May 18, 2013
Thought Crime in Washington
Posted on Nov 28, 2011
By Peter Van Buren
This article was originally published by TomDispatch. Be sure to read Tom Engelhardt’s excellent introduction to it by clicking here.
Here’s the First Amendment, in full: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Those beautiful words, almost haiku-like, are the sparse poetry of the American democratic experiment. The Founders purposely wrote the First Amendment to read broadly, and not like a snippet of tax code, in order to emphasize that it should encompass everything from shouted religious rantings to eloquent political criticism. Go ahead, reread it aloud at this moment when the government seems to be carving out an exception to it large enough to drive a tank through.
As the occupiers of Zuccotti Park, like those pepper-sprayed at UC Davis or the Marine veteran shot in Oakland, recently found out, the government’s ability to limit free speech, to stopper the First Amendment, to undercut the right to peaceably assemble and petition for redress of grievances, is perhaps the most critical issue our republic can face. If you were to write the history of the last decade in Washington, it might well be a story of how, issue by issue, the government freed itself from legal and constitutional bounds when it came to torture, the assassination of U.S. citizens, the holding of prisoners without trial or access to a court of law, the illegal surveillance of American citizens, and so on. In the process, it has entrenched itself in a comfortable shadowland of ever more impenetrable secrecy, while going after any whistleblower who might shine a light in.
Now, it also seems to be chipping away at the most basic American right of all, the right of free speech, starting with that of its own employees. As is often said, the easiest book to stop is the one that is never written; the easiest voice to staunch is the one that is never raised.
Free speech is considered so basic that the courts have been wary of imposing any limits at all. The famous warning by Justice Oliver Wendell Holmes about not falsely shouting “Fire!” in a crowded theater shows just how extreme a situation must be for the Supreme Court to limit speech. As Holmes put it in his definition: “The question in every case is whether the words used… are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” That’s a high bar indeed.
The Government v. Morris Davis
Does a newspaper article from November 2009, a few hundred well-reasoned words that appeared in the conservative Wall Street Journal, concluding with these mild sentences, meet Justice Holmes’s high mark?
“Double standards don’t play well in Peoria. They won’t play well in Peshawar or Palembang either. We need to work to change the negative perceptions that exist about Guantanamo and our commitment to the law. Formally establishing a legal double standard will only reinforce them.”
Morris Davis got fired from his research job at the Library of Congress for writing that article and a similar letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court ruled that the suit could go forward.
The case is being heard this month. Someday, it will likely define the free speech rights of federal employees and so determine the quality of people who will make up our government. We citizens vote for the big names, but it’s the millions of lower-ranked, unelected federal employees who decide by their actions how the laws are carried out (or ignored) and the Constitution upheld (or disregarded).
Morris Davis is not some dour civil servant. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis had stated he would not use evidence obtained through torture back in 2005. When a torture advocate was named his boss in 2007, Davis quit rather than face the inevitable order to reverse his position.
In December 2008, Davis went to work as a researcher at the Library of Congress in the Foreign Affairs, Defense and Trade Division. None of his work was related to Guantanamo. He was not a spokesperson for, or a public face of, the library. He was respected at work. Even the people who fired him do not contest that he did his “day job” as a researcher well.
On November 12, 2009, the day after his op-ed and letter appeared, Davis was told by his boss that the pieces had caused the library concern over his “poor judgment and suitability to serve… not consistent with ‘acceptable service’”—as the letter of admonishment he received put the matter. It referred only to his op-ed and Washington Post letter, and said nothing about his work performance as a researcher. One week later, Davis was fired.
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