Which Shall It Be, Freedom of Speech or Not?

Michael S. Rozeff
lewrockwell.com
August 10, 2013


Can a man speak freely in America without any fear of punishment or can he not? He cannot. Has the U.S. government concocted free speech “crimes” in order to suppress free speech? It has. Is the U.S. government investigating free speech activities with the notion that they may be terroristic? It is.

Being pro-liberty, I am pro-free speech. I think that liberty and being able to speak freely are part of what being a human being means. In addition, I think that free speech enhances human life. Favoring the human being, human life and its development, I favor free speech. This does not mean that I like or approve of everything that anyone says. I don’t, most assuredly. It doesn’t mean that groups of people may not voluntarily suppress free speech among themselves. Favoring free speech implies that I do not believe in forcibly curtailing speech.

If we wish, we can discuss free speech without reference to the U.S. constitution. The idea of free speech doesn’t depend on a constitution, but because the government is suppressing free speech and claiming that it is doing so legally, I am going to discuss some specific court cases that reference the Constitution.

Being pro-liberty, I am not in favor of a system that centralizes law-making in one man or a few men as the U.S. system under the Constitution does. What if they make bad laws? What if the system provides no effective means to alter those laws? What if the system actively suppresses and undermines the available means to alter those laws? What if great distress has to be endured for many years before laws are altered?

But in this article, I postpone speaking with my Spoonerite anti-Constitution hat on until the end. I mainly wish to explore how it is that the Supreme Court is undermining free speech under the cover of its claim to be the final arbiter of what U.S. law says. However, implicitly I am raising the question of what good a Constitution is under which rights written down in black and white can be effectively destroyed by the Supreme Court.

After the U.S. constitution went into effect in 1789, it was amended in 1791. The First Amendment concerned certain freedoms, including free speech.

Has the U.S. government subverted the First Amendment? It has and it is.

What does this amendment state? It reads in full:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The amendment is clearly, unambiguously and strongly expressed. Justice Hugo Black has written of its “emphatic command”. It leaves no room for doubt. Congress does not have the power to make a law that abridges freedom of speech. This means in any way. It means under any circumstances. In addition, the amendment says that Congress has no power under the Constitution to make a law abridging freedom of the press. There is to be free speech for any person whom the Constitution claims to subject to its law and this includes members of the press. This article doesn’t deal with the recent attacks on freedom of the press.

Supreme Court decisions sometimes contain pro-free speech language. At other times, the decisions are anti-free speech. There is a history of First Amendment decisions. Reviewing them all is beyond the scope of this article. I propose to look at a few cases in order to show that in recent years the Supreme Court is undermining free speech.

As an example of a pro-free speech opinion, we have Justice Black in 1971 (New York Times Co. v. United States, 403 U.S. 713). This is the Pentagon Papers case. The U.S. government classifies documents. Among them was a study of the U.S. involvement in Vietnam, 1945 to 1967. Daniel Ellsberg photocopied the study and gave 43 volumes of it to the New York Times, which began publishing it in 1971. According to the linked Wikipedia article:

“Later, Ellsberg said the documents ‘demonstrated unconstitutional behavior by a succession of presidents, the violation of their oath and the violation of the oath of every one of their subordinates’. He added that he leaked the Papers to end what he perceived to be ‘a wrongful war.’”

Although the Nixon administration might have decided to prosecute Ellsberg and the Times under the Espionage Act of 1917, it chose not to. Instead it “obtained a federal court injunction forcing the Times to cease publication after three articles.” The case ended up in the Supreme Court, which ruled 6-3 in favor of the Times. Black defended the First Amendment vigorously:

“In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.”

Then, as now, the government argued that other parts of the Constitution allowed the government to suppress free speech. The Solicitor General of the U.S. said the following:

“Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that ‘no law’ does not mean ‘no law,’ and I would seek to persuade the Court that that is true. . . . [T]here are other parts of the Constitution that grant powers and responsibilities to the Executive, and . . . the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States.”

The government’s brief contained this language:

“[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief.”

This is the “inherent power” doctrine. What it amounts to is saying that just as Congress can enact any law that is “necessary and proper” to pursuing its powers, so the Executive can take any action necessary and proper to carrying out his constitutional duties. Black demolished this argument as follows:

“In other words, we are asked to hold that, despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of ‘national security.’ The Government does not even attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to ‘make’ a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law.”

He added

“To find that the President has ‘inherent power’ to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make ‘secure.’”

He criticized the government’s reliance on “national security” as well as the government’s keeping of “military and diplomatic secrets at the expense of informed representative government”:

“The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”

Justice Black cited an earlier case (De Jonge v. Oregon, 299 U. S. 353) in which “the Court held a man could not be punished for attending a meeting run by Communists.” I will shortly cite a case decided in 2010 in which the Court reached the opposite conclusion, thereby subverting the First Amendment. Black cited the language of Chief Justice Hughes in that case:

“The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.”

If the current U.S. government believed in and supported the First Amendment, if Obama, Holder, and various senators and congressmen actually believed in free speech and freedom of the press, and if they believed in what Black and Hughes wrote, they would be leaving Assange, Manning, Snowden and other whistleblowers alone, not accusing them, pursuing them, trying to or actually imprisoning them, while threatening and pressuring other governments over them. These men would not be in fear of their lives. Instead, important and leading men and women in the U.S. government are busy attacking the First Amendment.

The Supreme Court in recent years is issuing decisions that are destroying free speech. In 2006, the Court handed down Garcetti v. Ceballos, 547 U.S. 410. The decision was a close one, 5-4. The Wikipedia article on this case is a helpful summary.

Ceballos was a deputy district attorney who was a kind of whistleblower. He found “serious misrepresentations” in a deputy sheriff’s sworn affidavit. Ceballos remonstrated with his superiors and sent them a memorandum. Later, Ceballos alleged that he became the subject of retaliatory actions by his superiors. They denied this, but they also claimed that he had no First Amendment right of free speech in his memo. The first result was against Ceballos:

“The District Court granted their [the superiors’] motion for summary judgment, concluding that because Ceballos wrote his memo pursuant to the duties of his employment, he was not entitled to First Amendment protection for the memo’s contents.”

The U.S. Court of Appeals for the Ninth Circuit reversed the District Court decision “holding that his criticism of the warrant in the memo constituted protected speech under the First Amendment.” Its reasoning was not that of Justice Black. Had they followed Black, they would simply have said that as a citizen Ceballos had a First Amendment right to free speech. No abridgment of it was possible for any reason, and that’s the supreme law of the land. Instead, the Court of Appeals relied upon a series of First Amendment cases decided by the Supreme Court concerning the speech rights of public employees. In these cases, we witness already Supreme Court decisions that undermine the First Amendment, i.e., destroy the right of free speech. The cases begin with Pickering v. Board of Education, 391 U.S. 563 (1968). Another one is Connick v. Myers, 461 U.S. 138. The Wikipedia article on Connick v. Myers is informative.

The manner in which the Court destroys free speech in these cases is to subject the speech of public employees to tests. These tests “balance” speech against other matters of “public concern”. They qualify speech. They restrict speech. Unless it passes certain criteria, the speech of public employees can be suppressed by the government and become of no account. The public employees are denied their rights as citizens. Since the First Amendment makes no such division of the citizenry according to their employers, the Court’s constitutional reasoning is evidently flawed at the root.

The Ceballos case then went to the Supreme Court. It held

“When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

I quote the Wikipedia article on the impact of this case:

“The outcry among whistle-blower advocates and First Amendment advocates was particularly extensive. Whistleblower lawyer Stephen M. Kohn called the ruling ‘the single biggest setback for whistleblowers in the courts in the past 25 years.’ Under the ruling, Kohn says, public employees—all 22 million of them—have no First Amendment rights when they are acting in an official capacity, and in many cases are not protected against retaliation. Kohn estimates that ‘no less than 90 percent of all whistleblowers will lose their cases on the basis of this decision.’”

The second case I bring up that is even more clearly anti-free speech is Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010). This was a 6-3 decision. The Wikipedia article contains some interesting reactions from a range of persons who are critical of the decision, from Jimmy Carter to Noam Chomsky..

Attorney General Eric H. Holder, Jr. brought this case against Humanitarian Law Project. Counsel for Humanitarian Law Project was David Cole, a Professor at Georgetown Law School. He explains his side of the case in an article.

The law at issue is that portion of the Patriot Act in which a crime is created consisting of providing “material support” to organizations that the government has designated as “foreign terrorist organizations.” According to Cole,

“The particular speech in question in Humanitarian Law Project advocated only nonviolent, lawful ends; the plaintiffs principally sought to advocate for human rights and peace to and with the Kurdistan Workers’ Party, a Kurdish organization in Turkey that the Secretary of State had designated as a ‘foreign terrorist organization.’ They did not intend to further the organization’s illegal ends; indeed, they sought to dissuade it from violence, and to urge it to pursue lawful ends through peaceful means. Yet the Court held, by a vote of 6-3, that the First Amendment permitted criminal prosecution of such speech.”

He wrote that “For the first time in its history, the Court upheld the criminalization of speech advocating only nonviolent, lawful ends on the ground that such speech might unintentionally assist a third party in criminal wrongdoing.”

The opinion written by Justice Roberts for the majority confirms Cole. Roberts writes

“Most of the activities in which plaintiffs seek to engage readily fall within the scope of the terms ‘training’ and ‘expert advice or assistance.’ Plaintiffs want to ‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes,’ and ‘teach PKK members how to petition various representative bodies such as the United Nations for relief.’”

Roberts openly writes about the free speech prohibition:

“Plaintiffs want to speak to the PKK and the LTTE, and whether they may do so under § 2339B depends on what they say. If plaintiffs’ speech to those groups imparts a ‘specific skill’ or communicates advice derived from ‘specialized knowledge’—for example, training on the use of international law or advice on petitioning the United Nations—then it is barred.”

In other words, Congress can constitutionally pass a law that abridges free speech and the Patriot Act is such a law.

Cole points out the “grave repercussions” of this decision:

“Most immediately, nongovernmental organizations working to resolve conflict or to provide humanitarian assistance may well be unable to operate where designated ‘terrorist organizations’ are involved, because any advice or assistance they provide could be criminally prohibited. Under this law, for example, when the Carter Center, run by former President Jimmy Carter, monitored elections in Lebanon in 2009, and met with Hezbollah, one of the parties to the contest, to explain what the monitors would look for in a free and fair election, it committed a crime by providing ‘expert advice,’ a form of ‘material support,’ to a designated terrorist organization. And when former Attorney General Michael Mukasey, former Homeland Security advisor Fran Townsend, and former Secretary of Homeland Security Tom Ridge recently advocated for de-listing a designated terrorist group from Iran in coordination with a leader of the group, they too committed the federal felony of providing ‘material support’ in the form of ‘services’ to the organization.”

Let me now put on my anti-government and anti-Constitution Spoonerite hat. We are seeing tyranny and usurpation under the Constitution. Word by word, case by case, law by law, the Congress and the Supreme Court are overthrowing the First Amendment (and others).

There is no stability of law as the government now operates. Any freedom can be attacked.

The idea that there has to be a final arbiter of law, such as the Supreme Court, is flawed. There is now such an arbiter and the result is a government monopoly on law and instability. The government’s monopoly on law is the father of tyranny.

The Constitution has provided no barrier to the anti-liberty movement. In 1870 in No Treason, Lysander Spooner put it succinctly:

“The Constitution has either authorized such a government as we have had, or has been powerless to prevent it.”

This is as true today as it was then.

Spooner was thinking of the Civil War immediately past in which the federal government had gone way out of bounds, inflicting much misery on Americans. This record of improper government growth accompanied by immiseration has been repeated and amplified in the intervening 143 years.

We are seeing free speech and freedom of the press under attack. I have not discussed the latter in this article.

Either the Constitution did not place in the hands of the people the means to prevent these and other attacks, or it did not construct a government whose internal arrangements prevented this; or else the Constitution authorized these attacks. These three possibilities are not mutually exclusive. All can be and are operative.

They all lead to the same conclusion, which is that the Constitution and the State that it created have failed to secure the peace, keep the People free and encourage the growth of their prosperity.