Peter Van Buren
Tom Dispatch / Op-Ed
Published: Monday 28 November 2011
“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.”

No Free Speech at Mr. Jefferson’s Library

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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.

It’s true that, over the years, government in its many forms has tried to claim that you lose your free speech rights when you, for example, work for a public school, or join the military. In dealing with school administrators who sought to silence a teacher for complaining publicly that not enough money was being spent on academics versus athletics, or generals who wanted to stop enlisted men and women from blogging, the courts have found that any loss of rights must be limited and specific. As Jim Webb wrote when still Secretary of the Navy, “A citizen does not give up his First Amendment right to free speech when he puts on a military uniform, with small exceptions.”

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.

But Shouldn’t He Have Known Better Than to Write Something Political?

The courts have consistently supported the rights of the Ku Klux Klan to use extreme and hateful words, of the burners of books, and of those who desecrate the American flag.  All of that is considered “protected speech.”  A commitment to real free speech means accepting the toughest cases, the most offensive things people can conceive of, as the price of a free society.

The Library of Congress does not restrict its employees from writing or speaking, so Davis broke no rules.  Nor, theoretically at least, do other government agencies like the CIA and the State Department restrict employees from writing or speaking, even on matters of official concern, although they do demand prior review for such things as the possible misuse of classified material.

Clearly, such agency review processes have sometimes been used as a de facto method of prior restraint.  The CIA, for example, has been accused of using indefinite security reviews to effectively prevent a book from being published. The Department of Defense has also wielded exaggerated claims of classified material to block books.

Since at least 1968, there has, however, been no broad prohibition against government employees writing about political matters or matters of public concern.  In 1968, the Supreme Court decided a seminal public employee First Amendment case, Pickering v. Board of Education.  It ruled that school officials had violated the First Amendment rights of teacher Marvin Pickering when they fired him for writing a letter to his local paper criticizing the allocation of money between academics and athletics.

A Thought Crime

Morris Davis was fired by the Library of Congress not because of his work performance, but because he wrote that Wall Street Journal op-ed on his own time, using his own computer, as a private citizen, never mentioning his (unrelated) federal job.  The government just did not like what he wrote.  Perhaps his bosses were embarrassed by his words, or felt offended by them.  Certainly, in the present atmosphere in Washington, they felt they had an open path to stopping their own employee from saying what he did, or at least for punishing him for doing so.

It’s not, of course, that federal employees don’t write and speak publicly.  As long as they don’t step on toes, they do, in startling numbers, on matters of official concern, on hobbies, on subjects of all sorts, through what must be an untold number of blogs, Facebook pages, Tweets, op-eds, and letters to the editor.  The government picked Davis out for selective, vindictive prosecution.

More significantly, Davis was fired prospectively -- not for poor attendance, or too much time idling at the water cooler, but because his boss believed Davis’s writing showed that the quality of his judgment might make him an unsuitable employee at some future moment.  The simple act of speaking out on a subject at odds with an official government position was the real grounds for his firing.  That, and that alone, was enough for termination.

As any devoted fan of George Orwell, Ray Bradbury, or Philip K. Dick would know, Davis committed a thought crime.

As some readers may also know, I evidently did the same thing.  Because of my book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, about my experiences as a State Department official in Iraq, and the articles, op-eds, and blog posts I have written, I first had my security clearance suspended by the Department of State and then was suspended from my job there.  That job had nothing to do with Iraq or any of the subjects I have written about.  My performance reviews were good, and no one at State criticized me for my day-job work.  Because we have been working under different human resources systems, Davis, as a civil servant on new-hire probation, could be fired directly.  As a tenured Foreign Service Officer, I can’t, and so State has placed me on indefinite administrative leave status; that is, I’m without a job, pending action to terminate me formally through a more laborious process.

However, in removing me from my position, the document the State Department delivered to me darkly echoed what Davis’ boss at the Library of Congress said to him:

“The manner in which you have expressed yourself in some of your published material is inconsistent with the standards of behavior expected of the Foreign Service.  Some of your actions also raise questions about your overall judgment.  Both good judgment and the ability to represent the Foreign Service in a way that will make the Foreign Service attractive to candidates are key requirements.”

There follows a pattern of punishing federal employees for speaking out or whistle-blowing: look at Davis, or me, or Franz Gayl, or Thomas Drake.  In this way, a precedent is being set for an even deeper cloud of secrecy to surround the workings of government.  From Washington, in other words, no news, other than good or officially approved news, is to emerge.

The government’s statements at Davis’s trial, now underway in Washington D.C., do indeed indicate that he was fired for the act of speaking out itself, as much as the content of what he said.  The Justice Department lawyer representing the government said that Davis’s writings cast doubt on his discretion, judgment and ability to serve as a high-level official.  (She also added that Davis’s language in the op-ed was “intemperate.”  One judge on the three-member bench seemed to support the point, saying, “It’s one thing to speak at a law school or association, but it’s quite a different thing to be in The Washington Post.”  The case will likely end up at the Supreme Court.

Free Speech is for Iranians, not Government Employees

If Morris Davis loses his case, then a federal employee’s judgment and suitability may be termed insufficient for employment if he or she writes publicly in a way that offends or embarrasses the government. In other words, the very definition of good judgment, when it comes to freedom of speech, will then rest with the individual employer -- that is, the U.S. government.

Simply put, even if you as a federal employee follow your agency’s rules on publication, you can still be fired for what you write if your bosses don’t like it.  If your speech offends them, then that’s bad judgment on your part and the First Amendment goes down the drain.  Free speech is increasingly coming at a price in Washington: for federal employees, conscience could cost them their jobs.

In this sense, Morris Davis represents a chilling precedent.  He raised his voice.  If we’re not careful, the next Morris Davis may not.  Federal employees are, at best, a skittish bunch, not known for their innovative, out-of-the-box thinking.  Actions like those in the Davis case will only further deter any thoughts of speaking out, and will likely deter some good people from seeking federal employment.

More broadly, the Davis case threatens to give the government free rein in selecting speech by its employees it does not like and punishing it.  It’s okay to blog about your fascination with knitting or to support official positions.  If you happen to be Iranian or Chinese or Syrian, and not terribly fond of your government, and express yourself on the subject, the U.S. government will support your right to do it 110% of the way.  However, as a federal employee, blog about your negative opinions on U.S. policies and you’ve got a problem.  In fact, we have a problem as a country if freedom of speech only holds as long as it does not offend the U.S. government.

Morris Davis’s problem is neither unique nor isolated.  Clothilde Le Coz, Washington director of Reporters without Borders, told me earlier this month, "Secrecy is taking over from free speech in the United States.  While we naively thought the Obama administration would be more transparent than the previous one, it is actually the first to sue five people for being sources and speaking publicly."  Scary, especially since this is no longer an issue of one rogue administration.

Government is different than private business.  If you don’t like McDonald’s because of its policies, go to Burger King, or a soup kitchen, or eat at home.  You don’t get the choice of federal governments, and so the critical need for its employees to be able to speak informs the republic.  We are the only ones who can tell you what is happening inside your government.  It really is that important.  Ask Morris Davis.

To Read Tom Engelhardt's response, click here.



ABOUT Peter Van Buren

Peter Van Buren spent a year in Iraq as a State Department Foreign Service Officer serving as Team Leader for two Provincial Reconstruction Teams (PRTs). Now in Washington, he writes about Iraq and the Middle East at his blog, We Meant Well. His new book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (The American Empire Project, Metropolitan Books), is published today. To listen to Timothy MacBain’s latest Tomcast audio interview in which Van Buren discusses what it’s like to be interrogated by the State Department click here, or download it to your iPod here.

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When you accept a contract as

When you accept a contract as a Public School Teacher or a member of the military you subject yourself to the rules of the government. The government is your boss, just like a CEO would be your boss in the Private sector. A CEO in the private sector has the power to tell his subordinates what to say and do when it comes to the company, so why shouldn't the government? The government isn't forcing those teachers to stay quite about the amount of money used in academics versus athletics. If those teachers want to say those things, they should be prepared to face the consequences of their actions, namely being fired. The government isn't using the threat of physical force on these teachers as they would when a person is breaking a law (theft, murder, etc). If the teachers want to say or do something the government doesn't like, then they can leave their job.

When you accept a contract as

When you accept a contract as a Public School Teacher or a member of the military you subject yourself to the rules of the government. The government is your boss, just like a CEO would be your boss in the Private sector. A CEO in the private sector has the power to tell his subordinates what to say and do when it comes to the company, so why shouldn't the government? The government isn't forcing those teachers to stay quite about the amount of money used in academics versus athletics. If those teachers want to say those things, they should be prepared to face the consequences of their actions, namely being fired. The government isn't using the threat of physical force on these teachers as they would when a person is breaking a law (theft, murder, etc). If the teachers want to say or do something the government doesn't like, then they can leave their job.

They venerate ONE phrase, out

They venerate ONE phrase, out of context in the Second amendment--having no awareness of the climate of the Revolution. They have no context for the enlightenment period, a move from monarchy toward one step forward. We live in a a retrenchment of intellect, a dark tunnel of reaction and a race in to a primitive tribal past.Is this evolution?

Interesting, isn't it, that

Interesting, isn't it, that conservatives in this country so venerate the second amendment, but the First.... callous indifference at best and outright hostility at the far end of the scale. The guarantees of the First amendment are in fact privileges, not rights. If some civil servant can unilaterally suspend your right to assembly by deciding that THEY have had enough, and that their response will be to utilize tear gas, pepper spray or physical violence as a punitive measure against citizens exercising their First amendment guarantees, and you may then sort out the legality of YOUR actions in a court, it's just not a right anymore, it a privilege. One that can be suspended at any time your"rights" become an inconvenience to the monied classes.

The American ethic has always been predicated on a healthy skepticism of authority and the necessity to take that skepticism to the streets when grievances arise. The true patriot is not an obsequious, water toting marionette for somebodies boiler plate political platform. The true patriot asks hard questions, of authority and expects to receive an answer. Morris Davis should be feted for his courage. I suspect that if it's left up to this high court, that will not be the outcome.

Money---Power---Ego--- shall

Money---Power---Ego--- shall destroy Democracy and steal your Rights, if it is allowed to by the Citizens who allow their own ---Laziness---Fear---Cowardness to paralysis making a defense of the Rights they want.

Nothing in life is free, especially your RIGHTS and you must be willing to fight for them and if necessary to Die for them.

Thank You President Bush

Thank You President Bush

I remember when the Chinese

I remember when the Chinese government was locking up people for anti-government "thoughts." We are fast approaching the communist way of "truth." We may not send people to gulags but we will make life miserable for them. We need more truth tellers and fewer liars.

This confirms my belief that

This confirms my belief that the United States is a "Free Country." A person is "Free" to do what they are told!

The right, left, tea party,

The right, left, tea party, and Obama are all the willing paid puppets, and big corporate businesses are the Puppet Masters.

So, if you are tired of being pepper sprayed, evicted, arrested, foreclosed on, pink-slipped, cheated, screwed, and lied to…then for cryin’ out loud…FIGHT BACK !!

OWS and the 99% have the Power! “BUYING POWER.” It’s about time we used it. WE CAN INSTANTLY STOP THE FLOW OF BILLIONS OF DOLLARS.

Here’s how.

STRANGLE THE COMPANIES THAT ARE STRANGLING US! Start today.

Companies want our money, but they don’t want to help America get back on its feet?
We are being starved, now let’s starve those greedy corporations who took our money.
We want companies to hire us, politicians to vote for us, and this is how to force it.
We have an incredible mobile army of millions and millions and millions of people!
Let’s combine the power that we all have. VOTE, by NOT spending.

Stop buying as much as you can. Stop buying from ALL of the big corporations, retailers and banks; Wal-Mart, Walgreen’s, CVS, Rite Aid, Kroger, Costco, Target, Home Depot, Best Buy, Sears, Lowe’s, Supervalu, Procter & Gamble, Unilever, Georgia Pacific, RJR, Brown & Williamson, Kraft Global, Sara Lee, Tyson, BP, Shell Oil, Exxon Mobile, Hewlett-Packard, AT&T, Sprint, Dell, Microsoft, Dow Chemical, Chevron, Kimberly-Clark, Coca-Cola, Pepsi, J.P. Morgan Chase, Citigroup, Wells Fargo, Bank of America, Capital One, Ford, Chrysler, GM, Disney, Macy’s, Kohl’s, The Gap, Penny’s, Colgate, Nike, Staples, Office Depot, Lilly, Johnson & Johnson, Avon, Starbucks, McDonald’s, Wendy’s, Burger King, Kellogg’s, Dean Foods, General Mills, eBay, etc., All of them!
Add your own companies to our list and pass it on.

Don’t use global banks. Move your money from a big bank to a neighborhood bank.
Don’t use your credit cards or ATM’s…at all.
Don’t shop any retail chain stores. Shop local, or mom and pop shops.
Don’t buy gasoline. Walk, take a bus, car pool, or ride a bike.
Don’t buy any extras like music, movies, electronics, or toys…nothing.

BUY AS LITTLE AS POSSIBLE, FOR AS LONG AS POSSIBLE.
STOP SPENDING OUR BILLIONS OF DOLLARS AND WATCH WHAT HAPPENS.

Greedy global companies will be shocked and not know what to do.
Wall Street, the oil barons, corporate fat cats, stockholders, executives, marketers, retailers, politicians, and President Obama, will be asking us, the 99%, what we want!

We have already started. V

Freedom of speech is a joke.

Freedom of speech is a joke. It is our first amendment right, but look at the occupy movement! Look at Morris Davis! I hope this does go to the Supreme Court. Problem is, they may not uphold it. The way they have been going in the recent past, they are undermining the very principles this country was founded upon.
Look back on the downward spiral - didn't it start with taking prayer out of schools? I'm not advocating for prayer in school, but in my day, if you didn't want to participate, you were asked to just be quiet during the prayer. To me, that was only the beginning of "the end".

This government sounds more

This government sounds more and more lie communism, and it did not start with the Obama administration, nor will it end with the current one. This is something we the people have got to try to stop. We will get no help from the police or any judges. If it comes to large demonstrations peaceable or violent ones, it has to be unless the government will back off of this kind of not accepting our freedoms outlined in constitution. We can only hope they back off of taking our free speach rights and other rights given us through the constitution. We can start with contacting our congress representatives, and if that don't work, then we can start with massive peacefull demonstrations and hopefully that will work, if not then......

No , friend, this government

No , friend, this government in cahoots with its traditional allies--by ANY name-- i.e. economic dominance and greed, has become totalitarian-fascist. Communism is linguistically, an ally of democracy, in that "the people" are its focus. The USSR was not communist, it was State capitalism.--without an assisting, intervening corporate ally as the US and the rulers of today have. Clear, logical, historical knowledge is sorely needed." Demos-communal-social" versus "mercantile-capital-imperial" are the "sides" to view.

The assualt is ongoing, until

The assualt is ongoing, until the Occupy Movement is silenced and the fascists can place a shill in the White House this will continue. The national (FBI and Homeland Security, etc.) coordination of local police attacks on protesting citizens should worry anyone who values their freedom. The Class War that our bought out congress started (and denies exists) against the American people will contine until the corporations and the wealthy rule or are defeated in the streets. Both political parties are corrupt and complicit, liars and thieves all. Time is running out for democracy, re-read Thomas Jefferson.

I agree, but reading or

I agree, but reading or re-reading without logical, rational, historical concepts and context within which to comprehend what one read-sees-hears--is of no value. This is why we are in this mess. Our educational system has been the prime culprit in our dumbing-down. We have been co-opted, with knowing assistance from the power of the purse. (Historian-Social Scientist-Retired. I tried when I had the chance.) Power to Occupy!

Try being a Muslim with any

Try being a Muslim with any sympathy towards anyone linked to anything the US government thinks is a terrorist group. Freedom of speech, if we ever actually had it at all, is long gone. We can thank Bush and Cheney for the final assault on it.

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