When I began following free speech controversies, I was a First Amendment absolutist. Now I’m something less comfortable. I still think free speech is a good idea, certainly better than alternatives I’ve come across, but I’ve learned that everyone has a line that can’t be crossed, a word that sticks in the craw, an image that feels like a kick to the gut. The First Amendment, bless its little heart, always eventually lets us down (self-protection is innate, tolerance an acquired taste), so how can I not be bothered by its limitations?

This is a running log of arguments over free speech – some silly, some funny, some hard -- because free speech is all about argument. Being able to speak our mind makes us feel good and it's essential to real democracy and fairness. Yet, in the end, one of the best reasons to keep our speech rights intact is that we miss them when they’re gone.

Friday, April 6, 2012

Know which way the wind blows

       A Marine meteorologist (that's Marine, as in branch of the military) has lost his security clearance, without which he can't do his job, because he refused to stop posting satire and criticism of the President on Facebook.  (Details from AP)  Sergeant Gary Stein did stuff like superimposing Obama's face on a poster for the movie "Jackass."  OMG!
       Stein's lawyer points out that he broke no law and the ACLU has trotted out that pesky First Amendment, but the Marines counter that he violated military policy, which severely limits a Marine or soldier's political speech while in uniform.  (Does this raise the question of what he was wearing when he went online?)  Apparently, the policy has been in place since the Civil War.
       Stein's postings may have been disrespectful of his commander-in-chief, but they also seem to be satire, which has been explicitly protected under the First Amendment since 1988 in Hustler v. Falwell.  Satire seeks to undermine authority, but it's doubtful that these parodies would make much difference in conducting military operations or, in this case, predicting the weather.
       More significant is that the Marines decided to go after Stein after he wrote on Facebook that he wouldn't follow unlawful orders from the prez.  That challenge -- Stein first wrote just that he wouldn't follow Obama's orders, adding "unlawful" later -- goes to the defense military resisters, such as Camilo Mejia and Ehren Watada, tried when they were prosecuted for refusing to fight in Iraq.  It relates to the "Nuremberg defense," which holds that subordinates are not liable for criminal acts they commit while following orders -- and by extension, sanctions soldiers refusal of unlawful orders.  Military and civilian judges very, very seldom allow such an argument to be introduced (and didn't in either Mejia's or Watada's trials).
       So here we have a case of slippery slopes all round.  For the Marines, the slip would be in allowing a weatherman to show which way he thinks the wind blows.  For civil libertarians, it's in continuing a restrictive policy which tramples the First Amendment rights of those whom we laud as heroes as soon as they put on the uniform -- and apparently relinquish their right to speak their minds.
  

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