Free speech: Down the rabbit hole

By Lydia Howell

"If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn't. And contrary wise, what is, it wouldn't be. And what it wouldn't be, it would. You see?" -- Alice in the novel “Alice in Wonderland”


We are living in a time in which things are increasingly upside down.

On June 21, the Supreme Court ruled in Holder v. Humanitarian Law Center that promoting nonviolent political activity and the rule of international law could get you jailed for “giving material aid to terrorism.”

Yet it is U.S. Government policy to pay warlords and Taliban warriors as “subcontractors for security” in Afghanistan. The court said nothing about that policy. Rather, it voted to restrict the activities of people seeking roads to peace.

Ralph D. Fertig, retired U.S. administrative judge and clinical associate professor at the University of Southern California School of Social Work, is president of the Humanitarian Law Center.

“I have fought violence and terrorism all my life, but it is my fear that the vagueness of the statute will inhibit human rights groups from helping oppressed people to use non-violence to resolve their conflicts simply because they may be represented by organizations designated as terrorist,” Fertig said. “It would be a great loss if we could no longer work toward peaceful resolution of conflicts because we fear criminal prosecution by our own government for trying to help. This seems to work exactly counter to our interests."

Channeling Alice's wish that “nothing would be what it is,” Chief Justice John Roberts and five other of the justices decided in the Humanitarian Law Center case that it is a crime to attempt to persuade groups on State Department terrorist organization lists to respect human rights and to use non-violent means to reach their political goals.

Under the PATRIOT Act, six judges decided that such political speech -- the kind most fundamentally under the protection of the First Amendment -- is “material aid and support of terrorism” and so now it can get you fifteen years in prison. The PATRIOT Act does not require that the government prove that individuals intended to assist any act of violence or terrorism.

For at least a decade now, leaping down the rabbit hole is increasingly standard operating procedure for all three branches of government -- most notably for the Pentagon, the State Department and the Supreme Court.

The same day the Supreme Court criminalized speech advocating human rights and peaceful conflict resolution, the New York Times reported that U.S. tax money is going to “enemies” committing violence in Afghanistan. A just-released House Subcommittee on National Security report found that the U.S. is paying militia, warlords, the Taliban and other “insurgents” not to attack NATO troops in Afghanistan. There's no oversight from the Defense Department on who the “subcontractors” are that are hired to “protect” supplies convoys .

So, this is the situation: A US government $2.1 billion contract with something called Host Nation Trucking, pays people the United States is fighting in Afghanistan is not considered “material aid and support for terrorism,” but peace activists trying to persuade people labeled terrorists to use non-violent means to reach their goals are “supporting terrorism”.

How does this make the slightest bit of sense?

The court's majority ruling so distressed Justice Stephen Breyer that he read aloud the dissenting opinion, which was joined by Justices Sonia Sotomayor and Ruth Bader Ginsberg.

Breyer concluded, “There is 'a serious doubt' as to the...constitutionality (of the PATRIOT Act provision criminalizing political speech] ...I believe the Court has failed to examine the Government's justifications with sufficient care. It has failed to insist upon specific evidence, rather than general assertion. It has failed to require tailoring of means to fit compelling ends. And ultimately it deprives the individuals before us of the protection that the First Amendment demands.”

On the face of it, Justice Breyer's observation that Roberts' ruling failed to “insist upon specific evidence, rather than general assertion” equally describes the government position since Sept. 11, 2001, that someone can be labeled a terrorist, with no evidence needed, and be imprisoned indefinitely without charges, trial or conviction of a crime. Since President Obama took office, someone labeled a terrorist on the basis of no evidence whatever also can be killed.

The same “assertion without specific evidence” applies to countries targeted for US invasion as well as individuals.

What does this have to do with the Humanitarian Law Center case ruling?

The irrationality of Roberts' opinion aside, the court's decision further excludes We The People from having any say about whether our country goes to war. Militarism is more deeply entrenched as a cancer eating away at our society. As deficits escalate, more and more U.S. activities and infrastructure  are cut entirely or “privatized” -- that is, sold off to corporations for their profit -- while $1 trillion a year for the military is “off the table” for budget cuts.

This Supreme Court ruling effectively says “military actions are the primary tool of U.S. foreign policy.” Or to be more blunt: U.S. might makes right and there is no alternative to the use of military power.

Why wouldn't the U.S. government want its alleged adversaries to take up non-violence?

Could it be that terrorism actually serves certain elite U.S. interests? Keeping the American people afraid serves to continue the endless “war on terrorism” and budget-busting/deficit-creating huge profits for weapons-makers like Lockheed Martin, Alliant Techsystems, General Dynamics and “security” companies such as Blackwater/Xe. Preoccupation with “national security” has proven very effective at expanding government-sponsored  surveillance of Americans while chipping away at citizens' access to information about and dissent against what their government is doing.

If advocates and activists can be indicted for talking to terrorists groups with the aim of diverting them to peaceful actions, one wonders how long will it be before we are no longer allowed to protest U.S. wars. Already, some on the right equate protest with “aiding the enemy”.

It's a slippery slope before Americans are back where we were almost a century ago when those opposing World War I -- and advocating for workers' rights -- were jailed under the law. The great labor leader Eugene Debs served three years of a 10-year sentence for making a speech against WWI. He served a previous prison sentence for speeches urging workers to strike.

Yet such activities won the eight-hour day, job safety regulations and the right of union membership that built the American middle class after WWII. But labor history has been excised from U.S. history classes that focus instead on colonizers, robber barons, presidents and, of course, generals. That leaves most Americans wide open to the ongoing demonization of labor unions and worship of (or intimidation by) the economic elite.

And that's just the way corporations like it. Barely six months ago, the Citizens United decision handed our elections over to the highest bidder -- that is, corporations. Suppressing dissent works very well for corporations steadily pursuing class war against the rest of us.

Wars for resources or sweatshop labor abroad, or just to keep weapon sales profits high, also are very good for corporations.

After all they don't pay for the wars and they don't do the killing and dying in them. We the People do.

The First Amendment is just the latest casualty of the so-called “war on terrorism.” How many Americans will notice? A poll last year found that more Americans can tell you who the judges of American Idol are than name the five freedoms protected by the First Amendment.*

But for those of us who are paying attention, Chief Justice Roberts did not act as the “umpire calling balls and strikes” he promised to be in his confirmation hearings. Rather he acted as executioner of the Bill of Rights. The victim may not yet be quite dead, but the fatal blow may just have been struck.


*The First Amendment to the U.S. Constitution:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging 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.”

Lydia Howell is an independent journalist in Minneapolis, Minnesota, winner of the Premack Award for Public Interest Journalism. She is producer-host for “Catalyst:politics & culture” on KFAI radio.