Gingrich on Free Speech and the GWOT

[aricbcool]

He's not very specific, but I thought it might make for some good discussion. What do y'all think?

http://www.unionleader.com/article.a...0-bbcd5baedd78

Gingrich raises alarm at event honoring those who stand up for freedom of speech
By RILEY YATES
Union Leader Staff
19 hours ago

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, speaking at a Manchester awards banquet, 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, a Republican who helped engineer the GOP's takeover of Congress in 1994.

Gingrich spoke to about 400 state and local power brokers 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 rest of the article is unrelated and available at the link posted above. --Aric)

[incommin]

I know I am old and have brain farts from time to time. But will someone please explain how limiting free speech will help fight terrorists!

Jim

[tk27]

I would like to see the transcript of his speech. I had hoped Newt would run in the primary, I don't like the sound of this.

What do y'all think?

Without specifics and likely with specifics I would be opposed to this.
While I never cared for the thinking, doesn't POTUS say "They hate us because of our freedom"? Isn't this caving to "them"?

[aricbcool]

Originally Posted by tk27

Without specifics and likely with specifics I would be opposed to this.
While I never cared for the thinking, doesn't POTUS say "They hate us because of our freedom"? Isn't this caving to "them"?

I was thinking less about specifics and more about what would you/could you change in our free speech laws that would actually curb terrorism? Furthermore, what line do we draw in the sand in regards to taking away liberty? I agree with what you're saying about letting them win by taking away freedom.
It always reminds me of the word "terrorist", i.e. to instill fear. For every law we change, and freedom we take away due to fear of attack, they win a victory.

--Aric

[JMI]

Rule I always live by:

Any rights you give up to the governmenrt you can kiss goodbye, because you are not getting them back.

Just remember that "Freedom of Speech" as it is interpreted by the Courts and Media today isn't exactly the same "Freedom of Speech" as envisioned in the US Constitution. Treason and sedition mean anything?

[CoLawman]

Originally Posted by Greenhat

Just remember that "Freedom of Speech" as it is interpreted by the Courts and Media today isn't exactly the same "Freedom of Speech" as envisioned in the US Constitution. Treason and sedition mean anything?

I agree, and this posting on the Drudge report is yet one more "leak" that Newt should have cited as an example of how the First Amendment is hurting our GWOT. The PRESS using classified information should not be protected by the First Amendment.

http://www.nytimes.com/2006/11/29/wo...gewanted=print

Fault lies within the National Security Council for being unable to determine the staff member who leaked this information. The number of people handling that document is finite.

His comment regarding "...losing a city" I take as hyperbole. He is certainly bold in his statements, which increases his risk of being marginalized in his pursuit of the Presidency.

[x SF med]

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


Some opinions that are filed on this:

“But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic or moral.”74 The fixing of a standard is necessary, by which it can be determined what degree of evil is sufficiently substantial to justify resort to abridgment of speech and press and assembly as a means of protection and how clear and imminent and likely the danger is.75 That standard has fluctuated over a period of some fifty years now and it cannot be asserted with a great degree of confidence that the Court has yet settled on any firm standard or any set of standards for differing forms of expression.76 The cases are instructive of the difficulty.

Clear and Present Danger.—Certain expression, oral or written, may incite, urge, counsel, advocate, or importune the commission of criminal conduct; other expression, such as picketing, demonstrating, and engaging in certain forms of “symbolic” action may either counsel the commission of criminal conduct or itself constitute criminal conduct. Leaving aside for the moment the problem of “speech–plus” communication, it becomes necessary to determine when expression that may be a nexus to criminal conduct is subject to punishment and restraint. At first, the Court seemed disposed in the few cases reaching it to rule that if the conduct could be made criminal, the advocacy of or promotion of the conduct could be made criminal.77 Then, in Schenck v. United States,78 in which defendants had been convicted of seeking to disrupt recruitment of military personnel by dissemination of certain leaflets, Justice Holmes formulated the “clear and present danger” test which has ever since been the starting point of argument. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”79 The convictions were unanimously affirmed. One week[p.1037]later, the Court again unanimously affirmed convictions under the same Act with Justice Holmes speaking. “[W]e think it necessary to add to what has been said in Schenck v. United States . . . only that the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counseling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.”80 And in Debs v. United States,81 Justice Holmes was found referring to “the natural and intended effect” and “probable effect” of the condemned speech in common–law tones.

But in Abrams v. United States,82 Justices Holmes and Brandeis dissented upon affirmance of the convictions of several alien anarchists who had printed leaflets seeking to encourage discontent with United States participation in the War. The majority simply referred to Schenck and Frohwerk to rebut the First Amendment argument, but the dissenters urged that the Government had made no showing of a clear and present danger. Another affirmance by the Court of a conviction, the majority simply saying that “[t]he tendency of the articles and their efficacy were enough for the offense,” drew a similar dissent.83 Moreover, in Gitlow v. New York,84 a conviction for distributing a manifesto in violation of a law making it criminal to advocate, advise, or teach the duty, necessity, or propriety of overthrowing organized government by force or violence, the Court affirmed in the absence of any evidence regarding the effect of the distribution and in the absence of any contention that it created any immediate threat to the security of the State. In so doing, the Court discarded Holmes’ test. “It is clear that the question in such cases [as this] is entirely different from that involved in those cases where the statute merely prohibits certain acts involving the danger of substantive evil, without any reference to language itself, and it is sought to apply its provisions to language used by the defendant for the purpose of bringing about the prohibited results. . . . In such cases it has been held that the general provisions of the statute may be constitutionally applied to the specific utterance of the defendant if its natural tendency and probable effect was to bring about the substantive evil which the[p.1038]legislative body might prevent. . . . [T]he general statement in the Schenck Case . . . was manifestly intended . . . to apply only in cases of this class, and has no application to those like the present, where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character.”85 Thus, a state legislative determination “that utterances advocating the overthrow of organized government by force, violence, and unlawful means, are so inimical to the general welfare, and involve such danger of substantive evil that they may be penalized in the exercise of its police power” was almost conclusive on the Court.86 It is not clear what test, if any, the majority would have utilized, although the “bad tendency” test has usually been associated with the case. In Whitney v. California,87 the Court affirmed a conviction under a criminal syndicalism statute based on defendant’s association with and membership in an organization which advocated the commission of illegal acts, finding again that the determination of a legislature that such advocacy involves “such danger to the public peace and the security of the State” was entitled to almost conclusive weight. In a technical concurrence which was in fact a dissent from the opinion of the Court, Justice Brandeis restated the “clear and present danger” test. “[E]ven advocacy of violation [of the law] . . . is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on . . . . In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.”88

[x SF med]

Seditious Speech and Seditious Libel.—Opposition to government through speech alone has been subject to punishment throughout much of history under laws proscribing “seditious” utterances. In this country, the Sedition Act of 1798 made criminal, inter alia, malicious writings which defamed, brought into contempt or disrepute, or excited the hatred of the people against the Government, the President, or the Congress, or which stirred peo[p.1132]ple to sedition.90 In New York Times Co. v. Sullivan,91 the Court surveyed the controversy surrounding the enactment and enforcement of the Sedition Act and concluded that debate “first crystallized a national awareness of the central meaning of the First Amendment. . . . Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history . . . . [That history] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.” The “central meaning” discerned by the Court, quoting Madison’s comment that in a republican government “the censorial power is in the people over the Government, and not in the Government over the people,” is that “[t]he right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.”

Little opportunity to apply this concept of the “central meaning” of the First Amendment in the context of sedition and criminal syndicalism laws has been presented to the Court. In Dombrowski v. Pfister92 the Court, after expanding on First Amendment grounds the discretion of federal courts to enjoin state court proceedings, struck down as vague and as lacking procedural due process protections certain features of a state “Subversive Activities and Communist Control Law.” In Brandenburg v. Ohio,93 a state criminal syndicalism statute was held unconstitutional because its condemnation of advocacy of crime, violence, or unlawful methods of terrorism swept within its terms both mere advocacy as well as incitement to imminent lawless action. A seizure of books, pamphlets, and other documents under a search warrant pursuant to[p.1133]a state subversives suppression law was struck down under the Fourth Amendment in an opinion heavy with First Amendment overtones.94

Fighting Words and Other Threats to the Peace.—In Chaplinsky v. New Hampshire,95 the Court unanimously sustained a conviction under a statute proscribing “any offensive, derisive, or annoying word” addressed to any person in a public place under the state court’s interpretation of the statute as being limited to “fighting words”— i.e., to “words . . . [which] have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” The statute was sustained as “narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.”96 The case is best known for Justice Murphy’s famous dictum. “[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well–defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”97

Chaplinsky still remains viable for the principle that “the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so–called ‘fighting words,’ those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.”98 But, in actuality, the Court has closely scrutinized statutes on vagueness and overbreadth[p.1134]grounds and set aside convictions as not being within the doctrine. Chaplinsky thus remains formally alive but of little vitality.99

On the obverse side, the “hostile audience” situation, the Court once sustained a conviction for disorderly conduct of one who refused police demands to cease speaking after his speech seemingly stirred numbers of his listeners to mutterings and threatened disorders.100 But this case has been significantly limited by cases which hold protected the peaceful expression of views which stirs people to anger because of the content of the expression, or perhaps because of the manner in which it is conveyed, and that breach of the peace and disorderly conduct statutes may not be used to curb such expression.

The cases are not clear to what extent the police must go in protecting the speaker against hostile audience reaction or whether only actual disorder or a clear and present danger of disorder will entitle the authorities to terminate the speech or other expressive conduct.101 Neither, in the absence of incitement to illegal action, may government punish mere expression or proscribe ideas,102 regardless of the trifling or annoying caliber of the expression.103

[x SF med]

Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.


The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

Opinions:

The Kawakita Case.—Kawakita v. United States1302 was decided on June 2, 1952. The facts are sufficiently stated in the following headnote: “At petitioner’s trial for treason, it appeared that originally he was a native–born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport; and was prevented by the outbreak of war from returning to this country. During the war, he reached his majority in Japan; changed his registration from American to Japanese, showed sympathy with Japan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused American prisoners of war who were forced to work there. After Japan’s surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American passport.” The question whether, on this record Kawakita had intended to renounce American citizenship, said the Court, in sustaining conviction, was peculiarly one for the jury and their verdict that he had not so intended was based on sufficient evidence. An American citizen, it continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation.1303

[p.827]
Doubtful State of the Law of Treason Today

The vacillation of Chief Justice Marshall between the Bollman1304 and Burr1305 cases and the vacillation of the Court in the Cramer1306 and Haupt1307 cases leave the law of treason in a somewhat doubtful condition. The difficulties created by the Burr case have been obviated to a considerable extent through the punishment of acts ordinarily treasonable in nature under a different label,1308 within a formula provided by Chief Justice Marshall himself in the Bollman case. The passage reads: “Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution . . . must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation.”1309

Clause 2. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

CORRUPTION OF THE BLOOD AND FORFEITURE
The Confiscation Act of 1862 “to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of[p.828]Rebels”1310 raised issues under Article III, Sec. 3, cl.2. Because of the constitutional doubts of the President, the act was accompanied by an explanatory joint resolution which stipulated that only a life estate terminating with the death of the offender could be sold and that at his death his children could take the fee simple by descent as his heirs without deriving any title from the United States. In applying this act, passed in pursuance of the war power and not the power to punish treason,1311 the Court in one case1312 quoted with approval the English distinction between a disability absolute and perpetual and one personal or temporary. Corruption of blood as a result of attainder of treason was cited as an example of the former and was defined as the disability of any of the posterity of the attained person “to claim any inheritance in fee simple, either as heir to him, or to any ancestor above him.”1313

[Team Sergeant]

Originally Posted by CoLawman

I agree, and this posting on the Drudge report is yet one more "leak" that Newt should have cited as an example of how the First Amendment is hurting our GWOT. The PRESS using classified information should not be protected by the First Amendment.

http://www.nytimes.com/2006/11/29/wo...gewanted=print

Fault lies within the National Security Council for being unable to determine the staff member who leaked this information. The number of people handling that document is finite.

His comment regarding "...losing a city" I take as hyperbole. He is certainly bold in his statements, which increases his risk of being marginalized in his pursuit of the Presidency.

I've thought about that and I've come to the conclusion that whatever the press can get their hands on they should be allowed to print. The ones that leaked this "classified" information should be the ones held accountable, not the press.

If not for any other reason they are showing us a weakness in our system and thats where we should be drawing the line.

And having read volumes and volumes of "classified" information I have little doubt we "over" classify way too much. Hell, go and download Google Earth, the satellite images they have now made "free" to the world were classified "top secret" just a few years ago.

Let's place the blame on those that leak the secrets, lets start throwing senators and congressmen in jail for treason when they reveal classified info to the press.

My .02

Team Sergeant

[Team Sergeant]

Originally Posted by JMI

Rule I always live by:

Any rights you give up to the governmenrt you can kiss goodbye, because you are not getting them back.

And I thought you were in college......

I could cite issue after issue, right after right that the mean old government took away and that we now have back............

Careful who you listen to and learn to think for yourself. What you have written sounds as if its coming from a bunch of beer drinking rednecks, and stupid ones at that.

TS

[incommin]

"Let's place the blame on those that leak the secrets, lets start throwing senators and congressmen in jail for treason when they reveal classified info to the press."

I would like to see that happen. But I do not think it will.......they, meaning all the branches of our government, leak info when it suites their political need. Aids leak at the nod of their bosses. No one wants to start looking too deeply and start punishing becasue that could come back to haunt them. It is like the earmarks/pork. They talk but will not act. They like it the way it is.

It will not stop until enough Americans get angry and demand a house cleaning.

My 2 cents.

Jim

Originally Posted by Team Sergeant

I've thought about that and I've come to the conclusion that whatever the press can get their hands on they should be allowed to print. The ones that leaked this "classified" information should be the ones held accountable, not the press.

If not for any other reason they are showing us a weakness in our system and thats where we should be drawing the line.

And having read volumes and volumes of "classified" information I have little doubt we "over" classify way too much. Hell, go and download Google Earth, the satellite images they have now made "free" to the world were classified "top secret" just a few years ago.

Let's place the blame on those that leak the secrets, lets start throwing senators and congressmen in jail for treason when they reveal classified info to the press.

My .02

Team Sergeant

I agree entirely. Unfortunately, I don't think anyone has had a charge of treason brought against them in a very, very long time.

[tk27]

Originally Posted by aricbcool

I was thinking less about specifics and more about what would you/could you change in our free speech laws that would actually curb terrorism? Furthermore, what line do we draw in the sand in regards to taking away liberty?

I think most efforts would directed at the internet. Deny their publicity and propaganda efforts, the net levels the playing field in disseminating information. Curb recruitment, networking, and mobilization efforts on the net, target web forums and mass mailings. Curb the proliferation of "dangerous information". I'm not really sure how we would do this, but would predict that we would be perpetually behind the curve given the history of other internet regulatory efforts.


Greenhat, CoLawman, Team Sergeant -
Isn't leaking a tool? The article CoLaw posted seems like a subtle way of sending a message to Mr. Maliki. Not saying I like it, but isn't that the way the game is played? Wouldn't we already have serious measures to curb it if it wasnt a tool?