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Kiriakou writes: "Americans have a Constitutional right to freedom of speech. Right? That's what we're taught in school, at least. That's what a lot of us believe. But we don't really have a completely uninhibited right to freedom of speech."

A protesters holds up a sign in favor of free speech. (photo: iStock)
A protesters holds up a sign in favor of free speech. (photo: iStock)

Where's the Line on State-Sponsored Censorship?

By John Kiriakou, Reader Supported News

04 January 19


mericans have a Constitutional right to freedom of speech. Right? That’s what we’re taught in school, at least. That’s what a lot of us believe. But we don’t really have a completely uninhibited right to freedom of speech. The conventional wisdom is that Americans are free to say anything they want (short of yelling “fire” in a crowded theater) except with very specific exceptions. For example, the Supreme Court has ruled that one exception is “advocacy of the use of force when it is directed to inciting or producing imminent lawless action.” You can thus advocate violence, just not violence to begin right now. Other exceptions include obscenity, child pornography, encouraging suicide, and (commercial) speech owned by others.

What happens, then, when a person vents on Facebook or in the comment section of a newspaper’s website? There’s no threat of immediate violence, so it’s legal, right? It’s not legal, according to two of America’s police departments.

Look at example number one. James Ross, 20, is a gun control supporter and is active on Facebook. One day a friend of his posted a meme on Facebook entitled, “Why I Need a Gun.” Below the title were photos of various firearms and an explanation of what each could be used for. The shotgun, for example, was for “burglars and home invasions;” the rifle and scope were for “putting food on the table;” and the assault rifle was for “self-defense against enemies foreign and domestic, for preservation of freedom and liberty, and to prevent government atrocities.” Ross didn’t like the meme, so he wrote in the comment section, “Which one do I need to shoot up a kindergarten?” He then went to bed.

The original poster deleted Ross’s comment and the post, but not before a Facebook friend forwarded it to another friend who happened to be a cop. That cop in turn forwarded it to two more cops who, without conducting any investigation whatsoever, showed up at Ross’s place of employment the next day and arrested him for “disturbing the peace,” a misdemeanor. Ross attempted to explain himself, but the police were having none of it. They read him his Miranda rights and locked him up for four days.

The county prosecutor quickly dropped the charges, but Ross sued the police, saying that his civil rights had been violated. He hadn’t posed any threat to anybody and the police knew it. A federal district court judge, however, threw the suit out, writing that the police had “qualified immunity” that prohibited private citizens from suing them while they were in the process of carrying out their duties. An appeals court, however, recently reversed the district court, saying that the officers could not have qualified immunity because Ross’s post was not a “true threat” and the police had not carried out even “minimal investigation.” It was a close call for Ross – and for the rest of us.

The basis of the judgment was the First Amendment. Ross had not met any of the criteria for controlling his freedom of speech. It was as simple as that. The cops knew it, but charged him anyway. The judge did the right thing.

Similarly, Robert Frese, 62, of Exeter, New Hampshire, had an ongoing problem with one local police officer after being arrested and convicted of purposely running over a highway construction flagger. He allegedly shouted at the man, “If you don’t move out of my way, I’m going to run over you,” before doing just that. He was convicted of felony assault and sentenced to two-to-four years in prison, with all but 67 days suspended. He was later accused of stalking the officer who arrested him and, later still, of rummaging through a private garbage dumpster, apparently looking for information on the cop.

When the officer retired, a story that was carried in the local paper, Frese took to the online comment section and wrote, “Chief (William) Shupe covered up for a dirty cop.” Frese was arrested the next day and charged with “criminal defamation of character,” a class B misdemeanor. Frese maintained that the police just wanted to silence him because even a misdemeanor conviction would send him to prison for the remainder of the two-to-four years on the assault charge.

The American Civil Liberties Union (ACLU) saw the case in a completely different way. Two weeks ago, the ACLU filed a federal suit against the Exeter Police Department arguing that the criminal defamation law violates the First Amendment. The suit says that the Supreme Court recognized in a landmark 1964 decision, New York Times v. Sullivan, “the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Indeed, the Court added, the complaints didn’t even have to be true to still be legal.

So there it is. We Americans can pretty much say whatever we want, within very clearly defined (yet few) limits. It may not stop the cops from harassing us. It may not stop the FBI from surveilling us. But tough luck for them. We’re going to keep on fighting.

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John Kiriakou is a former CIA counterterrorism officer and a former senior investigator with the Senate Foreign Relations Committee. John became the sixth whistleblower indicted by the Obama administration under the Espionage Act – a law designed to punish spies. He served 23 months in prison as a result of his attempts to oppose the Bush administration's torture program.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News. your social media marketing partner


A note of caution regarding our comment sections:

For months a stream of media reports have warned of coordinated propaganda efforts targeting political websites based in the U.S., particularly in the run-up to the 2016 presidential election.

We too were alarmed at the patterns we were, and still are, seeing. It is clear that the provocateurs are far more savvy, disciplined, and purposeful than anything we have ever experienced before.

It is also clear that we still have elements of the same activity in our article discussion forums at this time.

We have hosted and encouraged reader expression since the turn of the century. The comments of our readers are the most vibrant, best-used interactive feature at Reader Supported News. Accordingly, we are strongly resistant to interrupting those services.

It is, however, important to note that in all likelihood hardened operatives are attempting to shape the dialog our community seeks to engage in.

Adapt and overcome.

Marc Ash
Founder, Reader Supported News

+9 # engelbach 2019-01-05 02:15
To the worshippers of Barack Obama: Please try to remember that he was as big a war criminal as G. W. Bush, and whenever you see an article by John Kiriakou, remind yourself that this writer was jailed for almost two years by Obama's administration for trying to uphold the nation's laws against torture — torture for which war criminal Obama gave the CIA perpetrators a pat on the head.

As far as the government is concerned, there is no right to free speech when trying to report a crime, if that crime was committed by the government, regardless of which party is in power.
+9 # DongiC 2019-01-05 08:55
Speech is still protected but one must be careful especially if law enforcement is involved. It helps if one is a lawyer.
+3 # Rodion Raskolnikov 2019-01-05 10:01
This is very interesting. But Free Speech only matters if the speakers are informed and have informed opinions. George Orwell depicts beautifully what the speech of uninformed people is like in his depiction of the proles. They speak in gibberish and nothing makes any sense or matters.

The decades long "dumbing down" of American has reduced them to the condition of proles. They know almost nothing about true history, philosophy, or culture. They have disconnected snippets, mythological narratives, and catch-phrases. They repeat these endlessly and freely -- they all mean nothing and matter nothing. But they are exercising Free Speech.

The difficult corollary to Free Speed is a well-informed and well-educated citizenry. This was Jefferson's understanding.

Our great first amendment protected institutions -- the news media -- have played the key role in dumbing down americans. They publish a steady diet of fake news, irrelevant anecdotes, moralistic myths, and other gibberish. It may have gone beyond the tipping point of no return. There may be no hope anymore and no point to the right of Free Speech. After all, who cares if you speak gibberish all the time. You are free but meaningless.
+1 # Farafalla 2019-01-05 15:52
Another clever post from the Russian troll who works hard to delegitimate all institutions and, in his backhanded way, support Trump. This post is aimed at reducing the status of the media like the New York Times or others in the eyes of RSN readers. I guess we should trust RT and its unique approach to reality.

Word to the wise: NEVER give this troll a thumbs up he says the sky is blue.
+6 # 2019-01-05 12:42
Interestingly nuanced, important discussion on our First Amendment rights.
+8 # PABLO DIABLO 2019-01-05 15:33
How long before we don't believe anything? Or, are we there already.
Kiriakou is a hero.
0 # Depressionborn 2019-01-07 09:44
A veteran news reporter has quit NBC, accusing the network of pushing anti-Trump, pro-war propaganda. William M. Arkin accused the new outlet of having an "infatuation" with the "Trump circus," claiming it leads to journalists ignoring real stories as they push to turn Americans against their president. Arkin, a seasoned national security reporter, made the revelations in a biting farewell message to his colleagues.

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