Chill­ing free speech

The mar­ket­place of ideas is in the federal cross hairs

The Washington Times Weekly - - Commentary - By Andrew P. Napoli­tano

hilling” is the word lawyers use to de­scribe gov­ern­men­tal be­hav­ior that does not di­rectly in­ter­fere with con­sti­tu­tion­ally pro­tected free­doms, but rather tends to de­ter folks from ex­er­cis­ing them. Clas­sic ex­am­ples of “chill­ing” oc­curred in the 1970s, when FBI agents and U.S. Army soldiers, in busi­ness suits with badges dis­played or in full uni­form, showed up at an­ti­war ral­lies and pro­ceeded to pho­to­graph and tape-record pro­test­ers. When an um­brella group of pro­test­ers sued the govern­ment, the Supreme Court dis­missed the case, rul­ing that the pro­test­ers lacked stand­ing — mean­ing, be­cause they could not show that they were ac­tu­ally harmed, they could not in­voke the federal courts for re­dress.

Yet they were harmed, and the govern­ment knew it. Years af­ter he died, long­time FBI boss J. Edgar Hoover was quoted boast­ing of the suc­cess of this pro­gram. The harm ex­isted in the pause or sec­ond thoughts that pro­test­ers gave to their con­tem­plated be­hav­ior be­cause they knew the feds would be in their faces — fig­u­ra­tively and lit­er­ally. The govern­ment’s goal, and its limited suc­cess, was to de­ter dis­sent with­out ac­tu­ally in­ter­fer­ing with it. Even the govern­ment rec­og­nized that phys­i­cal in­ter­fer­ence with and le­gal pros­e­cu­tions of pure speech are pro­hib­ited by the First Amend­ment. Even­tu­ally, when this was ex­posed as part of a huge govern­ment plot to sti­fle dis­sent, known as COIN­TEL­PRO, the govern­ment stopped do­ing it. Un­til now. Now the govern­ment fears the ver­bal slings and ar­rows of dis­senters, even as the means for pro­mul­gat­ing one’s crit­i­cisms of the govern­ment in gen­eral and of Pres­i­dent Obama in par­tic­u­lar have been re­fined and en­hanced far be­yond those avail­able to the crit­ics of the govern­ment in the 1970s.

What has the Obama ad­min­is­tra­tion done to sti­fle, or chill, the words of its de­trac­tors? For starters, it has sub­poe­naed the emails and home tele­phone records of jour­nal­ists who have ei­ther chal­lenged it or ex­posed its dark se­crets. Among those jour­nal­ists are James Risen of The New York Times and my col­league and friend James Rosen of Fox News. This is more per­sonal than the Na­tional Se­cu­rity Agency spy­ing on ev­ery­one, be­cause a sub­poena is an an­nounce­ment that a spe­cific per­son’s words or ef­fects have been tar­geted by the govern­ment, and that per­son continues to re­main in the govern­ment’s cross hairs un­til it de­cides to let go.

This ne­ces­si­tates hir­ing le­gal coun­sel and pay­ing le­gal fees. Yet, the tar­get­ing of Mr. Risen and Mr. Rosen was not be­cause the feds al­leged that they broke the law. There were no such al­le­ga­tions. Rather, the feds wanted to see their sources and their means of ac­quir­ing in­for­ma­tion. What jour­nal­ist could per­form his work with the feds watch­ing? The rea­son we have a First Amend­ment is to en­sure that no jour­nal­ist would need to en­dure that.

Two weeks ago, a no­to­ri­ous pot-stir­rer in Nor­folk, Neb., built a mock out­house, put it on a truck and drove the truck with per­mis­sion in a lo­cal Fourth of July pa­rade. In front of the out­house, he placed a man­nequin that he claimed looked like him­self, and on the out­house, he posted a sign that stated: “Obama Pres­i­den­tial Li­brary.”

Some thought this was crude, and some thought it was funny; yet it is fully pro­tected speech. It is pro­tected be­cause satire and opin­ion about pub­lic fig­ures are ab­so­lutely pro­tected, as well as is all crit­i­cism of the govern­ment. Still, the Depart­ment of Jus­tice has sent a team to in­ves­ti­gate this event be­cause a lo­cal of­fi­cial called it racist. Such an al­le­ga­tion by a pub­lic of­fi­cial and such a federal in­ves­ti­ga­tion are chill­ing. The rea­son we have a First Amend­ment is to en­sure that the govern­ment stays out of in­ves­ti­gat­ing speech.

Just last week, At­tor­ney Gen­eral Eric H. Holder Jr., while in Lon­don, opined that much of the crit­i­cism of Mr. Obama is based on race — mean­ing that if Mr. Obama were fully white, his crit­ics would be silent. This is highly in­flam­ma­tory, grossly mis­lead­ing, patently with­out ev­i­den­tial sup­port and, yet again, chill­ing. Tag­ging some­one as a racist is the po­lit­i­cal equiv­a­lent of ap­ply­ing paint that won’t come off. Were the Democrats who crit­i­cized At­tor­ney Gen­eral Al­berto Gon­za­les or Sec­re­tary of State Con­doleezza Rice racists? Is it ap­pro­pri­ate for govern­ment of­fi­cials to frighten people into si­lence by giv­ing them pause be­fore they speak, dur­ing which they ba­si­cally ask them­selves whether the crit­i­cism they are about to hurl is worth the pain the govern­ment will soon in­flict in re­tal­i­a­tion?

The whole pur­pose of the First Amend­ment is to per­mit, en­cour­age and even fo­ment open, wide, ro­bust de­bate about the poli­cies and per­son­nel of the govern­ment. That amend­ment pre­sumes that in­di­vid­u­als — not the govern­ment — will de­cide what lan­guage to read and hear. Be­cause of that amend­ment, the mar­ket­place of ideas — not the govern­ment — will de­ter­mine which crit­i­cisms will sink in and st­ing, and which will fall by the way­side and be for­got­ten.

Surely, govern­ment of­fi­cials can use words to de­fend them­selves; in fact, one would hope they would. Yet when the people fear ex­er­cis­ing their ex­pres­sive lib­er­ties be­cause of how the gov­ern­men­tal tar­gets they crit­i­cize might use the power of the govern­ment to sti­fle them, we are no longer free.

Ex­press­ing ideas, no mat­ter how bold or brazen, is the per­sonal ex­er­cise of a nat­u­ral right that the govern­ment in a free so­ci­ety is pow­er­less to touch, di­rectly or in­di­rectly. How­ever, when the govern­ment suc­ceeds in di­min­ish­ing pub­lic dis­course so that it only con­tains words and ideas of which the govern­ment ap­proves, it will have suc­ceeded in es­tab­lish­ing tyranny. This tyranny — if it comes — will not come about overnight. It will be­gin in baby steps and tri­umph be­fore we know it.

Yet we do know that it al­ready has be­gun. Andrew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is an an­a­lyst for the Fox News Chan­nel. He has writ­ten seven books on the U.S. Con­sti­tu­tion.


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