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CRIMINALIZING WHISTLEBLOWERS, FREE SPEECH:
Shield Act Targets First Amendment Freedoms
Sunday, 9 January 2011
For decades, America's freedoms have eroded, notably post-9/11 with:
Introduced on December 2, it was referred to the Committee on the Judiciary, not passed, but likely to resurface in the 112th Congress.
HR 6506 is the House version, introduced on December 8, referred to the House Committee on the Judiciary and Subcommittee on Crime, Terrorism, and Homeland Security. It also didn't pass, but again very likely will resurface.
On December 2, Senator John Ensign's (R. NV) web site headlined, "Bipartisan Ensign Legislation Goes after WikiLeaks by Amending Espionage Act," saying:
WikiLeaks published none. In fact, on October 17, Reuters reported Defense Secretary Robert Gates saying:
Yet according to Ensign, Lieberman and Brown:
According to Attorney General Eric Holder:
Congressional Research Service Analysis
On December 6, Congressional Research Service (CRS) legislative attorney Jennifer Elsea headlined, "Criminal Prohibitions on the Publication of Classified Defense Information ," saying:
Also at issue is whether information gotten and published relates to lawless government actions that create "clear and present danger(s)" for everyone. Public interest/self-defense/criminal act disclosure arguments are reasons enough for disseminating such information.
CRS also called prosecuting WikiLeaks unprecedented and challenging, both legally and politically, saying:
Targeting Constitutional Rights
The Shield Act targets whistleblowers, amends the 1917 Espionage Act, criminalizes free speech, and compromises the public's right to know how their elected officials govern. Suppressing truth is the first step toward tyranny. America is hurtling toward it as well as third world status and ruin.
On December 7, the Electronic Frontier Foundation's (EFF) Shari Steele headlined, "Join EFF in Standing up Against Internet Censorship," saying:
Writing for Lawfare.com, Benjamin Wittes, senior Brookings Institution Governance Studies fellow, headlined, "Espionage Act Amendments," saying:
At issue most of all are fundamental constitutional rights. Earlier Supreme Court decisions addressed them.
Two Notable Supreme Court Decisions
During the 1919 Red Scare, California passed a criminal syndicalism law to restrict activities of the Industrial Workers of the World (IWW), an activist international union called the Wobblies. The statute prohibited advocating changes to the capitalist system of industrial ownership or political control. Under it, Charlotte Anita Whitney, a social activist, was charged and convicted, solely for her short-term Communist Labor Party (CLP) membership.
In Whitney v. California (1927), the Supreme Court unanimously upheld California's statute based on its right to protect the public from violent political acts. However, Justices Louis Brandeis and Oliver Wendell Holmes contended that Whitney's attorneys should have argued for a "clear and present danger" test to distinguish between membership and dangerous action. They reasoned that Fourteenth Amendment Due Process protection and First Amendment speech and assembly rights superseded state regulation.
Specifically they wrote:
In Brandenburg v. Ohio (1969), the Court overturned Whitney v. California and Ohio's Criminal Syndicalism statute, ruling that government cannot constitutionally punish abstract advocacy of force or a law violation. It can only do so in cases of directly inciting "imminent lawless actions." The "Brandenburg standard" thus affirmed the "clear and present danger" test, what Congress now wants to abolish unconstitutionally.
On January 3, Law Professor Geoffrey Stone's New York Times op-ed headlined, "A Clear Danger to Free Speech," saying:
In fact, the William H. Rehnquist Supreme Court, in Bartnicki v. Vopper (2001), held that anyone publishing information "from a source who obtained it unlawfully" may not be punished "absent a need....of the highest order....it would be quite remarkable to hold" that such individuals are criminally liable because the government didn't "deter conduct by a non-law-abiding third party."
In fact, whatever's in the public interest should and must be published. It's the only way fundamental constitutional principles are protected, ones lawless House and Senate members want stripped.
A Final Comment
On January 8, a WikiLeaks statement said:
It requires a San-Francisco-based micro-blogging site to hand over all details of five individual accounts and private Twitter messaging, including the computers and networks used. Assange and four others were named. Another report said he was offered a plea bargain if he cooperates. So far the subpoena's contents are sealed. Assange demands they be revealed, and he promised to fight the alleged charges.
Administration and congressional members accuse WikiLeaks and Assange of compromising US national security and endangering the lives of human intelligence sources. They also say nothing of importance was published.
In a December 7 op-ed in The Australian, Assange said:
No one since WikiLeaks began publishing was harmed. In contrast, Washington's imperial wars harmed millions at home and abroad with no accountability or acknowledgement by America's dominant media, portraying lawless conflicts as liberating ones. As a result, "truth emergency" conditions demand that whistleblowers and independent writers do what corporate-paid ones don't - their job.
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This story was published in the Baltimore Chronicle on January 9, 2011.
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