The Senate’s war on freedom of the press

Sam Smith

Although the corporate media – the least free segment of the country’s press – isn’t reporting it like this, the Senate Judiciary Committee’s definition of a journalist in its just passed law is a clear violation of the First Amendment, not simply because of the self-serving nature of the definition but because the amendment specifically says “Congress shall make no law … abridging the freedom of speech, or of thepress.” which this proposed bill clearly does.

As Hot Air notes:

It still means that the government gets to define journalists in as narrow a sense as they like for the purposes of applying this shield. Reporters for newspapers and broadcast outlets would certainly be covered, but that certainty ebbs the farther one goes from that core. What about writers at online sites like Hot Air and Huffington Post? Probably covered. Red State and Firedoglake? Well … are they journalists or activists? If the government gets to define it, then probably the latter — and that’s going to be more true for less-commercial online sites. Will writers at those sites feel more or less free to run real reporting based on inside sources? Better yet, will the inside sources want to talk with writers whose shield is very questionable, or to reporters whose shield will be more substantial?

This is basically rent-seeking by the big players in the media market, a sham by the Senate, and an affront to the First Amendment. Any shield law should concern itself with process and not identification. The founders did not include the First Amendment in order to allow the government to decide who gets its protections. If the shield is an extension of the First Amendment, then it applies to everyone involved in journalistic efforts, or no one at all.

Bear in mind what inspired this law, namely the exposure of illegal activity by the government. In a just and democratic society, Julian Assange would get a Pulitzer Prize and the law’s big backer, Diane Feinstein, would be expelled from the Senate.

The effort by the Senate committee is designed to conceal illegal activity by the White House and Congress. A free press has no higher responsibility than to expose that.

Besides, I’m not sure whether I am legally a journalist anymore. A 56 year career has come seriously into question because of some slimy legal gobbledygook compiled by some slimy legislators. The slime is not accidental; it’s there to help the government to continue to define life as it sees fit.

I won’t bore you with my details which you can find here, but I would think a publication thatback in the 1990s, for example, helped to expose NSA spying on Americans’ phone calls might qualify a journalism.

But then people like me are part of a tradition in American journalism with far more historical roots than CNN or the Murdoch chain.

The current discussion of who’s a journalist is basically about who gets freedom of the press protections of the Constitution. This argument makes as much sense as one about who is an artist or a musician. It’s an okay topic for bars and literary journals but not for the law. A journalist is someone who reports the news or writes about it. You don’t need a license or anyone’s approval and, if you do, it is a violation of the Constitution.

Adam Goodheart, of Civilization magazine, wrote in the 1990s:

Journalism didn’t truly become a respectable profession until after World War II, when political journalism came to be dominated by a few big newspapers, networks and news services. These outlets cultivated an impartiality that, in a market with few rivals, makes sense. They also cultivated the myth that the American press had always (with a few deplorable exceptions, of course) been a model of decorum. But it wasn’t this sort of press that the framers of the Bill of Rights set out to protect. It was, rather, a press that called Washington an incompetent, Adams a tyrant and Jefferson a fornicator. And it was that rambunctious sort of press that, in contrast to the more genteel European periodicals of the day, came to be seen as proof of America’s republican vitality.

Today’s diuretic discourse over journalistic definition largely reflects an attempt to justify the unjustifiable, namely the rapid decline of independent sources of information and the monopolization of the vaunted “market place of ideas.” In the end, the hated Internet and its blogs are a far better heir of Peter Zenger, Thomas Paine, Frederick Douglass, and Mark Twain than is the typical American daily or TV channel; and H.L. Mencken would infinitely prefer a drink with Matt Drudge than with Ted Koppel.

Of course, the senators could have asked the Second Court of Appeals that has ruled that First Amendment applies to “every sort of publication which affords a vehicle of information and opinion.”

Or they could have checked with the Freedom Forum, which funds the Newseum among other things:

The First Amendment gives the press the right to publish news, information and opinions without government interference. This also means people have the right to publish their own newspapers, newsletters, magazines, etc.

And what if the senators had actually looked into the history of a free press in America. They would have found stuff like this:

The National Gazette was a Democratic-Republican partisan newspaper that was first published on October 31, 1791. It was edited and published semiweekly by poet and printer Philip Freneau until October 23, 1793.

The National Gazette was founded at the urging of Republican leaders James Madison and Thomas Jefferson in order to counter the influence of the rival Federalist newspaper, the Gazette of the United States. Not unlike other papers of the era, the National Gazette centered around its fervent political content. The Gazette’s political content was often written pseudonymously, and was directed against the Federalist Party. Many prominent Republicans contributed articles, often pseudonymously, including Madison and Jefferson.

Freneau’s Gazette spent much of its time criticizing the policies of the Washington Administration. For example, the paper described Alexander Hamilton‘s financial policies in 1792 as “numerous evils…pregnant with every mischief,” and described George Washington‘s sixty-first birthday celebration as “a forerunner of other monarchical vices,” The Gazette’s strident polemics and screeds against the Washington administration led President Washington to despise the Gazette, and to refer to its editor pejoratively as “that Rascal Freneau.”

Would Diane Feinstein have allowed Thomas Jefferson and James Madison First Amendment protection or would she have dumped them in the same uncovered category as she does Matt Drudge and a “17 year old blogger?”

And would these anti-constitutional senators have also barred Benjamin Franklin from the category of journalist?

The Gazette soon became Franklin’s characteristic organ, which he freely used for satire, for the play of his wit, even for sheer excess of mischief or of fun. From the first he had a way of adapting his models to his own uses.

As time went on, Franklin depended less on his literary conventions, and more on his own native humor. In this there is a new spirit—not suggested to him by the fine breeding of Addison, or the bitter irony of Swift, or the stinging completeness of Pope. The brilliant little pieces Franklin wrote for his Pennsylvania Gazette have an imperishable place in American literature. It is nonetheless true that they belong to colonial journalism.

The idea that the journalist is engaged in a professional procedure like surgery or a lawsuit leads to little but tedium, distortion, and delusion. It is the product not of freedom of the press but of corporate monopolization of the media. Far better to risk imperfection than to have quality so carefully controlled that only banality and official truths are permitted, as the Senate committee would have it.

And now the judges are deserting us

Sam Smith

It used to be that if the White House or Congress did something really stupid to the Constitution, you could at least hope that a federal court would straighten them out. But a number of recent decisions suggest that we’ve lost the judges too.

In recent weeks, federal courts have:

  • · allowed the White House to indefinitely detain persons that if they fit into the White Houise’s view of enemy combatants or those providing them with support.
  • · declared reporters have no First Amendment privilege from testifying in court in criminal proceedings
  • · The government can seize historical cell phone location data without a search warrant.

We were taught that the law is an objective, logical business, producing something called justice, but, in fact, it is as culturally determined as the rest of our values. So now it’s not just the politicians who have deserted the Constitution; it’s the media, academia, and the lawyers. After all, Barack Obama studied constitutional law at Harvard Law School yet it hasn’t helped us at all.

Unless we recognize and resist what is happening, we’ll join the crowd. Fifteen years ago I described it this way in my book, The Great American Political Repair Manual:

Here’s how a college professor, in another country and in another time, described it:

What happened was the gradual habituation of the people, little by little, to be governed by surprise, to receiving decisions deliberated in secret; to believe that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if people could understand it, it could not be released because of national security.

… The crises and reforms (real reforms too) so occupied the people that they did not see the slow motion underneath, of the whole process of government growing remoter and remoter.

… To live in the process is absolutely not to notice it — please try to believe me — unless one has a much greater degree of political awareness, acuity, than most of us ever had occasion to develop. Each step was so small, so inconsequential, so well explained or, on occasion, ‘regretted.’

~ Believe me this is true. Each act, each occasion is worse than the last, but only a little worse. You wait for the next and the next. You wait for one shocking occasion, thinking that others, when such a shock comes, will join you in resisting somehow.

… Suddenly it all comes down, all at once. You see what you are, what you have done, or, more accurately, what you haven’t done (for that was all that was required of most of us: that we did nothing). You remember those early meetings of your department in the university when, if one had stood, others would have stood, perhaps, but no one stood. A small matter, a matter of hiring this man or that, and you hired this one rather than that. You remember everything now, and your heart breaks. Too late. You are compromised beyond repair.

This quote is from a remarkable book about Nazi Germany written by Milton Mayer in the 1950s. They Thought They Were Free  examined not the horrific perversions but the horrible normalcies of the times. Mayer summed up his own experience this way:

Now I see a little better how Nazism overcame Germany … It was what most Germans wanted — or, under pressure of combined reality and illusion, came to want. They wanted it; they got it; and they liked it. I came back home a little afraid for my country, afraid of what it might want, and get, and like, under pressure of combined reality and illusions. I felt — and feel — that it was not German Man that I had met, but Man. He happened to be in Germany under certain conditions. He might be here, under certain conditions. He might, under certain conditions, be I.

Why did gays win while blacks & latinos lost?

The recent Supreme Court decisions on gay marriage and voting rights is a strong reminder of the hazards of ignoring class and culture in thinking about politics.

We tend to consider these things one dimensionally as if the Supreme Court was only deciding law – and not culture, class and politics. As if the only issue was basic identity and not its complicating factors.

But when you have a legal institution that repeatedly splits on what the law means, and when the splitters are usually the same justices, you know there’s more going on than the law. Consider, for example, that there are six Roman Catholics on the Supreme Court, three Jews and no Protestants or secularists. And we hardly even mention this even if it obviously plays some role in the court’s practice.

And while black or latino is an ethnicity and homosexuality a gender, there’s much more to it than that.

For example, the voting rights decision directly affects poorer Americans. The injustices are aimed at discouraging a class of voters many of whom need to be urged to vote in the first place. Wealthier blacks and latinos tend to live in neighborhoods where voter mischief is not underway and they can manage even annoying bureaucratic hassles. Further you couldn’t have long lines in such neighborhoods – like those that killed an estimated 50,000 votes in Florida in one recently election – without forcing well-off white voters to wait as well.

As the Review noted last year:

The ACLU and others have reported that the number of registered Pennsylvania voters who are at risk of being disenfranchised because they do not have state-issued ID is more than one million. To get some idea of how bad this is, consider that in the 1960s there were only about 900,000 blacks in segregationist Mississippi including children too young to vote. Thus the impact of the GOP assault on Pennsylvania rights will affect more minorities, seniors, and poorer citizens than one of the worst attacks on civil rights in our history. Further, the cost of getting a voter ID amounts to a hidden poll tax, which the civil rights movement thought it had eliminated a long time ago.

Then there’s the question of who has what sort of clout in the culture. Obviously poor blacks and latinos don’t have much. And wealthier blacks and latinos have not had near the cultural influence of gays.

This doesn’t mean there aren’t poor gays. A report of the American Psychological Society, for example, noted that:

While LGBT persons tend to have more education on average than the general population, evidence suggests that they make less money than their heterosexual … counterparts. Studies on income differences for LGBT persons indicate that:

– Gay men earn up to 32 percent less than similarly qualified heterosexual men.

Up to 64 percent of transgender people report incomes below $25,000.

– While 5.9 percent of the general population makes less than $10,000, 14 percent of LGBT individuals are within this income bracket.

And CNN reported that “Same-sex couples spent an average $9,039 on their weddings, while 31% spent $10,000 or more — though that’s still not as high as the $27,021 that the average couple spends on a wedding.”

But there is still a substantial difference in the effect of upper class gay culture on current America compared with that of upscale blacks and latinos.

Through their role in show business, for example, LGBT leaders have had a chance to affect America’s perception of gayness. Blacks haven’t done nearly as well. Patrick Goldstein described it in the LA Times this way:

Hollywood has made a slew of films about the black experience, from “The Help,” “Ray” and “The Great Debaters” to “Amistad,” “Remember the Titans” and “Malcolm X.” But those films have one thing in common – they’re all set in the past. Even “Precious,” which earned a host of Oscar nominations in 2010, took place in 1987.

“There are too many decision makers in Hollywood today that look at the modern black experience and you can tell it’s a big mystery to them,” notes John Ridley, who co-wrote the script for “Red Tails.”

It’s easy enough to understand why – the present is less comfortable, while the past offers the opportunity to show the struggles and hurdles for people of color. But where are the movies that chronicle today’s African American experience? Or for that matter, films that offer any kind of serious look at any people of color, be they Asian, Latino or black?

Hollywood has no problem making African American comedies, often crammed with cringe-worthy racial stereotypes. We also get an occasional romantic comedy or a hip-hop biopic like “Notorious.” But a real movie with real black people?

Or consider this by Timothy P. Carney in the Washington Examiner:

While raising money for Bill Clinton (who signed the Defense of Marriage Act) in 1992, Rahm Emanuel proclaimed “Gays are the next Jews of fundraising.”, , ,

About 20 percent of Obama’s bundlers — volunteer fundraisers — are gay, according to media reports, with many of them being gay rights activists. For example, Sally Susman has raised at least $500,000 for Obama’s re-election. Millionaire banking mogul Eugene Sepulveda is another gay half-million-dollar Obama bundler. Rufus Gifford is the finance director for Obama’s re-election campaign, and Andrew Tobias is treasurer of the Democratic National Committee — and both are gay.

There is little clout like this among blacks and latinos.

Sometimes, the littlest things can be telling. After the Supreme Court decision, Goldman Sachs flew a rainbow flag over its headquarters. Would it have flown a black or latino celebratory flag if voting rights had won?

While there is absolute virtue in both causes, there is no doubt that the majority culture is far more comfortable with gay intrusions than with ethnic ones.

Besides, the voting rights issue remained unresolved while we were clearly making progress on gay marriage even before the decision.

In the end voting rights challenges culture, class and politics while gay marriage only challenges cultural norms. Gay marriage only alters what gays can do. Voting rights could change what the whole country does.

If the Supreme Court was going to ease its biases, it picked the easiest course.

One part of the Constitution the establishment loves

Sam Smith

Some media made a big thing of a conservative judge joining the appeals court decision upholding Obamacare’s individual mandate. In fact, Obamacare is a highly conservative measure – when compared to Medicare or single payer – and the individual mandate amounts to a huge earmark subsidizing the health insurance industry.

Bear in mind, the mandate does not provide healthcare, only privately defined insurance.

Bear in mind, also, that one good reason people don’t buy health insurance is because they are low on cash. The individual mandate is a tax increase on these lower income people.

It’s not surprising to find conservative judges joining with Obama on this issue, perhaps even on the Supreme Court.
After all, there is a bipartisan agreement in high places that just about the only section of the Constitution that really matters any more is the commerce clause – which is being expanded even as other provisions – such as the First, Second, Fourth and Tenth Amendments – are being dismantled. Find a legalistic hook to the commerce clause and you can do just about anything you want.
This a good example of liberals supporting conservative politics simply because a Democratic president likes it. Which leaves one with the irony of having to turn to a Reagan appointee, Judge James L. Graham, for a little common sense:

“If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be. What aspect of human activity would escape federal power?”

The crime behind hope and change

Sam Smith

By the standards of the US Constitution as well as American and international law, Barack Obama is a criminal – as are many of his recent predecessors.

The fact that most Americans don’t see him as such reflects the degree to which we have come to accept the ad hoc policies of those in power as superior to established principles reached by democratic decision over more than two hundred years.

Here are some of the crimes which our recent presidents have committed

– They have repeatedly gone to war without the formal approval of Congress.

– They have steadily and illegally eroded the human space covered by the Fourth Amendment to the point the TSA was planning to do viral strip searches with scanners not just in airports but on ordinary streets and other public places. And, in the view of the president and the courts, the Fourth Amendment no long protects many private activities including phone calls and internet use.

– The CIA and other government agencies have engaged, with the president’s explicit or implicit approval, in torture and abuse of prisoners,

– This includes U.S. citizens such as Private Manning According to George Bush and Barack Obama, you or any American citizen can, without criminal charges, be placed in an isolation cell, denied sleep (with no clothes, mattress, blanket, sheet, or pillow) and painfully shackled.

– Under two presidents, the unconstitutional Patriot Act has been passed and extended.

– According to Obama, his administration has the right to kill you when you’re overseas

– Obama supports warrantless tracking of US citizens via cellphone location

– His administration does illegal border computer searches

– He approves of illegal secret searches of library and bookstore data files

The contempt that Obama and his predecessors have shown for the law has created what in Latin America is called a culture of impunity. In a culture of impunity, rules serve the internal logic of the controlling system rather than whatever values typically guide a country, such as those of its constitution, church or tradition. A culture of impunity varies from ordinary political corruption in that the latter represents deviance from the culture while the former becomes the culture.

In a culture of impunity, what replaces constitution, precedent, values, tradition, fairness, consensus, debate and all that sort of arcane stuff? Mainly greed. We find ourselves without heroism, without debate over right and wrong, with little but an endless narcissistic struggle by the powerful to get more money, more power, and more press than the next person. In the chase, anything goes and the only standard is whether you win, lose, or get caught.

And when they feel personally threatened, those in power react with paranoia under the false name of national security, stripping away more rights, mistreating more citizens and expressing their fear with still more cruelty.

The government of such a culture is inevitably dictatorial, whether founded on ideology, such as fascism or communism, or upon personal power. And essential to such a culture is the willingness of the populace to give up most of its former values.

The fact that we have accepted so much illegal behavior by our recent presidents – including Obama – has been the surest sign to them that they were safe in continuing to do as they wish. After all, the impunity they enjoy was granted them by our indifference, ignorance and fear.

One never knows, do one?

Sam Smith

One of the things I enjoy about covering the news is being repeatedly surprised. Just when you think you’ve got it all figured out, something new happens.

The most recent example is the rebellion against the techno-authoritarianism being carried out by the TSA in its screening process.

For many years, I’ve sat on the board of the Fund for Constitutional Government – started by Stewart Mott and – from a townhouse just a few blocks for the Capitol – a source of endless annoyance to the establishment thanks to groups we help fund like the Government Accountability Project, the Project on Government Oversight, and the Electronic Information Privacy Center.

In 2005, EPIC issued a report in which it said:

“Recently, the Transportation Security Administration announced a proposal to purchase and deploy ‘backscatter’ X-ray machines to search air travelers at select airports. TSA said it believes that use of the machines is less invasive than pat-down searches. However, these machines, which show detailed images of a person’s naked body, are equivalent to a ‘virtual strip search’ for all air travelers. This proposal, along with the agency’s controversial plan to profile air travelers, shows extraordinary disregard for the privacy rights of air travelers.”

Since then, EPIC has conducted a vigorous and often lonely battle against the excesses of TSA. It has been like many of the often lonely battles in which progressive groups find themselves: righteous and mostly ignored.

Then something happened. The TSA upped the ante. As the virtual strip search machines proliferated, it offered what it saw as an alternative: a physical search normally used only by police on suspects in which there is reasonable cause. We have all become suspects now because under today’s rules any cause the government considers desirable is also considered reasonable. What more do you need to know?

It has been pretty clear since 9/11 that the people out there who wanted to destroy America were doing to a pretty good job. And they didn’t even need planes and bombs anymore. Once they had scared the American establishment out of its wits, our own leaders began disassembling the place in the name of security.

It has been disturbingly revealing that since 9/11, neither the Bush nor the Obama administration has changed a single policy that would make it less likely that someone from the Muslim world would want to attack us. Instead, one hundred percent of our efforts have been directed at building moats and walls around the policies and approaches that caused the problem in the first place. It didn’t work in the Middle Ages and it won’t work now.

But that’s all the back story. What’s happened now is not a change in U.S. policy so much as a reaching into the lives of ordinary Ameicans in a particularly offensive way. And just in time for the Thanksgiving and Christmas holidays.

Suddenly, the issue has come home. In just the past few days, Reuters, CNN and the Washington Post have been forced to recognize it. People are mad and abused and the targeted industry – from pilots to tourist agencies – is worried and angry.

Who would have guessed that America might wake up to what was really happening thanks to people having their vaginas and testicles fondled by techno-autocrats?

I have long followed that the “holy shit” principle of journalism, which is to say that if I find something that is true and it makes me say, “holy shit” I figure that it is news worth sharing with others. The reaction to the misguided fingers of TSA more than fill the bill.

And there’s a lesson here for activists: a good reason for doing what you’re doing is because you can never be sure when it – or what part of it – is going to work. As Fats Waller used to say, “One never knows, do one?”