Hell Yes to Hell No

New book flags ways US targets dissent

By Justin D. Martin
http://www.cjr.org/page_views/hell_yes_to_hell_no.php
December 7, 2011

Hell No: Your Right to Dissent in 21st-Century America |
By Michael Ratner & Margaret Ratner Kunstler | The New
Press | 176 pages, $17.95

A number of twentieth-century legal decisions helped
establish the US as having one of the freest press
systems on earth. In 1925, the US Supreme Court ruled
that the First Amendment protects citizens not only from
federal abridgment of speech, but also from interference
by state governments. In 1931, the Court largely
declared prior restraints to publication
unconstitutional. In the 1960s, the Court made it
splendidly difficult for public officials to
successfully sue journalists for libel.

Nonetheless, the book Hell No: Your Right to Dissent in
21st-Century America, by Michael Ratner and Margaret
Ratner Kunstler, reminds us why scores of countries are
typically cited as having freer media environments than
the US. The landmark Supreme Court decisions listed
above protect freedoms to publish and speak, but they do
not guarantee protection from all forms of government
mischief after dissent occurs. Indeed, the Court's 1925
decision in Gitlow v. New York ruled that, while the
First Amendment protects citizens from some abuses by
state governments, citizens may still be punished for
speech "inimical to the public welfare, tending to
corrupt public morals, [or] incite to crime or disturb
the public peace."

The United States vigorously protects what citizens can
say-but after dissenting speech is aired, the
government's responses to these activities, including
covert surveillance of citizens, can be constitutionally
dubious. Hell No reminds us why the US isn't really even
close to being the world's chief guardian of free speech
(in 2010, Freedom House listed twenty-three countries as
having greater press freedom than the US, while
Reporters Without Borders counted nineteen. The laurel
for greatest press freedom usually goes to Finland or
Norway). Although the book is geared more toward radical
political activists than journalists, it jolts all
readers awake with an icy reminder that the US
government often monitors and even punishes dissent.

Since 2008, the Ratners point out, the FBI's authority
to investigate the provenance of dissenting speech has
dramatically expanded. The FBI's so-called Mukasey
guidelines, conjured by the former attorney general of
the same name and adopted whole ham by the Obama
administration, give the government extraordinary power
to secretly investigate citizens over even lawful
activity related to foreign affairs. The Mukasey
guidelines themselves acknowledge that the FBI may use
espionage to siphon from citizens information related to
foreign affairs, even if the "information so gathered
may concern lawful activities" (emphasis mine).

Such an investigation, the Ratners point out, can target
"anyone with any connection to a foreign policy issue-
even a professor writing about a foreign country."
(Gulp). Not only is this constitutionally suspect, but
it would appear to also violate the 1948 Universal
Declaration of Human Rights, which embraces the "freedom
to hold opinions without interference.regardless of
frontiers." And, of course, using covert surveillance in
response to lawful speech violates not only the First
Amendment, but also the Fourth Amendment's guarantee
against unreasonable searches and seizures.

Reporters in the US can be incarcerated for thorough
reporting and keeping promises to confidential sources.
When I taught journalism at the American University in
Cairo, my non-American students were shocked to learn
that journalists in the US could be, and in some cases
are, jailed for refusing to reveal to grand juries the
identities of confidential sources in their reporting.
I've used the Borders & Bylines column to cry foul on
free speech shortcomings in many countries, including
Israel, Turkey, Tunisia, Egypt, and Kuwait, and these
countries are indeed hard-core offenders, but my own
country does plenty to speech that defiles its
constitution. Hell No is an important reminder of this.

The Ratners warn that with the blessing of the Patriot
Act, the FBI and other federal agencies can distribute
"National Security Letters" and, with no judicial
oversight, subpoena from banks, libraries, and phone
companies sensitive information about people who may be
under no criminal investigation whatsoever. This is one
of the most seamless ways that the US government can
"legally" obtain information about dissenters of which
it is wary. The US government mails nearly a thousand
National Security Letters every week. Look out.

To be sure, there are a number of ways in which the US
does lead the world in freedom of speech. It is
literally legal to advocate anarchy and the violent
overthrow of the US government, and dissidents can be
rather specific in their rally cries as long as their
plans aren't "imminent." Additionally, I don't know of a
country that protects more false and hateful speech,
such as Holocaust denial and the defamation of dead
soldiers, than the US. Fabricating news in the United
States, while a journalistic death wish, is not
generally illegal.

I personally haven't had federal, state, or local
governments interfere with, or retaliate against, my
reporting. I routinely get pulled aside at US airports
because my passport has lots of squiggly stamps, and
it's highly possible, due to the overbroad nature of the
Mukasey surveillance guidelines and the fact that I
spent years reporting in the Arab world as a young man,
that I've been placed under federal surveillance at one
time or another, but I'm not aware of it.

Nonetheless, the US targets speech in a number of
significant ways. The record of the United States on
free speech is similar to our performance on education;
we lead developed nations in some ways, such as in the
quality of our research universities, but by other
measures, say, eighth-grade math and science, we're
noticeably behind. With regard to free speech, Hell No:
Your Right to Dissent in 21st-Century America chronicles
our most serious demerits.

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