Obama's War on Free Expression

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Stephen Lendman

It's the most fundamental right. Without it all others are endangered. Obama's waging war to destroy it. He's done so throughout his tenure. 

He targeted AP. He did so unjustifiably. A previous article discussed it.

It was lawless intrusion. It intimidates journalists, potential whistleblowers, valued sources, and others. It warns them against challenging or disclosing information Washington wants kept secret. 

Obama's done it numerous times before. He's waging war on truth. He's targeted more whistleblowers than all previous administrations combined. Bradley Manning and Julian Assange are best known. Others faced similar abuse. 

Fox News reporter James Rosen is another target. Headlines just revealed it. Since around 2010, his phone records were monitored. They were obtained for a defined period. His emails were read. His personal movements were tracked.

At issue are fundamental constitutional rights. They've been eroding for years. Obama's waging war to destroy them altogether.
Candidate Obama called whistleblowing "acts of courage and patriotism." His official document for change headlined "The Change We Need in Washington." 

It discussed promises to do so. He systematically spurned them. He did so across the board. He pledged whistleblower protection, saying:

Often the best source of information about waste, fraud, and abuse in government is an existing employee committed to public integrity and willing to speak out. 

Such acts of courage and patriotism, which can sometimes save lives and often taxpayers dollars, should be encouraged rather than stifled as they have been during the Bush administration. 

We need to empower federal employees as watchdogs of wrongdoing and partners in performance. 

Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. 

Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

He implied protection and encouragement for America's fourth estate. He's targeted them and government whistleblowers ruthlessly. He exploits secrecy and other repressive laws doing so.

He claims a national security priority. America's kept safe, he stresses. It's never been closer to full-blown tyranny. He's advancing it for our own good, he implies. 

He's manipulating public sentiment to concur. Sacrificing freedom for security assures losing both.

So-called free flow of information or shield laws protect journalists. If properly drafted, they're freed from disclosing confidential sources and documents. Doing so assures they and informants won't be silenced. 

It protects them from threat of prosecution. It forces Washington to prove a compelling need. It requires evidence outweighing journalists' nondisclosure/confidentiality rights. 

Numerous US states provide these protections. No federal law exists. In 2007, Free Flow of Information Act legislation passed the House. 
In 2008, it failed in the Senate. Its version fell short of full immunity. It permitted federal judges to declare some confidentially obtained information subject to disclosure. Bush administration officials felt not enough. They opposed the measure.

In 2009, proposed Shield Act legislation failed to pass. Obama opposed protecting reporters from imprisonment and/or fines for refusing to disclose confidential sources leaking alleged national security information.

Initial legislation weighed "the public interest in gathering news and maintaining the free flow of information" against national security considerations.

Obama proposed sweeping revisions. He wants press freedom compromised. In 2011, House and Senate Shield Law versions were introduced. They targeted free expression and whistleblowers. Both died in committee.

Attorney General Eric Holder supported harsh Shield Law provisions, saying:

To the extent there are gaps in the laws, we will move to close those gaps. The Shield Act will help close these holes in the law.

At the time, Congressional Research Service (CRS) legislative attorney Jennifer Elsea said:

Espionage Act provisions apply "to the receipt and unauthorized dissemination of national defense information, which has been interpreted broadly to cover closely held government materials related to US military operations, facilities and personnel." 

It has been interpreted to cover the activities of foreign nationals overseas.... 

The Supreme Court has stated....that the question remains open whether the publication of unlawfully obtained information by the media can be punished consistent with the First Amendment. 

Thus, although unlawful acquisition of information might be subject to criminal prosecution with few First Amendment implications, the publication of that information remains protected. 

Whether the publication of national security information can be punished likely turns on the value of the information to the public weighed against the likelihood of identifiable harm to the national security, arguably a more difficult case for prosecutors to make.

CRS called prosecuting WikiLeaks unprecedented and challenging. It's so legally and politically.

"We are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it," she added. 

At issue are First Amendment rights and "concerns about government censor(ing)" information the public has a right to know.

In 2011, House and Senate Shield Act versions targeted whistleblowers. They amended the 1917 Espionage Act. 

They criminalized free speech. They compromised the public's right to know how their elected officials govern. Suppressing truth is the first step toward tyranny. America's on a fast track toward it.

In December 2010, the Electronic Frontier Foundation (EFF) said:

The debate about the wisdom of releasing secret government documents has turned into a massive attack on the right of intermediaries to publish truthful information. Suddenly, WikiLeaks has become the Internet's scapegoat.... 

Like it or not, WikiLeaks has become the emblem for one of the most important battles for our rights that is likely to come along in our lifetimes. We cannot sit this one out.

Earlier Shield Act legislation criminalized good journalism. It did so for knowingly and willfully publishing material on human intelligence activities conducted by America or other governments. 

Doing so responsibly is what investigative journalists do. It's their job. First Amendment rights protect them.

In Brandenburg v. Ohio (1969), the Supreme Court ruled government can't punish inflammatory speech unless directed to incite lawless action.

In Texas v. Johnson, Justice William Brennan wrote the majority opinion, saying:

(I)f there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.

Former Supreme Court Justice Thurgood Marshall said:

Above all else, the First Amendment means that government has no power to restrict expression (regardless of its) ideas…subject matter (or) content. 

Our people are guaranteed the right to express any thought, free from government censorship.

Thomas Jefferson warned:

What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance.

Free expression "cannot be limited without being lost." 

Governments often overstate secrecy needs. Except under clear and present danger circumstances, doing so's unjustifiable. 

Candidate Obama pledged openness and transparency. He repeatedly denounced Bush administration secrecy. He called it "one of the most secretive administrations in our nation's history."

It's no coincidence (that it) favored special interests and pursued policies that could not stand up to the sunlight. 

As president," he vowed, "I'm going to change that. "The American people want to trust in our government again - we just need a government that will trust in us. 

And making government accountable to the people isn't just a cause of this campaign - it's been a cause of my life for two decades.

Straightaway as president, a White House statement headlined "Change has come to WhiteHouse.gov," saying:

President Obama has committed to making his administration the most open and transparent in history.

In 2010, he said:

I will not stop fighting to open up government. (W)e have put in place the toughest transparency rules in history.

Throughout his tenure, his policies belied his rhetoric. He exceeded the worst of George Bush. He's obsessed with secrecy. According to ACLU staff attorney Alexander Abdo:

We've seen a meteoric rise in the number of claims to protect secret law, the government's interpretations of laws or its understanding of its own authority. 

In some ways, the Obama administration is actually even more aggressive on secrecy than the Bush administration.

He's gone out of his way to find new ways to do it. He's waging war on free expression and other constitutional rights. He seeks legislative cover to disguise it.

On May 15, The New York Times headlined "Criticized on Seizure of Records, White House Pushes News Media Shield Law," saying:

"Under fire over" AP spying, he sought "to revive legislation that would provide greater protections to reporters in keeping their sources and communications confidential."

His way of doing it falls woefully short of what's needs. He wants full immunity avoided. He wants federal judges able to declare some confidentially obtained information subject to disclosure. 

He opposes protecting reporters from imprisonment and/or fines for refusing to disclose confidential sources providing alleged national security information.

He's waging war on press freedom. He's done so throughout his tenure. He wants Shield Law cover for easier enforcement. 

Perhaps he'll get it this time around. Enactment will further erode free expression. It's on the chopping block for elimination. 

Alleged national security concerns don't wash. They're cover to destroy what's too precious to lose. 

Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net. His new book is titled How Wall Street Fleeces America: Privatized Banking, Government Collusion and Class War. Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening. http://www.progressiveradionetwork.com/the-progressive-news-hour/
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