Posts Tagged ‘Thomas Paine’

“If you can’t say ‘Fuck’ you can’t say, ‘Fuck the government.’” ― Lenny Bruce

Not only has free speech become a four-letter word—profane, obscene, uncouth, not to be uttered in so-called public places—but in more and more cases, the government deems free speech to be downright dangerous and in some instances illegal.

The U.S. government has become particularly intolerant of speech that challenges the government’s power, reveals the government’s corruption, exposes the government’s lies, and encourages the citizenry to push back against the government’s many injustices.

Indeed, there is a long and growing list of the kinds of speech that the government considers dangerous enough to red flag and subject to censorship, surveillance, investigation and prosecution: hate speech, bullying speech, intolerant speech, conspiratorial speech, treasonous speech, threatening speech, incendiary speech, inflammatory speech, radical speech, anti-government speech, right-wing speech, extremist speech, etc.

Yet by allowing the government to whittle away at cherished First Amendment freedoms—which form the backbone of the Bill of Rights—we have evolved into a society that would not only be abhorrent to the founders of this country but would be hostile to the words they used to birth this nation.

Don’t believe me?

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 as a Supreme power, portrays the government as evil, and provides a detailed laundry list of abuses that are as relevant today as they were 240 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 in Portland, Oregon, where radio “shock jock” Pete Santilli, a new media journalist who broadcasts his news reports over YouTube and streaming internet radio, is sitting in jail.

Santilli, notorious for his controversial topics, vocal outrage over government abuses, and inflammatory rhetoric, is not what anyone would consider an objective reporter. His radio show, aptly titled “Telling You the Truth…Whether You Like It or Not,” makes it clear that Santilli has a viewpoint (namely, that the government has overstepped its bounds), and he has no qualms about sharing it with his listeners.

It was that viewpoint that landed Santilli in jail.

In early January 2016, a group of armed activists, reportedly protesting the federal government’s management of federal lands and its prosecution of two local ranchers convicted of arson, staged an act of civil disobedience by occupying the Malheur National Wildlife Refuge in Burns, Oregon. Santilli, who has covered such protests in the past, including the April 2014 standoff in Nevada between the Bundy ranching family and the federal government over grazing rights, reported on the occupation in Burns as an embedded journalist, albeit one who was sympathetic to the complaints (although not the tactics) of the occupiers.

When asked to clarify his role in relation to the occupation, Santilli declared, “My role is the same here that it was at the Bundy ranch. To talk about the constitutional implications of what is going on here. The Constitution cannot be negotiated.”

Well, it turns out that the Constitution can be negotiated, at least when the government gets involved.

Long a thorn in the side of the FBI, Santilli was arrested by the FBI following its ambush and arrest of key leaders of the movement. He was charged, along with the armed resistors, with conspiracy to impede federal officers from discharging their duties by use of force, intimidation, or threats—the same charge being levied against those who occupied the refuge—which carries a maximum sentence of six years in prison.

Notably, Santilli is the only journalist among those covering the occupation to be charged with conspiracy, despite the fact that he did not participate in the takeover of the refuge, nor did he ever spend a night on the grounds of the refuge, nor did he ever represent himself as anything but a journalist covering the occupation.

Of course, the government doesn’t actually believe that 50-year-old Santilli is an accomplice to any criminal activity.

Read between the lines and you’ll find that what the government is really accusing Santilli of is employing dangerous speech. As court documents indicate, the government is prosecuting Santilli solely as a reporter of information. In other words, they’re making an example of him, which is consistent with the government’s ongoing efforts to intimidate members of the media who portray the government in a less than favorable light.

This is not a new tactic.

During the protests in Ferguson, Missouri, and Baltimore, Maryland, numerous journalists were arrested while covering the regions’ civil unrest and the conditions that spawned that unrest. These attempts to muzzle the press were clearly concerted, top-down efforts to restrict the fundamental First Amendment rights of the public and the press.

As The Huffington Post reports:

The Obama administration’s treatment of reporters has caused controversy before. In 2009, the Department of Justice targeted a Fox News reporter in an investigation. Three years later, DOJ seized Associated Press reporters’ phone records. After that, former Attorney General Eric Holder ordered a review of the Justice Department’s news media policies. DOJ employees must consult with a unit within the Criminal Division before they arrest someone when there is a “question regarding whether an individual or entity is a ‘member of the news media,’” according to a January 2015 memo from Holder to DOJ employees.”

That the government is choosing to target Santilli for prosecution, despite the fact that they do not recognize new media journalists as members of the mainstream media, signals a broadening of the government’s efforts to suppress what it considers dangerous speech and stamp out negative coverage.

The message is clear: whether a journalist is acting alone or is affiliated with an established news source, the government has no qualms about subjecting them to harassment, arrest, jail time and trumped up charges if doing so will discourage others from openly opposing or exposing the government.

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.

Where the government has gone wrong is in hinging its case against Santilli based solely on his incendiary rhetoric, which is protected by the First Amendment and which bears a striking resemblance to disgruntled patriots throughout American history.

Here’s what Santilli said: “What we need, most importantly, is one hundred thousand unarmed men and women to stand together. It is the most powerful weapon in our arsenal.”

Now compare that with the call to action from Joseph Warren, a leader of the Sons of Liberty and a principal figure within the American Revolution: “Stain not the glory of your worthy ancestors, but like them resolve never to part with your birthright; be wise in your deliberations, and determined in your exertions for the preservation of your liberties. Follow not the dictates of passion, but enlist yourselves under the sacred banner of reason; use every method in your power to secure your rights.”

Indeed, Santilli comes across as relatively docile compared to some of our nation’s more outspoken firebrands.

Santilli: “I’m not armed. I am armed with my mouth. I’m armed with my live stream. I’m armed with a coalition of like-minded individuals who sit at home and on YouTube watch this.”

Now compare that to what George Washington had to say: “Unhappy it is, though, to reflect that a brother’s sword has been sheathed in a brother’s breast and that the once-happy plains of America are either to be drenched with blood or inhabited by slaves. Sad alternative! But can a virtuous man hesitate in his choice?”

And then there was Andrew Jackson, a hothead if ever there was one. He came of age in the early days of the republic, served as the seventh president of the United States, and was not opposed to shedding blood when necessary: “Peace, above all things, is to be desired, but blood must sometimes be spilled to obtain it on equable and lasting terms.”

This is how freedom rises or falls.

There have always been those willing to speak their minds despite the consequences. Where freedom hangs in the balance is when “we the people” are called on to stand with or against individuals who actually exercise their rights and, in the process, push the envelope far enough to get called out on the carpet for it.

Do we negotiate the Constitution, or do we embrace it, no matter how uncomfortable it makes us feel, no matter how hateful or ugly it gets, and no matter how much we may dislike its flag-bearers?

Comedian Lenny Bruce laid the groundwork for the George Carlins that would follow in his wake: foul-mouthed, insightful, irreverent, incredibly funny, and one of the First Amendment’s greatest champions who dared to “speak the unspeakable” about race, religion, sexuality and politics. As Village Voice writer Nat Hentoff attests, Bruce was “not only a paladin of free speech but also a still-penetrating, woundingly hilarious speaker of truth to the powerful and the complacent.”

Bruce died in 1966, but not before being convicted of alleged obscenity for challenging his audience’s covert prejudices by brandishing unmentionable words that, if uttered today, would not only get you ostracized but could get you arrested and charged with a hate crime. Hentoff, who testified in Bruce’s defense at his trial, recounts that Lenny used to say, “What I wanted people to dig is the lie. Certain words were suppressed to keep the lie going. But if you do them, you should be able to say the words.”

Not much has changed in the 50 years since Bruce died. In fact, it’s gotten worse.

What we’re dealing with today is a government that wants to suppress dangerous words—words about its warring empire, words about its land grabs, words about its militarized police, words about its killing, its poisoning and its corruption—in order to keep its lies going.

As I document in my book Battlefield America: The War on the American People, what we are witnessing is a nation undergoing a nervous breakdown over this growing tension between our increasingly untenable reality and the lies being perpetrated by a government that has grown too power-hungry, egotistical, militaristic and disconnected from its revolutionary birthright.

The only therapy is the truth and nothing but the truth.

Otherwise, there will be no more First Amendment. There will be no more Bill of Rights. And there will be no more freedom in America as we have known it.

As the insightful and brash comedian George Carlin observed:

“Rights aren’t rights if someone can take them away. They’re privileges. That’s all we’ve ever had in this country, is a bill of temporary privileges. And if you read the news even badly, you know that every year the list gets shorter and shorter. Sooner or later, the people in this country are gonna realize the government does not give a fuck about them! The government doesn’t care about you, or your children, or your rights, or your welfare or your safety. It simply does not give a fuck about you! It’s interested in its own power. That’s the only thing. Keeping it and expanding it wherever possible.”

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“A body of men holding themselves accountable to nobody ought not to be trusted by anybody.”―Thomas Paine

At a time when the courts are increasingly giving deference to the police and prioritizing security over civil liberties, the U.S. Supreme Court’s ruling in Millbrook v. United States is a glimmer of hope in a sea of gloom.

Handed down on the second day of the Court’s same-sex marriage arguments, Millbrook has been largely overshadowed by the debate over marriage equality. However, this ruling should not be overlooked—not only for what it says about the need to hold law enforcement officials accountable to abiding by the law, but more importantly for what it says about the extent to which the government has given itself free rein to abuse the law, immune from reproach.

In its ruling in Millbrook v. United States, a unanimous U.S. Supreme Court concluded that the U.S. government may be held liable for abuses intentionally carried out by law enforcement officers—whether they’re police officers or prison guards—in the course of their employment. Critics of the government’s tactics hope the Court’s ruling will send a strong message to the government’s various law enforcement agencies that they need to do a better job of policing their employees and holding them accountable to respecting citizens’ rights, especially while on the job.

The facts in Millbrook are particularly egregious.

Kim Lee Millbrook is serving a 31-year sentence, reportedly for drug and gun-related charges along with witness intimidation. On March 1, 2010, Millbrook was transferred to a high-security federal prison in Lewisburg, Pa., which specializes in dealing with inmates who are highly disruptive and difficult to manage, including gang leaders. On March 4, 2010, a few days after being installed at the Special Management Unit (SMU) in Lewisburg, Millbrook and his cellmate got into a fight and were temporarily placed in a shower area. Then, according to Millbrook, three prison guards escorted him to the basement holding-cell area, where one guard choked him until he almost lost consciousness and a second guard made Millbrook perform oral sex on him, while a third guard stood watch by the door. Conveniently, no video cameras were monitoring the basement at the time of the alleged assault.

Although Millbrook claims the guards threatened to kill him if he reported the incident, he filed a complaint with prison officials, which then led to a formal investigation. During the course of the investigation, a prison physician determined that Millbrook did not show signs of having been choked, a prison psychologist concluded that Millbrook did not exhibit trauma consistent with a sexual assault, and the prison guards and Millbrook’s cellmate all testified to having no knowledge of any such assault taking place against him. Prison officials also noted that Millbrook had filed a similar complaint against guards at his previous prison, which was eventually dismissed when the charges could not be substantiated.

A non-lawyer relatively well-versed in navigating the legal system, Millbrook turned to the courts for relief in January 2011, suing the federal government for $1.5 million in damages for negligence, assault and battery and requesting a transfer out of the Lewisburg facility.

Neither the federal district court nor the Third Circuit Court of Appeals proved to be receptive to Millbrook’s argument that the prison guards should be held liable under a provision of the Federal Torts Claim Act (FTCA), which allows individuals to sue federal law enforcement officials for misconduct. As reporter Ailsa Chang explains:

Under the law, the government allows itself to be sued when a government representative commits a tort. A tort is an act done negligently or intentionally that results in injury to someone. However, if the tort was intentional, the law does not allow the lawsuit to proceed — except in cases where the defendant is a law enforcement official. And even in those cases, the federal government can be liable only if the officer was acting “within the scope of his office or employment.”

Although both courts noted that the prison guards’ alleged behavior was troubling, they ducked the issue and dismissed the case on the grounds that the federal government has sovereign immunity—that is, although an egregious wrong may have been committed by a government employee, they cannot be held liable for money damages for their behavior. Specifically, the courts reasoned that the FTCA only applies to “police officers” while they are in the process of making an arrest or seizure, or executing a search.

Undeterred, Millbrook filed a handwritten petition, in pencil no less, to the U.S. Supreme Court, and in a rare show of magnanimity, the Court agreed to hear his case and assigned a lawyer to represent him. Curiously enough, after the Court announced it could hear the case, the U.S. Justice Department—which had defended the government’s actions at every level of the judicial proceedings, including asking the Supreme Court not to take the case—did an about-face and switched its position to argue that the FTCA does apply to prison guards as law-enforcement officials.

The Supreme Court’s subsequent ruling, written by Justice Clarence Thomas, is a technical analysis of the FTCA, to whom it applies and in what circumstances. The bottom line, according to the nine justices in a rare show of agreement, is that the lower courts misconstrued the FTCA, which clearly provides for the government to be held accountable for wrongdoing carried out by law enforcement officials in its employ while on the job. (Although even the FTCA, it must be said, is notable for the many exceptions it provides to shield government officials from wrongdoing.)

Having been given the green light for his lawsuit to proceed, Millbrook still has an uphill battle ahead of him. Indeed, Millbrook has to prove to the lower courts that he was, in fact, sexually assaulted by the guards. Whether or not his allegations prove to be true, however, his case is a painful reminder that such kinds of abuses are not only par for the course in our nation’s overcrowded prisons but are often tolerated by prison officials.

Inmate Jens Soering’s insightful book One Day in the Life of 179212: Notes from an American Prison (Lantern Books, 2012), with its accounts of therapeutic beatings, rapes and the sense that one is in constant peril, may be the most vivid first-person portrait of the failure of America’s penal system to date. As Soering writes:

“Repeated anonymous surveys have determined that 20 percent of all inmates are forced to have sex each year, and 10 percent are violently raped. The overwhelming majority of these crimes are never reported: a silence maintained out of fear of retaliation from the perpetrators and because of the indifference of prison officials.  In 2004, only 8,210 sexual assaults were documented, even though correctional experts testifying at a U.S. Senate hearing in 2003 estimated the actual number of cases to range from 250,000 to 600,000per year.”

The question that we must ask ourselves is what kind of government not only turns a blind eye to such abuses but absolves itself of any responsibility for righting such wrongs?

The answer is a government whose system of “checks and balances” has given way to a concerted effort by all branches of the government, including the courts, to maintain their acquired powers at all costs. Looked at from this perspective, while Millbrook was, indeed, a welcome respite from the Supreme Court’s usual practice of giving law enforcement officials a “get out of jail free” card, it may prove in the long run to be little more than a bone tossed to a dog, a small concession amidst a sea of abuses.

Jeff Bucholtz, the lawyer who argued against Millbrook and in favor of government immunity, didn’t appear to view the ruling as much of a loss. Responding to the assertion that the Millbrook ruling ensures that the “government now has a direct pocketbook interest in stopping this kind of behavior,” Bucholtz pointed out that “FTCA judgments are paid by an unlimited fund provided by Congress, so it doesn’t hurt prison guards or their supervisors when judgments are paid out under the statute.”

In other words, it’s just business as usual, with the taxpayer forced to pay the penalty for the government’s misdeeds. In days gone by, this payment to right a wrong was called “blood money,” and it was paid by the guilty party to his victim. Could it be that the government has managed to slip the noose from around its own neck, leaving us to hang for the crime—figuratively speaking, of course? — John W. Whitehead