Once upon a time in America . . .
It used to be the case in America that we protected freedom of speech, even when the speakers were people whose ideas the majority of us found detestable. Sometimes, people even went to war and died to protect this freedom. We did this not because we valued the specific speech of each person, but because we valued freedom. We did this because we knew that sometimes the majority does what it does because it’s mislead, or temporarily under the sway of a demagogue. And while the content of a particular speaker’s speech may make us angry enough to spit, it would at least make us think; even the most reprehensible of speakers served to remind us why we valued freedom, even if we didn’t value them.
This American brand of tolerance extended — in 1969, at least — to the most vile of people, groups and messages, including the Ku Klux Klan.
Nineteen-sixty-nine. That was the year the United States Supreme Court decided the case of a Klan leader convicted under the Ohio Criminal Syndicalism statute.
Criminal Syndicalism statutes are not entirely dissimilar to the modern use of gang injunctions. Basically, it’s a way of targeting people the police don’t like, or whom they think are doing things they don’t like which may, but often don’t, include crimes. What you do is make it illegal for them to talk to other people and/or associate with other people whom the police also don’t like. By creating criminal syndicalism laws — or using public nuisance injunctions against gangs — the police don’t have to deal with that pesky little thing we call “the Constitution.” They get to arrest people for doing things that they, the police, don’t like, without any irritating limitations like due process of law or probable cause and they can convict people without any miserable need to supply proof beyond a reasonable doubt that they have committed any actual crimes. Essentially, they haul people before a judge and say, “Can we lock this person up?” The judge asks why and the police say, “Well, we think he [or she] might be doing something wrong.” And away they go. (Think I’m kidding? Take a look at how the City of Sanger, California, is using gang injunctions to eliminate any future need for even reasonable cause to search Mexican-Americans at will.)
In Brandenburg v. Ohio 395 U.S. 444 [89 S.Ct. 1827, 23 L.Ed.2d 430] (1969), the KKK leader had telephoned a news station and told them about a rally to be held at a farm in Hamilton County, in Ohio. Subsequent films made by the news station — this was back in the days when there really were such things as news stations, by the way, so we don’t need “scare quotes” here — showed that Brandenburg had said some pretty nasty things. For example, he said,
This is an organizer’s meeting. . .. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengence taken. Brandenburg, supra, 395 U.S. 444, at p. 446.
He also said, “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.” (Brandenburg, supra, 395 U.S. 444, at p. 447; for the record, the writer of this blog is a Jew who has never been to Israel, let alone lived there.) Admittedly, pretty horrid stuff. And, while some people in the crowd were seen to be carrying weapons, the speaker was not.
At that time, California — lover of criminal syndicalism acts, gang injunctions and $15 billion dollar credit cards for Terminators of Fiscal Responsibility — had already had a case called Whitney v. People of California 274 U.S. 357 (1927), which had upheld the right of the California legislature to make hanging out with the wrong people illegal. The State, of course, determined who fit the description “wrong people.” Naturally, these were people Californians — particularly the good Republicans who were in power at the time — didn’t like; people, for example, who might criticize the government, such as the political party to which Ms. Whitney belonged. This was particularly important because some people in that political party advocated changing the government and getting rid of the Republicans — and some of them, though not Ms. Whitney, advocated doing this by any means necessary.
Now, you might agree with the California Supreme Court in Whitney when they said,
[T]he freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom; and . . . a State in the exercise of its police power may punish those who abuse this freedom . . .. Whitney, supra, 274 U.S. 357, at p. 371.
After all, the political party we’re talking about here wasn’t the Republican Party. And, today in America — just as in California under Republican Governors Stephens, Richardson and Young — only the Republican Party has a right to speak, regardless of the truth, or consequences, of that speech. Everyone else has to “shut the f*ck up” because “there ought to be limits to freedom.”
At any rate, in Brandenburg, the United States Supreme Court pointed out that,
Whitney has been thoroughly discredited by later decisions. These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v. United States, 367 U.S. 290, 297 -298 (1961), “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” (Brandenburg, supra, 395 U.S. 444, at pp. 447-448, citations and footnotes omitted.)
Thus, the Supreme Court in Brandenburg reversed the conviction of this KKK leader who had said nasty things and called people bad names. The Court held that,
[W]e are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled. Brandenburg, supra, 395 U.S. 444, at p. 449, footnote omitted.
As Justice Douglas noted in his concurring opinion,
While I join the opinion of the Court, I desire to enter a caveat.
* * *
Whether the war power — the greatest leveler of them all — is adequate to sustain that doctrine is debatable. The dissents in Abrams, Schaefer, and Pierce show how easily “clear and present danger” is manipulated to crush what Brandeis called “[t]he fundamental right of free men to strive for better conditions through new legislation and new institutions” by argument and discourse even in time of war. Though I doubt if the “clear and present danger” test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace.
The Court quite properly overrules Whitney v. California, 274 U.S. 357, which involved advocacy of ideas which the majority of the Court deemed unsound and dangerous. Brandenburg, supra, 395 U.S. 444, at pp. 451-452, citation omitted.
Today, however, the Republican Party has discovered a threat worse than the KKK.
F.B.I. officials are urging agents to canvass their communities for information about planned disruptions aimed at the [Republican] convention and other coming [Republican] political events. Eric Lichtblau, “F.B.I. Goes Knocking for Political Troublemakers,” The New York Times (August 16, 2004).
This is particularly important because, as the story notes, some people might demonstrate against the Republican Party at the convention. Imagine. And some of them use the Internet for “everything from violent resistance to [gasp!] Internet fund-raising and [gasp!] recruitment.” John Kerry and John Edwards, for example, are reported to have a website.
As some of the people being contacted by the F.B.I. said,
[T]hey are mystified by the bureau’s interest and felt harassed by questions about their political plans.
“The message I took from it,” said Sarah Bardwell, 21, an intern at a Denver antiwar group who was visited by six investigators a few weeks ago, “was that they were trying to intimidate us into not going to any protests and to let us know that, ‘hey, we’re watching you.'” Lichtblau, supra.
Although some F.B.I. agents complained that this improperly blurred the line between freedom of speech and illegal activity, the office which previously authorized the use of torture against terrorists in some circumstances said that,
Given the limited nature of such public monitoring, any possible “chilling” effect caused by the bulletins would be quite minimal and substantially outweighed by the public interest in maintaining safety and order during large-scale demonstrations. Lichtblau, supra.
While that office has since decided that torture is, after all, wrong to use even against terrorists, they have not backed down on monitoring because they’re only infiltrating seriously harmful groups of elderly school teachers, like Peace Fresno, and visiting the homes of 15-year-old doodlers. And there’s no chilling effect on freedom of speech in that.
With the F.B.I. given more authority after the Sept. 11 attacks to monitor public events, the tensions over the convention protests, coupled with the Justice Department’s own legal analysis of such monitoring, reflect the fine line between protecting national security in an age of terrorism and discouraging political expression. Lichtblau, supra.
September 11. There you have it. This is why we must silence the Democrats. This is why more than two-hundred years of freedom must be sacrificed. This is why the Constitution, upon which this country was founded, must be put into the shredder.
As Bush might say, “It’s emperor-ative, er, imperative. If we don’t destroy our country, the terrorists will!”
You can’t argue with that logic now, can you?