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.

[Note on further readings: You can check out the ACLU’s full-filing text on behalf of Davis by clicking here.]

[Disclaimer: The views expressed here are solely those of the author in his private capacity and do not in any way represent the views of the Department of State, the Department of Defense, or any other entity of the U.S. Government. It should be quite obvious that the Department of State has not approved, endorsed, or authorized this post.]

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And a revolving door has developed between official Washington and Wall Street – with bank executives becoming public officials who make rules that benefit the banks before heading back to the Street to make money off the rules they created.

Other top officials, including an increasing proportion of former members of congress, are cashing in by joining lobbying power houses and pressuring their former colleagues to do whatever their clients want.

Millionaires and billionaires on Wall Street and in executive suites aren’t contributing all this money out of sheer love of country. Their political spending is analogous to their other investments. Mostly they want low tax rates and friendly regulations.

Why else do you suppose tax rates on the super rich are now lower than they’ve been in three decades, and why – even though the long-term budget deficit is horrendous – those rates aren’t rising? Why else do the 400 richest Americans (whose wealth is larger than the combined wealth of the bottom 150 million Americans) now pay an average tax rate of only 17 percent?

Why do you think Wall Street got bailed without a single string attached – not even being required to help homeowners to whom they sold mortgages, who are now so far under water they’re drowning? And why does the financial reform legislation have loopholes big enough for bankers to drive their Ferrari’s through?

And why else are oil companies, big agribusinesses, military contractors, and the pharmaceutical industry reaping billions of dollars of government subsidies and special tax breaks?

Experts say the 2012 presidential race is likely to be the priciest ever, costing an estimated $6 billion. “It is far worse than it has ever been,” says Republican Senator John McCain.

If there’s a single core message to the Occupier movement it’s that the increasing concentration of income and wealth at the top endangers our democracy. With money comes political power.

Yet when real people without money assemble to express their dissatisfaction with all this, they’re told the First Amendment doesn’t apply. Instead, they’re treated as public nuisances – clubbed, pepper-sprayed, thrown out of public parks and evicted from public spaces.

Across America, public officials are saying Occupiers have to go. Even in universities – where free speech is supposed to be sacrosanct – peaceful assembly is being met with clubs and pepper spray.

The First Amendment is being stood on its head. Money speaks, and an unlimited amount of it can now be spent bribing and cajoling politicians. Yet peaceful assembly is viewed as a public nuisance and removed by force.

This is especially worrisome now that so many Americans are in economic trouble. The jobs recession grinds on, seemingly without end. Homes are being foreclosed upon. Qualified students cannot afford college. Or they’re forced to take on huge debt loads they can’t repay in a jobless economy. Schools are firing teachers. Vital social services are being axed.

How are Americans to be heard about what should be done about any of this if they are not allowed to mobilize and organize?  When the freedom of speech goes to the highest bidder, moneyed interests have a disproportionate say.

Now more than ever, the First Amendment needs to be put right side up. Nothing less than the future of our democracy is at stake.

Such millionaires and billionaires aren’t contributing their money out of sheer love of country. They have a more self-interested motive. Their political spending is analogous to their other investments. Mostly they want low tax rates and friendly regulations.

Wall Street is punishing Democrats for enacting the Dodd-Frank financial reform legislation (weak as it is) by shifting its money to Republicans. The Koch brothers’ petrochemical empire has financed, among many other things, candidates who will vote against environmental protection.

This tsunami of big money into politics is the real public nuisance. It’s making it almost impossible for the voices of average Americans to be heard because most of us don’t have the dough to break through. By granting First Amendment rights to money and corporations, the First Amendment rights of the rest of us are being trampled on.

This is where the Occupiers come in. If there’s a core message to the Occupier movement it’s that the increasing concentration of income and wealth poses a grave danger to our democracy.

Yet  when Occupiers seek to make their voices heard — in one of the few ways average people can still be heard — they’re told their First Amendment rights are limited.

The New York State Court of Appeals along with many mayors and other officials say Occupiers can picket — but they can’t encamp. Yet it’s the encampments themselves that have drawn media attention (along with the police efforts to remove them).

A bunch of people carrying pickets isn’t news. When it comes to making views known, picketing is no competition for big money .

Yet if Occupiers now shift tactics from passive resistance to violence, it would spell the end of the movement. The vast American middle class that now empathizes with the Occupiers would promptly desert them.

But there’s another alternative. If Occupiers are expelled from specific geographic locations the Occupier movement can shift to broad-based organizing around the simple idea at the core of the movement: It’s time to occupy our democracy.

This latest ruling reveals a remarkable double standard — one that dissenting justice Stephen Breyer calls out in his written remarks. He asks:

[W]hat sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman — bound, gagged, tortured, and killed — is also topless?

He ultimately takes this argument to a place I’m uncomfortable with, calling for more aggressive restrictions, but his basic point is well made: There is a disturbing inconsistency here.

Blogger Nilay Patel points out that the Court’s decision uses examples of gruesome scenes in “Grimm’s Fairy Tales,” “Snow White” and “Lord of the Flies” to make “a forceful case for treating video games exactly the same as any other literature or media” — but it also underscores “the incredible disparity in American societal attitudes toward sex and violence.” Because if those are valid defenses, then why aren’t depictions of nudity or other sexual content in literature also reasonable arguments against restricting the sale of sexual content to children? As Breyer argues: “For every Dante, there is an Ovid. And for all the teenagers who have read the original versions of Grimm’s Fairy Tales, I suspect there are those who know the story of Lady Godiva.”

What it really comes down to is that, as Justice Samuel Alito wrote, “For better or worse, our society has long regarded many depictions of killing and maiming as suitable features of popular entertainment, including entertainment that is widely available to minors.” Killing and maiming? Bring it on! But nudity or “sexual conduct”? Good heavens no — we are a civilized people. This attitude pervades our culture, as Adam Cohen writes in Time magazine: “The court’s tougher line on sex parallels the movie industry’s voluntary ratings system, which is much quicker to give a rare NC-17 rating for sex than for violence — but the industry has not done much to explain its double standard, either.”

Regardless of your feelings on this particular case, the culture-wide acceptance of violence over sex deserves some critical attention. It’s no accident, at least on a primal level, that sex and violence are so often linked. Evolutionary psychologists point to the violence that can erupt between male animals during sexual competition. It’s also the case that scientists have found a neural link between the two behaviors — in mice, at least. I’m partial to the philosophical explanation: Violence is destructive and can cause death, while sex brings life (OK, it can also bring death, but I’m talking symbolism here). There are the inherent themes of dominance and submission, power and vulnerability; and then, of course, there is straight-up sexual violence.

Developmental psychologist James W. Prescott, formally of the National Institute of Child Health and Human Development, argues that there is a “preference for sexual violence over sexual pleasure in the United States.” He says, “This is reflected in our acceptance of sexually explicit films that involve violence and rape, and our rejection of sexually explicit films for pleasure only (pornography),” he says. “Apparently, sex with pleasure is immoral and unacceptable, but sex with violence and pain is moral and acceptable.”

We do love our sexy violence, don’t we? A gun-toting busty babe makes for a Hollywood blockbuster — but if all the blood, gore and cleavage was replaced by simple nudity or sex? No way — at least not until we’re behind closed doors, secretly watching it by our lonesome.

I am far from the first to suggest it, but it deserves to be said again: Our cultural blood lust is such a blatant transference of sexual shame and repression. (By the way, in a cross-cultural survey, Prescott found a strong link between “deprivation of body pleasure” — meaning physical affection that is, importantly, not explicitly sexual — and “the amount of warfare and interpersonal violence” in a society. I’m just sayin’.) Sometimes I really have to wonder who we’re most trying to protect by restricting sexual imagery.

While the whole statute stands on weak constitutional grounds, that last nuance seems particularly shaky — and dangerous. That’s because of the special jurisprudential protections granted to core political speech — much of which is consciously intended to upset those who are exposed to it. Indeed, you may be upset by that antiabortion group mailer showing a photo of a fetus, or you may be upset by the antiwar ad showing graphic images of battlefield violence, but that’s constitutionally protected speech (as is, by the way, your right to subsequently express your outrage at the images).

At least some Tennessee lawmakers who support the statute would no doubt insist that those examples have a “legitimate purpose,” which would exempt them from punishment. However, as Iowa State Daily columnist Claire Vriezen astutely points out, “the phrase ‘legitimate purpose’ is open to interpretation.” That “interpretation” part is no theoretical problem — it’s one that could hit courts very soon, thanks to Tuesday’s tobacco-related announcement by the Food and Drug Administration.

Tennessee is a major tobacco-producing state, which suggests there will be no small number of Tennesseans who may feel “frightened, intimidated or emotionally distressed” by new FDA-mandated warning ads that, according to the Associated Press, “depict in graphic detail the negative health effects of tobacco use.” These ads, announced Tuesday, include images of “rotting and diseased teeth and gums and a man with a tracheotomy smoking” after a World Health Organization survey found more than 25 percent of foreign smokers said such graphic labels led them to consider quitting. (You can view all nine warning labels below).

The ads, in other words, pose a genuine threat to a major Tennessee industry that has lots of eager-to-litigate lawyers and lots of clout with politicians. Now, thanks to Tennessee’s criminalization of free speech, that industry can wield a new statutory weapon against the speech it doesn’t like. In a tobacco-state court composed of tobacco-state judges and tobacco-state jurors, this industry could realistically hope that such ads would be ruled illegitimate — and further, that those who disseminate the ads are criminals. By design, that would undoubtedly create both a chilling effect of self-censorship among tobacco distributors (convenience stores, vending machine owners, etc.), and an innovative legal rationale for the industry to ignore the FDA’s new warning-label mandate.

Of course, this all remains hypothetical right now. Big Tobacco, in fact, may not even be interested in such a court case, fearing that any extra attention to the FDA ads will only serve to educate more Americans about the negative health effects of smoking. But that’s not the point, because if it’s not the tobacco industry that attempts to hijack government censorship power then it will certainly be another industry — as has already happened in other states including Iowa, Florida, Ohio and Minnesota, where agribusiness has recently been trying to statutorily bar revelations about factory farms. In all of these cases, the bottom line remains the same: When the government criminalizes First Amendment expressions, all it is really doing is using state power to preference one set of voices over another.

By definition, that is the opposite of “freedom” and, when inevitably done for industry objectives, the hallmark of a Corporate Police State.