedom of Speech directly. That would be un-American and un-thinkable. So certain leftists have engaged in very clever guerilla language warfare.

Here’s how it works:  Speech is re-defined as Hate. “Hate Speech” becomes conflated with violence. Any Speech that a leftist doesn’t like (disagrees with/is made uncomfortable by/strikes close to home and reveals unpleasant truths) is re-defined as VIOLENCE, rather than as SPEECH. The First Amendment protects Freedom of Speech, but it does not protect against Incitement to Violence or other dangerous acts.

In 1919, the U.S. Supreme Court unanimously ruled on limits to Freedom of Speech (in Schenk v. United States). In an analogy made prior to the Court’s ruling, Justice Oliver Wendell Holmes said that “free speech would not protect a man in falsely shouting ‘Fire!’ in a theatre and causing a panic.” (Note that Brandenburg v. Ohio effectively overturned Schenck in 1969. But that’s for another day.) The Court holds that speech directed toward inciting or producing imminent lawless action is not protected. Fair enough.

But is speech that someone doesn’t like, or that someone disagrees with or finds unpleasant, is that speech “inciting or producing imminent lawless action”?

Here’s how the game works: Disapproved ideas are labeled as “Hate Speech,” or as “Microaggressions.” (Genuine example of a disallowed “Microaggression”: “I believe the most qualified person should get the job.”) Speech, mere words, has become “Hate” and “Aggression.” We as a society have already accepted the concept of “Hate Crimes.” Logical enough that “Hate Speech” and verbal “Aggressions” become defined as types of “Hate Crimes.”

Are you following this? The left is re-defining Speech as “Hate” and as “Incitement to Violence.” Once this re-definition has been accomplished, they are free to complete their end run around the First Amendment. They aren’t limiting Freedom of Speech. They are fighting against Violence!

In the era of Trump, my Massachusetts-based students never seemed to be surprised when I revealed to them that they were free to run to the nearest street corner and insult their President. (Probably there was an after-school club devoted to precisely such an activity.) However, it might come as a bit of a surprise to them to discover that other people are free to disagree with them and their like-minded classmates. What? Aren’t they entitled to “Safe Spaces”?

It certainly might come as a surprise to some politicians and media professionals to discover that disagreement and political commentary are fair game. Because while it’s just fine and dandy to vilify Donald Trump from any given crossroads or any given Congressional Committee, it seems to be un-thinkable to make any observation or comment at all on other, protected Persons.

Observation and comment that used to be simply the rough-and-tumble of political (and academic) life have become… Incitements to violence.

Viz…

Representative Ilhan Omar spoke to the Council on American-Islamic Relations and glossed over the attacks of September 11th by saying the Council was created [she meant the Council’s size was increased] in response, “because they recognized that some people did something and that all of us were starting to lose access to our civil liberties.” Many were outraged by the idea that September 11th (next up Pearl Harbor? or the Boston Marathon Bombings?) could be brushed aside as “some people [doing] something.” Donald Trump sent out a tweet that interspersed Ilhan Omar’s own words with graphic images of the violent “something” that terrorists actually did.

Did Representative Omar deliberately downplay the terrorist attacks of 9/11? Did she understand that her words would come off to many as dismissive of these evil acts, to the point of willful ignorance, and also make her appear aloof from the death, pain, horror, and shock? We all choose words poorly at times, and it’s possible that Ilhan Omar is simply too young and too prideful to find a good opportunity to apologize and re-phrase. All the same, her speech, however objectionable to some ears, is protected by our grand First Amendment.

Did Trump show marvelous judgement by tweeting as he did? Should his parents maybe even have pulled him away from that on-line street corner? I’m not making that call. But was his tweet protected speech? I’ll make that call: Absolutely!

Leftist politicians and some media elite, however, are going nuts. This is not protected speech (they screech with a coordinated, chorused voice): Trump’s tweet is an incitement to violence!

Reactions to Trump’s tweet from the elite:

Presidential candidate Pete Buttigieg (a fellow Hoosier and an intellectual, who should know better): “Now, a president uses that dark day to incite his base against a member of Congress, as if for sport. As if we learned nothing that day about the workings of hate.”

CNN’s Brian Stelter: “Omar’s comment was used as a weapon against her, including by President Trump.”

Presidential candidate and Senator Elizabeth Warren: “The President is inciting violence against a sitting Congresswoman—and an entire group of Americans based on their religion.” (Nice job to throw religion in there, Liz, even though the tweet utterly failed to touch on religion.)

Presidential candidate John Hickenlooper: “President Trump’s personal attack against Representative Omar is vile and shameful. It’s… dangerous and dishonest.”

Presidential candidate and Senator Cory Booker: “This is a reprehensible attack on her. It’s trying to incite anti-Islamic feelings…” “[Omar] does not deserve [these] kind of vicious, hate filled attacks…” (Booker then goes on to explicitly link “our President’s language” to the recent New Zealand terrorist attacks.)

The Nation (Elie Mystal): “Donald Trump Isn’t Playing Games with Ilhan Omar—He’s Inciting Violence–And he’s going to keep inciting violence until someone gets killed.”

And these are only a few comments, and only regarding one recent controversy.

Be aware, when you hear that speech is “Hate” and an “Incitement.” This is very likely to be a sneak attack on the First Amendment.

Words themselves may be ill-chosen. Speech may be awkward. It may be ugly. Yes, speech may even be vitriolic and hateful – and that is to be despised. Despised, but almost never limited. (Well — maybe limited by your parents and teachers, but not limited by the government, nor by sanctimonious and moralizing media blatherers.)

On Monday, in Paris, Notre Dame Cathedral burned. This great monument of Western Civilization is being described as “the Heart of Paris.” At this very time, in the United States, I truly fear that another of the singular—and irreplaceable–achievements of Western Civilization is in imminent peril.

Let’s not allow the Heart of our Freedoms to burn.




Trump Versus Acosta Is Bad for the Brain

Editor’s Note:

Here’s another take on the confrontation between Jim Acosta and President Trump.  It’s by John Daly.

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When word came out that the White House was temporarily suspending the press pass of CNN reporter Jim Acosta for “placing his hands” on a White House intern, I was reminded of a tweet I read last year from Iraq War veteran, J.R. Salzman:

I can’t think of a better way to describe this latest chapter in the ongoing saga between President Trump and the mainstream press.

For those who missed yesterday’s drama, here’s a quick recap:

Mr. Trump held a post-midterms press conference in which he got into several heated (and sometimes bizarre) exchanges with reporters. When Jim Acosta (CNN’s chief White House correspondent) was called on, the back and forth (which included some inappropriate editorializing by Acosta) grew particularly contentious. After delivering some barbs, the president instructed a White House intern to retrieve Acosta’s microphone to hand it to another journalist. But when the young woman reached for it, Acosta improperly refused to give it up and continued to ask questions. The two bumped arms in the process:

One can certainly (and successfully) argue that Acosta was rude and obnoxious, and was trying (as he so often does) to make himself the story. Frankly, I think his showboating and temperament should have compelled CNN to remove him from the White House beat a long time ago. But the implication that he in any way assaulted or ‘placed his hands on’ the intern is ridiculous and insulting (it was incidental contact at worst). Yet, that’s what the White House stated as grounds for the suspension of Acosta’s credentials, with Press Secretary Sarah Sanders even tweeting out a subtly sped-up version of the video to make the contact look stiffer than it actually was:

Unsurprisingly, pro-Trump partisans in the media were quick to bolster the “assault” theme, even before the White House made its announcement:

And on the other side, anti-Trump partisans categorized the suspension as an assault on the First Amendment, despite the fact that CNN can (and will) simply send another reporter in Acosta’s place for the time being:

Quite a few people even pushed this mind-numbing narrative on social media, assuring that all sides got to be a victim for the day:

Perhaps the most ironic response came from Trump’s 2016 campaign manager, Corey Lewandowski, who insisted that Sarah Sanders categorized Acosta’s offense correctly:

Some of you may recall that Lewandowski actually did grab and yank a woman by the arm back in 2016, during the election. She was journalist Michelle Fields, and she came away from the incident with a good-sized bruise. Notably, both Lewandowski and Trump claimed at the time that Fields was lying about the incident. But a video was eventually produced that proved her right. Unfortunately, shameless hypocrisy is par for the course these days.

Anyway, I don’t know about the rest of you, but I find the phony outrage in these instances to be exhausting, especially when both sides are benefiting from the theatrics. Jim Acosta gets the attention he craves, while presenting himself as a First Amendment martyr. President Trump and the White House get to change the news cycle off of the GOP losing the House to the Democrats.

The only person in this story that I have any sympathy for is the White House intern, who was placed in an awkward situation (which she handled well), and is now being disingenuously cast as either an assault victim or assailant, depending on who you listen to.

As Mr. Salzman said, it’s all one big game. And in this game, the spectators (aka the American people) are once again being treated as utter fools.




Trump Continues to Troll the First Amendment

flag burningFor the past year and half, one of the big concerns among genuine conservatives, in their observations of Donald Trump, has been his perceived contempt for the First Amendment of the U.S. Constitution.

It’s one thing for an individual to object to, and aggressively condemn speech that they believe is unfair or dishonest; Trump did this many times with the news media throughout his successful presidential campaign. It’s an entirely different thing, however, to propose penalties against those whose speech you don’t like, as Trump has also done.

Back in February, he said that, as president, he would change U.S. libel laws so that he could more easily sue news organizations if he deemed their reporting to be “purposely negative and horrible and false” toward him. He has since repeated that plan a number of times.

Throughout the campaign, Trump called for the firing of news figures whose remarks he didn’t like, including Karl Rove, Charles Krauthammer, Katy Tur, and Sopan Deb. He said National Review’s Rick Lowry shouldn’t be allowed on television. He repeatedly told his Twitter followers to boycott Megyn Kelly’s Fox News show because of the host’s criticism of him. He added that Kelly shouldn’t be allowed to moderate presidential debates.

Trump hasn’t limited his vilification of the media to individuals or even specific outlets. He has, by and large, branded the entire news industry (except those who reliably sing his praises) as being corrupt and dishonest.

Now, there’s undoubtedly a lot of corruption and dishonesty in the news media; examining it has been a key focus of this website (and the man who owns it) for years. But time after time, Trump has displayed a belief that negative coverage of him is, in itself, illegitimate.

During the campaign, some were comfortable in writing off these incidents as harmless political hyperbole, or the undisciplined emotional responses of a passionate man. But now that Donald Trump is the president-elect, his views on our constitutional freedoms certainly matter. And if there were any doubt of what he truly believes about the First Amendment, his tweet from this morning should serve as a clarification:

“Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” — Donald J. Trump

Most Americans (including myself) find the act of burning our nation’s flag to be disgusting and worthy of fierce condemnation. I don’t like it, and my guess is that a lot of people would be perfectly fine with it being made illegal.

But the First Amendment (which protects flag-burning as a form of protest) wasn’t put in place to defend popular displays of free speech. It was designed precisely to protect offensive and unpopular speech.

Among those who understood this was the late Justice Antonin Scalia (the man Trump says he’ll model our next Supreme Court nominee after). Back in 1989, Scalia voted with the court majority to protect flag-burning under the First Amendment.

One of the big ideological differences between conservatives and liberals is that if a conservative doesn’t like something, they’ll simply avoid it. However, if a liberal doesn’t like something, they’ll demand that it be banned, so that there is no choice but to avoid it. Donald Trump, of course, is no conservative (a proclamation I used to receive fierce resistance to from his loyal fans, but not so much these days). Thus, it’s not in his instincts to cherish and respect individual freedom the way a lot of us do.

Trump will, however, be our next president. Early next year, he’ll be sworn into office with an oath to “preserve, protect and defend the Constitution of the United States.” And today, as the president-elect and the leader of the Republican Party, he voiced a desire to actually jail or renounce the U.S. citizenship of a person for exercising their First Amendment freedoms.

If you’re a member of the political Right (where people proudly self-identify as constitutional conservatives), that should probably concern you — a lot; it certainly would if Obama had said it.

Then again, I’ve been amazed over the past year and a half at what we’re now willing to accept, embrace, and even normalize on this side of the political divide.




Should We Ever Punish Journalists for Publishing Secret Information?

Free PressLet’s say you break into somebody’s house and steal a TV set.  Then you call a friend and ask if he wants it – for free.  You make him aware of how you got the TV and he says, “Sure, I’ll take it.”  If the authorities find you, you and your friend are both guilty of a crime.  Never mind that he didn’t break into anyone’s house.  He’s still guilty for knowingly accepting the stolen property.

Now let’s go to a different scenario.  Let’s say you work for the United States government and have top-secret clearance. Your agency collects data – phone numbers, e-mails, and who knows what else — on just about everybody who lives in the United States.  It’s being done, you’re told, to catch terrorists.

Let’s say you think the government has gone too far.  You think this is a violation of the United States Constitution. You are enraged because you think the U.S. government is way too nosy and you want the public to know what’s going on in secret.  So you get your hands on the material, transfer it to a flash drive and offer it to a journalist who shares your opinion about the government over-reach.

In this case only the person who pilfered secret material will be prosecuted.  The government has made clear that it will not prosecute journalists for publishing stolen information. Here’s how Attorney General Eric Holder put it to a Senate committee:  “The Department has not prosecuted, and as long as I’m attorney general, will not prosecute any reporter for doing his or her job.”

Let’s get the obvious out of the way:  Burglars don’t have First Amendment protection and journalists do.  So this is not a prelude to an argument about punishing journalists who publish information the government wants to keep secret.

In fact, if the decision were mine, I would not prosecute Glenn Greenwald, the journalist who published the National Security Agency information about “data-mining” — secret information that was leaked to him by Edward Snowden.  Nor would I attempt to punish James Rosen of Fox News who reported secret information about North Korea presumably leaked to him by a federal employee.  And I would not punish the New York Times journalists, either, for publishing secret information that might have helped terrorists during the George W. Bush administration.

I think, as does just about every other journalist, that even if reporters wind up giving the bad guys a heads up about what the U.S. government is doing to catch them, we have to give the press a lot of leeway.  In the long run, we figure, we’ll all be better off if the news media can keep the public informed, even if the government wants to keep us in the dark. Supreme Court Justice Felix Frankfurter put it this way:  “Freedom of the press is not an end in itself but a means to an end of achieving a free society.”  Dictatorships and other authoritarian regimes, after all, are the ones who jail reporters for exposing government secrets.

But let’s go to one more scenario.  What happens if the next government employee with top-secret clearance learns that the CIA, under orders from the President of the United States, is on the ground, in secret of course, trying to destabilize a country whose government we don’t like?

And what happens if that U.S. government employee thinks this is wrong and wants the world to know?  What happens if he leaks his information to a friendly journalist?

If it gets out that CIA agents are on the ground in this unfriendly country they may very well be killed.  Most responsible journalists, I think, would not publish the information – even if they thought the underlying story was newsworthy.  Most journalists would not put American agents in mortal danger for a scoop.  (I know that some on the hard right think this is naïve.  Let’s just say reasonable people may disagree.)

But in a world of mass information, of a million Web sites and blogs, there’s a good chance that someone would publish the secrets and possibly cause the deaths of those American undercover agents.

So what do we do then?  The leaker, of course, would be prosecuted — but what about the journalist?  Remember, the attorney general said he would not prosecute a journalist “for doing his or her job.”

Okay, I grant you this is not only a hypothetical, but perhaps it’s a wild one at that.  But journalists take it as an attack on nothing less than the Constitution of the United States, motherhood and apple pie, if someone so much as brings up a question about the role of the press in the matter of publishing secret information – except to say freedom of the press guarantees their independence.

So if the next Edward Snowden happens to be the one who leaks secrets about CIA agents we’ll then find out what the American people think about the independence of journalists – and about the limits of the First Amendment.

After all, if the leaker has caused serious harm to our country by single-handedly de-classifying secret information, why aren’t journalists also causing serious harm by disseminating that information?  And if they are, what should the country do about it?




This Amendment Has Got to Go

don-bollesLet’s face it, you of conservative persuasion, there is an early amendment to the Constitution that simply has to go in this modern day and age. It is an amendment that has permitted the commission of heinous acts and led to innumerable deaths.  It ought to be repealed. Let it go, guys.

I am speaking, of course, of the First Amendment, the one that guarantees freedom of speech and the press.

I found myself thinking today about Don Bolles, the Arizona newspaper reporter who was murdered in 1976 with a car bomb. Because I was a reporter for many years myself, the Bolles murder is never far from my mind. There but for the grace of God….

Bolles became the poster boy exemplifying the dangers of a free press, and his murder was never solved, although the list of suspects dwindled to just a couple.

It was theorized that Bolles was murdered either by organized crime, or by crooked (but not necessarily organized) businessmen, the two groups whose exploits he was most fond of exposing as an investigative reporter. The latter may be more likely, because organized crime seldom kills reporters. It is considered terrible public relations to do so.

Naturally I looked Bolles up on Wikipedia, to refresh my recollection of the case. I discovered a link to another Wikipedia page, listing the many American newspeople who have been murdered because they exercised their First Amendment freedoms.

In 2007, to cite a recent example, a reporter for an Oakland newspaper was shot to death, allegedly to stop him from publishing an investigative story about a local bakery.

In 1993, a radio reporter in Miami was killed for speaking favorably about a leading politician in Haiti.

In 1992, a reporter for a Spanish-language newspaper in Queens was murdered after publishing reports about the Colombian drug trade.

That is just a sampling, but the point is clear. If it weren’t for the First Amendment, these reporters wouldn’t have gone out on their limbs, and they might still be alive.

They would have restrained themselves, lest they be subject to crippling lawsuits from the individuals they singled out in their reports. Furthermore, if the government wanted to shut them down for their bold reporting, it could do so.

Chances are all those reporters would have opted instead to cover gardening, community social events, and personnel changes at local corporations.

That sounds bleak, doesn’t it? But really, it would have been the better way to go. They would still be alive, although perhaps lacking in self-fulfillment.

If just one life can be saved — does that sound familiar? — then by all means let us give the First Amendment the heave-ho.