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Various items: free speech v 'community', lawlessness in Libya, sprawling surveillance state

Glenn Greenwald

The core western political liberty is being slowly eroded by a toxic combination of the worst human attributes

October 14, 2012

(updated below)

Extensive travel will likely prevent me from writing much this weekend, but there are several brief items worthy of note:

(1) In Sunday's Washington Post, law professor Jonathan Turley has a superb Op-Ed on the gradual death of free speech in the west, and he places the blame squarely where it belongs: on the veneration of "sensitivities" over the free flow of ideas, and relatedly, the adolescent need on the part of many adults to plead with authority figures to shield them from views they find offensive. His essay is well worth reading in full, but here is the crux:

"Free speech is dying in the western world. While most people still enjoy considerable freedom of expression, this right, once a near-absolute, has become less defined and less dependable for those espousing controversial social, political or religious views. The decline of free speech has come not from any single blow but rather from thousands of paper cuts of well-intentioned exceptions designed to maintain social harmony. . . .

"Of course, free speech is often precisely about pissing off other people challenging social taboos or political values. . . .

"Such efforts focus not on the right to speak but on the possible reaction to speech a fundamental change in the treatment of free speech in the West. The much-misconstrued statement of Justice Oliver Wendell Holmes that free speech does not give you the right to shout fire in a crowded theater is now being used to curtail speech that might provoke a violence-prone minority. Our entire society is being treated as a crowded theater, and talking about whole subjects is now akin to shouting 'fire!' . . . .

"The very right that laid the foundation for western civilization is increasingly viewed as a nuisance, if not a threat. Whether speech is deemed inflammatory or hateful or discriminatory or simply false, society is denying speech rights in the name of tolerance, enforcing mutual respect through categorical censorship.

"As in a troubled marriage, the west seems to be falling out of love with free speech. Unable to divorce ourselves from this defining right, we take refuge instead in an awkward and forced silence."

I'm accused with some frequency of focusing my critiques on the US - the reason I do so is set forth here in reasoning I adopt in full - but vibrant free speech protection is a core liberty which the US, though very far from perfect, still safeguards better than most countries.

What has always driven repression of speech are the same universal human traits that are now flourishing as part of this latest effort: the tyrannical thirst for the power to silence ideas one dislikes, the self-regarding belief that one can apply objective principles of decency, "community" and Goodness to decide which modes of expression and which ideas should be barred, authoritarian trust in leaders, and worst of all the refusal to understand that endorsing repression of ideas leaves one with no principled grounds to object when one's own ideas end up on the prohibited list.

Throughout history, it has often been the case that today's "hate speech" becomes tomorrow's enlightenment. Today's "incitement" becomes tomorrow's righteous subversion of unjust authority and flawed orthodoxies.

Add to all that the ignoble tendency to object to - or even recognize the existence of - repression only when it affects one directly (a dynamic I described here when writing about the inability of many passive, obedient western citizens to acknowledge the repression of their own governments because such citizens are never the ones targeted for repression), and it's clear that the opposition to free expression is grounded in the worst of human attributes.

In sum, it takes a staggering amount of hubris to believe you're in any position to decide which ideas are so objectively and permanently wrong that they should be barred. It takes an equally staggering amount of childishness to want some central authority to protect you from ideas that you find upsetting. And it takes extreme historical ignorance not to realize that endorsing the maintenance of a list of prohibited ideas and then empowering authorities to enforce it will inevitably lead to abusive applications of that power and, sooner or later, will likely result in the suppression of your own ideas as well.

(2) The New York Times this morning reports on the pervasive violence, chaos, instability and militia rule still hopelessly plaguing Libya almost a year after Gadaffi's brutal killing. In sum, the "central government" has no real authority outside of Tripoli and must therefore depend upon the very militias which they claim they are trying to undermine, a dilemma that is "trapping Libya in a state of lawlessness". Moreover, the temptation on the part of the US government to launch strikes in Libya at those who attacked the consulate would likely trigger "a popular and potentially violent backlash in" what the New York Times calls "the only Arab country whose people largely have warm feelings toward Washington".

In the immediate aftermath of Gadaffi's death, proponents of the intervention rushed to publicly congratulate themselves and declare their pro-war position vindicated, to serve as a model for future wars. Worse, war proponents (with a couple noble exceptions) flamboyantly celebrated their own prescience and then ignored the aftermath of the war they helped cheer on, even though it is only that aftermath that will determine whether the intervention was actually good or bad for most Libyans. Only the controversy surrounding the Benghazi attack has re-focused attention on the struggles in that country after the war.

Rather obviously, this was yet another example of the "Mission Accomplished" banner being waved quite prematurely. How many times does it need be proven that merely killing a dictator does not remotely guarantee an improvement from either the perspective of US interests or the people in the country being invaded? And how many more examples do we need where the US funds and arms a fighting force to do its bidding, only to turn around and find that it now must fight that same force?

(3) So pervasive is the US Surveillance State that even one who follows it extensively can sometimes be surprised by its reach. I recall when a Virginia Tech student, Seung-Hui Cho, went on a campus shooting rampage in 2007, and I noticed this passage that appeared buried in an ABC News report on the incident:

"Some news accounts have suggested that Cho had a history of antidepressant use, but senior federal officials tell ABC News that they can find no record of such medication in the government's files."

I was actually amazed back then to learn that the US government maintains files of all prescription drug usage by all citizens. As it turns out, such "files" are maintained pursuant to a 2005 law which, the government claims, authorizes it to monitor and record all prescription drug use by all citizens via so-called "Prescription Drug Monitoring Programs."

I had a somewhat similar reaction when I was reading an account in USA Today about a US citizen who was arrested this week at the Los Angeles airport after he was found wearing a bulletproof vest, carrying a smoke grenade, and having items such as body bags, a biohazard suit and leg irons in his checked luggage. What struck me was this passage:

"The Department of Homeland Security has said [the accused] had no criminal record and no derogatory national-security record."

What is a "derogatory national-security record" as distinct from a "criminal record"? How does one compile such a record without committing any crimes?

Upon reflection, and after asking around, it likely means that the person is not on any designated no fly or watch list and, more accurately, that the person has not meaningfully opposed the US government and, especially, is not Muslim (the same way that when an outbreak of mass violence occurs initial news reports indicating that "there is no evidence of terrorism" really mean: "the attacker does not appear to be Muslim").

Whatever this term denotes, the fact that the US government keeps files on people who have never been charged with any crimes, let alone convicted of them, and then deems some of them to have "derogatory national-security records" is creepy indeed. Governments should not be surveilling and storing massive amounts of information about law-abiding citizens, and in free countries, by definition, they do not. But that is exactly what a surveillance state entails.

(4) On the fifth try, the New York Times finally has a real, independent, and worthwhile Public Editor, Margaret Sullivan. In just two months, she has voiced more constructive and insightful criticisms of that paper than her four predecessors combined. This morning, she has an excellent critique of the Times' coverage of US drone strikes that is well worth reading. Among other things, she notes that "since the article in May" in which the Times revealed that the Obama administration uses the term "militant" to describe "all military-age males in a strike zone", the paper's "reporting has not aggressively challenged the administration's description of those killed as 'militants' itself an undefined term."

(5) This week, I'll be speaking on civil liberties and the war on terror in Seattle (Monday), UC-Davis (Tuesday), San Diego (Wednesday), Tuscon (Thursday) and Boulder (Friday). On Saturday night, I'll be in Ottawa, Canada to deliver the keynote speech to the Defense Counsel Association of Ottawa's Annual Criminal Law Conference. All events are open to the public and (with the exception of Ottawa) are free admission. Event information is here.

On November 10, I'll be back in Seattle to deliver the keynote speech at the 2012 Bill of Rights celebration of the ACLU in Washington (ticket information is here). On November 17, I'll be in San Jose, speaking at the annual dinner for the Council on American-Islamic Relations in the Bay area (ticket information is here).

Finally, for those interested, below is the speech I gave two weeks ago at the University of Missouri Law School on America's two-tiered justice system:

That was followed by a panel discussion on the US justice system and a great Q-and-A session which can be viewed here.


A Twitter commentator this morning sent me this most superb excerpt from John Stuart Mill's On Liberty, in his chapter entitled "Of the Liberty of Thought and Discussion"; I'm particularly enamored of the first line, describing the mentality of those who believe themselves capable of deciding which expression should be prohibited:

mill free speech

Some westerners have a difficult time believing Turley's warning that free speech is being severely eroded in the west. In part that inability is due to this dynamic (namely, those who do little other than spout power-serving conventional wisdom and shallow, trite orthodoxies are never the targets of repression and thus, in their self-absorption, believe it is not happening for anyone). Those who think this way should review things like this or this or any of the numerous examples cited by Turley.


:: Article nr. 91838 sent on 15-oct-2012 20:39 ECT


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