Posts Tagged ‘free speech’

“Since when have we Americans been expected to bow submissively to authority and speak with awe and reverence to those who represent us? The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents. We who have the final word can speak softly or angrily. We can seek to challenge and annoy, as we need not stay docile and quiet.”—Justice William O. Douglas, dissenting, Colten v. Kentucky, 407 U.S. 104 (1972)

Forget everything you’ve ever been taught about free speech in America.

It’s all a lie.

There can be no free speech for the citizenry when the government speaks in a language of force.

What is this language of force?

Militarized police. Riot squads. Camouflage gear. Black uniforms. Armored vehicles. Mass arrests. Pepper spray. Tear gas. Batons. Strip searches. Surveillance cameras. Kevlar vests. Drones. Lethal weapons. Less-than-lethal weapons unleashed with deadly force. Rubber bullets. Water cannons. Stun grenades. Arrests of journalists. Crowd control tactics. Intimidation tactics. Brutality.

This is not the language of freedom.

This is not even the language of law and order.

This is the language of force.

Unfortunately, this is how the government at all levels—federal, state and local—now responds to those who choose to exercise their First Amendment right to peacefully assemble in public and challenge the status quo.

This police overkill isn’t just happening in troubled hot spots such as Ferguson, Mo., and Baltimore, Md., where police brutality gave rise to civil unrest, which was met with a militarized show of force that caused the whole stew of discontent to bubble over into violence.

A decade earlier, the NYPD engaged in mass arrests of peaceful protesters, bystanders, legal observers and journalists who had gathered for the 2004 Republican National Convention. The protesters were subjected to blanket fingerprinting and detained for more than 24 hours at a “filthy, toxic pier that had been a bus depot.” That particular exercise in police intimidation tactics cost New York City taxpayers nearly $18 million for what would become the largest protest settlement in history.

Demonstrators, journalists and legal observers who had gathered in North Dakota to peacefully protest the Dakota Access Pipeline reported being pepper sprayed, beaten with batons, and strip searched by police.

In the college town of Charlottesville, Va., protesters who took to the streets to peacefully express their disapproval of a planned KKK rally were held at bay by implacable lines of gun-wielding riot police. Only after a motley crew of Klansmen had been safely escorted to and from the rally by black-garbed police did the assembled army of city, county and state police declare the public gathering unlawful and proceed to unleash canisters of tear gas on the few remaining protesters to force them to disperse.

More recently, this militarized exercise in intimidation—complete with an armored vehicle and an army of police drones—reared its ugly head in the small town of Dahlonega, Ga., where 600 state and local militarized police clad in full riot gear vastly outnumbered the 50 protesters and 150 counterprotesters who had gathered to voice their approval/disapproval of the Trump administration’s policies.

To be clear, this is the treatment being meted out to protesters across the political spectrum.

The police state does not discriminate.

As a USA Today article notes, “Federally arming police with weapons of war silences protesters across all justice movements… People demanding justice, demanding accountability or demanding basic human rights without resorting to violence, should not be greeted with machine guns and tanks. Peaceful protest is democracy in action. It is a forum for those who feel disempowered or disenfranchised. Protesters should not have to face intimidation by weapons of war.”

A militarized police response to protesters poses a danger to all those involved, protesters and police alike. In fact, militarization makes police more likely to turn to violence to solve problems.

As a study by researchers at Stanford University makes clear, “When law enforcement receives more military materials — weapons, vehicles and tools — it becomes … more likely to jump into high-risk situations. Militarization makes every problem — even a car of teenagers driving away from a party — look like a nail that should be hit with an AR-15 hammer.”

Even the color of a police officer’s uniform adds to the tension. As the Department of Justice reports, “Some research has suggested that the uniform color can influence the wearer—with black producing aggressive tendencies, tendencies that may produce unnecessary conflict between police and the very people they serve.”

You want to turn a peaceful protest into a riot?

Bring in the militarized police with their guns and black uniforms and warzone tactics and “comply or die” mindset. Ratchet up the tension across the board. Take what should be a healthy exercise in constitutional principles (free speech, assembly and protest) and turn it into a lesson in authoritarianism.

Mind you, those who respond with violence are playing into the government’s hands perfectly.

The government wants a reason to crack down and lock down and bring in its biggest guns.

They want us divided. They want us to turn on one another.

They want us powerless in the face of their artillery and armed forces.

They want us silent, servile and compliant.

They certainly do not want us to remember that we have rights, let alone attempting to exercise those rights peaceably and lawfully.

And they definitely do not want us to engage in First Amendment activities that challenge the government’s power, reveal the government’s corruption, expose the government’s lies, and encourage the citizenry to push back against the government’s many injustices.

You know how one mayor characterized the tear gassing of protesters by riot police? He called it an “unfortunate event.”

Unfortunate, indeed.

You know what else is unfortunate?

It’s unfortunate that these overreaching, heavy-handed lessons in how to rule by force have become standard operating procedure for a government that communicates with its citizenry primarily through the language of brutality, intimidation and fear.

It’s unfortunate that “we the people” have become the proverbial nails to be hammered into submission by the government and its vast armies.

And it’s particularly unfortunate that government officials—especially police—seem to believe that anyone who wears a government uniform (soldier, police officer, prison guard) must be obeyed without question.

In other words, “we the people” are the servants in the government’s eyes rather than the masters.

The government’s rationale goes like this:

Do exactly what I say, and we’ll get along fine. Do not question me or talk back in any way. You do not have the right to object to anything I may say or ask you to do, or ask for clarification if my demands are unclear or contradictory. You must obey me under all circumstances without hesitation, no matter how arbitrary, unreasonable, discriminatory, or blatantly racist my commands may be. Anything other than immediate perfect servile compliance will be labeled as resisting arrest, and expose you to the possibility of a violent reaction from me. That reaction could cause you severe injury or even death. And I will suffer no consequences. It’s your choice: Comply, or die.

Indeed, as Officer Sunil Dutta of the Los Angeles Police Department advises:

If you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me.

This is not the rhetoric of a government that is of the people, by the people, and for the people.

This is not the attitude of someone who understands, let alone respects, free speech.

And this is certainly not what I would call “community policing,” which is supposed to emphasize the importance of the relationship between the police and the community they serve.

Indeed, this is martial law masquerading as law and order.

Any police officer who tells you that he needs tanks, SWAT teams, and pepper spray to do his job shouldn’t be a police officer in a constitutional republic.

All that stuff in the First Amendment (about freedom of speech, religion, press, peaceful assembly and the right to petition the government for a redress of grievances) sounds great in theory. However, it amounts to little more than a hill of beans if you have to exercise those freedoms while facing down an army of police equipped with deadly weapons, surveillance devices, and a slew of laws that empower them to arrest and charge citizens with bogus “contempt of cop” charges (otherwise known as asserting your constitutional rights).

It doesn’t have to be this way.

There are other, far better models to follow.

For instance, back in 2011, the St. Louis police opted to employ a passive response to Occupy St. Louis activists. First, police gave the protesters nearly 36 hours’ notice to clear the area, as opposed to the 20 to 60 minutes’ notice other cities gave. Then, as journalist Brad Hicks reports, when the police finally showed up:

They didn’t show up in riot gear and helmets, they showed up in shirt sleeves with their faces showing. They not only didn’t show up with SWAT gear, they showed up with no unusual weapons at all, and what weapons they had all securely holstered. They politely woke everybody up. They politely helped everybody who was willing to remove their property from the park to do so. They then asked, out of the 75 to 100 people down there, how many people were volunteering for being-arrested duty? Given 33 hours to think about it, and 10 hours to sweat it over, only 27 volunteered. As the police already knew, those people’s legal advisers had advised them not to even passively resist, so those 27 people lined up to be peacefully arrested, and were escorted away by a handful of cops. The rest were advised to please continue to protest, over there on the sidewalk … and what happened next was the most absolutely brilliant piece of crowd control policing I have heard of in my entire lifetime. All of the cops who weren’t busy transporting and processing the voluntary arrestees lined up, blocking the stairs down into the plaza. They stood shoulder to shoulder. They kept calm and silent. They positioned the weapons on their belts out of sight. They crossed their hands low in front of them, in exactly the least provocative posture known to man. And they peacefully, silently, respectfully occupied the plaza, using exactly the same non-violent resistance techniques that the protesters themselves had been trained in.

As Forbes concluded, “This is a more humane, less costly, and ultimately more productive way to handle a protest. This is great proof that police can do it the old fashioned way – using their brains and common sense instead of tanks, SWAT teams, and pepper spray – and have better results.”

It can be done.

Police will not voluntarily give up their gadgets and war toys and combat tactics, however. Their training and inclination towards authoritarianism has become too ingrained.

If we are to have any hope of dismantling the police state, change must start locally, community by community. Citizens will have to demand that police de-escalate and de-militarize. And if the police don’t listen, contact your city councils and put the pressure on them.

Remember, they are supposed to work for us. They might not like hearing it—they certainly won’t like being reminded of it—but we pay their salaries with our hard-earned tax dollars.

“We the people” have got to stop accepting the lame excuses trotted out by police as justifications for their inexcusable behavior.

Either “we the people” believe in free speech or we don’t.

Either we live in a constitutional republic or a police state.

We have rights.

As Justice William O. Douglas advised in his dissent in Colten v. Kentucky, “we need not stay docile and quiet” in the face of authority.

The Constitution does not require Americans to be servile or even civil to government officials.

Neither does the Constitution require obedience (although it does insist on nonviolence).

This emphasis on nonviolence goes both ways. Somehow, the government keeps overlooking this important element in the equation.

There is nothing safe or secure or free about exercising your rights with a rifle pointed at you.

The police officer who has been trained to shoot first and ask questions later, oftentimes based only on their highly subjective “feeling” of being threatened, is just as much of a danger—if not more—as any violence that might erupt from a protest rally.

Compliance is no guarantee of safety.

Then again, as I point out in my book Battlefield America: The War on the American People, if we just cower before government agents and meekly obey, we may find ourselves following in the footsteps of those nations that eventually fell to tyranny.

The alternative involves standing up and speaking truth to power. Jesus Christ walked that road. So did Mahatma Gandhi, Martin Luther King Jr., and countless other freedom fighters whose actions changed the course of history.

Indeed, had Christ merely complied with the Roman police state, there would have been no crucifixion and no Christian religion. Had Gandhi meekly fallen in line with the British Empire’s dictates, the Indian people would never have won their independence.

Had Martin Luther King Jr. obeyed the laws of his day, there would have been no civil rights movement. And if the founding fathers had marched in lockstep with royal decrees, there would have been no American Revolution.

We must adopt a different mindset and follow a different path if we are to alter the outcome of these interactions with police.

The American dream was built on the idea that no one is above the law, that our rights are inalienable and cannot be taken away, and that our government and its appointed agents exist to serve us.

It may be that things are too far gone to save, but still we must try.

Source: https://bit.ly/2lX2CDm

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People  is available at www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

Publication Guidelines / Reprint Permission

John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact staff@rutherford.org to obtain reprint permission.

 

“But these weren’t the kind of monsters that had tentacles and rotting skin, the kind a seven-year-old might be able to wrap his mind around—they were monsters with human faces, in crisp uniforms, marching in lockstep, so banal you don’t recognize them for what they are until it’s too late.” ― Ransom Riggs, Miss Peregrine’s Home for Peculiar Children

Enough already.

Enough with the distractions. Enough with the partisan jousting.

Enough with the sniping and name-calling and mud-slinging that do nothing to make this country safer or freer or more just.

We have let the government’s evil-doing, its abuses, power grabs, brutality, meanness, inhumanity, immorality, greed, corruption, debauchery and tyranny go on for too long.

We are approaching a reckoning.

This is the point, as the poet W. B. Yeats warned, when things fall apart and anarchy is loosed upon the world.

We have seen this convergence before in Hitler’s Germany, in Stalin’s Russia, in Mussolini’s Italy, and in Mao’s China: the rise of strongmen and demagogues, the ascendency of profit-driven politics over deep-seated principles, the warring nationalism that seeks to divide and conquer, the callous disregard for basic human rights and dignity, and the silence of people who should know better.

Yet no matter how many times the world has been down this road before, we can’t seem to avoid repeating the deadly mistakes of the past. This is not just playing out on a national and international scale. It is wreaking havoc at the most immediate level, as well, creating rifts and polarities within families and friends, neighborhoods and communities that keep the populace warring among themselves and incapable of presenting a united front in the face of the government’s goose-stepping despotism.

We are definitely in desperate need of a populace that can stand united against the government’s authoritarian tendencies.

Surely we can manage to find some common ground in the midst of the destructive, disrupting, diverting, discordant babble being beamed down at us by the powers-that-be? After all, there are certain self-evident truths—about the source of our freedoms, about the purpose of government, about how we expect to be treated by those we appoint to serve us in government offices, about what to do when the government abuses our rights and our trust, etc.—that we should be able to agree on, no matter how we might differ politically.

Disagree all you want about healthcare, abortion and immigration—hot-button issues that are guaranteed to stir up the masses, secure campaign contributions and turn political discourse into a circus free-for-all—but never forget that our power as a citizenry comes from our ability to agree and stand united on certain principles that should be non-negotiable.

For instance, for the first time in the nation’s history, it is expected that the federal deficit will surpass $1 trillion this year, not to mention the national debt which is approaching $23 trillion. There’s also $21 trillion in government spending that cannot be accounted for or explained. For those in need of a quick reminder: “A budget deficit is the difference between what the federal government spends and what it takes in. The national debt is the result of the federal government borrowing money to cover years and years of budget deficits.” Right now, the U.S. government is operating in the negative on every front: it’s spending far more than what it makes (and takes from the American taxpayers) and it is borrowing heavily (from foreign governments and Social Security) to keep the government operating and keep funding its endless wars abroad. Meanwhile, the nation’s sorely neglected infrastructure—railroads, water pipelines, ports, dams, bridges, airports and roads—is rapidly deteriorating.

Yet no matter how we might differ about how the government allocates its spending, surely we can agree that the government’s irresponsible spending, which has saddled us with insurmountable debt, is pushing the country to the edge of financial and physical ruin.

That’s just one example of many that shows the extent to which the agents of the American police state are shredding the constitutional fabric of the nation, eclipsing the rights of the American people, and perverting basic standards of decency.

Let me give you a few more.

Having been co-opted by greedy defense contractors, corrupt politicians and incompetent government officials, America’s expanding military empire is bleeding the country dry at a rate of more than $15 billion a month (or $20 million an hour)—and that’s just what the government spends on foreign wars. The U.S. military empire’s determination to police the rest of the world has resulted in more than 1.3 million U.S. troops being stationed at roughly 1000 military bases in over 150 countries around the world. That doesn’t include the number of private contractors pulling in hefty salaries at taxpayer expense. In Afghanistan, for example, private contractors outnumber U.S. troops three to one.

No matter how we might differ about the role of the U.S. military in foreign affairs, surely we can agree that America’s war spending and commitment to policing the rest of the world are bankrupting the nation and spreading our troops dangerously thin.

All of the imperial powers amassed by Barack Obama and George W. Bush—to kill American citizens without due process, to detain suspects indefinitely, to strip Americans of their citizenship rights, to carry out mass surveillance on Americans without probable cause, to suspend laws during wartime, to disregard laws with which they might disagree, to conduct secret wars and convene secret courts, to sanction torture, to sidestep the legislatures and courts with executive orders and signing statements, to direct the military to operate beyond the reach of the law, to operate a shadow government, and to act as a dictator and a tyrant, above the law and beyond any real accountability—were inherited by Donald Trump. These presidential powers—acquired through the use of executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements and which can be activated by any sitting president—enable past, president and future presidents to operate above the law and beyond the reach of the Constitution.

Yet no matter how we might differ about how success or failure of past or present presidential administrations, surely we can agree that the president should not be empowered to act as an imperial dictator with permanent powers.

Increasingly, at home, we’re facing an unbelievable show of force by government agents. For example, with alarming regularity, unarmed men, women, children and even pets are being gunned down by twitchy, hyper-sensitive, easily-spooked police officers who shoot first and ask questions later, and all the government does is shrug and promise to do better. Just recently, in fact, the 11th Circuit Court of Appeals cleared a cop who aimed for a family’s dog (who showed no signs of aggression), missed, and instead shot a 10-year-old lying on the ground. Indeed, there are countless incidents that happen every day in which Americans are shot, stripped, searched, choked, beaten and tasered by police for little more than daring to frown, smile, question, or challenge an order. Growing numbers of unarmed people are being shot and killed for just standing a certain way, or moving a certain way, or holding something—anything—that police could misinterpret to be a gun, or igniting some trigger-centric fear in a police officer’s mind that has nothing to do with an actual threat to their safety.

No matter how we might differ about where to draw that blue line of allegiance to the police state, surely we can agree that police shouldn’t go around terrorizing and shooting innocent, unarmed children and adults or be absolved of wrongdoing for doing so.

Nor can we turn a blind eye to the transformation of America’s penal system from one aimed at protecting society from dangerous criminals to a profit-driven system that dehumanizes and strips prisoners of every vestige of their humanity. For example, in Illinois, as part of a “training exercise” for incoming cadets, prison guards armed with batons and shields rounded up 200 handcuffed female inmates, marched them to the gymnasium, then forced them to strip naked (including removing their tampons and pads), “bend over and spread open their vaginal and anal cavities,” while male prison guards promenaded past or stood staring. The 7th Circuit Court of Appeals ruled the entire dehumanizing, demoralizing mass body cavity strip search—orchestrated not for security purposes but as an exercise in humiliation—was legal. Be warned, however: this treatment will not be limited to those behind bars. In our present carceral state, there is no difference between the treatment meted out to a law-abiding citizen and a convicted felon: both are equally suspect and treated as criminals, without any of the special rights and privileges reserved for the governing elite. In a carceral state, there are only two kinds of people: the prisoners and the prison guards.

No matter how we might differ about where to draw the line when it comes to prisoners’ rights, surely we can agree that no one—woman, man or child—should be subjected to such degrading treatment in the name of law and order.

In Washington, DC, in contravention of longstanding laws that restrict the government’s ability to deploy the military on American soil, the Pentagon has embarked on a secret mission of “undetermined duration” that involves flying Black Hawk helicopters over the nation’s capital, backed by active-duty and reserve soldiers. In addition to the increasing militarization of the police—a de facto standing army—this military exercise further acclimates the nation to the sight and sounds of military personnel on American soil and the imposition of martial law.

No matter how we might differ about the deference due to those in uniform, whether military or law enforcement, surely we can agree that America’s Founders had good reason to warn against the menace of a national police force—a.k.a. a standing army—vested with the power to completely disregard the Constitution.

We labor today under the weight of countless tyrannies, large and small, disguised as “the better good,” marketed as benevolence, enforced with armed police, and carried out by an elite class of government officials who are largely insulated from the ill effects of their actions. For example, in Pennsylvania, a school district is threatening to place children in foster care if parents don’t pay their overdue school lunch bills. In Florida, a resident was fined $100,000 for a dirty swimming pool and overgrown grass at a house she no longer owned. In Kentucky, government bureaucrats sent a cease-and-desist letter to a church ministry, warning that the group is breaking the law by handing out free used eyeglasses to the homeless. These petty tyrannies inflicted on an overtaxed, overregulated, and underrepresented populace are what happens when bureaucrats run the show, and the rule of law becomes little more than a cattle prod for forcing the citizenry to march in lockstep with the government.

No matter how we might differ about the extent to which the government has the final say in how it flexes it power and exerts its authority, surely we can agree that the tyranny of the Nanny State—disguised as “the better good,” marketed as benevolence, enforced with armed police, and inflicted on all those who do not belong to the elite ruling class that gets to call the shots— should not be allowed to pave over the Constitution.

At its core, this is not a debate about politics, or constitutionalism, or even tyranny disguised as law-and-order. This is a condemnation of the monsters with human faces that have infiltrated our government.

For too long now, the American people have rationalized turning a blind eye to all manner of government wrongdoing—asset forfeiture schemes, corruption, surveillance, endless wars, SWAT team raids, militarized police, profit-driven private prisons, and so on—because they were the so-called lesser of two evils.

Yet the unavoidable truth is that the government has become almost indistinguishable from the evil it claims to be fighting, whether that evil takes the form of terrorism, torture, drug traffickingsex trafficking, murder, violence, theft, pornography, scientific experimentations or some other diabolical means of inflicting pain, suffering and servitude on humanity.

No matter how you rationalize it, the lesser of two evils is still evil.

So how do you fight back?

How do you fight injustice? How do you push back against tyranny? How do you vanquish evil?

You don’t fight it by hiding your head in the sand.

We have ignored the warning signs all around us for too long.

As I make clear in my book Battlefield America: The War on the American People, the government has ripped the Constitution to shreds and left us powerless in the face of its power grabs, greed and brutality.

What we are grappling with today is a government that is cutting great roads through the very foundations of freedom in order to get after its modern devils. Yet the government can only go as far as “we the people” allow.

Therein lies the problem.

The consequences of this failure to do our due diligence in asking the right questions, demanding satisfactory answers, and holding our government officials accountable to respecting our rights and abiding by the rule of law has pushed us to the brink of a nearly intolerable state of affairs.

Intolerable, at least, to those who remember what it was like to live in a place where freedom, due process and representative government actually meant something. Having allowed the government to expand and exceed our reach, we now find ourselves on the losing end of a tug-of-war over control of our country and our lives.

The hour grows late in terms of restoring the balance of power and reclaiming our freedoms, but it may not be too late. The time to act is now, using all methods of nonviolent resistance available to us.

“Don’t sit around waiting for the two corrupted established parties to restore the Constitution or the Republic,” Naomi Wolf once warned. Waiting and watching will get us nowhere fast.

If you’re watching, you’re not doing.

Easily mesmerized by the government’s political theater—the endless congressional hearings and investigations that go nowhere, the president’s reality show antics, the warring factions, the electoral drama—we have become a society of watchers rather than activists who are distracted by even the clumsiest government attempts at sleight-of-hand.

It’s time for good men and women to do something. And soon.

Wake up and take a good, hard look around you. Start by recognizing evil and injustice and tyranny for what they are. Stop being apathetic. Stop being neutral. Stop being accomplices. Stop being distracted by the political theater staged by the Deep State: they want you watching the show while they manipulate things behind the scenes. Refuse to play politics with your principles. Don’t settle for the lesser of two evils.

As British statesman Edmund Burke warned, “The only thing necessary for the triumph of evil is for good men [and women] to do nothing.”

Source: https://www.rutherford.org/publications_resources/john_whiteheads_commentary/monsters_with_human_faces_the_tyranny_of_the_police_state_disguised_as_law_and_order

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People  is available at www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

Publication Guidelines / Reprint Permission

John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact staff@rutherford.org to obtain reprint permission.

 

 

Since when have we Americans been expected to bow submissively to authority and speak with awe and reverence to those who represent us? The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents. We who have the final word can speak softly or angrily. We can seek to challenge and annoy, as we need not stay docile and quiet.”— Justice William O. Douglas

Unjust. Brutal. Criminal. Corrupt. Inept. Greedy. Power-hungry. Racist. Immoral. Murderous. Evil. Dishonest. Crooked. Excessive. Deceitful. Untrustworthy. Unreliable. Tyrannical.

These are all words that have at some time or other been used to describe the U.S. government.

These are all words that I have used at some time or other to describe the U.S. government. That I may feel morally compelled to call out the government for its wrongdoing does not make me any less of an American.

If I didn’t love this country, it would be easy to remain silent. However, it is because I love my country, because I believe fervently that if we lose freedom here, there will be no place to escape to, I will not remain silent.

Nor should you.

Nor should any other man, woman or child—no matter who they are, where they come from, what they look like, or what they believe.

This is the beauty of the dream-made-reality that is America. As Chelsea Manning recognized, “We’re citizens, not subjects. We have the right to criticize government without fear.

Indeed, the First Amendment does more than give us a right to criticize our country: it makes it a civic duty. Certainly, if there is one freedom among the many spelled out in the Bill of Rights that is especially patriotic, it is the right to criticize the government.

The right to speak out against government wrongdoing is the quintessential freedom.

Unfortunately, those who run the government don’t take kindly to individuals who speak truth to power. In fact, the government has become increasingly intolerant of speech that challenges its power, reveals its corruption, exposes its lies, and encourages the citizenry to push back against the government’s many injustices.

This is nothing new, nor is it unique to any particular presidential administration.

President Trump, who delights in exercising his right to speak (and tweet) freely about anything and everything that raises his ire, has shown himself to be far less tolerant of those with whom he disagrees, especially when they exercise their right to criticize the government.

In his first few years in office, Trump has declared the media to be “the enemy of the people,” suggested that protesting should be illegal, and that NFL players who kneel in protest during the national anthem “shouldn’t be in the country.” More recently, Trump lashed out at four Democratic members of Congress—all women of color— who have been particularly critical of his policies, suggesting that they “go back and help fix the totally broken and crime infested places from which they came.”

Fanning the flames of controversy, White House advisor Kellyanne Conway suggested that anyone who criticizes the country, disrespects the flag, and doesn’t support the Trump Administration’s policies should also leave the country.

The uproar over Trump’s “America—love it or leave it” remarks have largely focused on its racist overtones, but that misses the point: it’s un-American to be anti-free speech.

It’s unfortunate that Trump and his minions are so clueless about the Constitution. Then again, Trump is not alone in his presidential disregard for the rights of the citizenry, especially as it pertains to the right of the people to criticize those in power.

President Obama signed into law anti-protest legislation that makes it easier for the government to criminalize protest activities (10 years in prison for protesting anywhere in the vicinity of a Secret Service agent). The Obama Administration also waged a war on whistleblowers, which The Washington Post described as “the most aggressive I’ve seen since the Nixon administration,” and “spied on reporters by monitoring their phone records.”

Part of the Patriot Act signed into law by President George W. Bush made it a crime for an American citizen to engage in peaceful, lawful activity on behalf of any group designated by the government as a terrorist organization. Under this provision, even filing an amicus brief on behalf of an organization the government has labeled as terrorist would constitute breaking the law.

President Franklin D. Roosevelt authorized the FBI to censor all news and control communications in and out of the country in the wake of the attack on Pearl Harbor. Roosevelt also signed into law the Smith Act, which made it a crime to advocate by way of speech for the overthrow of the U.S. government by force or violence.

President Woodrow Wilson signed into law the Espionage and Sedition Acts, which made it illegal to criticize the government’s war efforts.

President Abraham Lincoln seized telegraph lines, censored mail and newspaper dispatches, and shut down members of the press who criticized his administration.

In 1798, during the presidency of John Adams, Congress passed the Alien and Sedition Acts, which made it a crime to “write, print, utter or publish … any false, scandalous, and malicious” statements against the government, Congress or president of the United States.

Clearly, the government has been undermining our free speech rights for quite a while now, but Trump’s antagonism towards free speech is much more overt.

For example, at a recent White House Social Media Summit, Trump defined free speech as follows: “To me free speech is not when you see something good and then you purposely write bad. To me that’s very dangerous speech, and you become angry at it. But that’s not free speech.”

Except Trump is about as wrong as one can be on this issue.

Good, bad or ugly, it’s all free speech unless as defined by the government it falls into one of the following categories: obscenity, fighting words, defamation (including libel and slander), child pornography, perjury, blackmail, incitement to imminent lawless action, true threats, and solicitations to commit crimes.

This idea of “dangerous” speech, on the other hand, is peculiarly authoritarian in nature. What it amounts to is speech that the government fears could challenge its chokehold on power.

The kinds of speech the government considers dangerous enough to red flag and subject to censorship, surveillance, investigation, prosecution and outright elimination include: hate speech, bullying speech, intolerant speech, conspiratorial speech, treasonous speech, threatening speech, incendiary speech, inflammatory speech, radical speech, anti-government speech, right-wing speech, left-wing speech, extremist speech, politically incorrect speech, etc.

Conduct your own experiment into the government’s tolerance of speech that challenges its authority, and see for yourself.

Stand on a street corner—or in a courtroom, at a city council meeting or on a university campus—and recite some of the rhetoric used by the likes of Thomas Jefferson, Patrick Henry, John Adams and Thomas Paine without referencing them as the authors.

For that matter, just try reciting the Declaration of Independence, which rejects tyranny, establishes Americans as sovereign beings, recognizes God (not the government) as the Supreme power, portrays the government as evil, and provides a detailed laundry list of abuses that are as relevant today as they were 240-plus years ago.

My guess is that you won’t last long before you get thrown out, shut up, threatened with arrest or at the very least accused of being a radical, a troublemaker, a sovereign citizen, a conspiratorialist or an extremist.

Try suggesting, as Thomas Jefferson and Benjamin Franklin did, that Americans should not only take up arms but be prepared to shed blood in order to protect their liberties, and you might find yourself placed on a terrorist watch list and vulnerable to being rounded up by government agents.

“What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms,” declared Jefferson. He also concluded that “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” Observed Franklin: “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!”

Better yet, try suggesting as Thomas Paine, Marquis De Lafayette, John Adams and Patrick Henry did that Americans should, if necessary, defend themselves against the government if it violates their rights, and you will be labeled a domestic extremist.

“It is the duty of the patriot to protect his country from its government,” insisted Paine. “When the government violates the people’s rights,” Lafayette warned, “insurrection is, for the people and for each portion of the people, the most sacred of the rights and the most indispensable of duties.” Adams cautioned, “A settled plan to deprive the people of all the benefits, blessings and ends of the contract, to subvert the fundamentals of the constitution, to deprive them of all share in making and executing laws, will justify a revolution.” And who could forget Patrick Henry with his ultimatum: “Give me liberty or give me death!”

Then again, perhaps you don’t need to test the limits of free speech for yourself.

One such test is playing out before our very eyes on the national stage led by none other than the American Police State’s self-appointed Censor-in-Chief, who seems to believe that only individuals who agree with the government are entitled to the protections of the First Amendment.

To the contrary, James Madison, the father of the Constitution, was very clear about the fact that the First Amendment was established to protect the minority against the majority.

I’ll take that one step further: the First Amendment was intended to protect the citizenry from the government’s tendency to censor, silence and control what people say and think.

Having lost our tolerance for free speech in its most provocative, irritating and offensive forms, the American people have become easy prey for a police state where only government speech is allowed. You see, the powers-that-be understand that if the government can control speech, it controls thought and, in turn, it can control the minds of the citizenry.

This is how freedom rises or falls.

As Hermann Goering, one of Hitler’s top military leaders, remarked during the Nuremberg trials:

It is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country.

It is working the same in this country, as well.

Americans of all stripes would do well to remember that those who question the motives of government provide a necessary counterpoint to those who would blindly follow where politicians choose to lead.

We don’t have to agree with every criticism of the government, but we must defend the rights of allindividuals to speak freely without fear of punishment or threat of banishment.

Never forget: what the architects of the police state want are submissive, compliant, cooperative, obedient, meek citizens who don’t talk back, don’t challenge government authority, don’t speak out against government misconduct, and don’t step out of line.

What the First Amendment protects—and a healthy constitutional republic requires—are citizens who routinely exercise their right to speak truth to power.

As I point out in my book Battlefield America: The War on the American People, tolerance for dissent is vital if we are to survive as a free nation.

While there are all kinds of labels being put on so-called “unacceptable” speech today, the real message being conveyed by those in power is that Americans don’t have a right to express themselves if what they are saying is unpopular, controversial or at odds with what the government determines to be acceptable.

By suppressing free speech, the government is contributing to a growing underclass of Americans who are being told that they can’t take part in American public life unless they “fit in.”

Mind you, it won’t be long before anyone who believes in holding the government accountable to respecting our rights and abiding by the rule of law is labeled an “extremist,” is relegated to an underclass that doesn’t fit in, must be watched all the time, and is rounded up when the government deems it necessary.

It doesn’t matter how much money you make, what politics you subscribe to, or what God you worship: we are all potential suspects, terrorists and lawbreakers in the eyes of the government.

In other words, if and when this nation falls to tyranny, we will all suffer the same fate: we will fall together.

The stamping boot of tyranny is but one crashing foot away.

Source: https://bit.ly/32xFNXZ

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People  is available at www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

Publication Guidelines / Reprint Permission

John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact staff@rutherford.org to obtain reprint permission.

 

TRI Banner

WASHINGTON, D.C. — In a move that could lead to a dangerous expansion of the “government speech” doctrine in order to limit any speech that occurs on government property, the U.S. Supreme Court has refused to review a federal appeals court ruling that places highway rest areas off limits for First Amendment activities. In refusing to hear the case of Vista-Graphics v. Virginia Dept. of Transportation, the Supreme Court let stand a decision allowing the Virginia Department of Transportation (VDOT) to restrict the content of privately authored, illustrated, printed and funded travel guides distributed at highway rest areas and welcome centers. The Rutherford Institute filed an amicus curiae brief in the case, warning that First Amendment activities in public places would be endangered if the government were allowed to expand its “government speech” doctrine under the guise of regulating the content of travel guides.

“Virginia’s attempt to restrict First Amendment protected expression, including speech that is political and religious in nature, under the guise of the government speech doctrine represents a dangerous expansion of that doctrine that threatens any private speech occurring in public places,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People.  “Not all speech occurring in or around government land, offices, or employees can be and should be considered government speech. Virginia may claim to be for lovers, but it is clearly not for free speech.”

Virginia operates 41 rest areas and welcome centers along the interstate and U.S. highways traversing the state, offering the traveling public services and information about Virginia attractions. Vista-Graphics is a publisher of travel guides, including the Virginia Beach Visitors Guide, GoWilliamsburg Visitors Guide, and Virginia Guide, which provide a variety of information to tourists, including maps, area overviews, listing of lodging options, restaurants, attractions and other services. Until 2012, Vista-Graphics and other businesses and localities distributed travel guides and other information free of charge at welcome centers and rest areas operated by VDOT in accordance with a state regulation recognizing that distribution of these materials is protected by the First Amendment. That year, however, VDOT adopted a program that began charging publishers such as Vista-Graphics a fee in order to distribute travel guides and other information at welcome centers and rest areas. Thereafter, VDOT adopted regulations that prohibited the distribution at these areas of materials that could be considered political or religious, or that would rate travel attractions, events or accommodations.

Vista-Graphics challenged the constitutionality of the fees and regulations in court, asserting they violated the First Amendment. However, the lower courts ruled that the regulations and fees were not subject to challenge because information distributed at welcome centers and rest areas constitutes speech by the government, not individuals, and Virginia could control that speech as it sees fit. In asking the U.S. Supreme Court to hear the case, The Rutherford Institute pointed out that travel guides have historically been considered private speech, and the guides at issue in this case are paid for, printed and distributed by private entities like Vista-Graphics.

DOCUMENTS

The Rutherford Institute’s brief in Vista-Graphics v. Va. Dept. of Transportation

CASE HISTORY

August 31, 2017 • Rutherford Institute Challenges Expansion of ‘Government Speech’ Doctrine, Disputes Claim That First Amendment Doesn’t Apply to Highway Rest Areas

 

“If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”— Supreme Court Justice Oliver Wendell Holmes

There was a time in this country, back when the British were running things, that if you spoke your mind and it ticked off the wrong people, you’d soon find yourself in jail for offending the king.

Reacting to this injustice, when it was time to write the Constitution, America’s founders argued for a Bill of Rights, of which the First Amendment protects the right to free speech. James Madison, the father of the Constitution, was very clear about the fact that he wrote the First Amendment to protect the minority against the majority.

What Madison meant by minority is “offensive speech.”

Unfortunately, we don’t honor that principle as much as we should today. In fact, we seem to be witnessing a politically correct philosophy at play, one shared by both the extreme left and the extreme right, which aims to stifle all expression that doesn’t fit within their parameters of what they consider to be “acceptable” speech.

There are all kinds of labels put on such speech—it’s been called politically incorrect speech, hate speech, offensive speech, and so on—but really, the message being conveyed is that you don’t have a right to express yourself if certain people or groups don’t like or agree with what you are saying.

Hence, we have seen the caging of free speech in recent years, through the use of so-called “free speech zones” on college campuses and at political events, the requirement of speech permits in parks and community gatherings, and the policing of online forums.

Clearly, this elitist, monolithic mindset is at odds with everything America is supposed to stand for.

Indeed, we should be encouraging people to debate issues and air their views. Instead, by muzzling free speech, we are contributing to a growing underclass of Americans—many of whom have been labeled racists, rednecks and religious bigots—who are being told that they can’t take part in American public life unless they “fit in.”

Remember, the First Amendment acts as a steam valve. It allows people to speak their minds, air their grievances and contribute to a larger dialogue that hopefully results in a more just world. When there is no steam valve to release the pressure, frustration builds, anger grows and people become more volatile and desperate to force a conversation.

The attempt to stifle certain forms of speech is where we go wrong.

In fact, the U.S. Supreme Court has held that it is “a bedrock principle underlying the First Amendment…that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.” For example, it is not a question of whether the Confederate flag represents racism but whether banning it leads to even greater problems, namely, the loss of freedom in general.

Along with the constitutional right to peacefully (and that means non-violently) assemble, the right to free speech allows us to challenge the government through protests and demonstrations and to attempt to change the world around us—for the better or the worse—through protests and counterprotests.

As always, knowledge is key.

The following Constitutional Q&A, available in more detail at The Rutherford Institute (www.rutherford.org), is a good starting point.

Q:        WHAT LAWS GIVE ME THE RIGHT TO PROTEST?

A:         The First Amendment prohibits the government from “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.” Protesting is an exercise of these constitutional rights because it involves speaking out, by individual people or those assembled in groups, about matters of public interest and concern.

Q:        WHERE CAN I ENGAGE IN PROTEST ACTIVITY?

A:         The right to protest generally extends to places that are owned and controlled by the government, although not all government-owned property is available for exercising speech and assembly rights. However, beyond public or government property, a person cannot claim a First Amendment right to protest and demonstrate on property that is privately owned by someone else. This also applies to private property that is generally open to the public, such as a shopping mall or shopping center, although these areas sometimes allow demonstrations and other free speech activity with permission from the owner. You are also entitled to engage in protest activities on land you own.  The Supreme Court has ruled that the government may not forbid homeowners from posting signs on their property speaking out on a political or social issue.

Q:        WHAT ARE MY RIGHTS TO PROTEST IN A TRADITIONAL PUBLIC FORUM?

A:         Places historically associated with the free exercise of expressive activities, such as streets, sidewalks and parks, are traditional public forums and the government’s power to limit speech and assembly in those places is very limited. The government may not impose an absolute ban on expression and assembly in traditional public forums except in circumstances where it is essential to serve a compelling government interest.  However, expression and assembly in traditional public forums may be limited by reasonable time, place and manner regulations. Examples of reasonable regulations include restrictions on the volume of sound produced by the activity or a prohibition on impeding vehicle and pedestrian traffic.  To be a valid time, place and manner regulation, the restriction must not have the effect of restricting speech based on its content and it must not be broader than needed to serve the interest of the government.

Q:        CAN I PICKET AND/OR DISTRIBUTE LEAFLETS AND OTHER TYPES OF LITERATURE ON PUBLIC SIDEWALKS?

A:         Yes, a sidewalk is considered a traditional public forum where you can engage in expressive activities, such a passing out literature or speaking out on a matter of public concern. In exercising that right, you must not block pedestrians or the entrances to buildings. You may not physically or maliciously detain someone in order to give them a leaflet, but you may approach them and offer it to them.

Q:        CAN MY FREE SPEECH BE RESTRICTED BECAUSE OF WHAT I SAY, EVEN IF IT IS CONTROVERSIAL?

A:         No, the First Amendment protects speech even if most people would find it offensive, hurtful or hateful. Speech generally cannot be banned based upon its content or viewpoint because it is not up to the government to determine what can and cannot be said. A bedrock principle of the First Amendment is that the government may not prohibit expression of an idea because society finds it offensive or disagreeable. Also, protest speech also cannot be banned because of a fear that others may react violently to the speech.  Demonstrators cannot be punished or forbidden from speaking because they might offend a hostile mob. The Supreme Court has held that a “heckler’s veto” has no place in First Amendment law.

Q:        HOW DO THESE RIGHTS APPLY TO PUBLIC PLACES I TYPICALLY VISIT?

A:         Your rights to speak out and protest in particular public places will depend on the use and purpose of the place involved.  For example, the lobbies and offices of public buildings that are used by the government are generally not open for expressive activities because the purpose of these buildings is to carry out public business. Protesting would interfere with that purpose.  Ironically, the meetings of a governmental body, such as a city council or town board, are not considered public forums open for protest activities because the purpose of the meeting is generally to address public business that is on the agenda.  However, some government councils and boards set aside a time at the meeting when the public can voice their complaints.

The grounds of public colleges and universities are generally considered available for assembly and protest by students and other members of the institution’s community.  However, those who are not students, faculty or staff of the institution may be denied access to the campus for speech and protest activities under rules issued by the school.

Public elementary and secondary school grounds also are not considered places where persons can engage in assembly and protest.  However, students at these schools do not lose their right to free speech when they enter the school. The First Amendment protects the right of students to engage in expressive acts of protest, such as wearing armbands to demonstrate opposition to a war, that are not disruptive to the school environment.

Q:        DO I NEED A PERMIT IN ORDER TO CONDUCT A PROTEST?

A:         As a general rule, no. A person is not required to obtain the consent or permission of the government before engaging in activities that are protected by the First Amendment.  One of the main reasons for that constitutional provision was to forbid any requirement that citizens obtain a license in order to speak out.  The government cannot require that individuals or small groups obtain a permit in order to speak or protest in a public forum.

However, if persons or organizations want to hold larger rallies and demonstrations, they may be required by local laws to obtain a permit.  The Supreme Court has recognized that the government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a parade or rally.  Government officials cannot simply prohibit a public assembly according to their discretion, but the government can impose restrictions on the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met. Such time, place and manner restrictions can take the form of requirements to obtain a permit for an assembly.

Whether an assembly or demonstration requires a permit depends on the laws of the locality.  A permit certainly is required for any parade because it would involve the use of the streets and interfere with vehicle traffic. A permit to hold an event in other public places typically is required if the gathering involves more than 50 persons or the use of amplification.

Q:        DO COUNTER-DEMONSTRATORS HAVE FREE SPEECH RIGHTS?

A:         Yes, they do. Just because counter-demonstrators oppose you and the viewpoint of your demonstration does not mean they have any less right to speak out and demonstrate. However, the same rules apply to counter-demonstrators as apply to the original assembly. The group cannot be violent and must assemble and protest in an appropriate place and manner.

Q:        WHAT CAN’T I DO IN EXERCISING MY RIGHTS TO PROTEST?

A:         The Supreme Court of the United States has held that the First Amendment protects the right to conduct a peaceful public assembly. The First Amendment does not provide the right to conduct a gathering at which there is a clear and present danger of riot, disorder, interference with traffic on public streets or other immediate threat to public safety. Laws that prohibit people from assembling and using force or violence to accomplish unlawful purposes are permissible under the First Amendment.

Q:       AM I ALLOWED TO CARRY A WEAPON OR FIREARM AT A DEMONSTRATION OR PROTEST?

A:         Your right to have a weapon with you when you protest largely depends on what is allowed by state law and is unlikely to be protected by the First Amendment’s guarantee to freedom of speech. Not all conduct can be considered “speech” protected by the First Amendment even if the person engaging in the conduct intends to express an idea. Most courts have held that the act of openly carrying a weapon or firearm is not expression protected by the First Amendment.

The right to possess a firearm is protected by the Second Amendment, and all states allow carrying a concealed weapon in public, although most require a permit to do so. Some states allow persons to openly carry firearms in public. However, it is not yet settled whether the Second Amendment guarantees the right to possess a firearm in public. Thus, the right to carry a firearm at a demonstration or protest is a matter that depends on what is allowed under state law. Carrying other weapons, such as stun guns, which are not firearms also is subject to restrictions imposed by state lawPossession of weapons also may be prohibited in certain places where demonstrations might take place, such as a national park.

Even if possession of weapons is allowed, their presence at demonstrations and rallies can be intimidating and provocative and does not help in achieving a civil and peaceful discourse on issues of public interest and concern. Demonstrations often relate to issues raising strong feelings among competing groups, and the presence of counter-demonstrators makes conflict likely.  In these situations, where the purpose of the gathering is to engage in speech activities, firearms and other weapons are threatening, result in the suppression of speech and are contrary to the purpose of the First Amendment to allow all voices to be heard on matters of public importance.

Q:        WHAT CAN’T THE POLICE DO IN RESPONDING TO PROTESTERS?

A:         In recent history, challenges to the right to protest have come in many forms. In some cases, police have cracked down on demonstrations by declaring them “unlawful assemblies” or through mass arrests, illegal use of force or curfews. Elsewhere, expression is limited by corralling protesters into so-called “free-speech zones.” New surveillance technologies are increasingly turned on innocent people, collecting information on their activities by virtue of their association with or proximity to a given protest. Even without active obstruction of the right to protest, police-inspired intimidation and fear can chill expressive activity and result in self-censorship. All of these things violate the First Amendment and are things the police cannot do to censor free speech. Unless the assembly is violent or violence is clearly imminent, the police have limited authority under the law to shut down protesters.

Clearly, as evidenced by the recent tensions in Charlottesville, Va., we’re at a crossroads concerning the constitutional right to free speech.

As Benjamin Franklin warned, “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”

It must be emphasized that it was for the sake of preserving individuality and independence that James Madison, the author of the Bill of Rights, fought for a First Amendment that protected the “minority” against the majority, ensuring that even in the face of overwhelming pressure, a minority of one—even one who espouses distasteful viewpoints—would still have the right to speak freely, pray freely, assemble freely, challenge the government freely, and broadcast his views in the press freely.

This freedom for those in the unpopular minority constitutes the ultimate tolerance in a free society. Conversely, as I make clear in my book Battlefield America: The War on the American Peoplewhen we fail to abide by Madison’s dictates about greater tolerance for all viewpoints, no matter how distasteful, the end result is always the same: an indoctrinated, infantilized citizenry that marches in lockstep with the governmental regime.

Some of this past century’s greatest dystopian literature shows what happens when the populace is transformed into mindless automatons. For instance, in George Orwell’s 1984, Big Brother does away with all undesirable and unnecessary words and meanings, even going so far as to routinely rewrite history and punish “thoughtcrimes.”

Where we stand now is at the juncture of OldSpeak (where words have meanings, and ideas can be dangerous) and Newspeak (where only that which is “safe” and “accepted” by the majority is permitted). The power elite has made their intentions clear: they will pursue and prosecute any and all words, thoughts and expressions that challenge their authority.

This is the final link in the police state chain.

If ever there were a time for us to stand up for the right to speak freely, even if it’s freedom for speech we hate, the time is now.

WC: 2655

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at http://www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

PUBLICATION GUIDELINES / REPRINT PERMISSION

John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact staff@rutherford.org to obtain reprint permission.

This commentary is available at: http://rutherford.org/publications_resources/john_whiteheads_commentary/freedom_for_the_speech_we_hate_the_legal_ins_and_outs_of_the_right_to_

 

“What are the defenders of free speech to do? The sad fact is that this fundamental freedom is on its heels across America. Politicians of both parties want to use the power of government to silence their foes. Some in the university community seek to drive it from their campuses. And an entire generation of Americans is being taught that free speech should be curtailed as soon as it makes someone else feel uncomfortable. On the current trajectory, our nation’s dynamic marketplace of ideas will soon be replaced by either disengaged intellectual silos or even a stagnant ideological conformity. Few things would be so disastrous for our nation and the well-being of our citizenry.”—William Ruger, “Free Speech Is Central to Our Dignity as Humans

As a nation, we have a tendency to sentimentalize cultural icons in death in a way that renders them non-threatening, antiseptic and easily digested by a society with an acute intolerance for anything controversial, politically incorrect or marred by imperfection.

This revisionist history—a silent censorship of sorts—has proven to be a far more effective means of neutralizing radicals such as Martin Luther King Jr. than anything the NSA, CIA or FBI could dream up.

In life, King called for Americans to rise up against a government that was not only treating blacks unfairly but was also killing innocent civilians, impoverishing millions, and prioritizing the profits of war over human rights and dignity. This was a man who went to jail over racial segregation laws, encouraged young children to face down police dogs and water hoses, and who urged people to turn their anger loose on the government through civil disobedience. King actually insisted that people have a moral responsibility to disobey unjust laws.

In death, however, King has been reduced to a face on a national monument and a national holiday, neither of which even hint at the true nature of the man: fiery, passionate, single-minded in his pursuit of justice, unwilling to remain silent in the face of wrongdoing, and unafraid of offending those who might disagree with him.

A contemporary of King’s, heavy-weight championship boxer Muhammad Ali followed a different path as a social activist and “breaker of boundaries.” Like King, Ali didn’t pull any punches when it came to saying what he believed and acting on it. Yet already, in the wake of Ali’s passing, we’re being treated to a sentimentalized version of the heavy-weight boxer.

In life, Ali was fast-talking, fast-moving and as politically incorrect as they come. He became an early convert to the Nation of Islam, a black separatist religious movement whose membership at one time included Malcolm X and Louis Farrakhan. He denounced his “slave name” (Cassius Marcellus Clay) and refused to be the “white man’s Negro.”

He was stripped of his boxing title, arrested and threatened with five years in prison and a fine of $10,000 after refusing to be drafted into the Army as a conscientious objector to the Vietnam War. “My conscience won’t let me go shoot my brother, or some darker people, or some poor hungry people in the mud for big powerful America,” declared Ali. “And shoot them for what? They never called me nigger, they never lynched me, they didn’t put no dogs on me, they didn’t rob me of my nationality, rape and kill my mother and father. … Shoot them for what? How can I shoot them poor people? Just take me to jail.”

As First Amendment scholar David L. Hudson Jr. notes, “Ali’s remarkable career and life placed him at the vortex of these First Amendment freedoms… Ali freely exercised his religious faith. He regularly spoke provocatively on a variety of topics. The press was abuzz with coverage and criticism. Thousands assembled in support of him, and the champion himself took part in rallies, parades and marches. Some petitioned the government to redress the injustice of his conviction for refusing military service, which resulted in his being exiled from the boxing ring for his beliefs.”

It took a legal battle all the way to the U.S. Supreme Court for Ali’s religious objections to serving in the Army to be given credence and his First Amendment arguments to prevail. The case was Clay v. United States.

That was in 1971.

Forty-five years later, Ali is dead, fear is alive, and free speech is being dealt one knock-out punch after another.

Indeed, talk-show celebrity Piers Morgan has been soundly trounced and roundly censured for daring to suggest that Ali—a champion of the First Amendment who liberally peppered his speech with words (nigger and Uncle Tom) and opinions (“the white man is the Devil“ and “I’m sure no intelligent white person watching this show … want black boys and black girls marrying their white sons and daughters“) that would horrify most of his politically correct fans—made more “inflammatory/racist” comments than Donald Trump.

Speaking of Trump, in Fresno, California, a third-grader was ordered to remove his pro-Trump “Make America Great Again” hat because school officials feared for his safety. The 9-year-old boy refused, citing the First Amendment.

That was the same argument—a concern for safety—officials used in 2010 when they ordered several high school students to remove their t-shirts emblazoned with the American flag. The concern: wearing the flag on Cinco de Mayo, a Mexican day of celebration, might offend Hispanic students attending the school. The U.S. Supreme Court agreed with the school’s logic. Coincidentally, that same week, the high court also ruled against Confederate flag license plates on the grounds that they constituted government speech and might be offensive to African-Americans.

For those of us who came of age in the 1960s, college campuses were once the bastion of free speech, awash with student protests, sit-ins, marches, pamphleteering, and other expressive acts showing our displeasure with war, the Establishment and the status quo.

Today, on college campuses across the nation, merely chalking the word “Trump” on the sidewalk is enough to have student groups crying foul and labeling it as hate speech in need of censorship. Under the misleading guise of tolerance, civility, love and political correctness, college campuses have become hotbeds of student-led censorship, trigger warningsmicroaggressions, and “red light” speech policies targeting anything that might cause someone to feel uncomfortable, unsafe or offended.

As I point out in my book Battlefield America: The War on the American People, this doesn’t even begin to touch on the criminalization and surveillance of various forms of speech that the government deems to be hateful, anti-government, extremist, bullying, dangerous or inflammatory.

One could say that we have allowed our fears—fear for our safety, fear of each other, fear of being labeled racist or hateful or prejudiced, etc.—to trump our freedom of speech and muzzle us far more effectively than any government edict could.

Ultimately the war on free speech—and that’s exactly what it is: a war being waged by Americans against other Americans—is a war that is driven by fear.

America is in the midst of an epidemic of historic proportions. The contagion being spread like wildfire is turning communities into battlegrounds and setting Americans one against the other. Normally mild-mannered individuals caught up in the throes of this disease have been transformed into belligerent zealots, while others inclined to pacifism have taken to stockpiling weapons and practicing defensive drills.

This plague on our nation—one that has been carefully cultivated and spread by the powers-that-be—is a potent mix of fear coupled with unhealthy doses of paranoia and intolerance, tragic hallmarks of the post-9/11 America in which we live.

Everywhere you turn, those on both the left- and right-wing are fomenting distrust and division. You can’t escape it. We’re being fed a constant diet of fear: fear of terrorists, fear of illegal immigrants, fear of people who are too religious, fear of people who are not religious enough, fear of the government, fear of those who fear the government. The list goes on and on.

The strategy is simple yet brilliant: the best way to control a populace is through fear and discord. Confound them, distract them with mindless news chatter and entertainment, pit them against one another by turning minor disagreements into major skirmishes, and tie them up in knots over matters lacking in national significance. Most importantly, keep the people divided so that they see each other as the enemy and screaming at each other so that they drown out all other sounds. In this way, they will never reach consensus about anything or hear the corporate state as it closes in on them.

This is how a freedom-loving people enslave themselves and allow tyrants to prevail.

This Machiavellian scheme has so ensnared the nation that few Americans even realize they are being manipulated into adopting an “us” against “them” mindset. Instead, fueled with fear and loathing for phantom opponents, they pour millions of dollars and resources into political elections, hoping for change that never comes. All the while, those in power—bought and paid for by lobbyists and corporations—move their costly agendas forward, and “we the suckers” get saddled with the tax bills.

We have been down this road before.

A classic example is the fear and paranoia that gripped the country during the 1950s. Many huddled inside their homes and fallout shelters, awaiting a nuclear war. It was also the time of the Red Scare. The enemy this time was Communist infiltration of American society.

Joseph McCarthy, a young Republican senator, grasped the opportunity to capitalize on the popular paranoia for personal national attention. In a speech in February 1950, McCarthy alleged having a list of over 200 members of the Communist Party “working and shaping the policy of the U.S. State Department.” The speech was picked up by the Associated Press, without substantiating the facts, and within a few days the hysteria began.

McCarthy specialized in sensational and unsubstantiated accusations about Communist infiltration of the American government, particularly the State Department. He also targeted well-known Hollywood actors and directors, trade unionists and teachers. Many others were brought before the inquisitional House Committee on Un-American Activities for questioning. Regarded as bad risks, the accused struggled to secure employment. The witch hunt ruined careers, resulting in suicides, and tightened immigration to exclude alleged subversives.

“McCarthyism” eventually smeared all the accused with the same broad brush, whether the evidence was good, bad or nonexistent. McCarthy, like many do today, appealed to the low instincts of envy, paranoia and dislike for the intellectual establishment.

“The real scoundrel in all this,” writes historian David Halberstam, “was the behavior of the members of the Washington press corps, who, more often than not, knew better. They were delighted to be a part of his traveling road show, chronicling each charge and then moving on to the next town, instead of bothering to stay behind and follow up. They had little interest in reporting how careless McCarthy was or how little it all meant to him.”

However, on March 9, 1954, Edward R. Murrow, the most-respected newsman on television at the time, broke the ice. He attacked McCarthy on his weekly show, See It Now. Murrow interspersed his own comments and clarifications into a damaging series of film clips from McCarthy’s speeches. Murrow ended the broadcast with one of the greatest news commentaries of all time, also a warning.

We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine; and remember that we are not descended from fearful men. Not from men who feared to write, to speak, to associate, and to defend causes that were for the moment unpopular.

This is no time for men who oppose Senator McCarthy’s methods to keep silent, or for those who approve. We can deny our heritage and our history, but we cannot escape responsibility for the result. There is no way for a citizen of a republic to abdicate his responsibilities. As a nation we have come into our full inheritance at a tender age. We proclaim ourselves, as indeed we are, the defenders of freedom, wherever it continues to exist in the world, but we cannot defend freedom abroad by deserting it at home. The actions of the junior Senator from Wisconsin have caused alarm and dismay amongst our allies abroad, and given considerable comfort to our enemies. And whose fault is that? Not really his. He didn’t create this situation of fear; he merely exploited it—and rather successfully. Cassius was right. ”The fault, dear Brutus, is not in our stars, but in ourselves.” 

Support the work of The Rutherford Institute with a tax-deductible donation today.

Support the work of The Rutherford Institute with a tax-deductible donation today.

Whether you’re talking about free speech, surveillance, police misconduct or some other symptom of a government that has grown drunk on its own power, the answer is always the same: “we the people.”

We need to reject fear as our guiding principle, and restore freedom to its rightful place at the center of our republic.

As William Ruger writes in a powerful editorial for Time:

We must vigorously re-make the case for free speech. We must recur to its great defenders from ages past and reintroduce their ideas to our fellow Americans. The wisdom of John Milton, John Locke and John Stuart Mill—not to mention that of Americans like George Mason and Justice Louis Brandeis—is as true today as it was in their times. We just have to remember it… we must transmit an understanding of the value of free speech to today’s Americans in order to ensure that it is protected for future generations. And perhaps even more importantly, we need to demonstrate a vigorous commitment to free speech. America’s success depends on whether we continue to embrace this fundamental freedom.

RICHMOND, Va. — A settlement has been reached in a lawsuit filed by The Rutherford Institute on behalf of a man who was arrested as he was engaged in a First Amendment protest against President Obama while lawfully carrying a rifle. The settlement in Brandon Howard v. John Hunter resolved the lawsuit to the mutual satisfaction of the parties, which included claims that the police violated Howard’s First Amendment right to free speech, Second Amendment right to bear arms, and Fourth Amendment right to be free from a groundless arrest when they confronted him with guns drawn and ordered him to the ground on the unfounded belief that Howard was violating the law by being in public with a rifle slung over his shoulder. Soon after the incident, the City of Hopewell Police Department admitted in writing that the incident involved a violation of department policy. The settlement included an apology by the defendant police officer acknowledging respect for citizens’ First and Second Amendment rights and stating “[it] was not my intention to compromise Mr. Howard’s rights under the Constitution.”

The Rutherford Institute’s complaint in Brandon Howard v. John Hunter is available at www.rutherford.org.

Battlefield_Cover_300“As this case shows, if you feel like you can’t walk away from a police encounter of your own volition—and more often than not you can’t, especially when you’re being confronted by someone armed to the hilt with all manner of militarized weaponry and gear—then for all intents and purposes, you’re under arrest from the moment a cop stops you,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Certainly, if you’ve been placed in handcuffs and transported to a police station against your will, that constitutes an arrest.”

According to the complaint filed in the U.S. District Court for the Eastern District of Virginia, on Monday, Aug. 26, 2013, Brandon Howard arrived at an overpass above Interstate 295 in the City of Hopewell, Va., and displayed a 6 foot by 4 foot sign that read “Impeach Obama.” Howard was carrying a DMTS Panther Arms AR-15 rifle slung over his shoulder on a strap, and a .380 caliber Bersa Thunder sidearm pistol in a belted holster on his waist. Howard lawfully owned each firearm and did not point or brandish them at any time while engaged in his First Amendment protest activity on the overpass. Howard displayed his protest sign for 30 minutes, but Howard did not directly engage with anyone.

At about 5:30 p.m., a police officer pulled up to the area, remained in his car and observed Howard. Thereafter, three to five additional police cruisers arrived at the scene with emergency lights engaged. Approximately eight officers exited these vehicles with their guns drawn and ordered Howard to drop his sign and get on the ground with his hands spread above his head. Howard complied with the officers’ orders. Howard explained that he had not threatened anyone but was simply exercising his First and Second amendment rights. Howard was then handcuffed and transported to the police station, where he was left, handcuffed, in an interrogation room for 90 minutes, after which time he had his firearms returned and was released. A month later, the Deputy Chief of Police acknowledged in writing that an internal investigation had concluded that one of the officers violated department policy and would be disciplined and sent to remedial training. Attorney Raul Novo of Richmond, Va., assisted The Rutherford Institute with the lawsuit and settlement.

CASE HISTORY

March 11, 2016: VICTORY: Police Settle Rutherford Institute Lawsuit Over Activist Held at Gun, Handcuffed and Arrested for Lawfully Carrying a Rifle During a Protest

October 22, 2015: Victory: Court Gives Green Light to Lawsuit over Activist Held at Gun Point by Police, Handcuffed and Arrested for Lawfully Carrying a Rifle During a Protest

September 25, 2015: Virginia Police Insist That Activist Was Not Under Arrest Even Though He Was Held at Gun Point by Police, Handcuffed and Taken to the Police Station

November 17, 2014: Citing 1st, 2nd & 4th Amendments, Rutherford Institute Sues Virginia Police for Violating Obama Protester’s Right to Free Speech and Lawful Gun Ownership