Freedom of Speech

1. 
   Lightning Empiricist permalink

   February 18, 2005 9:22 AM

   Populist Pontification over Ward Churchill’s World View:

   A Threat to Destroy our Freedoms, or a Call to actually become Cognizant of what they truly Are?

   The legislative inquisition visited upon a certain university professor Sweezy in New Hampshire during the dark ages of the McCarthy Era raised important questions regarding what it means to actually and substantively enjoy the constitutional rights of “free expression and association” that our post 9-11 society claims to cherish and defend, and leads to some important expressions of what it means to live in a constitutional democracy of “protected speech”.

   These important issues exist, regardless of (and obviously quite removed from) the matter of how many more Nielsen households might prefer a CNN-style hanging as opposed to a FOX-style Oreilly public flogging and decapitation, fed (on Feb 7, 2005) by the specious, and bellicose ramblings of Colorado’s Governor and the resolutions of Colorado’s knee jerk legislature, while political paparazzi carefully note (what should in such matters of principle be essentially irrelevant) political party associations, while ignoring the core constitutional questions involved, and the resultant important matters of fairness raised.

   It seems that such selling of soap has eclipsed any thought by the media of researching the veracity of the Ward Churchill flap on actual legal grounds of the matter of his constitutional rights, regardless of how repugnant his thoughts may or may not seem to various persons. This is, in fact, the only newsworthy element to this story, the rest failing to transcend subjective emotionalism.

   CNN (Feb 7, 2005) asked some of the right questions – relating to freedom of speech and slippery slopes – but bought without question the self-serving flailing diatribes of Colorado’s Governor as some kind of answer to anything but the most knee jerk and unquestioning populist outrage (a sad and pathetic diversion from journalism into the netherworld of jingoistic statism and fear mongering).

   CNN (Feb 10, 2005) uncovers that the only University of Colorado Regent who has legal expertise as an attorney rightfully fears the federal case law and states that he – as well as the Board of Regent’s own legal counsel – is convinced that Churchill would, upon termination for cause of exercising his free speech rights, subsequently take him and the other (personally liable) Regents to the cleaners in the courts. Thus “the Regents have no clothes”, and they (at least) know it.

   Further, we find that this UC Regent feels as if whipped from the bully pulpits of the state’s executive as well as legislative branches in a long term era of persecution of the University of Colorado by the state’s Governor relegates the story to an exploration of the internal vendettas existing within Colorado state government. Thus “the Governor has no clothes”, but could care less.

   Thus, the story has “legs” due solely to the fact that administrative daggers are flying, completely unrelated to what is the interesting issue, that is – does Ward Churchill have a constitutional legal right to express his viewpoints in today’s United States without resultantly being tyrannized by (any) particular majority?

   As we can see today from the short sightedness of the fervor of “flavor of the day” sentiments, the McCarthy Era was only recent past. It’s unlikely that John Stewart Mill, grandfather of Libertarians, could have come up with a better example of a “tyranny of the majority” of which he cautioned. Today the game is very real, and it places war without end, and soap sales above all substance.

   If I want to watch lynchings, I would watch FOX. Does CNN see no option but to (similarly) pervert the high minded journalistic mission of “speaking truth to power” into “speaking power without regard to truth, and only pursuing matters of truth when so dictated by – soap manufacturers”? If folks are really so outraged regarding behaviors reminiscent of Adolph Eichman, why then resemble such behaviors by finding threatening scapegoats whose books must be burned?

   The “freedoms” that we claim to cherish, and even evangelize upon other societies as if we were knowledgeable about them, mean nothing unless both understood as well as exercised, once stated a fellow named Benjamin Franklin.
   It seems our society’s capacities for willful ignorance of the very essence of our strengths as a free society expands nearly as rapidly as our grand evangelical delusions of moral conquest and conversion of hearts and minds by brute force.

   As a nation of laws, and not persons, news media performs a public service when it recognizes and preserves our nation’s core principles, but performs a profound betrayal of the same when it succumbs to control by certain persons in the service of inflicting ritualized and patently unconstitutional persecutions upon certain other persons. That these dangers are more than “academic” in nature is witnessed by the following history of what occurred in the US not long ago, and involving a university professor named Sweezy, who had at one time co-authored an article which was described by the US Supreme Court (below) as one that:

   “deplored the use of violence by the United States and other capitalist countries in attempting to preserve a social order which the writers thought must inevitably fall. This resistance, the article continued, will be met by violence from the oncoming socialism, violence which is to be less condemned morally than that of capitalism since its purpose is to create a ‘truly human society.’ Petitioner affirmed that he styled himself a ‘classical Marxist’ and a ‘socialist’ and that the article expressed his continuing opinion.”

   Here we have a previous instance of a university professor who professed opinions which offended and enraged certain individuals now referred to as “McCarthy-ites”. The written majority opinions of the five Supreme Court Justices Black, Douglas, and Brennan, and those of Frankfurter and Harland clearly ring true, and remain relevant today, as we as a people once again are called upon to contemplate the fetters upon our very own freedoms that we risk forging with our own privileged and powerful hands, executed in the name of peace and liberty, and while we wage a war of moral hubris without definition or end upon none other than ourselves by believing that physical dominance over peoples who do not agree with us constitutes a victory any more lasting than our last conquest.

   So that history may not be so soon forgotten, thus likely repeated, the 1957 statements of these five Justices offer important cautionary words today:

   U.S. Supreme Court, SWEEZY v. NEW HAMPSHIRE, 354 U.S. 234 (1957)
   http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=354&invol=234

   The investigation in which petitioner was summoned to testify had its origins in a statute passed by the New Hampshire legislature in 1951. It was a comprehensive scheme of regulation of subversive activities. There was a section defining criminal conduct in the nature of sedition. “Subversive organizations” were declared unlawful and ordered dissolved. “Subversive persons” were made ineligible for employment by the state government. Included in the disability were those employed as teachers or in other capacities by any public educational institution. A loyalty program was instituted to eliminate “subversive persons” among government personnel. All present employees, as well as candidates for elective office in the future, were required to make sworn statements that they were not “subversive persons.”

   The opinions of the Justices constituting the majority of the Court:
   Opinion of THE CHIEF JUSTICE, joined by MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE BRENNAN:

   There is no doubt that legislative investigations, whether on a federal or state level, are capable of encroaching upon the constitutional liberties of individuals. It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas, particularly in the academic community.

   “There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy. Especially is this so in time of cold war and hot emotions when ‘each man begins to eye his neighbor as a possible enemy.'”

   The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

   Equally manifest as a fundamental principle of a democratic society is political freedom of the individual. Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. Mere unorthodoxy or dissent from the prevailing mores is not to be condemned. The absence of such voices would be a symptom of grave illness in our society.

   Opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE HARLAN, concurring in the result:

   Progress in the natural sciences is not remotely confined to findings made in the laboratory. Insights into the mysteries of nature are born of hypothesis and speculation. The more so is this true in the pursuit of understanding in the groping endeavors of what are called the social sciences, the concern of which is man and society. The problems that are the respective preoccupations of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of manageable division of analysis, with interpenetrating aspects of holistic perplexities. For society’s good – if understanding be an essential need of society – inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible. Political power must abstain from intrusion into this activity of freedom, pursued in the interest of wise government and the people’s well-being, except for reasons that are exigent and obviously compelling.

   “In a university knowledge is its own end, not merely a means to an end. A university ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest. A university is characterized by the spirit of free inquiry, its ideal being the ideal of Socrates – `to follow the argument where it leads.’ This implies the right to examine, question, modify or reject traditional ideas and beliefs. Dogma and hypothesis are incompatible, and the concept of an immutable doctrine is repugnant to the spirit of a university. The concern of its scholars is not merely to add and revise facts in relation to an accepted framework, but to be ever examining and modifying the framework itself.”

   “Freedom to reason and freedom for disputation on the basis of observation and experiment are the necessary conditions for the advancement of scientific knowledge. A sense of freedom is also necessary for creative work in the arts which, equally with scientific research, is the concern of the university.”

   In the political realm, as in the academic, thought and action are presumptively immune from inquisition by political authority.

   For a citizen to be made to forego even a part of so basic a liberty as his political autonomy, the subordinating interest of the State must be compelling.

   “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.” Boyd v. United States, 116 U.S. 616, 635 .

   But, you may say, have the lofty words of yesteryear been eclipsed by subsequent US Supreme Court Rulings? In “Free Speech on Public College Campuses” at: http://www.fac.org/speech/pubcollege/overview.aspx
   Kermit L. Hall, President of Utah State University wrote:

   “In many ways the Supreme Court dealt speech codes a seemingly devastating blow in its 1992 decision R.A.V. v. City of St. Paul. Though the case dealt with a St. Paul, Minn., ordinance that made it a crime, among other things, to place on public or private property a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender, it also had broad implications for universities. The unanimous Court held the ordinance unconstitutional on the grounds that it sought to ban speech based on content. The effect of the decision was to slow but not altogether end the use of bans on hate speech, either on or off campus.”

   What vagaries, you may say, must surely be brewing these days in the Supreme Court that would serve to undermine such concrete statements of liberty of thought and expression as the 1992 R.A.V. v. City of St. Paul decision set forth. At: http://www.fac.org/analysis.aspx?id=14506 Tony Mauro, Special to the First Amendment Center Online wrote of the US Supreme Court’s Dec 6 2004 decision in City of San Diego v. Roe:

   … the Court may have subtly weakened protection for more common forms of expression, emphasizing a requirement that speech be of “legitimate news interest” and “of value and concern to the public” to win top-tier First Amendment status.

   The “threshold inquiry”, the Court said, was whether the expression touched on a matter of public concern.

   Invoking decisions from its privacy jurisprudence, the Court said “public concern is something that is a subject of “legitimate news interest”; that is, a subject of general interest and “of value and concern to the public” at the time of publication.”

   The Court’s requirement of “legitimate” news interest also drew the attention of astute bloggers on Supreme Court matters. On the SCOTUS blog, former Justice Department lawyer Marty Lederman, said, “This embrace of ‘newsworthiness,’ and matters of public, as opposed to private, interest, as criteria on which First Amendment protection should turn, is fast becoming a more prominent theme in several threads of the Court’s free speech jurisprudence… What makes this latest case even more interesting, and potentially quite significant, is that the Court is now suggesting that actual public concern, or actual public interest, is not sufficient to endow speech with full constitutional protection – the speech must also be, in the Court’s view, of ‘legitimate’ news interest, and must, in the Court’s view, have ‘value’ to the public.”

   Applying those subjective terms to Officer Roe’s videotapes may have been an easy task. But they could prove perilous in future cases involving, for example, supermarket tabloids or gossipy Web sites. That may define the long-range impact of this case.

   We in a free society must all guard against a day in which the unfettered exercise of freedom of speech under the First Amendment by the ruled is chilled by the ominous prospect that, at some later date, the designation of what constitutes a “legitimate news interest” may be defined in retrospect by dictum of (any branch of) federal, state, or local government – thus potentially rendering one’s speech of today as unlawful based upon nothing more than a subsequent determination of failing to constitute a “legitimate news interest” in the eyes of the of the State.

   Today we already live in a society largely uninterested in the history, culture, or fate of the other six billion inhabitants of this fouled planet. The designation of a “legitimate news interest” is already determined almost exclusively in commercial media by it’s capacity to appeal to our appetites for banal entertainment revolving around canonizing the powerful, the violent, and the appealing, while gleefully excluding those 99 out of 100 infirmed, forgotten losers on the planet who never managed to be born into the ruling classes. Yes, the “magic of the markets” is once again at work. Here in Bushtown, as in Reaganville, as in Las Vegas, “everybody is a winner”, and the most self serving empire building is vulgarly wrapped in flags under the guise of fear and self righteous loathing, then sanctimoniously wrapped in a crucible under the guise of moral superiority and theological supremacy in delusional justifications of the pre-emptive taking of life.

   There are, by their nature, plenty of matters that merchants, selling everything from soap to warheads, as well as government figureheads, bureaucrats, and operatives would dearly prefer that the great unwashed neither have knowledge of, or possess any meaningful power base by which to affect, such events.

   A shameful day it is, indeed, when the Media defines “legitimate news interest” based upon no more than the soap sellers want you to see, and the State, their carpetbags stuffed with free soap, may, by posthumously deeming your speech to be “not a legitimate news interest”, render it forbidden in the name of freedom.

   The Lightning Empiricist
2. 
   Montag permalink

   February 18, 2005 12:00 PM

   “Magic of the markets” reminds me of Chomsky’s “Economic miracle.” However you look at it, the Machine that moves everything was constructed, and operates in service of the few and exploits the many. The gears of this machine are heavy and gaining momentum becoming harder to reverse. The mainstream media has been pulled into the gears and pressed into their shape. Now our base freedoms seem periously close to being pulled through and altered by the machinery. After the media comes the intellectuals, Ward Churchill is but the start. First is the introduction of so-called ‘Academic Bill of Rights’ legislation (already in Ohio) that would seek to control what is said in college classrooms..
3. 
   The Lightning Empiricist permalink

   February 18, 2005 7:20 PM

   Despite our constitutional basis,
   despotism lurks ever vigilant,
   cleansed only by the sun’s grace:

   “From the conclusion of this war,
   we shall be going downhill …
   They” [the people] ” will be forgotten …
   and their rights disregarded.
   They will forget themselves,
   but in the sole faculty of making money,
   and will never think of uniting
   to effect a due respect for their rights.”

   – Thomas Jefferson
   (writing after the Revolutionary War)

Comments are closed.