by Gerard Donnelly Smith
"The man who laughed but once, to see an ass
Mumbling to make the cross-grained thistles pass,
Might laugh again to see a jury chaw
The prickles of unpalatable law."
—John Dryden, A Satire Against Sedition (1682)
(Swans - July 18, 2005) Once pistols at dawn settled the libelous insult published in an opposition newspaper, as honor clashed with highly critical rhetoric. Once again, one-party rule threatens to undo constitutional checks and balances. The Bush administration's current policies have fueled insurgent words as when, for example, Jeffersonian newspapers were highly critical of Secretary of State Hamilton's Federalist-backed system of finance. This finance system, according to Professor of Law Vincent Blasi, "permitted him to consolidate power in the national government in such a way as to overwhelm [James] Madison's carefully designed system of checks and balances." Concerning the first time the Republic was threatened Professor Blasi concluded that,
Hamilton had studied with admiration the role that innovative public finance had played in the building of the British Empire. He developed a plan for the federal government to assume Revolutionary War debts, establish a national bank, and subsidize fledgling industries -- all undertakings that offered members of Congress and leaders of the financial community handsome opportunities for windfall profits. This policy created a group of influential leaders who were indebted to Hamilton and who possessed a personal stake in the flourishing of the federal government...Hamilton's plan "also made the federal government dependent on customs revenues from imports, and most of those imports came from England." (1)
A similar consolidation of power seems underway under the current US administration. Apparently following a less complicated system of finance, this administration rewards corporate leaders to whom the administration is indebted for their generous campaign contributions. The resulting "free trade" and "globalization" of the commons, including the disenfranchisement of the proletariat who remain, for the most part, unable to unionize, has pleased the capitalists who sought to buy influence with the past and present administrations through their generous campaign contributions. The result of this simple finance system has left the country in debt to foreign nations like China and Saudi Arabia, left US troops mired in an illegal war for which lies were used to justify a pre-emptive strike. How does one resist the blatant disregard for the sovereignty of other nations, the blatant invasion of public privacy, the suppression of the free press by impeding channels of access, and the limiting of the public's acces Madison believed that a free press was essential to ensure the liberty of the population. In an essay for the National Gazette, December 19, 1791, he wrote:
Public opinion sets bounds to every government, and is the real sovereign in every free one. As there are cases where the public opinion must be obeyed by the government, so there are cases where, not being fixed, it may be influenced by the government. This distinction, if kept in view, would prevent or decide many debates on the respect due from the government to the sentiments of the people.
In proportion as government is influenced by opinion, it must be so by whatever influences opinion. This decides the question concerning a constitutional Declaration of Rights, which requires an influence on government by becoming a part of public opinion.
The larger a country, the less easy for its real opinion to be ascertained, and the less difficult to be counterfeited; when ascertained or presumed, the more respectable it is in the eyes of individuals. This is favorable to the authority of government. For the same reason, the more extensive a country, the more insignificant is each individual in his own eyes. This may be unfavorable to liberty.
Whatever facilitates a general intercourse of sentiments, as good roads, domestic commerce, a free press, and particularly a circulation of newspapers through the entire body of the people, and representatives going from and returning among every part of them, is equivalent to a contraction of territorial limits, and is favorable to liberty, where these may be too extensive.
Madison was concerned about unchecked political power during a time when the three branches of the federal government were controlled by one party. The Federalists passed the Sedition Act of 1798, making it a crime "to publish any false, scandalous, and malicious writing against the government of the United States, the President, or either house of Congress -- but not against the Vice-President (Jefferson)." (2)
Jeffersonian editors opposed Hamilton's policy that threatened to drag the U.S. into war with Britain; for this opposition they were charged with sedition, some were found guilty and jailed.
So far, under similar one-party control by the Republicans, sedition laws have not been used to limit expression.
So far, hundreds of editors, actors, poets, writers, singers and political satirists who oppose Bush's rather simple financial system and his message of spreading freedom through military intervention that "democratizes" the resources of the "allegedly" freed nation have not been jailed for sedition.
So far, press limitation is imposed through manipulation: the planted story, the control of access, the publication of disinformation, loyalty oaths, and the payrolling of propagandists.
So far, making the following statements has not been labeled seditious libel: Financing wars takes cold, hard cash. Compiled with the generous tax breaks that the corporate leaders and their associates were rewarded for their generous campaign contributions, the immense funds required ($300 billion thus far) to finance the war has left the current administration without enough money to fund other government services. To stop the shortfall, trust funds which would have made Social Security solvent, which would have paid for Veterans Benefits, for Medicaid and Medicare, for No Child Left Behind, for the NEA, for the EPA, even for Homeland Security, have been raided to finance the war. The United States is a nation made dependent on loans with interest payments that add millions of dollars to its debt each year; meanwhile imports increase, labor is outsourced and infrastructure is pawned to rising economic nations, especially China, Japan, and Saudi Arabia.
America is indebted to these foreign, economic powers because tax cuts for the wealthiest few -- the corporate citizen -- have lead to a significant loss in revenue. To pay mounting bills for the War on Terror, the Social Security Trust Fund was raided, revenues that should have funded Medicaid and Medicare, the EPA, and the FDA and the NEA, and many other social programs were diverted to cover "other" expenses. News stories about corporate graft, corruption, mismanagement, overcharging and embezzlement went, and are still being, under reported. While corporations make record profits, while CEOs earn multimillion dollar bonuses, and while ex-CEOs who are ex-Cons enjoy their "private accounts," their tax cuts continue.
The deficit grows in proportion to the tax cuts, plus the added military expenditure in spreading freedom, plus the interest compounded. In order to pay the bills for establishing freedom (bombs and bullets are expensive, not to mention cleaning up all the dead bodies), loans were secured with Treasury Bonds. Still footing the bill for Afghanistan and Iraq, another war looms. Perhaps in Venezuela; perhaps North Korea. Most assuredly, Bushites wish to invade Iran, who they claim leads the world in training terrorists, who they claim will or may have already developed nuclear weapons. More bodies to clean up, more military hardware, ammunition, and personnel to replace. Good for the military-industrial complex, bad for humanity.
The willingness of the Republican-controlled Congress to invest more and more power in the Executive Branch may seem similar to the Roman Senate giving dictatorial control to Caesar. Bush once said that running a dictatorship would be easier than running a democracy, as long as he's the dictator. Would a dictatorship be less bloody than the current democracy, specifically for citizens of the new democracies? Perhaps, then one should give Caesar his due? But Bush is no Caesar, and Bush's tree of democracy holds bushels of bloody red fruit.
So far, those who compare Bush to less flattering dictators still have protection under the First Amendment. Although the current satire and political commentary by liberal, progressive, or socialist writers and editors might match the 1798 Sedition Laws or the sedition laws enacted by Lincoln, the Supreme Court's expanded definition of the First Amendment still protects the opposition press.
However, a more serious form of sedition is explicitly defined within the Patriot Act.
Sec. 802.5 of the Patriot Act made a significant change in the United States Code, Section 2331 which defines terrorism:
5) the term "domestic terrorism" means activities that -
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended -
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
C) occur primarily within the territorial jurisdiction of the United States.
The key phrase "appear to be intended" is ambiguous and has broad application. What may be considered by some witty satire may to others appear to intend something entirely different. Indeed "appear to be intended to intimidate or coerce a civilian population" may be interpreted so broadly as to render the reporting of facts as a threat to the U.S.
For example, the Newsweek article concerning the flushing of the Koran down a toilet at Guantanamo Bay Military Prison was blamed for "affecting" the civilian population of Muslim nations who rioted in protest, ending in the death of 14. Was the publication of the Koran flushing fact intended to "affect the conduct of a government"? Did it appear to be intended? The reaction of the Bush administration toward the publication of the story begs this question: what published facts may appear to intend "to affect the conduct of a government"?
Critical readers should note that the document does not say "the US government," but "a government" which legally means any government which may feel threatened by the publication of facts that "appear to intend." If that appearance to intend to affect occurs within the "territorial jurisdiction of the United States," then charges of domestic terrorism might be brought against the offending individual or organization.
By definition, seditious libel represents any document, either printed or written --scrawled even on tenement walls -- that either has through its dissemination or within its content "an intention to bring into hatred or contempt, or to excite disaffection against [...] the government and constitution as by law established." The determination defining whether or not a document or even the intention to publish a document thought to be seditious belongs, of course, to the government.
The definition of a seditious act, of course, is defined by the government. For example, The Sedition Act of 1798, defines as sedition:
SEC. 2. That if any person shall write, print, utter. Or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them. or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.
Those jailed under this act would hardly have called it a national treasure.
That statement is as clear, as unambiguous, and as straightforward a limitation of speech as one could write. In contrast, the current methods of limiting free speech are indirect, appear to intend to affect the emotions of journalists and editors through myriad professional enticements and undesirable consequences, appear to intend to affect the emotions of the public through myriad propaganda devices, appear to intend to present facts as lies and lies as facts. So far, no one has been charged under the Patriot Act for "appearing to intend to affect."
The communists who were prosecuted under The Smith Act were found guilty for having read Karl Marx, and for having apparently appeared to advocate the overthrow of the US government by violent means. Former members of the Communist Party, themselves under investigation, testified that the accused had made treasonous statements. In other words, the violent overthrow of capitalism as defined by Marx was taken to "appear to intend to" violently overthrow the US government. Freedom of speech did not protect these American citizens from criminal prosecution.
If the present dictators of policy in the Republican Party wish to maintain or consolidate their power, if they feel threatened by the opposition press, then will they take more overt steps to limit the freedom of the press? Will calls for impeachment, a constitutionally defined remedy for the abuse of power, cause the Bush administration to enact sedition laws, or use the "appear to intend" clause as a threat to limit journalistic freedom? Have they already?