John W. Whitehead, Constitutional Attorney

“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.”