No Straw MenEnlightened discourse proscribes arguments that are weak or imaginary, like straw, set up only to be confuted summarily.

To Torture or Not to Torture

A version of this blog post appeared in the Hamilton College Spectator on April 30, 2004.

We know the general location, we know it will happen in the next 24 hours, and we’re confident the person we’ve nabbed knows what, where and when.[1] The question before us: to torture or not to torture?

Although we’ve now heard Attorney General-nominee Alberto Gonzales condemn the practice, seen Specialist Charles Granger sentenced to 10 years for committing it, and read half a dozen new books highlighting the route from Gonzales’ keyboard to Granger’s fists, it seems we are no closer to an answer. We urgently need one, but the very subject makes us wince and demur, insulated by the cliché, “Out of sight, out of mind.” Of course, this only perpetuates the problem, for without the check of a national debate, government defaults to its worst instincts. Here, then, is a modest start in addressing today’s moral imperative.

We should first remember that this hypothetical represents an emergency, and since emergencies distort context, they make it tortuous to retain a fully rational resolution. Similarly, emergencies are emergencies—people do not live in lifeboats—so such context should not form the basis for formulating official policy

Nonetheless, torture advocates argue that the end justifies the means, which amounts to an often obvious but equally precarious utilitarian calculus: had we, say, captured a 20th 9/11 hijacker on 9/10, many would have doubtless approved his torture to elicit information. Advocates also argue that once we determine a suspect knows something, he thereby becomes a threat and forfeits his rights. Playing Colonel Nathan R. Jessup in A Few Good Men (1992), Jack Nicholson memorably crystallized the point: “[W]e live in a world that has walls, and those walls need to be guarded by men with guns. Who’s gonna do it? You?. . . . [D]eep down in places you don’t talk about at parties, you want me on that wall. You need me on that wall.” Thus, torture is a “necessary evil,”[2] made particularly imperative by a post-9/11—and now post-3/11 (Madrid)—world.

Of course, governments have always used the excuse of an emergency to broaden their powers. Referring to the French Revolution, Robespierre declared that one cannot “expect to make an omelet without breaking eggs.” The Soviets alleged that their purges were “temporary.” The Nazis said extraordinary times necessitated extraordinary measures. And, in the same way, 45 days after 9/11, in government’s characteristic distortion of words, Congress adopted the so-called Patriot Act (which in the heat of the moment many of the lawmakers voting for it did not even read, in whole or in part). Then, 13 months later, the Bush administration floated a second Patriot Act. Such is the pattern of and path toward despotism.

And yet, the renowned civil libertarian, Alan Dershowitz, is perhaps torture’s most famous advocate. Dershowitz favors restricting the practice to “imminent” and “large-scale” circumstances. But, again, by such seemingly small steps we creep further toward the Rubicon: since we have already surrendered such power, a precedent has been established, and the rest is only a matter of details and time.

Indeed, once we legitimate torture to save New York City, it becomes much easier to legitimate its use to save “just” Manhattan. And then “just” Times Square. And then “just” the World Trade Center. Before we let a judge issue what Deroshowitz terms “torture warrants” on a case-by-case basis, we need to define our criteria precisely. Are they to save a million people? A thousand? A hundred? The President? Members of the Cabinet? Senators? Only in cases involving a “weapon of mass destruction”?

Similarly, if torture makes terrorists sing, as it often does in foreign countries, why shouldn’t we use it against potential terrorists? And then to break child pornography rings and to catch rapists? And then against drug dealers and prostitutes? After reading of endless abuses by government officials using forfeiture, I.R.S. audits, graft, payoffs, kickbacks and the like, it is naïve to think that once we collectively sanction torture, that torture would somehow be exempt from the temptress of absolute power. Do not say it cannot happen in America. It already has.

Footnotes

[1] This is the “ticking-bomb” hypothetical, which Michael Walzer described in “Political Action: The Problem of Dirty Hands,” Philosophy and Public Affairs 2, 1973, 166–67, and Alan Dershowitz popularized in Why Terrorism Works: Understanding the Threat, Responding to the Challenge (2002). But as Arthur Silber of the LightofReason blog notes, we should modify this Hollywood fantasy. For instance, has the suspect confessed to knowledge and refuses to spill it, or does he profess not to know anything when we believe he does?

[2] The term “necessary evil” is contradictory. Explains psychotherapist Michael Hurd: “[T]here are no necessary evils. If something is truly evil, there’s no way it can be necessary, and if it is truly necessary to the well-being of a rational man’s life, it’s not evil, but good.”

Unpublished Notes

The conservative analyst Andrew Sullivan adds, “In practice, of course, the likelihood of such a scenario is extraordinarily remote. Uncovering a terrorist plot is hard enough; capturing a conspirator involved in that plot is even harder; and realizing in advance that the person knows the whereabouts of the bomb is nearly impossible.”

“What the hundreds of abuse and torture incidents have shown is that, once you permit torture for someone somewhere, it has a habit of spreading. Remember that torture was originally sanctioned in administration memos only for use against illegal combatants in rare cases. Within months of that decision, abuse and torture had become endemic throughout Iraq, a theater of war in which, even Bush officials agree, the Geneva Conventions apply. The extremely coercive interrogation tactics used at Guantánamo Bay ‘migrated’ to Abu Ghraib. In fact, General Geoffrey Miller was sent to Abu Ghraib specifically to replicate Guantánamo’s techniques. . . .

“[W]hat was originally supposed to be safe, sanctioned, and rare became endemic, disorganized, and brutal. The lesson is that it is impossible to quarantine torture in a hermetic box; it will inevitably contaminate the military as a whole. . . . And Abu Ghraib produced a tiny fraction of the number of abuse, torture, and murder cases that have been subsequently revealed. . . .

“What our practical endorsement of torture has done is to remove that clear boundary between the Islamists and the West and make the two equivalent in the Muslim mind. Saddam Hussein used Abu Ghraib to torture innocents; so did the Americans. Yes, what Saddam did was exponentially worse. But, in doing what we did, we blurred the critical, bright line between the Arab past and what we are proposing as the Arab future. We gave Al Qaeda an enormous propaganda coup, as we have done with Guantánamo and Bagram, the ‘Salt Pit’ torture chambers in Afghanistan, and the secret torture sites in Eastern Europe. In World War II, American soldiers were often tortured by the Japanese when captured. But FDR refused to reciprocate. Why? Because he knew that the goal of the war was not just Japan’s defeat but Japan’s transformation into a democracy. He knew that, if the beacon of democracy—the United States of America—had succumbed to the hallmark of totalitarianism, then the chance for democratization would be deeply compromised in the wake of victory. . . .

“What minuscule intelligence we might have plausibly gained from torturing and abusing detainees is vastly outweighed by the intelligence we have forfeited by alienating many otherwise sympathetic Iraqis and Afghans, by deepening the divide between the democracies, and by sullying the West’s reputation in the Middle East. Ask yourself: Why does Al Qaeda tell its detainees to claim torture regardless of what happens to them in U.S. custody? Because Al Qaeda knows that one of America’s greatest weapons in this war is its reputation as a repository of freedom and decency. Our policy of permissible torture has handed Al Qaeda this weapon—to use against us. It is not just a moral tragedy. It is a pragmatic disaster.[1]

Finally, we must decide whether our government should conceal or inform us of its torture policies. Whether one opposes torture, I agree with Deroshowitz that “[d]emocracy requires accountability and transparency”;[2] “painful truth,” as Michael Ignatieff, author of The Lesser Evil (2004), puts it, “is far better than lies and illusions.”[3] As such, the U.S. government should clarify what tactics it is using and which are still off limits, so the American people can vote our views, via our representatives, into action.

“It is an axiom of governance that power, once acquired, is seldom freely relinquished.”[4]

“Another objection is that the torturers very swiftly become a law unto themselves, a ghoulish class with a private system. It takes no time at all for them to spread their poison and to implicate others in what they have done, if only by cover-up. And the next thing you know is that torture victims have to be secretly murdered so that the news doesn’t leak. One might also mention that what has been done is not forgiven, or forgotten, for generations.”[5]

“The chief ethical challenge of a war on terror is relatively simple—to discharge duties to those who have violated their duties to us. Even terrorists, unfortunately, have human rights. We have to respect these because we are fighting a war whose essential prize is preserving the identity of democratic society and preventing it from becoming what terrorists believe it to be. Terrorists seek to provoke us into stripping off the mask of law in order to reveal the black heart of coercion that they believe lurks behind our promises of freedom. We have to show ourselves and the populations whose loyalties we seek that the rule of law is not a mask or an illusion. It is our true nature.”[6]

Even if an exception is justified, further exceptions, likely to be increasingly unjustified, will likely ensure.

[1] Andrew Sullivan, “The Abolition of Torture,” New Republic, December 19, 2005.

[2] Alan Dershowitz, “Is There a Torturous Road to Justice?,” Los Angeles Times, November 8, 2001.

[3] Michael Ignatieff, “Lesser Evils,” New York Times Magazine, May 2, 2004.

[4] Mark Danner, [Untitled], New Yorker, July 29, 1991.

[5] Christopher Hitchens, “Prison Mutiny,” Slate, May 4, 2004.

[6] Michael Ignatieff, “Lesser Evils,” New York Times Magazine, May 2, 2004.

The Meaning of the Reichstag Fire Decree

On January 30, 1933, Adolf Hitler became chancellor of Germany. He assumed that office constitutionally but not as a result of the democratically expressed choice of the German people. In fact, in the last national election before Hitler’s appointment, held in November 1932, the N.S.D.A.P.’s vote dropped by two million, a loss that reduced its seats in the Reichstag from 230 to 196. Two out of every three voters had cast their ballots for other parties in this last fully free election before the imposition of the Nazi dictatorship. Nor did Hitler’s appointment flow from normal parliamentary coalition politics. Instead, a backroom intrigue jobbed him into office, as a cabal of conspirators overcame the doubts of aged President Hinderburg. And yet, even the chancellorship did not satisfy this megalomaniacal dreamer—he was not yet dictator—and so in February 1933 the Nazis resolved that if the electorate would not come to them, they would go after it, Machiavellian style.

By a godsend, in late February 1933 there was in Berlin a feebleminded Dutch communist, whose passion for arson coincided with a Nazi conspiracy to burn the Reichstag building, Germany’s symbol, if not actual center, of democracy. Accordingly, Marinus van der Lubbe spent February 27 lurking around the Reichstag, before breaking in at night and, using his shirt as a torch, lighting small fires. Simultaneously, though unknown to van der Lubbe, Karl Ernest was leading a small detachment of S.A. troopers through an underground, central heating passage connecting the Reichstag President’s Palace to a cellar in the Reichstag. Two and a half minutes after van der Lubbe entered, the great hall was fiercely burning, the efforts not of a half-wit with only his shirt as tinder, but of considerable and scattered gasoline and self-igniting chemicals.

The “deep red glow”[1] caught the eyes of President Hindenburg and Vice Chancellor Papen, who were dining at an exclusive club around the corner from the Reichstag. Hitler was with the Nazis’ propaganda minister, Joseph Goebbels, dining en famille at the latter’s home, also in Berlin. All four rushed to the scene, where they met a hysterical Goering. “[T]his is a Communist crime against the new government,” Goering screamed. “We must not wait a minute. We will show no mercy. Every Communist official must be shot, where he is found. Every Communist deputy must this very night be strung up.”[2] Likewise, in his characteristic monomania, Hitler added that the government would “crush” the Social Democrats and the Reichsbanner with an “iron fist.”

Having then so assigned guilt—and after the Führer came to a decision, afterthoughts were tantamount to treason—Hitler met with Nazi leaders, and then with Goebbels repaired to the editorial offices of their party paper, the Völkischer Beobachter. Invoking as evidence propaganda pamphlets Goering’s police had seized days earlier from the Karl Liebknecht Haus, the Communist headquarters in Berlin, the Nazis wasted no time and announced that the Bolshevik terroristic revolution was imminent. Consequently, at a cabinet meeting the next morning, Hitler “explained that a merciless struggle against the K.P.D. was now urgent. The psychologically correct moment for the struggle had now come.”[3]

The term “psychologically correct” is apt. First, it meant exploiting memories of Communist uprisings during the Weimar republic, so to “throw millions of the middle class and the peasantry into a frenzy of fear that unless they voted for National Socialism at the elections a week hence, the Bolsheviks might take over.”[4] Second, the term meant prevailing, that evening, upon the half-senile Hinderburg to sign a decree “for the Protection of the People and the State.” As with his previous appeals to the President, Hitler pitched his decree as a lesser evil than a military state of emergency.

Of course, the ensuing civil state of emergency was severely militant, as the Nazis almost immediately initiated a wave of terror that cowed thousands of their political rivals. Moreover, as a self-described “defensive measure against Communist acts of violence, endangering the state,” this so-called Reichstag Fire Decree suspended, effectively ending the seven sections of the Constitution that guaranteed individual and civil rights. In place of free speech and the rights of assembly and association, the decree authorized “violations of the privacy of postal, telegraphic and telephonic communications and warrants for house searches, [and] orders for confiscations.” The decree also imposed capital punishment for armed and “serious disturbances of the peace,” and empowered the Reich government to commandeer the federal governments when “necessary.”

Consequently, the Nazis began to coordinate their party and the state. Signally reversing their own adherence to the Constitution and Germany’s venerable tradition of federalism, the decree effectively centralized the Reich government and put all its resources, most notably of Prussia, at the Nazis’ disposal. This Gleicschaltung thus capacitated S.A. violence, so that Goering could legally replace senior policemen with his own thugs. This gave Germans their first taste of Nazis using the Constitution for in-your-face coercion, so that S.A. troops could place Communist officials, Social Democrat and liberal leaders—even members of the Reichstag, who were legally immune from arrest—into “protective custody,” that is, into S.A. barracks. Combined with the Nazis’ corresponding, unprecedented propaganda campaign, the result, as William Shirer describes it, was that the German “street, bedecked with swastika flags, echoed to the tramp of the storm troopers.”[5]

Lost in the sound and fury was the courageous opposition of former Chancellor Brüning, who proclaimed that his Catholic Center Party would resist any overthrow of the Constitution and demanded an investigation of the suspicious Reichstag fire. The German electorate similarly remained skeptical, and in the promised election on March 5, they refused the Nazis a parliamentary majority, albeit by only six percent. Nonetheless, by voting eight percent for the Nationalists, the Germans gave the Nazis coalition control.

Thus flush with victory, Hitler now sought real dictatorial power, which meant dissolving parliament by transferring power from it to the Reich cabinet. For such change, originally to hold for four years, the Nazis needed to amend the Constitution, for which they needed the vote of two-thirds of the Reichstag. Again, their electoral strategy relied heavily on terror, this time supplemented by blackmail, lies about future concessions, and by simply excluding their opponents from parliament. In this way, Hitler secured crucial votes from the Catholic Center Party. Moreover, when the Enabling Act, otherwise known as the Law for the Removal of the Distress of People and Reich, came up for vote on March 23, Nazi storm troopers encircled the Reichstag, so that in order to enter the building, legislators had to pass through a ring of these raucous thugs, whose chants rang in their ears as they voted. The vote was a fait accompli: 441 for, and 94 (all Social Democrats) against. The Nazis were now a legal dictatorship, and Hitler Germany’s legal dictator.

Occurring a few days before Germany’s national elections of 1933, the Reichstag fire decree gave rise to rumors and trepidation. The public and even some of the conservatives distrusted the Nazis’ account. The foreign press blamed Goering, which seems most likely. It is difficult to ascertain whether Hitler was involved. On one hand it is unlikely that any Nazi—especially the intensely loyal Goering—acted without the Führer’s consent. Conversely, Hitler’s ever-alert radar in prejudging popular sentiment might have led him to cancel Goering’s cynically brilliant plot.

Whosever calculations they were, they were intensely political. After all, the fire department had restored calm the night of the fire, and the Nazis, using existing decrees, had already preempted a large-scale, planned revolt by proscribing K.P.D. newspapers, meetings and demonstrations. The calculations were also intensely effective. After all, no one died in the fire, the alleged arsonist was tried, convicted and decapitated, and given that the Nazis’ rise owed in large part to the middle-class fear of Communism, the smoke screen allowed them to expertly shape that fear into a campaign slogan. In sum, though some argue that the Reichstag Fire Decree constituted a quantitative, not a qualitative change, most agree that, by means similar to those of a coup d’etat, it represented the “Constitution of the Third Reich,” as Helmut Krausnick put it, and proved, as Karl Dietrich Bracher has shown, to be “fundamental to the stabilization” of the Nazi dictatorship.[6]

Foonotes

[1] “The Rise of Hitler: February 27, 1933: The Reichstag Burns,” History Place.

[2] As quoted in William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany (Simon and Schuster), p. 192.

[3] As quoted in Hans Mommsen, “The Political Effects of the Reichstag Fire,” in Henry A. Turner Jr. (ed.), Nazism and the Third Reich (New York: Franklin Watts, 1972), p. 127.

[4] William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany (Simon and Schuster), p. 194.

[5] Ibid.

[6] As quoted in Hans Mommsen, “The Political Effects of the Reichstag Fire,” in Henry A. Turner Jr. (ed.), Nazism and the Third Reich (New York: Franklin Watts, 1972), p. 128

Defending the Disgusting

The judicial history of free speech in America is the story of how Supreme Court justices—whom the Constitution designates to check and balance the power of Congress and the president—are instead unwilling to act against them, lest a backlash against judicial activism ensue. As FDR put it while trying to pack the Court in 1937, the American people expect the unelected third branch of government to fall in line behind the elected other two.[1] Of course, the judiciary is a deliberately antidemocratic body; as the last bulwark against the tyranny of the majority, it tempers democracy’s excesses. In this way, judges should ensure that government’s powers remain wedded strictly to the protection of the Constitution, which, regarding free speech, means the protection of the First Amendment. The specific purpose of that Amendment, then, is the protection of minorities and dissent.

Alas, from its inception, the Supreme Court has viewed the First Amendment as subject, if not subordinate, to majority rule, or “democratic deliberation.” To be sure, the Court sometimes protects offensive speech, always lauds the value of free speech, and elevates the First Amendment above other constitutional guarantees. Yet the Court simultaneously undercuts free speech by acknowledging a higher value. That value goes by different names—“social utility” and “community standards” summarize them—and mandates the categorization of speech into “political” vs. “commercial” pigeonholes. This technicalized morass is today’s state of the First Amendment.

Now, just as we can best measure the strength of steel under stress, so the best tests of principle come over the most nauseating examples. As philosopher Ayn Rand observed, although it is uninspiring to “fight for the freedom of the purveyors of pornography or their customers . . . in the transition to statism, every infringement of human rights has begun with the suppression of a given right’s least attractive practitioners . . . [T]he disgusting nature of the offenders makes . . . a good test of one’s loyalty to a principle.”[2] The test here is Ashcroft v. Free Speech Coalition (2002), in which the latter challenged the constitutionality of the 1996 Child Pornography Prevention Act (C.P.P.A.). The C.P.P.A. criminalized sexually explicit images that depict minors but were produced, typically via computer imaging, without using any actual children.

C.P.P.A. supporters argue, in the Court’s summary, that “harm flows from the content of the images, not from the means of their production” (3). In other words, virtual child pornography threatens children in “less direct, ways” than real-life child pornography (3). For instance, by increasing the chance that pedophiles become molesters, virtual images “whet the appetites of child molesters” (4).

But any way one rationalizes the C.P.P.A., such images fail to intrinsically harm any flesh and blood minor; the Ferber test requires an “intrinsic” connection. Viewing, after all, does not necessitate acting; one can be a pedophile but not a child molester. Similarly, whereas viewing virtual images coerces nobody and involves only the viewer and the producer, viewing real images, as per New York v. Ferber (1982), constitutes criminal coercion of children. The C.P.P.A. collapses these distinctions—distinctions that Ferber relied on as a major reason for its verdict—but the “casual link,” as the Court notes, “is contingent and indirect” (12); the government needs a “significantly stronger, more direct connection” (15-16).

Furthermore, the government’s arguments turn, not on any actual coercion, but on potential coercion; this is why the C.P.P.A. resorts to such hesitating, noncommittal words as images that appear to show minors in sexually explicit conduct (3), or that convey that impression (4). The cardinal principle of liberty, however, must always take precedence: so long as one refrains from directly initiating force against others, one must be free to pursue one’s own version of happiness—including, however despicable, taking pleasure from virtual pedophilia.

C.P.P.A. supporters argue next that child pornography “as a whole . . . lacks serious literary, artistic, political, or scientific value” (8). Any redeeming values are de minimis, since kiddie porn only perpetuates prurience, pedophilia, and child molestation. Yet however indecent one’s values may be—with the exception of child molestation, which necessitates coercion—freedom does not mean upholding a social consensus, but the autonomy of each individual to choose his own values. No, one’s man treasure is not another’s trash, but using the government to ban certain trash necessarily foists the values of some, usually the majority, on others, usually a minority. American history is rife with examples. The Comstock Act (1873) criminalized as pornography any information concerning birth control. The National Endowment for the Arts continually funds “art” that many would taxpayers consider unworthy of that name. In Vietnam and in Iraq today, we try to impose Western values on many who simply do not want them (at least without their own adaptations).

Indeed, it is sheer folly to make government the arbiter of whether books, magazines, newspapers, radio, television, theater and film have value, let alone “literary, artistic, political, or scientific” value—or, most ominous of all, “serious value.”[3] Judges call such speech lacking “unprotected,” but this is the zenith of censorship. For when government takes it upon itself to decree which of its citizens’ values have value—to dictate which words deserve freedom and which make you a criminal—it exceeds its job of impartiality and assumes arbitrary power. As such, the First Amendment no longer derives from the Constitution but from popular predilections.

And yet, in his dissent, Chief Justice Rehnquist observes that although the “C.P.P.A. has been on the books, and has been enforced, since 1996,” movies produced thereafter, like American Beauty (2000) and Traffic (2001), which the defendants argue the C.P.P.A. would have banned, nonetheless proceeded unabated—and won Academy Awards (Rehnquist, dis. op., 5). Rehnquist thus argues that the C.P.P.A. “need not be” construed to ban such movies (Rehnquist, dis. op., 7). Of course, this is Rehnquist’s construal; one can easily envisage how Attorney General John Ashcroft, or some like-minded zealous puritan, would think otherwise. After all, America is not Alice in Wonderland, and words do not mean, as Humpty Dumpty said, “what I choose [them] to mean.” Rather—if we are to have a government of laws, not a government of men—words must mean what they actually say.

Finally, since laws are rarely repealed, ideological organizations have become notorious for mining case law digests to unearth some obscure precedent, whose language they construe, years if not decades later, to push for a ban on something else—and then something else.[4] Therefore, the alleged limits on censorship, the legalistic conditions of where and when, are insignificant. While the high court today may ban “only” nonvirtual child pornography, using the same nonabsolutist precedents, a future Court may well ban gay porn, and still another Court may ban pornography altogether. Since we have already surrendered such power, the principle has been established, and, as Ayn Rand observed, the “rest is only a matter of details—and of time.”[5] Censorship is the canary in the political coalmine, and the anti-minority, collectivist rationales, however piecemeal and whatever pullbacks, bring us ever-closer to a Fahrenheit 451 society. Do not say “it” cannot happen in America. Having already criminalized defamation and “fighting words”—and with a legal history including Dred Scott, Prohibition, Bowers v. Hardwick, the Patriot Act, and now the Federal Marriage Amendment—it already has.

Footnotes

[1] The “American people . . . expect the third horse to pull in unison with the other two.” Franklin D. Roosevelt, Fireside Chat 46, March 9, 1937.

[2] Ayn Rand, “Censorship: Local and Express,” Ayn Rand Letter, August 13, 1973.

[3] Mark Henry Holzer, Sweet Land of Liberty? The Supreme Court and Individual Rights.

[4] For instance, the Federal Vocational Rehabilitation Act of 1973 prohibits discrimination against otherwise qualified handicapped people. Although the act did not address the specific issue of HIV and AIDS discrimination, subsequent court cases have held that the act protects AIDS as a handicap. See the movie Philadelphia (1993).

[5] Ayn Rand, “Censorship: Local and Express,” Ayn Rand Letter, August 13, 1973.

Unpublished Notes

Thus, banning such personless, harmless speech criminalizes mere thoughts and constitutes preemptive law.

Small but significant

the deep-seated, indelible destruction of pure and innocent children.

Virtual child porn is “neither obscene under Miller nor child pornography under Ferber” (2). Hence?

Possession of nonvirtual child pornography is a federal crime, and soliciting and sexual relations with minors constitutes statutory rape.

Higher Interest

In Chaplinsky v. New Hampshire (1942), the Court affirmed: “[A]ny benefit that may be derived from [such utterances] is clearly outweighed by the social interest in order and morality.”

Meaning of Free Speech

As Voltaire said (actually, it was Evelyn Beatrice Hall, under the pseudonym S[tephen] G. Tallentyre, in The Friends of Voltaire [1906]): “I disapprove of what you say, but I will de-fend to the death your right to say it.”

Marketplace of ideas theory of free speech: ideational diversity is an essential ingredient, the stew out of which bubble the best ideas, if not eventually truth itself.

Counterargument

Additionally, repealing the C.P.P.A. would embolden molesters, who if indicted for vir-tual child pornography, could evade liability because their images are computer-generated (Con-ner, 5).

Absolutism

In Dennis v. United States (1950), the Supreme Court declared: “[C]ertain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes.” Yet the First Amendment reads that “Congress shall make no law . . . abridging the freedom of speech.” Common sense tells you that these words constitute an absolute. The Amendment does not say no law except in wartime, or except when the speech gainsays community standards, or except when it lacks redeeming value, or social utility, or fails to serve a public interest.

Granted, the framers never intended the First Amendment to allow, nor has any Supreme Court allowed, absolute free speech. Yet the bottom line is if speech is not absolute, it is arbi-trary.

And don’t tell me that me the slope may slippery, but we can be reasonable about where it slides. The ever-growing number of restrictions show otherwise.

If from the very first days of the republic restraints on speech were commonplace, if no less a patriot than Thomas Jefferson believed that states could censor speech and that a selective prosecution now and then of an unpopular speaker was just, if during World War One antidraft activists could be incarcerated for quoting the Ninth and Thirteenth Amendments, if American communists could be incarcerated not for throwing bombs but for merely agreeing to organize and advocate—if there are no absolutes—then it should not surprise that truly free speech has never existed in America, albeit the country that has the fewest restrictions thereon.

Indeed, if the First Amendment says that “Congress shall pass no laws . . . abridging the freedom of speech,” then Congress should pass no such laws, period.

The genie, once out of the bottle, can never be coaxed or stuffed back inside.

As Chief Justice Frankfurter explained in Dennis v. United States (1951): “The language of the [Constitution] is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Not what words did Madison and Hamilton use, but what was it in their minds which they conveyed?”

“’[P]rotecting the children,’” as columnist Robert Tracinksi puts it, “is no excuse for muzzling the adults.”

Theoretically, in a democratic republic, politicians are supposed to represent the views of their constituents. Hence, if people disagree with how our representatives are voting, we can vote them out of office. But this principle assumes limited government in the classical liberal sense, not the leviathan we have today.

Covering Dictatorships Means Covering the Truth

A version of this blog post was awarded the Hamilton College 2005 Cobb Essay Prize, appeared in the Utica Observer-Dispatch (April 19, 2004), and was noted on the Hamilton College Web site (April 21, 2004).

Most of us trust that what we read, watch or hear from well-established news organization is trustworthy. But trustworthiness depends on the source—not only the organization, but also the origin of information. For without freedom one cannot report the news freely. It is therefore fraudulent for a news agency to operate in a dictatorship without disclosure.

What constitutes a dictatorship? First, if independent media exist, the state aggressively censors them. After all, news doesn’t mean much if citizens are privy only to propaganda. Second, if candidates for political office exist, the state shackles their activities. After all, news doesn’t mean much if the opposition is nonexistent. Third, the state cows its citizens. After all, news doesn’t mean much if people are afraid to speak.

As Iraqis and U.S. marines toppled the massive statue of Saddam Hussein in Baghdad two years ago, Eason Jordan, chief news executive of the Cable News Network (CNN), penned an op-ed for the New York Times. The headline was its own indictment: “The News We Kept to Ourselves.” For the past 12 years, Jordan confessed, there were “awful things that could not be reported because doing so would have jeopardized the lives of Iraqis, particularly those on our Baghdad staff.” This much is inarguable: the Hussein regime expertly terrorized, if not executed, any Iraqi courageous enough to slip a journalist an unapproved fact. Jordan relates one particularly horrifying story: “A 31-year-old Kuwaiti woman, Asrar Qabandi, was captured by Iraqi secret police . . . for ‘crimes,’ one of which included speaking with CNN on the phone. They beat her daily for two months, forcing her father to watch. In January 1991, on the eve of the [first] American-led offensive, they smashed her skull and tore her body apart limb by limb. A plastic bag containing her body parts was left on the doorstep of her family’s home.”[1]

As for the journalists, had one been “lucky” enough to gain a visa to Iraq, one then received a minder. An English-speaking government shadow, the minder severely circumscribed a journalist’s travels to a regime-arranged itinerary. Franklin Foer of the New Republic describes one typical account: when a correspondent unplugged the television in his hotel room, a man knocked on his door a few minutes later asking to repair the “set.” Another correspondent described an anti–American demonstration, held in April 2002 in Baghdad, to celebrate Saddam’s 65th birthday. When her colleagues turned on their cameras, officials dictated certain shots and, with bullhorns, instructed the crowd to increase the volume of their chants. Had the regime deemed one’s reports to be too critical, like those of recently retired New York Times reporter Barbara Crossette or CNN anchor Wolf Blitzer, it simply revoked one’s visa or shut down one’s bureau, or both.[2] Of course, this all depends on the definition of “critical”; referring to “Saddam,” and not “President Saddam Hussein,” got you banned for “disrespect.” At least until an Eason Jordan could toady his way back in.

And yet CNN advertises itself as the “most trusted name in news.” Truth, however, as the American judicial oath affirms, consists of the whole truth and nothing but the truth; what one omits is equally important as what one includes. Thus, to have reported from Saddam’s Iraq as if Tikrit were Tampa was to abdicate a journalist’s cardinal responsibility. Indeed, if journalists in Iraq could not have pursued, let alone publish, the truth, they should not have not been concocting the grotesque lie that they could, and were. Any Baghdad bureau under Saddam is a Journalism 101 example of double-dealing. And any news agency worthy of the title wouldn’t have had a single person inside Iraq—at least officially. Instead, journalists could have scoured Kurdistan or Kuwait, even London, where many recently arrived Iraqis can talk without fear of death. According to former C.I.A. officer Robert Baer, who was assigned to Iraq during the Gulf War, Amman, the capitol of Jordan, is a virtual pub for Iraqi expatriates.[3]

Why, then, were the media in Iraq? As columnist Mark Steyn observes, “What mattered to CNN was not the two-minute report of rewritten Saddamite press releases but the sign off: ‘Jane Arraf, CNN, Baghdad.’”[4] Today’s media today access above everything and at any cost—access to the world’s most brutal sovereign of the last 30 years and his presidential palaces built with blood money, and at the costs of daily beatings, skull-smashings and limb-severings. Dictators, of course, understand this dark hunger, and for allowing one to stay in hell, they demand one’s soul, or unconditional obsequiousness. Thus did CNN become a puppet for disinformation, broadcasting the Baath Party line to the world without so much as innuendo that “Jane Arraf, CNN, Baghdad” was not the same as “Jane Arraf, CNN, Washington.” In this way, far from providing anything newsworthy, let alone protecting Iraqis, the media’s presence there only lent legitimacy and credibility to Saddam’s dictatorship.

Alas, dictatorship neither begins nor ends with Iraq. According to Freedom House, America’s oldest human rights organization, comparable countries today include Burma, China, Cuba, Iran, Libya, North Korea, Pakistan, Saudi Arabia, Sudan, Syria, Uzbekistan and Vietnam.[5] How should we read articles with these datelines? In judging the veracity of news originating from within a dictatorship, the proper principle is caveat legens—reader beware. As Hamilton College history professor Alfred Kelly explains in a guidebook for his students, train yourself to think like a historian. Ask questions such as: Under what circumstances did the writer report? How might those circumstances, like fear of censorship or the desire to curry favor or evade blame, have influenced the content, style or tone? What stake does the writer have in the matters reported? Are his sources anonymous? What does the text omit that you might have expected it to include?[6] You need not be a conspiracy theorist to recognize the value of skepticism.

Footnotes

[1] Eason Jordan, “The News We Kept to Ourselves,” New York Times, April 11, 2003.

[2] Franklin Foer, “How Saddam Manipulates the U.S. Media: Air War,” New Republic, October 2002.

[3] Franklin Foer, “How Saddam Manipulates the U.S. Media: Air War,” New Republic, October 2002.

[4] Mark Steyn, “All the News That’s Fit to Bury,” National Post (Canada), April 17, 2003.

[5] As quoted in Joseph Loconte, “Morality for Sale,” New York Times, April 1, 2004.

[6] Alfred Kelly, Writing a Good History Paper, Hamilton College Department of History, 2003.

Bibliography

Chinni, Dante, “About CNN: Hold Your Fire,” Christian Science Monitor, April 17, 2003.
Collins, Peter, “Corruption at CNN,” Washington Times, April 15, 2003.
—, “Distortion by Omission,” Washington Times, April 16, 2003.
Da Cunha, Mark, “Saddam Hussein’s Real Ministers of Disinformation Come Out of the Closet,” Capitalism Magazine, April 14, 2003.
Fettmann, Eric, “Craven News Network,” New York Post, April 12, 2003.
Foer, Franklin, “CNN’s Access of Evil,” Wall Street Journal, April 14, 2003.
—, “How Saddam Manipulates the U.S. Media: Air War,” New Republic, October 2002.
Glassman, James K., “Sins of Omission,” TechCentralStation.com, April 11, 2003.
Goodman, Ellen, “War without the ‘Hell,’” Boston Globe, April 17, 2003.
Kelly, Alfred, Writing a Good History Paper, Hamilton College Department of History, 2003.
Jacoby, Jeff, “Trading Truth for Access?” Jewish World Review, April 21, 2003.
Jordan, Eason, “The News We Kept to Ourselves,” New York Times, April 11, 2003.
Loconte, Joseph, “Morality for Sale,” New York Times, April 1, 2004.
de Moraes, Lisa, “CNN Executive Defends Silence on Known Iraqi Atrocities,” Washington Post, April 15, 2003.
Smith, Rick, “CNN Should Scale Back Chumminess with Cuba,” Capitalism Magazine, May 8, 2003.
Steyn, Mark, “All the News That’s Fit to Bury,” National Post (Canada), April 17, 2003.
Tracinski, Robert W., “Venezuela’s Countdown to Tyranny,” Intellectual Activist, April 2003.
Walsh, Michael, “Here Comes Mr. Jordan,” DuckSeason.org, April 11, 2003.

Addendum

Newsweek’s Christopher Dickey recently observed that the “media marketplace . . . long ago concluded [that] having access to power is more important speaking truth to it.”

The Drinking Team Has a Football Problem

A version of this blog post appeared in the Hamilton College Spectator on April 2004.

Federal law makes it illegal for someone under 21 to consume alcohol. And even if one is over 21, one has no right to drink on campus. Rather, Hamilton affords its students that privilege while matriculating here.

What privileges Hamilton should afford us is debatable. As our framework, let’s recognize that college students will invariably drink; these are, after all, our so-called experimental years, where we come of age, find ourselves, experience rites of passage. The trick is doing it responsibly.

The collegiate motto, Work hard, party hard, captures, I think, the ideal state. The problem is that instead of equilibrium, it’s often, Work hard, party harder—which occasions nonconsensual sexual relations, missed classes or otherwise poor academic performance, vandalism, injuries (you know the et ceteras).

But Hamilton need not focus on decreasing booze use per se. This seems like a mother, echoing her own mother, telling her teenage daughter not to have premarital sex. Rather, the general goal should be to decrease destructive consequences.

First, let’s disregard the red herring that Hamilton lacks social options. If true, we have only ourselves to blame, what with Greek life, varsity and intramural athletics, the Campus Activities Board and the plethora of other student organizations that fill Hamilton’s daily events calendar with lectures, concerts, comedians, parties, movies, trips, and computer-game and poker tournaments. Hamilton’s resources are as extensive as one is willing to make them.

Second, I suggest that Hamilton continue the invaluable programs of orientation week. For instance, professors might design a sophomore seminar devoted to alcoholism, and fraternities and sororities might each invite a speaker to address the consequences thereof. For the only way to address a problem is to recognize it is a problem, and the only way to recognize something is a problem is to learn about it. A former alcoholic speaking in the chapel to students, whose professors require them to be there, can give the statistics we study in class a human and indelible dimension.

And yet education, like stiffer penalties and grade deflation, goes only so far. Ultimately, as Professor Phil Klinker has observed, students need to police students. For instance, one night last year in the Bundy East dorm, a bash in the basement resulted in significant property damage. True to our “two-thirds equals one-fourth” slogan, the vandalizers were few. Though everybody knew who they were, nobody came forward—even after Residential Life permanently closed the basement, which housed the dorm’s only laundry facilities.

So, I advocate preventive action. We all know which of our friends drink to oblivion, each friend’s capacity, which friends alcohol turns aggressive. Since 1983 we’ve heard that “friends don’t let friends drive drunk,” and we’ve listened. Why then should friends let friends miss or skip class because of a hangover, engage in date rape because of Jell-O shots, or break a window because some upperclassmen did it? Change must come from within, from student leaders, in the locker room after practice or on a study break in the library, leading by examples of personal accountability, not by dare.