The gritty, ev­ery­day strug­gle for free­dom of ex­pres­sion.

The Washington Post Sunday - - OUTLOOK - book­world@wash­ David Cole teaches con­sti­tu­tional law at Georgetown Univer­sity Law Cen­ter.

De­spite the stern ad­mo­ni­tion that “Congress shall make no law ... abridg­ing the free­dom of speech,” speech has never been ab­so­lutely free. Ev­ery democ­racy must iden­tify where the needs of the col­lec­tive or of in­jured in­di­vid­u­als jus­tify lim­its on speech. In re­cent years, courts, leg­is­la­tures and ex­ec­u­tive of­fi­cials have strug­gled with many dif­fi­cult First Amend­ment ques­tions: how to rec­on­cile the right to en­gage in po­lit­i­cal cam­paign ad­vo­cacy with the prin­ci­ple that democ­racy should not be for sale; how to main­tain a ro­bust and un­in­hib­ited ex­change on the In­ter­net while de­ter­ring bul­ly­ing, stalk­ing, fraud and threats; how to pro­tect and in­form con­sumers with­out interfering with the speech rights of busi­ness own­ers; and whether speech and as­so­ci­a­tion can be made crimes in the name of coun­ter­ing sup­port for ter­ror­ism.

But free­dom of speech in­volves much more than the head­line cases that reach the Supreme Court. We all regularly con­front free speech is­sues in a more gen­eral sense in our daily lives. How should a school re­spond to a stu­dent’s or a teacher’s racist, sex­ist or sim­ply vul­gar re­mark? Who should de­ter­mine what books are ap­pro­pri­ate for English classes in high school? What lim­its should par­ents im­pose on our chil­dren’s ac­cess to the In­ter­net? Does the de­mand for tol­er­ance re­quire us to tol­er­ate the ex­pres­sion of in­tol­er­ant views?

In “Free­dom of Speech,” for­mer New York Times re­porter David K. Shipler fo­cuses on such ev­ery­day con­tro­ver­sies. Over more than 300 pages, Shipler men­tions, in pass­ing, only three Supreme Court cases. His in­ter­est lies not in First Amend­ment doc­trine but in the dy­nam­ics of speech dis­putes in or­di­nary life. Those seek­ing an an­a­lyt­i­cal un­der­stand­ing of First Amend­ment law will find no an­swers here. In­stead, Shipler of­fers an on-the-ground, anec­do­tal por­trait of an eclec­tic and rich mix of speech con­tro­ver­sies. He cov­ers lo­cal bat­tles over books in schools and li­braries; the fate of a po­lit­i­cally sen­si­tive play in a Jewish theater in Washington; re­sponses to racially in­sen­si­tive re­marks by public and pri­vate fig­ures; and the role of re­li­gious or­ga­ni­za­tions in po­lit­i­cal cam­paigns.

Shipler is a prize-win­ning jour­nal­ist, and the strength of his book lies in his will­ing­ness to in­ves­ti­gate the facts and his abil­ity to por­tray vividly the real-life quan­daries that peo­ple at the cen­ter of free speech bat­tles of­ten face. He of­fers com­pelling por­traits, for ex­am­ple, of two whistle­blow­ers, Thomas Tamm and Thomas Drake. Both men were sub­jected to crim­i­nal in­ves­ti­ga­tions for dis­clos­ing to jour­nal­ists in­for­ma­tion about the top-se­cret Na­tional Se­cu­rity Agency. Tamm was the tar­get of a multi-year in­ves­ti­ga­tion, although he was never charged. Drake was in­dicted for re­veal­ing clas­si­fied in­for­ma­tion but even­tu­ally pleaded guilty only to a mis­de­meanor when the gov­ern­ment’s case col­lapsed. Through Shipler’s sym­pa­thetic de­pic­tions, one be­gins to un­der­stand the dev­as­tat­ing per­sonal costs that whistle­blow­ers of­ten must bear and to ap­pre­ci­ate the courage of men like Tamm and Drake.

A com­pelling chap­ter de­picts the com­mu­nity of self­ap­pointed guardians who make a busi­ness of is­su­ing im­pas­sioned, McCarthy like warn­ings about Is­lamist con­spir­a­cies to take over the United States. Shipler in­tro­duces us to Frank Gaffney Jr. of the Cen­ter for Se­cu­rity Pol­icy; John Guan­dolo, a for­mer FBI agent; and Steven Emer­son, who runs the In­ves­tiga­tive Pro­ject on Ter­ror­ism Web site. All main­tain that the Mus­lim Brother­hood is en­gaged in an in­ter­na­tional con­spir­acy, through a va­ri­ety of front or­ga­ni­za­tions, to in­sin­u­ate it­self into Amer­i­can life and achieve Is­lamist world dom­i­na­tion. Shipler at­tends an all-day train­ing ses­sion run by Guan­dolo on how to ad­vance these anti-Mus­lim views in the media, and he tracks down the sources these so-called ex­perts rely upon to back up their over­heated claims.

He finds that the cen­tral doc­u­ment un­der­ly­ing most of the claims is a 15-page “ex­plana­tory memo” found in an FBI search of an An­nan­dale, Va., home in 2004. Signed by Mo­hamed Akram, a mem­ber of the Palestine Com­mit­tee of the Mus­lim Brother­hood, it de­scribes the Brother­hood’s goal as “a kind of grand Ji­had in elim­i­nat­ing and de­stroy­ing the Western civ­i­liza­tion from within” and in­cludes a list of “our or­ga­ni­za­tions and the or­ga­ni­za­tions of our friends,” nam­ing some of the most well-es­tab­lished, main­stream Mus­lim groups in the United States. Gaffney calls it “the Rosetta stone for the Mus­lim Brother­hood.” Shipler shows that in fact the doc­u­ment is noth­ing more than a thought piece drafted by a sin­gle in­di­vid­ual in the early 1990s, and that there is no ev­i­dence it was ever con­sid­ered, much less adopted, by the Mus­lim Brother­hood or any­one else. Shipler’s re­search shows that other sup­posed ev­i­dence of the grand Is­lamist con­spir­acy is sim­i­larly spec­u­la­tive.

This chap­ter, much like the book as a whole, il­lus­trates the free­dom of speech at work. Gaffney, Guan­dolo and Emer­son are, of course, ex­er­cis­ing their First Amend­ment rights, but in do­ing so they pose a real threat to the po­lit­i­cal free­doms of oth­ers, as they tar with un­jus­ti­fied sus­pi­cion Mus­lim civic or­ga­ni­za­tions that are en­gaged in the pro­mo­tion of civil lib­er­ties, re­li­gious free­dom and Mus­lim iden­tity, not ter­ror­ism. Shipler’s re­sponse is not to call for the sup­pres­sion of the con­spir­acy the­o­rists’ speech, but sim­ply to demon­strate that their claims are vastly ex­ag­ger­ated and un­sub­stan­ti­ated. In short, he an­swers their speech with his speech. An ob­jec­tive reader can­not help but come away with a bet­ter un­der­stand­ing of the truth. This is the free­dom of speech at its best.

At times, how­ever, Shipler’s ac­count is weak­ened by his own bi­ases. Per­haps be­cause of his ca­reer as a jour­nal­ist, he is so par­tial to whistle­blow­ers that he barely ac­knowl­edges the very real harms that unau­tho­rized dis­clo­sures of se­crets can some­times in­flict. Whistle­blow­ing has, to be sure, re­vealed many trou­bling se­crets and ex­posed gov­ern­ment fraud and crim­i­nal­ity. But there is such a thing as an ir­re­spon­si­ble leak, and not all crim­i­nal in­ves­ti­ga­tions and pros­e­cu­tions of leakers are in­her­ently mis­guided.

To take one ex­am­ple, Shipler writes briefly of an in­ves­ti­ga­tion into an As­so­ci­ated Press story dis­clos­ing that the CIA had a dou­ble agent within the in­ner cir­cle of al-Qaeda in the Ara­bian Penin­sula and had thereby foiled a ter­ror­ist at­tack. The story served lit­tle pur­pose in ad­vanc­ing public de­bate and un­der­mined our abil­ity to counter an or­ga­ni­za­tion that posed a con­tin­u­ing threat. Yet Shipler’s ac­count barely men­tions the po­ten­tial dan­gers of the dis­clo­sure and in­stead crit­i­cizes the gov­ern­ment for un­der­tak­ing “the most ex­ten­sive sweep of jour­nal­ists’ records in Amer­i­can history.” What did that en­tail? Ob­tain­ing records of the phone num­bers called by the AP of­fices in­volved in writ­ing the story dur­ing the rel­e­vant time pe­riod. What Shipler does not say is that pros­e­cu­tors did so only af­ter first ex­haust­ing all other al­ter­na­tives, hav­ing in­ter­viewed more than 500 wit­nesses over eight months with­out find­ing the per­pe­tra­tor. Once the phone records were ob­tained, the per­pe­tra­tor, an FBI agent, was iden­ti­fied in short or­der, and pleaded guilty not only to un­law­ful dis­clo­sure of se­crets but also to pos­sess­ing and dis­tribut­ing child pornog­ra­phy. Yet Shipler presents this jus­ti­fied re­sponse to a wholly un­jus­ti­fied leak as gov­ern­ment over­reach­ing.

It does not help that Shipler fol­lows this story by stat­ing that “re­porters who are asked to sup­press a story can­not ac­cu­rately pre­dict the im­pact of do­ing so or of go­ing ahead and pub­lish­ing. Nor should they try.” That sug­ges­tion — re­jected by ev­ery news or­ga­ni­za­tion of which I am aware — im­plies that keep­ing in­for­ma­tion se­cret is never war­ranted. While gov­ern­ments cer­tainly tend to over clas­sify in­for­ma­tion, it hardly fol­lows that there are no le­git­i­mate se­crets. Just as free speech is not an ab­so­lute, so the right an­swer is not al­ways to dis­close.

On this sub­ject, at least, Shipler’s in­ves­ti­ga­tion of free speech would have been more nu­anced had he ac­knowl­edged the truly dif­fi­cult trade-offs that the free­dom of speech of­ten presents. But over­all, Shipler adds valu­able and il­lu­mi­nat­ing de­tail to the on­go­ing story of Amer­ica’s First Amend­ment.


Whistle­blower Thomas Drake, left, gave jour­nal­ists top-se­cret Na­tional Se­cu­rity Agency in­for­ma­tion. Frank J. Gaffney Jr. has warned of a con­spir­acy by theMus­lim Brother­hood to in­fil­trate U.S. so­ci­ety. David Shipler ex­am­ines the free speech is­sues that both cases present.


FREE­DOM OF SPEECH Might­ier Than the Sword By David K. Shipler Knopf. 336 pp. $28.95

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