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Articles Below (Scroll Down) . . . . . . . . .
Indictment Against The New York Times
Indict The New York Times
The Sign Police Strike Again
All the Hypocrisy That's Fit to Print
The Press Defaults on its Duty
"Ten Reasons": Another Bum Rap for David Horowitz
Navajo Not Spoken Here
Political Speech in New Mexico
Rendering Unto Caesar: Polygamy on Trial
Putin, the Republican Party, and Free Speech
Terrorists, Vietnam, and Free Speech
The Left and Less-Equal Speech
The Two Vladimirs and Thomas Jefferson
They Never Learn: Pennsylvania and Vietnam
Where Have All the Critters Gone?
Indictment Against The New York Times
"Bank Data Is Sifted by U.S. in Secret to Block Terror"
By ERIC LICHTBLAU and JAMES RISEN
Published: June 23, 2006
“Under a secret Bush administration program initiated weeks after the Sept. 11 attacks, counterterrorism officials have gained access to financial records from a vast international database and examined banking transactions involving thousands of Americans and others in the United States, according to government and industry officials.”
The New York Times
The New York Times has done it again!
This time it has blown the cover of a secret undercover operation aimed at the financial heart of al Qaeda.
Not long ago, I wrote an article entitled “Indict The New York Times. In it, I asserted that “[i]t is an article of faith on the Left and among its fellow travelers that the Bush administration stole two elections, made war on Iraq for venal reasons, tortured hapless foreigners, and conducted illegal surveillance of innocent Americans. A corollary of this mindset is that the press, primarily the Washington Post and The New York Times, has a right, indeed a duty, to print whatever they want about the administration—even if the information compromises national security. Not true. The press is not exempt from laws that apply to everyone else. The press is not exempt from laws protecting our national security. The New York Times is not exempt from the Espionage Act . . . .” (Nor, by the way, is that newspaper exempt from the crime of treason.)
My article was triggered by the newspaper’s December 2005 revelation that soon after the horrific events of September 11, 2001, President Bush had, in the Times’ own words, “authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying . . . .” (The article—by James Risen and Eric Lichtblau—was followed by publication of a book by Risen elaborating on the article’s contents.)
This intentional disclosure of a top secret program vital to our nation’s security raised the question later asked by Gabriel Schoenfeld in his superb March 2006 Commentary article entitled “Has the New York Times violated the Espionage Act?” Schoenfeld’s answer—and mine—is a resounding “yes”!
As Schoenfeld said, “[b]y means of that disclosure, the New York Times has tipped off al Qaeda, our declared mortal enemy, that we have been listening to every one of its communications that we have been able to locate. * * * What the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism.”
That being so, what has our government done about in the ensuing six months? Sadly, nothing.
The Justice Department’s foot-dragging over the Times’ perfidy is akin to the Nixon Administration’s response to Jane Fonda’s treason in North Vietnam: yet another example of our government ignoring those who betray the United States. (See “Aid and Comfort”: Jane Fonda in North Vietnam, by Henry Mark Holzer and Erika Holzer). Like Fonda, The New York Times and its employees who revealed the NSA program will similarly escape indictment.
But the Times, like Fonda, is indictable—and just as “Aid and Comfort” presented the Fonda indictment that could have been, so, too I offer here a draft indictment against The New York Times and those of its employees, and others, who piously committed one of the worst breaches of national security—perhaps the worst—in modern times.
* * *
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
v. CRIMINAL NO. 06CR______
THE NEW YORK TIMES COMPANY,
BILL KELLER, JAMES RISEN, ERIC LICHTBLAU,
and JOHN AND JANE DOES 1 THROUGH 20,
Defendants.
THE GRAND JURY CHARGES THAT:
INTRODUCTORY ALLEGATIONS
At all times material to this indictment:
1. Defendant The New York Times Company was the publisher of the general circulation newspaper The New York Times.
2. Defendants Keller, Risen, and Lichtblau were agents and/or employees of The New York Times.
3. Defendants John and Jane Does 1 through 20 included among them agents and/or employees of the United States.
4. Defendants John and Jane Does 1 through 20 had a legal duty to act in accordance with law regarding all officially classified information and documents and information relating to the national defense in their possession and/or under their control.
5. Defendants The New York Times Company, Keller, or Lichtblau were not entitled legally to have under their control and/or possess, disclose, and/or communicate officially classified information and documents and information relating to the national defense.
6. At a time or times subsequent to September 11, 2001, the exact time or times being unknown to the grand jurors, defendants John and Jane Does 1 through 20, knowingly and willfully disclosed and communicated to defendants The New York Times Company, Keller, Risen, and Lichtblau, officially classified information and documents and information concerning a National Security Agency communication intelligence surveillance program vital to the United States’ national defense.
7. Defendants The New York Times Company, Keller, Risen, and Lichblau, within the Southern District of New York, knowingly and willfully caused to be published, and published, said classified information and documents and information in The New York Times.
8. None of the defendants John and Jane Does 1 through 20 were legally authorized to disclose or communicate said classified information and documents and information to defendants The New York Times Company, Keller, Risen, or Lichtblau.
9. None of the defendants The New York Times Company, Keller, Risen, or Lichtblau were legally authorized to possess or publish said classified information and documents and information.
10. None of the defendants The New York Times Company, Keller, Risen, or Lichtblau were legally authorized to publish said classified information and documents and information.
COUNT ONE
Treason
(All defendants)
11. The communicating, furnishing, transmitting, and otherwise making available the said classified information and documents and information by defendants John and Jane Does 1 through 20 knowingly and willfully to defendants The New York Times Company, Keller, Risen, and Lichtblau constituted adhering to the enemies of the United States and giving them aid and comfort.
12. The publication of the said classified information and documents and information by The New York Times Company, Keller, Risen, and Lichtblau constituted adhering to the enemies of the United States and giving them aid and comfort.
(In violation of 18 U.S.C. Section 2381.)
COUNT TWO
Disclosure of classified information
(Defendants John and Jane Does 1 through 20)
13. At a time or times subsequent to September 11, 2001, the exact time or times being unknown to the grand jurors, defendants John and Jane Does 1 through 20, or some of them, knowingly and willfully communicated, furnished, transmitted, and otherwise made available classified information concerning the communication intelligence activities of the United States to a person or persons not entitled to receive it, to wit, defendants The New York Times Company, Keller, Risen, and Lichtblau.
(In violation of Title 18, United States Code, Section 798.)
COUNT THREE
Communication of national defense information
(Defendants The New York Times Company, Keller, Risen, and Lichtblau)
14. At a time or times subsequent to September 11, 2001, the exact time or times being unknown to the grand jurors, defendants The New York Times Company, Keller, Risen, and Lichtblau, having unauthorized possession of the aforesaid documents or information relating to the national defense, which documents or information defendants had reason to believe could be used to the injury of the United States, willfully communicated the same to persons not entitled to receive it by publishing said information in The New York Times.
(In violation of Title 18, United States Code, Section 793(d).)
COUNT FOUR
Disclosure of classified information
(Defendants The New York Times Company, Keller, Risen, and Lichtblau)
15. At a time or times subsequent to September 11, 2001, the exact time or times being unknown to the grand jurors, defendants The New York Times Company, Keller, Risen, and Lichtblau published and used in a manner prejudicial to the safety or interest of the United States to its detriment, classified information concerning the communication intelligence activities of the United States.
(In violation of Title 18, United States Code, Section 798.)
COUNT FIVE
Conspiracy to commit treason
(All defendants)
16. Beginning after September 11, 2001 and continuing until December 16, 2006, in the Southern District of New York and elsewhere, all defendants did unlawfully, knowingly and willfully conspire, confederate and agree together and with others, known and unknown to the Grand Jury, to commit the following offense against the United States, to wit: to adhere to its enemies and give them aid and comfort.
17. The defendants’ overt acts in furtherance of their conspiracy consisted of defendants John and Jane Does 1 through 20, knowingly and willfully communicating, furnishing, transmitting, and otherwise making available to defendants The New York Times Company, Keller, Risen, and Lichtblau, classified information and documents and information concerning a National Security Agency communication intelligence surveillance program vital to the United States’ national defense, and further consisted of defendants The New York Times Company, Keller, Risen, and Lichblau, causing to be published, and publishing, said classified information in The New York Times and elsewhere.
(In violation of 18 U.S.C. Section 371.)
COUNT SIX
Conspiracy to communicate national defense information
(All defendants)
18. Beginning after September 11, 2001 and continuing until December 16, 2006, in the Southern District of New York and elsewhere, all defendants did unlawfully, knowingly and willfully conspire, confederate and agree together and with others, known and unknown to the Grand Jury, to commit the following offense against the United States, to wit: to knowingly and willfully communicate, furnish, transmit, and otherwise made available, or use in a manner prejudicial to the safety or interest of the United States to its detriment, national defense information concerning the communication intelligence activities of the United States to a person or persons not entitled to receive it.
19. The defendants’ overt acts in furtherance of their conspiracy consisted of defendants John and Jane Does 1 through 20 willfully communicating to defendants The New York Times Company, Keller, Risen, and Lichtblau, documents and information concerning a National Security Agency communication intelligence surveillance program vital to the United States’ national defense, and further consisted of defendants The New York Times Company, Keller, Risen, and Lichblau, causing to be published, and publishing, said documents and information in The New York Times and elsewhere.
(In violations of 18 U.S.C. Section 371.)
COUNT SEVEN
Conspiracy to disclose classified information
(All defendants)
20. Beginning after September 11, 2001 and continuing until December 16, 2006, in the Southern District of New York and elsewhere, all defendants did unlawfully, knowingly and willfully conspire, confederate and agree together and with others, known and unknown to the Grand Jury, to commit the following offense against the United States, to wit: to knowingly and willfully communicate, furnish, transmit, and otherwise made available, or use in a manner prejudicial to the safety or interest of the United States to its detriment, classified information concerning the communication intelligence activities of the United States to a person or persons not entitled to receive it.
21. The defendants’ overt acts in furtherance of their conspiracy consisted of defendants John and Jane Does 1 through 20 unlawfully disclosing and communicating to defendants The New York Times Company, Keller, Risen, and Lichtblau, classified information concerning a National Security Agency communication intelligence surveillance program vital to the United States’ national defense, and further consisted of defendants The New York Times Company, Keller, Risen, and Lichblau, causing to be published, and publishing, said classified information in The New York Times and elsewhere.
(In violation of 18 U.S.C. Sections 371)
* * *
Schoenfeld concluded his Commentary article by noting that [t]he Justice Department has already initiated a criminal investigation into the leak of the NSA program, focusing on which government employee may have broken the law. But the government is contending with hundreds of national-security leaks, and progress is uncertain at best. Thereal question that an intrepid prosecutor in the Justice Department should be asking is whether, in the aftermath of September 11, we as a nation can afford to permit the reporters and editors of a great newspaper to become the unelected authority that determines for all of us what is a legitimate
secret and what is not. Like the Constitution itself, the First Amendment’s
protections of freedom of the press are not a suicide pact. The laws governing what the Times have done are perfectly clear; will they be enforced? " (Emphasis added.)
I fear not—unless there is a hue and cry from American patriots loud enough to make President George W. Bush and Attorney General Alberto Gonzales remember the solemn oaths of office they took. Perhaps then those like Jane Fonda and The New York Times, who self righteously wrap themselves in the flag while contributing to the destruction of what it represents, will deservedly have to defend charges under the treason and espionage statutes of the United States of America.
_________
The crimes charged in the indictment were committed in Manhattan, which is located within the jurisdiction of the United States District Court for the Southern District of New York.
Thanks to the paranoid political correctness of the Philadelphia Human Relations Commission and its acting executive director, Rachel Lawton, the print and alternative media have quickly exposed yet another attack by the sign police.
By now, most cheese steak lovers and other patriots have heard about the two signs Philadelphia Joey Vento posted at his Geno’s steak restaurant. They depict the stars and stripes and the head of a bald eagle, next to seven words: “This is AMERICA. WHEN ORDERING ‘SPEAK ENGLISH’.”
Ever alert to the sensitivities of South Philadelphia’s non-English speaking, cheese steak-seeking population, Lawson concluded that “[t]he sign discourages patronage by non-English speakers because of their national origin and/or ancestry.”
This insight was intended to invoke the Philadelphia Fair Practices Ordinance section that prohibits “discrimination” in public accommodations on the basis of race, color, religion, national origin, ancestry, sex, sexual orientation, disability, marital status, and gender identity—Lawson’s focus being on just two of the ten “no-no” categories: national origin and/or ancestry.
In other words, according to the Philadelphia public official charged with enforcing “anti-discrimination” laws, it is illegal “national origin” and/or “ancestry” discrimination to request that restaurant patrons—whom she admits do not speak English—order cheese steaks in the language of the United States (and South Philly).
There are several stories here: what Lawson’s beef with Geno’s reveals about the absurdly indefensible lengths to which the anti-discrimination zealots are willing to go; how the national publicity given the story has exposed those lengths and made Lawson and her commission look like the fools they are; that Joey Vento has become yet another symbol of the small entrepreneur beleaguered by petty bureaucrats; that he has a complete defense on the facts because he has not discriminated against anyone. (Even the zealots at the Human Relations Commission haven’t been able to turn up anyone—cross-dressers included—who have been refused a cheese steak at Geno’s. That would be a different case.)
But perhaps the most important aspect of the Geno’s story hasn’t received the attention it deserves. It is the arrogance of Lawson and her bunch in the face of Supreme Court decisions that will protect Joey’s signs and the messages they convey.
Joey Vento’s signs are an exercise in unambiguous political speech.
They contain renditions of the American flag and her national symbol, the bald eagle—unmistakable patriotic allusions. His signs say “this is America”—unambiguous statements of patriotism. Though less pointed, the signs’ final four words, “when ordering speak English,” are contextually in exactly the same vein. They emphasize the graphics’ invocation of patriotism, the earlier words’ reminder that Geno’s restaurant is in the “land of the free and the home of the brave”—and they underscore that this is an English-speaking country.
As the Geno’s case moves forward—assuming that Lawson is dumb enough to persist—those who oppose free speech when it offends someone will doubtless argue that Joey’s signs are not political speech, but rather “commercial speech” which can be regulated “in the public interest.” There will be several answers to this contention, but one will be definitive.
In the famous First Amendment case of New York Times v. Sullivan, the Court considered an allegedly offensive paid political announcement to be “not a ‘commercial advertisement’ . . . . It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought . . . support for a movement whose existence and objectives are matters of the highest public interest and concern.”
Joey Vento’s signs do exactly the same thing. They remind his actual and would-be patrons that this is the United States, that they should act like Americans, and that patriotism is alive and well at Geno’s in South Philly.
Patriotism is not discrimination. Not in South Philadelphia. Not anywhere.
All The Hypocrisy That's Fit To Print
The scandal of Senator Patrick Leahy’s Judiciary Committee treatment of Bush Administration nominees to the federal bench is by now well known. The most recent victim – a member of the Texas Supreme Court who failed to garner committee approval, because of a straight 10-9 party line vote – was, predictably, opposed editorially by The New York Times. While that wasn’t surprising, the Times’ open hypocrisy has not often been so obvious.
The Times editorial accused Justice Priscilla Owens of being "one of the most conservative members" of "Texas’ conservative Supreme Court, "far from the mainstream," and a tool of the administration’s attempt "to use the judiciary to advance a political agenda that is out of step with the views of most Americans" – for example, turning "the courts into a champion of big business, insurance companies and the religious right."
Justice Owens was also accused by the Times of "unconscionable judicial activism," of a "willingness to ignore the text and intent of laws that stand in her way," and of ignoring statutory language and substitut[ing] her own views."
And, for good measure, the Times – which recently distorted Henry Kissinger’s position on attacking Iraq – righteously accused Justice Owens of "a disturbing lack of sensitivity to judicial ethics."
Let’s examine each of these charges."One of the most conservative members of a conservative court."
"Far from the mainstream." Here, the omniscient Times arbitrarily asserts that there is some sort of "mainstream" in America today, who it consists of, what it believes, and that those beliefs are not conservative. Putting aside that The New York Times is presumptuous in the extreme, and that its partisan notion of being "mainstream" should be a qualification for federal judicial office, one has to ask why this self-appointed judicial watchdog newspaper didn’t express the same reservations when other Presidents nominated arguably non-"mainstream" candidates like the Ninth Circuit judge who recently held unconstitutional the recitation of our Pledge of Allegiance.
"Using the judiciary to advance a political agenda that is out of step with the views of most Americans" – for example, turning "the courts into a champion of big business, insurance companies and the religious right." The adage "the pot calling the kettle black" comes to mind. For The New York Times it was more than acceptable – indeed it was solemn duty – for the liberal Warren Court to turn America’s criminal justice system on its head by creating ersatz "rights" for criminals. The Times cheered when Warren, Brennan, Douglas, Black, Goldberg, Fortas, and others, handcuffed, not the criminals but the police. That "political agenda" was certainly "out of step" with the views of most Americans (even the "mainstream," probably) – and, worse, it transformed the Supreme Court of the United States, as well as lower federal and state courts, into champions of criminals. "Unconscionable judicial activism * * * willingness to ignore the text and intent of laws that stand in her way," and of ignoring "statutory language and substitut[ing] her own views."
"Disturbing lack of sensitivity to judicial ethics." This charge was – irresponsibly – short on facts, making it hard to judge whether the Times was on to something legitimate. However, there was no allegation that any judicial watchdog committee had ever censured Justice Owen for raising money for her election, or for later declining to recuse herself. So the Times opens itself up to the charge of institutional bias when one recalls how no Times editorial criticized Lyndon Johnson’s appointment to the United States Supreme Court of his crony Abe Fortas – fixer, manipulator, and much worse. (Fortas, for those of us who do remember, continued doing legal business while on the High Court, as well as giving President Johnson legal and political advice – until he was forced to resign in disgrace.)
It may be that The New York Times’ opposition to Justice Owens’ nomination to the United States Court of Appeals for the Fifth Circuit played a role in her defeat (although the newspaper had plenty of help from the leftwing apparatchiks and Judiciary Committee democrats). But that opposition comes at a price. It once again underscores that The New York Times, our so-called "newspaper of record," has its own partisan agenda – one, I might add, that is far from the mainstream.
The Press Defaults On Its Duty
Unfortunately, the recent spectacle of worldwide mindless Muslim riots—supposedly caused by a Danish newspaper’s publication of the Muhammad cartoons—has obscured a phenomenon even more dangerous to this nation than the rampages themselves: the capitulation of America’s free press, which almost universally has declined to publish any of the drawings.
The issue is not that the press has a right to publish the cartoons. That’s undeniable. It’s Constitutional Law 101.
No, the issue is the duty of the American press to publish the Muhammad cartoons. It’s not a social or political duty, but rather a moral duty, rooted in the legacy of the Founders and the self-generated principle the press has wrapped itself in for over two hundred years: "the public’s right to know"—about such stories as the Pentagon Papers, Watergate, looting of Iraq’s museums, Abu Ghraib, NSA surveillance, alleged torture of terrorists, secret CIA prisons, and much more.
Indeed, it was the perceived moral duty of the press in service of the public’s right to know that brought us editorial cartoons like Joe McCarthy climbing out of a sewer carrying a bucket overflowing with slime, and of Richard Nixon dressed like a plumber.
Now, in the matter of the Muhammad cartoons, virtually all of the American press has suddenly done an about face— in the name of "restraint," "sensitivity," "respect," "tolerance," and other out-of-context bromides. Yet there was none of this, or any reluctance to "offend," when the media showed a South Vietnamese policeman shooting a Vietcong killer in the head, or allowed Jews to be caricatured by making them look like Shylock, or depicted Christ immersed in urine, or in publishing other stories that were, certainly as to some members of the public, unrestrained, insensitive, disrespectful, intolerant, and, yes, even offensive.
But then, the press had no reason to fear the South Vietnamese, the Jews, or the Catholics. And therein lies the explanation of what has happened to the media in the United States.
The American press that has ignored the Muhammad cartoons—cognizant of the fatwas against Rushdie and others, the murder of van Gogh, the burning of diplomatic enclaves, and the rash of death threats—has cut and run for at least two reasons.
One, much less important than the second, is that most journalists in America today believe, or at least purport to believe, in the "multiculturalism" gobbledygook that all cultures are equal, that they all deserve respect, etc. ad nauseam.The more important reason is because they are cowards
The compliant American press has shamefully, and dangerously, reinforced the belief of Osama bin Laden and his minions that—like Nixon’s pullout from Vietnam, Reagan’s retreat from Beruit, Clinton’s flight from Somalia, and Bush 41’s failure of will in the Gulf War—Americans can’t take casualties.Now, despite the sagacity of the Founders and the many First Amendment battles to keep America’s press free, the guardians of that legacy have left the field—not because of atual harm to them (which, had it occurred, they should have proudly accepted and soldiered on), but because of the mere risk of danger. They have capitulated to mere threats from political zealots who worship nihilism, and who in millennia have contributed little to the civilized world but hatred, destruction, and death.
Throughout American history, the principal enemy of a free press has been government. Now, sadly, it is the press itself.
"Ten Reasons": Another Bum Rap For David Horowitz
David Horowitz — one of this country’s staunchest defenders of free speech — has yet again become a victim of the Political Correctness crowd. In the past, Horowitz has been attacked for his well-reasoned conservative positions on race. This time — because of the recently renewed plea that some black Americans receive "reparations" for ante-bellum Negro slavery — Horowitz sought to publish a political statement entitled "Ten Reasons Why Reparations for Slavery is a Bad Idea — and Racist Too."
Did any of Horowitz’s ten reasons even hint at racism? Did any of them conceivably constitute an attack on black Americans? Did any even imply that today’s Afro-Ameicans are lazy, stupid, dishonest? Not by any stretch of the imagination! Indeed, Horowitz’s ten reasons — explained, defended, and substantiated in two single-spaced pages — were the following: "I. There is no single group responsible for the crime of slavery"; "II. There is no single group that benefited exclusively from slavery"; "III. Only a minority of white Americans owned slaves, while others gave their lives to free them"; "IV. Most living Americans have no connection (direct or indirect) to slavery"; "V. The historical precedents used to justify the reparations claim do not apply, and the claim itself is based on race not injury"; "VI. The reparations argument is based on the unsubstantiated claim that all African Americans suffer from the economic consequences of slavery and discrimination"; "VII. The reparations claim is one more attempt to turn African Americans into victims. It sends a damaging message to the African-American community and to others"; "VIII. Reparations to African Americans have already been paid"; "IX. What about the debt blacks owe to America?"; "X. The reparations claim is a separatist idea that sets African-Americans against the nation that gave them freedom."
These ten reasons are not racist. They are — even were they racist — political speech protected by the First Amendment.
What was the reaction to Horowitz’s non-racist, First Amendment-protected, political speech? Predictably, the PC crowd viciously attacked him, together with some of the newspapers that had the integrity to print his "Ten Reasons." Newsweek (April 2, 2001) has reported that "At Berkeley," a bastion of free speech for the Left, "students stormed the offices of The Daily Californian to demand an apology after the newspaper ran the ad. They got one. At Brown, student protesters threw away thousands of free copies of The Brown Daily Herald issue containing the ad. At Duke, hundreds demonstrated. * * * At a Brown faculty meeting . . . [the] chair of the Afro-American Studies program suggested the seizure of the Daily Herald copies could be seen as valid civil disobedience against Horowitz’s ‘hate speech’."
With that speech-smashing epithet, "hate speech," here yet again was the Left — defenders of pornography, silencers of abortion protesters, foes of so-called "commercial speech" — trying to shut down rational free speech discourse on the subject of race. This tactic is not new. Nearly twenty years ago, the "Hate Speech Movement" was born in the legal academy, and since then its partisans have tried in the name of some undefined and non-definable "public interest" to silence so-called "words that wound" on subjects that embrace race, religion, gender, sexuality, ethnicity, multiculturalism, and more. As I have written in my book Speaking Freely: The Case Against Speech Codes, "It was bad enough when obeisance to the god of ‘public interest’ was invoked to silence discrete, perhaps even marginal, groups such as anarchists and Communists, pornographers, and pacifists. It is much more dangerous when a movement seeks to silence not some definable and limited category of speakers, but everyone who dares make an ‘unacceptable’ statement concerning any class which the movement deigns to certify as ‘victim’."
Beyond the public service that Horowitz has performed by advancing his "Ten Reasons," and his willingness to be a lightening rod for the ire of the speech-smashing Left by practicing the free political speech that they claim to revere, there is an even more important lesson to be learned from this episode. It transcends the issue of reparations, even the subject of race in America. The lesson is that there remain in our country hypocritical Leftists who seek to silence those who propound political ideas anathema to their own. There are more than ten reasons why this is anti-American.
Navajo Not Spoken Here
One section of Title II of the Civil Rights Act of 1964 – enacted purportedly on the strength of Congress’ power to regulate interstate commerce – punishes discrimination in places of "public accommodation" on the basis of race, color, religion or national origin. In Heart of Atlanta Motel, Inc. v. United States, the act’s constitutionality as applied to hotels/motels was upheld by the Supreme Court of the United States. In Katzenbach v. McClung, the Court held the act could be applied to a family-owned restaurant – even though the establishment was more than a mile away from an interstate highway – because the law swept into its ambit any restaurant either serving interstate travelers, or providing to intrastate customers products that had earlier moved in interstate commerce. (Ollie’s Barbeque had bought about $70,000 worth of food out-of-state the year before).
In other words, under the public accommodations section of the Civil Rights Act of 1964, private establishments open to the public were prohibited from discriminating for reasons of race, color, religion or national origin. While discrimination of that kind is certainly immoral and ought not to be practiced by decent people, the fact that hotels, motels, restaurants, saloons, bowling alleys, and like places were private property made no difference to the do-gooders who used the power of government to turn their views of an egalitarian society into law.
In the nearly 40 years since the Heart of Atlanta Motel and Ollie’s Barbecue were forced to accommodate people they would have rather not served, other categories of discrimination have become predominant: e.g, gender, disability, homosexuality. For example, using the Civil Rights Act of 1964 as a basis, the federal Equal Employment Opportunity Commission has asserted jurisdiction to sue over so-called "language restrictions" – as the owners of R.D.’s Drive-In learned recently.
The burgers-fries-and-pies restaurant is located in Page, Arizona, close to the sprawling Navajo reservation. For two decades, R.D.’s served its burgers in peace, with a staff consisting almost completely of Navajos. Two years ago, however, customers and employees alike complained to R.D.’s owners that some Navajo-speaking employees were making lewd comments in the Navajo language to their co-workers, and tocustomers. According to the owners, "Some of the things they said were terrible. Some workers said they felt verbally abused and sexually harassed." Job-seekers at the restaurant were discouraged. Customers were offended.
R.D’s conscientious owners searched the EEOC’s Internet website for guidance about how to deal with the problem, well aware that they were treading on dangerous legal ground, given the government’s solicitude for the "rights" of minorities. The owners’ solution: a policy requiring only English to be spoken in their restaurant, except if a customer spoke only Navajo. "The owner of this business can speak and understand only English. While the owner is paying you as an employee, you are required to use English at all times. The only exception is when the customer cannot understand English. If you feel unable to comply with this requirement, you may find another job."
Predictably, four employees quit. Together with the federal EEOC, the four sued R.D.’s Drive-In for violating the Civil Rights Act by prohibiting Navajos from speaking their native language on the job.
To their credit, the owners refused a deal with the government that was tantamount to an admission of wrongdoing – even though they face as much as $200,000 in fines and at least $100,000 in legal fees.
Putting aside such questions as whether the Interstate Commerce Clause is an adequate basis upon which to justify the "public accommodations" section of the Civil Rights Act of 1964 (it has been held sufficient), whether the owners of R.D.’s Drive-In were prejudiced against Navajos (they weren’t), whether the diner’s "No Navajo" policy cured the harassment problem for both employees and customers (it did), and whether the EEOC’s lawyer means it when he says, "We don’t want to put them out of business" (which is what will happen if the owners lose the case), the R.D. restaurant case demonstrates yet again the pernicious effects of the public accommodations section of the Civil Rights Act.
It was bad enough that a do-gooder Congress enacted, and a glory-seeking president signed, a so-called Civil Right Act containing the public accommodations section. Now a federal administrative agency (the EEOC) has made it illegal for the owners of private businesses that accept the public as customers to impose language restrictions – even if they are used to defend one’s private property, protect is employees and customers from harassment, and prevent the ruination of one’s business.
The R.D.’s Drive-In case will be watched closely. In it, much more is at stake than speaking Navajo in a Page, Arizona, burger restaurant. At stake – yet again – is the right of a private property owner to use his property as he wishes, so long as no one is injured, and to defend that use against, not only foul-mouthed Navajos, but also against their patron, the government of the United States.
Political Speech In New Mexico
Before a person or object can be unthrottled, there must first be a throttling. And that’s what happened in New Mexico last week, when a federal judge (Martha Vazquez) throttled the First Amendment.
A provision of the Albuquerque City Charter limits expenditures by mayoral candidates and punishes violation with fines, reprimand, and even removal from office.
Candidate Rick Homans overspent. He sued, claiming that the charter provision violated his rights under the First Amendment to the Constitution. Homans relied on the Supreme Court’s decision in Buckley v. Valeo that spending money for electoral purposes was a form of speech protected by the First Amendment.
Although Buckley is quite clear on this point — and although some years ago, in a case of mine, a colleague of Judge Vazquez had declared unconstitutional a New Mexico statute providing that funds raised for a federal election (i.e., Congress) could not be used in a state election campaign (New Mexicans for Bill Richardson v. Gonzales) — Judge Vazquez refused to enjoin enforcement of the Albuquerque expenditure cap.
Even though a federal district judge like Martha Vazquez is bound by higher-court precedent, and even though it is the sworn constitutional duty of federal district judges to apply those precedents, in the Homans case Judge Vazquez violated her oath.
Buckley, decided in 1976, was decades old, she noted. (One wonders how Judge Vazquez would react to the argument that Roe v. Wade, decided in 1973, has lost its vitality after nearly three decades.)
Then, there were some non-binding statements from lower courts, whose ideas apparently impressed Judge Vazquez. There is, she said, an "abundance of judicial commentary on compelling governmental interests which fall outside the ambit of Buckley" — on the basis of which she found that the Albuquerque expenditure cap fostered such interests. How? By preserving faith in democracy and reducing the appearance of corruption. In other words, because there is some non-binding language in some lower court cases, despite what the Supreme Court held in Buckley, it was constitutionally permissible for Albuquerque to punish Mr. Homans for spending more than the good citizens of that city thought he should spend — even if it was his own money — in aid of his mayoral aspirations.
In addition, Judge Vazquez claimed that the Supreme Court was currently divided over the scope of Buckley. However, in making this claim she failed to note the distinction that case made between permissible restrictions on campaign contributions and impermissible restrictions on campaign expenditures, the latter being the only aspect of the Albuquerque cap being challenged by candidate Homans.
Finally, Judge Vazquez — confusing her role in our constitutional separation of powers system with that of the elected and politically accountable legislature — observed that the public favors spending limits because they supposedly improve the fairness of elections and insure an equal playing field regardless of one’s financial resources, thus eliminating or at least reducing reliance on "special interests."
Mr. Homans immediately appealed to the United States Court of Appeals for the Tenth Circuit. That court promptly reversed Judge Vazquez, ruling, in essence, that she had misread and failed to be bound by Buckley, and refuting every one of the "reasons" she had offered in support of her refusal to enjoin enforcement of the Albuquerque charter provision.
The important point here, however, transcends Judge Vazquez’s refusal to enjoin a patently unconstitutional law. It transcends the Court of Appeals’ summary reversal of her lawless conduct.
Why Judge Vazquez refused to enjoin enforcement of a patently unconstitutional law is the most important part of this story. She refused because, like many judges, Judge Vazquez apparently believes that it is an appropriate function of courts to make policy decisions rather than to interpret and apply the Constitution and laws that judges are sworn to uphold. As a federal judge with lifetime tenure, Martha Vazquez is not politically accountable. That lack of accountability too often spawns a judicial arrogance that can be checked in only two ways. One, as we have just seen, is through reversal by a higher court. The other is through the appointment process for federal judges.
Those who revere and understand the irreplaceable value of the First Amendment must insist that, like the president of the United States, appointed federal judges take seriously their duty to "preserve, protect and defend" not only the First Amendment, but the entire Constitution of the United States of America.
Rendering Unto Caesar: Polygamy On Trial
Tom Green sits in a Provo, Utah, courtroom defending himself against a charge of polygamy because he has five wives and 25 children. At the core of Green’s defense is that part of the First Amendment to the American Constitution that guarantees the "free exercise" of religion — written by our Founders in response to religious persecution that had plagued Europe for centuries, and from which their ancestors had escaped. The case’s importance transcends the question of polygamy’s place in Twenty First Century America.
Green’s prosecution — some say persecution — has its roots in the infamous Nineteenth Century case of Reynolds v. United States. Utah was not yet a state, but merely a territory. Congress had enacted an Anti-polygamy Act in 1862 (Ch. 126, 12 Stat. 501). George Reynolds, a devout Mormon, had discharged his religious duty — under Mormon law not his option, but his duty — by entering into a bigamous marriage. Having thus rendered unto God, Reynolds was indicted, tried, and convicted by Caesar.
Reynolds appealed from the Supreme Court of the Territory of Utah to the Supreme Court of the United States, whose opinion reeks with blatant racism. For example: "Polygamy has always been odious among the Northern and Western Nations of Europe and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and African people." In this assertion the Court ignored the sad fact that Europeans had hardly been paragons of religious toleration and that their political systems never possessed anything even approaching our First Amendment. Moreover, the Supreme Court was dismissing out-of-hand a practice accepted by every major religion save Christianity.
The federal prosecutors argued that the Free Exercise Clause of the
First Amendment protects only "belief," not "conduct" — a specious distinction for at least two reasons. First, textually the constitutional guarantee is of religious "exercise," not belief. Second, a "belief-conduct" dichotomy is indefensible not only because belief and conduct are often inseparable, but because conduct, expression, and exercise are integral to all major religions. Indeed, carried to its logical extreme, a "belief-conduct" dichotomy would permit government to outlaw virtually all religious conduct, including baptisms, sacraments, Bar Mitzvahs, circumcisions, and perhaps even ceremonial weddings.
It was also suggested that anti-polygamy legislation could be justified because of the state’s duty to protect children. The problem with this argument was that no evidence was produced to support the notion that the child of a polygamous marriage is worse off than a child born illegitimate or one with divorced or separated parents. Indeed, there is evidence from other cultures — among them the very African ones disdained by the Reynolds Court — that unlike situations of absentee parents, children of polygamous marriages not only know the identity of their parents but are likely to be reared in a pious, loving atmosphere with a tightly-knit supportive setting.
The Court next raised a rhetorical question: "Suppose that one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?" Although the shallowness of this "argument" is easily revealed — sacrificing one’s self is a purely voluntary act, polygamy is non-coercive, and certainly no one dies — its implication is why the Green case transcends questions of polygamy.
Green and his five wives and 25 children raise a question central to the ongoing battle between the individual and the state, today exemplified by such "personal autonomy" issues as the use of drugs, the possession of guns, and the right to die. The drama unfolding today in that Provo, Utah courtroom raises what is perhaps the central political question of today: Can members of a free society engage in any conduct they wish, until their actions collide with the rights of others — and is it government’s proper role to stand aside until those rights of others are actually violated? Perhaps the Green case will tell us, when higher courts are asked to revisit Reynolds v. United States.
Putin, The Republican Party, And The NAACP
A couple weeks ago the former KGB apparatchik who is now president of Russia, Vladimir Putin – apparently as a step toward what he contradictorily called a "dictatorship of law" – took aim at another Valdimir: the owner of the only meaningful independent television operation in that country, Vladimir Gusinsky. That was an attack on speech/press freedom, and it may yet succeed.
This week, Putin is aiming at yet another Vladimir and many others like him. Putin’s new attack is on freedom of association.
Since control by the communist party crumbled a decade ago, Russia’s chaotic political system has given birth to nearly 200 parties, some of which look like real parties in western political terms (e.g., the communists, the pro-Putin Unity Party), while others are little more than small cliques surrounding individual politicians or would-be reformers.
One small party, a political reform group called the Republican Party, was organized by a Russian school teacher named Vladimir Lysenko. Several years ago, small groups like Mr. Lysenko’s Republican Party had more impact than today. For example, in 1995, forty-three of them competed in elections for Russia’s parliament. Two years ago, slightly more than half (twenty-eight) competed. Further attrition of the small political parties is reflected in the fact that in 1995 half of the votes in the parliamentary election were cast for the small parties not represented there, while in 1999 only nineteen percent were. Thus, the small party trend in Russia may well be vanishing, as voters and politicians begin to coalesce around major leaders and large issues. Then, groups like Vladimir Lysenko’s Republican Party may be eliminated naturally, by westernization of the political process.
While there has been vociferous opposition to Putin’s latest authoritarian move, especially from the small parties, and while that opposition has properly been rooted in the understanding that Putin continues to consolidate his power, there is an even more principled reason to object – one uniquely American – and that is freedom of association.The Constitution of the United States of America does not contain any express right of "association." Yet, in the case of NAACP v. Alabama in 1958 the Supreme Court of the United States held that "[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association . . . . * * * Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny." In accordance with this right, Americans have the right to associate in political parties, and government – state and federal – control over those parties is virtually nil. If the associational rights of political party members are substantially affected by state law, the members’ right will trump that law unless it is proved to serve an extremely important state interest that can not be served in some less restrictive manner – an extremely difficult burden for the state to meet.
Were associational rights generally recognized in Russia, and in particular for those persons wishing to associate for political purposes, Putin’s scheme would probably get nowhere. But, alas, that is not the case.
Terrorism, Vietnam, And Free Speech
On September 14, 2001, America’s National Day of Remembrance, some middle school students in Portland, Oregon, showed up wearing patriotic items of clothing. Citing the school’s dress code, the principal — a public employee, paid with taxpayer dollars — ordered the items removed. At about the same time, the head librarian at a Florida college — another public employee, also paid with taxpayer dollars — ordered employees to remove red, white, and blue "Proud to be an American" stickers from their clothing. "My concern," the librarian said, "was that if a student comes to the desk and sees the slogan, it might make it [sic] uncomfortable. I think we have an obligation to think about how we present ourselves. We want to ensure civility and tolerance." Another college functionary opined that: "We’re not here to express our personal opinions. We should be neutral."
These are but two examples of many that have already occurred since September 11th. We can expect many more, as morally bankrupt individuals attempt to stifle displays of patriotism by those who wish to express their support for their country.
If we are vigilant, those who would attempt to censor patriotism will not get away with it. Ironically, we can thank a 1969 decision of the Supreme Court of the United States, Tinker v. Des Moines Independent Community School District.
In late 1965, a group of adults and students in Des Moines decided to manifest their objection to the Viet Nam war by wearing black armbands during the holiday season. The local school principals — again, public employees, paid with taxpayer dollars — got wind of the idea and quickly adopted a policy that if a student wore a black armband to school and refused to remove it upon request, the student would be suspended until he or she returned without it. Three students wore the armbands, and were duly suspended.
When the case reached the Supreme Court — the so-called Warren Court, consisting of the Chief Justice and Justices Black, Douglas, Harlan, Brennan, Stewart, White, Fortas and Marshall — two lower federal courts already had held the school’s policy constitutional, and the students’ First Amendment rights not violated.
Justice Fortas wrote the Supreme Court’s opinion (with only Black and Harlan in dissent). His words bear repeating.
First, said Fortas, wearing the black armbands "was closely akin to ‘pure speech’ which [the Court has] repeatedly held is entitled to comprehensive protection under the First Amendment." [So, too, was the patriotic clothing in Oregon and the patriotic stickers in Florida.]
Second, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." [Nor at the college door.]
Third, "In order for the . . . school officials to justify prohibition of a particular expression of opinion, [they] must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." [There was no such showing in either Oregon or Florida.]
Fourth, "On the contrary, the action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation’s part in the conflagration in Vietnam." [Clearly, that was the motive of the authorities in both Oregon and Florida.]
Finally, "The prohibition of expression of . . . opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible."
What was true for Viet Nam war protest must certainly be true for America’s young patriots. It is often said that the United States Constitution is "color blind." Indeed, it is, and should be. And it is, and should be, "ideology blind." Those who patriotically support America in this time of crisis are entitled to the same free speech protections that, three decades ago, the Warren Court was so quick to uphold on behalf of the Left anti-war protesters of the Viet Nam era.
Free speech is more than a noble sentiment. It is the law of our land, and it applies to both anti-Americanism and patriotism.
The Left And Less-Equal Speech
Those who believe the Left’s propaganda that it has consistently been supportive of free speech are sorely mistaken. While the Left has fought for some speakers – among them socialists, communists, Nazis, anarchists. labor leaders and war protestors – its vaunted reputation as a defender of the First Amendment is ill deserved. The fact is that the Left’s supposed fealty to free speech has always been rooted, not in the principle that Americans have the inalienable right to speak freely, but rather in the issue-specific social ends that the Left sought to advance.
For example, the Supreme Court’s seminal pornography decisions – authored by liberal Justice William Brennan, and joined by the leading liberals of the Warren Court – allowed censorship and criminalization of what one’s friends and neighbors characterize as "obscene."
The concept of "hate speech" was spawned from the racist rant of the Left’s Critical Legal Studies’ academics.
In Madsen v. Women’s Health Center, Inc., the "pro-choice" Left was able to convince the Supreme Court of the United States to uphold a state-court injunction which, in the words of Justice Scalia’s dissent, created "a 36-foot zone in which only a particular group [anti-abortion protestors], which had broken no law, cannot exercise its right[s] of speech . . . and [which enacted] a noise prohibition, applicable to that group and that group alone . . . ." And it has been the Left that for years has terrorized the anti-abortion movement by using the federal RICO statute against those with the temerity to protest – i.e., to exercise their free speech rights under the First Amendment – the destruction of fetuses. No wonder that when only days ago the Supreme Court of the United States held the RICO statute – enacted to deal with the mafia – could not be used to silence anti-abortion protestors, the sole dissenter was liberal Associate Justice Stevens. Apparently, for him, free speech ends when the liberal ox is gored.
Then there’s the Left-engineered and supported "commercial speech" doctrine, which is not only cut from the same cloth as the Left’s other attacks on free speech, but which is becoming increasingly more dangerous – as a case now pending in the Supreme Court of the United States demonstrates.
The commercial speech doctrine had its origins over a half-century ago. In the early 1940s, a New York entrepreneur who owned a submarine wanted to conduct tours of the vessel from a city pier. After the authorities denied him a permit, he had handbills printed. One side carried an advertising message promoting the tour, the other a protest against the city’s denial of permission to use the pier. The city, attempting to stop the handbilling, invoked an ordinance prohibiting the distribution of any "handbill, circular . . . or other advertising matter whatsoever in or upon any street." In an opinion by arch-liberal William O. Douglas, the Supreme Court unanimously upheld the ordinance. Other commercial speech cases followed, with the same result. The epitome was reached in the Pittsburgh Press case, where the Court characterized commercial speech as that which "does no more than propose a commercial transaction."
Building on that characterization and on California’s unfair trade practice and false advertising law, a man in San Francisco has sued shoe manufacturer Nike. The essence of his complaint is this: (1) The state law makes it tortious to engage in specified (and not-so-specified) unfair trade practices, and to make false statements in advertising, and (2) Nike has made such statements in news releases and other publications, and on its website, concerning the working conditions in its overseas factories. The Plaintiff – who California law gives the right to sue as a "private attorney general" on behalf of the public – seeks an order requiring Nike to disgorge all profits it has made in California as a result of those allegedly false statements.
Let’s understand this. Nike, an American corporation, manufactures its products offshore. It has been attacked, for treating its workers poorly, by assorted Leftists and others who neither know nor want to understand how capitalism works (Gary Trudeau, the cartoonist of "Doonsbury" is one). Nike has defended itself in the public forum through various statements to the effect that its offshore business practices were ethical, that the company provided jobs and thus income to its workers, and that its presence in third world countries conferred economic and political benefits. California law says anyone can sue Nike, alleging those statements are false. Marc Kasky has done just that. If he wins, Nike is open to horrendous damages.
One would think that Nike would have an easy and conclusive defense: the free speech protection of the First Amendment. Not so, in light of the commercial speech doctrine. The California Supreme Court has held, 4-3, that Nike was engaged in commercial speech, in a decision with savage implications for everyone – corporations and individuals alike – who, in any context a court or jury deems "commercial," dares through the spoken and written word to defend against attacks.
According to Plaintiff Kasky, Nike’s purpose in defending itself "was to maintain and increase its sales and profits by appealing to consumers opposed to inhumane manufacturing practices." In other words, Nike’s defense was mere "advertising," and thus exempt from First Amendment protection because of the commercial speech doctrine.
Nike, for its part, has claimed that it spoke out as part of an international debate over globalization and its implications. Thus, according to the company, it should be treated no differently from a political figure, editorial writer, or anyone else discussing that issue.
These conflicting views stem from Douglas’ decision creating the commercial speech doctrine in the submarine case back in the Forties, and its progeny during the past six decades. That doctrine was logically, historically, and constitutionally unsupportable when it was invented, and it remains so today. Speech is speech, and relegating to second-class status forms of it that deal with denigrated topics like commerce (whatever exactly that is) does great disservice to the First Amendment. More ominously, it has now handed the Left a weapon with which to attack American capitalism.
In the Nike case, the Supreme Court has an opportunity to eliminate that weapon, and in doing so restore to equal status speech that "does no more than propose a commercial transaction."
The Two Vladimirs, And Thomas Jefferson
Under Stalin, any known criticism of the government, its leadership, socialism, or the communist party, resulted in the gulag or even death. Now that the Soviet Union has shrunken into merely Russia, and that a supposedly "free-ish" country has emerged, things are supposed to be different.
But are they?
While it’s true that today in Russia speech (and in this I include press) that offends the state doesn’t usually result in incarceration or worse, still, there can be a stiff price to pay. Whether the amelioration of punishment is attributable to a more tolerant attitude toward speech than in previous times, or simply a reflection of more subtle methods to stifle the expression of unpopular ideas, is difficult to assess. However, the reality is that in today’s Russia, speech that is at once critical and high-profile can be very dangerous.
A case in point involves our two Vladimirs: Vladimir Putin and Vladimir Gusinsky. Putin is, of course, president of Russia, and previously a KGB apparatchik. More recently, wearing his president’s hat and in an apparent moment of candor, Mr. Putin declared that he intended to create a "dictatorship of law." A just-concluded example of this contradiction in action is Mr. Putin having engineered the Stalinesque show trial of ill America businessman Edmond Pope. In accordance with Russia’s version of due process of law, Pope was arrested on vague and questionable charges, held in solitary for eight months, not permitted to have an interpreter, and was seriously restricted in his cross-examination of prosecution witnesses and presentation of his own defense. Like virtually every other criminal defendant in the old and new Russian regimes, Pope was convicted. Given the way the Russian system works, and given the high-level attempts by the American government to extricate Pope, there is no way that this case could have gone forward without the approval Mr. Putin. Indeed, after the charade had been completed, the "humanitarian" and "diplomatic" Mr. Putin stepped in, and after a rigged recommendation for clemency by a state board, the president pardoned Mr. Pope.
If Putin gets his way, it is doubtful that he’ll ever pardon the other Vladimir, Mr. Gusinsky. This Vladimir owns what has been described as a "media empire," the centerpiece of which is NTV, the only meaningful independent television operation in all of Russia. Gusinsky has been a voluble critic of first Yelsen and now Putin Apparently, Gusinsky didn’t realize, or didn’t care, that even in today’s Russia one doesn’t attack an ex-KGB president. So, last June Gusinsky was jailed for several days on a charge of illegal firearm possession, a crime which if enforced evenhandedly would probably result in the incarceration of tens of thousands of Russians. He was released after agreeing to cede majority control of his conglomerate to GAZPROM, a corporate arm of the Russian state. Now in the south of Spain, Gusinsky has been arrested on a Russian prosecutor’s complaint that he allegedly misrepresented his conglomerate’s financial status when negotiating a $300 million loan from GAZPROM. Even though GAZPROM isn’t complaining, the Russians want Gusinsky extradited.
While there’s no way for outsiders to know whether there’s anything to the Russian prosecutor’s case, or why he has gone after Gusinsky – coincidently, an unremitting critic of Putin – there are unsettling aspects to the case. Gusinsky is, in effect, a reporter-editor-publisher, running the only real independent television outlet with countrywide reach. His prosecution may be no more of a coincidence than were the prosecutions of anti-Federalists under our own Sedition Act of 1798, which prohibited "publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of Congress . . . or the President . . . with intent to defame . . . or to bring them . . . into contempt or disrepute. . . ." This Act was used by President Adams’ Federalist administration against the anti-Federalist editors of Jefferson’s party who criticized Adams’ administration. Some ten men were convicted, among them a Member of Congress and several Republican editors who were silenced by heavy fines or jail sentences. One was sentenced to four years. The Act was blatantly unconstitutional, and when Jefferson came to power in 1801, he pardoned the Act’s victims.
The New Russia – and its former secret policeman/current president, especially – has a lot to learn from the United States of America, not the least of which is the bedrock procedural principle of due process of law and the fundamental substantive principle of freedom of speech.
If it turns out that Vladimir Gusinsky is being prosecuted not for financial shenanigans, but is being persecuted for exercising free speech in criticizing the Kremlin hierarchy, let us hope that he is not convicted because, alas, in today’s New Russia there is no Thomas Jefferson.
They Never Learn: Pennsylvania and Vietnam
A Virginia-based non-profit organization, the Law Enforcement Alliance of America, has been running television ads suggesting that a Democrat candidate
