Thursday, December 07, 2006

A Shot Over the First Amendment's Bow

The commotion has already died down concerning last month's shot over the First Amendment bow by Newt Gingrich, former speaker of the U.S House of Representatives. There was a great deal of commentary on the Web, but next to no news coverage beyond the Union Leader, which had the original story. This suggests it is not being taken seriously; but it should be taken as seriously as any potential risk to our Constitution and way of life.

Indicator 1: What a forum for it! An event specifically dedicated to the First Amendment, at which a newspaper, in fact, was honored for setting public service ahead of advertising revenues. If that is not a shot over the bow, what is?

Indictor 2: Possible signs of an echo chamber at work.

Example 1: A few days before the Gingrich remarks, I happened to attend a specialized legal forum where one attorney, well known in his industry, opined that "The First Amendment may well be a bad idea." This is not on the Web; but I do have it on tape. The context was in light of the personal pain that news coverage sometimes causes individuals who find themselves in the news.

Example 2: A few days ago, a similar idea cropped up in an exchange on a liberal "humor" blog that I see see occasionally, . The proprietor of this site enjoys taking on reactionary types who send him email. I take the liberty of quoting the full exchange; the incoming email is in bold italic, and Bartcop's rsponses in plain italic. I "bleeped" the profanity, as I don't want it on my blog.

Subject: [U] Scumbag
Classification: UNCLASSIFIED
Yeah I got a comment for you mother f****r.

I always like hearing from my fans in the military.

You don't like how Mr. Bush is running things, to bad. He is the boss.

It's my understanding that you have to say that, since you're on active duty. When will you be free to express thoughts of your own?

Its reasons like you that I don't believe the U.S. should have freedom of speech amendments.

You're a soldier who don't believe in the US Constitution?
Isn't that like a nun who doesn't believe in God?
The Military oath is just once sentence and it includes the words:
"I will support and defend
the Constitution of the United States
against all enemies, foreign and domestic..."
When you took that oath, were your fingers crossed?

OK, so we have a similar meme that the First Amendment is illegitimate coming from three very different sources within a short period. Three data points are not definitive, but it's something to keep an eye on.

Here are extracts from the original article on the Gingrich speech, and from a followup run by the same newsaper:

Union Leader Staff
Tuesday, Nov. 28, 2006

MANCHESTER – Former Speaker of the House Newt Gingrich yesterday said the country will be forced to reexamine freedom of speech to meet the threat of terrorism
Gingrich...said a "different set of rules" may be needed to reduce terrorists' ability to use the Internet and free speech to recruit and get out their message.

"We need to get ahead of the curve before we actually lose a city, which I think could happen in the next decade," said Gingrich...

Gingrich spoke... last night at the annual Nackey S. Loeb First Amendment award dinner, which fetes people and organizations that stand up for freedom of speech.

...The Citizen of Laconia was given the Nackey S. Loeb First Amendment Award, which is named after the longtime President and Publisher of the Union Leader Corporation, owner of New Hampshire's statewide newspaper.

The Citizen scrutinized the Newfound Area School Board beginning last year over a series of e-mail discussions held before public meetings. It also used the right-to-know law to uncover costly decisions by the town of Tilton this year.

Executive Editor John Howe said the decision to pursue the stories led to at least one advertiser canceling its business with the paper.

"We try to practice what we preach, even if it costs us business," Howe said...

On the other side, Gingrich also reportedly had some things to say about ways the country could further promote free expression -- specifically, by getting rid of campaign finance restrictions and breaking down the wall between church and state.

The followup article elaborates, based on a speech text posted on Gingrich's website:

Gingrich suggested that country should "look seriously at a level of supervision that we would never dream of if it weren't for the scale of threats....

"This is a serious problem that will lead to a serious debate about the First Amendment, but I think that the national security so real that we need to proactively, now, develop the appropriate rules of engagement.....

"This is a sober topic, but I think it is a topic we need a national dialogue about, and we need to get ahead of the curve..."

Gingrich yesterday elaborated:

Union Leader December 6 2006
Newt Gingrich

... free speech should not be an acceptable cover for people who are planning to kill other people...

...The fact is not all speech is permitted under the Constitution. The 1st Amendment does not protect lewd and libelous speech, and it should not -- and cannot in 2006 -- be used as a shield for murderers.
...We need a serious dialogue...about the 1st Amendment, what it protects and what it should not protect. Here are a few baseline principles to consider:

We should be allowed to close down Web sites that recruit suicide bombers and provide instructions to indiscriminately kill civilians by suicide or other means, or advocate killing people from the West or the destruction of Western civilization;

Wait a minute here...only people from the West? And "Western civilization"?

We should propose a...convention for fighting terrorism that makes very clear that those who would fight outside the rules of law, those who would use weapons of mass destruction and those who would target civilians are in fact subject to a totally different set of rules...

Those who use weapons of mass destruction? Like government officials, among others?

...this convention should define the international rules of engagement on what activities will not be protected by free speech claims; and

We need an expeditious review of current domestic law to see what changes can be made within the protections of the 1st Amendment to ensure that free speech protection claims are not used to protect the advocacy of terrorism, violent conduct or the killing of innocents.

As Gingrich points out, there can be and are already rules within the First Amendment to protect against specific abuses of free speech, so why attack the First Amendment? Moreover, such high-sounding intentions too easily devolve into suppression of speech with which the authorities disagree.

For the sake of personal libery, Americans have always assumed a certain amount of personal risk, from the Founders -- who risked hanging for treason -- on down.

Or to repeat, with apologies to Partick Henry, "Is life so dear, and security so sweet, as to be purchased at the price of chains and slavery?"

Or in a homelier vein -- if your roof is leaking, it does not follow that you need to tear down the house.

"Eternal vigilance is the price of liberty," and here's another case to keep an eye on.


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