"So I now ask, how then, without injustice to Federalist political thought as we know it across the decades, can we round it out? What arguments can we add? At the
risk of appearing impudent, I am going to attempt to add a few as the Federalist spokesmen might have put them:
"We suspect you of wishing to venture where the wisest of our ancestors (none of whom ever attempted to draw up a "list") have feared to tread; there is even talk
among you-not much, but enough to give us pause-of writing, into your bill of rights, something new and unheard-of called "freedom of speech," of writing it in as a right which government must in no circumstances abridge. Well, we do not think such a right is ultimately compatible with orderly government, much less with free orderly government. Gentlemen, let us be sensible! (Emphasis added.)
I don’t advise anyone on this email list to criticize Willmoore Kendall, whom I’ve some to realize after a lot of research should be considered the “Father of American Fascism.” Or to criticize his and Carey’s assaults upon the U.S. Constitution, as that will only get one denounced and ridiculed on this "Committee for the Republic” email list. Or ask why Kendall is so zealously promoted by the Trumpite/New Right of The American Conservative magazine, Heritage Foundation, and all the other Trumpite propagandist organs, as it is self-evident that we’re being “primed” as the highest order of “mass consciousness activities," and cognitively conditioned for Authoritarianism, under Trump/Vance to begin with, and their successors from the “New Right.” And that might offend Trumpites here. As Tucker Carlson is up to with his heralding of Hitler as a “Man of Peace!”
Why would they do that? "Follow the money” is too simple an answer though we do know who pays for so much of this authoritarian conditioning: Oligarchical/Authoritarian billionaires who back Trump/Vance who are celebrated as National Conservatives and/or, Libertarians. But one must look deeper into the political theory underlying these extreme-right fanatic’s works, and even beyond Kendall, to see their roots in fascist political thought, going back to Carl Schmitt, as his, and Kendall’s, friend, Leo Strauss, with Kendall’s assistance, did so much to popularize amongst “Traditional Conservatives.” (Evidence available upon request should anyone disagree with that.)
But here, Bruce Fein of the Committee shows he is an exception to the Conservative long-standing predilection for censorship/suppression of dissent:
https://www.nytimes.com/2024/07/30/business/sullivan-cromwell-israel-protests.html
BLUF: "Three prominent legal figures, among them the consumer safety activist and four-time presidential candidate Ralph Nader, sent a letter on Tuesday to a leader of the Wall Street law firm Sullivan & Cromwell to condemn the firm’s policy of scrutinizing job applicants’ participation in protests over Israel’s war in Gaza.
". . . It was also signed by Bruce Fein, a Justice Department official under President Ronald Reagan, and Lou Fisher, a constitutional scholar who worked for 40 years at the Library of Congress."
At one time however, under Reagan, Bruce was a typical "Conservative,” who supported speech suppressing, authoritarian Judges, like Robert Bork. I don’t say that as criticism of Bruce but only to point out that he was at one time representative of “Traditional Conservative” hostility to the First Amendment, and forthright in that as a prominent Conservative advocate in the Reagan administration as in decrying NYT v. Sullivan in a memo, which was later misattributed to Chief Justice Roberts, and supporting the Bork nomination. As a Conservative, Bruce was a forthright proponent of Reagan fighting for Bork’s nomination, without concealing that Bork was not a moderate: https://www.reaganlibrary.gov/public/2020-12/40-282-7452061-023-002-2020.pdf.
https://knightcolumbia.org/blog/the-enduring-significance-of-new-york-times-v-sullivan
BLUF: Scholars and advocates have long celebrated Sullivan as one of the most important Supreme Court rulings for the protection of press freedom.
But in 2016, then-presidential candidate Donald Trump announced that he wanted to “open up” libel laws to make it easier for him to sue his critics in the press. Since then, attacks on Sullivan have taken on a new—and highly partisan—tenor. In 2017, former Republican vice-presidential candidate Sarah Palin brought a high-profile defamation case against The New York Times in which she called Sullivan “obsolete in the modern speech landscape.” Soon after, two Supreme Court justices, Clarence Thomas and Neil Gorsuch, urged the Court to reconsider Sullivan and its progeny. Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit agreed, penning a sharply worded dissent that called for the Court to overrule Sullivan, declaring that the press is “bias[ed] against the Republican Party” and stating that The New York Times and The Washington Post “are virtually Democratic Party broadsheets.
. . .
"Brennan saw another reason for adopting actual malice. Inspired by Wechsler’s analysis, Brennan offered the most extensive reading of the meaning of the First Amendment and its relationship to democracy in Supreme Court history to that time. Adopting Wechsler’s views of freedom of _expression_, Brennan wrote that the ability of citizens to engage in debate of public issues, debate that may include caustic and sharp attacks on government and public officials, was the “central meaning” of the First Amendment. The essence of the First Amendment is the right of citizens to engage in “uninhibited, robust, and wide open” public discourse, which was the essence of self-governance.47”
But this 1981 article by Jeff Stein also offers a picture of what unconstrained Conservative legal theory leads to:
https://www.cia.gov/readingroom/docs/CIA-RDP91B00134R000400130005-1.pdf
"There is widespread sentiment for a new draft as the Reagan military commitment deepens. There is muted support for internal security investigations and covert action from the Republican Party.
. . .
"Indeed, Meese has already rung a few bells to alarm civil libertarians. In an address to a police convention in California last May, he labeled the
American Civil Liberties Union "a criminals lobby."
"He favors abolition of· the exclusionary rule, which forbids the use of illegally obtained evidence in court.
"He is for preventive detention, against lawyers and judges who "deliberately and definitely thwart" police. There is little-new here. Meese has held these positions for 20 years.
BLUF: "When it comes to the protests, the former president’s course of action is far more clearcut. Though congressional investigators have blamed Trump for instigating the deadly January 6 attack on the US Capitol, that has not stopped Trump from decrying the pro-Palestinian students as dangerous rabble-rousers who would not be tolerated under his administration.
“It’s an old playbook,” said Robert Cohen, a history and social studies professor at New York University. “Nothing original about it except that he’s more unrestrained, in the kind of ludicrous way he talks about it, because he’s openly fascistic about this.”
JD Vance Shares Blunt Message To Anti-Israel Protesters During Remarks At Oct. 7th Remembrance Event
https://www.theamericanconservative.com/what-a-trump-cabinet-might-look-like/
To paraphrase the Beatles: "It’s getting worser all the time."
On Oct 8, 2024, at 7:01 PM, @listserve.com> wrote:Kerry’s Constitutional Confusion
The First Amendment is not a “major block” to the functioning of a democracy.
John Kerry, the former U.S. Naval officer, senator, secretary of state, and candidate for the presidency, a man who has taken the oath of allegiance to the Constitution many times now, says that “our First Amendment stands as a major block to be able to just, you know, hammer [disinformation] out of existence.”
So, finally, a major Democrat says the quiet part out loud. Our freedom of speech has made it too easy for disinformation to flourish in the media biome and it is becoming impossible to “govern” the masses, Kerry explained at a World Economic Forum meeting:
The dislike of and anguish over social media is just growing and growing. It is part of our problem, particularly in democracies, in terms of building consensus around any issue. It’s really hard to govern today. You can’t—the referees we used to have to determine what is a fact and what isn't a fact have kind of been eviscerated, to a certain degree. And people go and self select where they go for their news, for their information. And then you get into a vicious cycle…. You know there's a lot of discussion now about how you curb those entities in order to guarantee that you're going to have some accountability on facts, etc. But look, if people only go to one source, and the source they go to is sick, and, you know, has an agenda and they’re putting out disinformation, our First Amendment stands as a major block to be able to just, you know, hammer it out of existence.
Kerry articulated what many Dems have only hinted at: abolishing the broad protections of the First Amendment to “clean up” disinformation and create a “better” democracy.
Jefferson saw the First Amendment creating an informed populace necessary for a democracy to flourish. Now, according to Kerry, that populace can no longer be trusted to read and must have “referees” to help keep them in line. In other words, government and private industry partnerships to police social media and other forms of information.
We’ve seen a test case of Kerry’s dream in the wild with pre-Musk Twitter. As Twitter became a more powerful player in social media as a source of news for people in general, the company and the government worked together (see the Twitter Files; the same applies to Facebook and other social media giants) to censor information deemed detrimental to a gullible public. They deleted individual “bad” tweets, promoted “good” ones, and cleansed the environment of dissenting voices by suspending offending accounts. This of course was all done on the edges of the First Amendment; Twitter is a private entity, and therefore capable of regulating speech internally, but was doing so on behalf of the government, which acted like a dictator’s censor (until they got caught).
The primary focus of all that censorship in contravention of the First Amendment was the Covid pandemic, when dissenting voices were stifled and what we now know to be government lies about masks and social distancing were promoted. Similar processes kept Americans from initially reading the truth about Hunter Biden’s laptop and the Russian Hoax materials claiming Donald Trump was a sleeper agent. While all censorship is bad, censorship that directly deprives a democracy of information is wicked. John Kerry thus already has a pretty good idea what a United States without the First Amendment might look like.
What Kerry and his ilk want is already a part of life in Great Britain: prior restraint of speech. The UK has no First Amendment and, in fact, no written constitution at all. In the U.S., the highest law of the land is the Constitution, of which the First Amendment is part. Any law or regulation passed by Congress must also pass the constitutional test. But in Britain, Parliament is supreme and any act passed there is interpreted and enforced directly by the courts. So while Kerry cannot vote the First Amendment out of existence, the British Parliament can create any number of acts that shape or limit speech. Prior restraint is one of these restrictions, which enables the British government to preemptively halt the publication of material. In the case of governmental information the only criteria is when it is “in the national interest” to do so (this also gets into the fascinating tangle between the U.S. Espionage Act and the UK Official Secrets Act, a complexity beyond this article).
The milestone year for all this was 1971, when the late Daniel Ellsberg leaked the Pentagon Papers to the New York Times. Reporters at the Times feared jail, as leaked classified materials had never been published in the press before. A court ordered the Times to cease publication after initial excerpts were printed, the first time an American federal judge applied prior restraint to a newspaper. The Supreme Court case New York Times Company v. United States vindicated the First Amendment, and the Times won the Pulitzer Prize. Ever since, the American press mostly prints what it finds, secret or not.
The law professor Steve Vladeck notes,
Although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause. The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.
In Britain, an entity could theoretically be punished with prior restraint or if what they ultimately print is libelous. (Libel laws also differ greatly between the U.S. and the UK.) In the United States, however, even speech which may ultimately be punished in some way (for example, libelous speech) may not normally be subject to prior restraint.
We have seen what a world without the First Amendment looks like, and it is not good. We are approaching a time when the freedom to speak may no longer exist independent of the content of speech. What you’re allowed to say could depend on the government’s opinion. We have had a peek at what government can do: blocking important debate on issues that affect the health of every American, or which could sway an election in the case of Russiagate or the Hunter Biden laptop. There is a reason the Founders placed so much emphasis on free speech. Kerry, who now reimagines free speech as a liability to democracy, has clearly forgotten those lessons.