Indeed, the First Amendment not only protects the mere “attending” of a speech “promoting the violent overthrow of our government,” but also the giving of such a speech.  The government is absolutely barred by the Free Speech clause from punishing people even for advocating violence.  That has been true since the Supreme Court’s unanimous 1969 decision in Brandenburg v. Ohio, which overturned the criminal conviction of a Ku Klux Klan leader who had threatened violence against political officials in a speech.

The KKK leader in Brandenburg was convicted under an Ohio statute that made it a crime to ”advocate . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and/or to “voluntarily assemble with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”  The Court struck down the statute on the ground that it “purports to punish mere advocacy” and thus “sweeps within its condemnation speech which our Constitution has immunized from governmental control.”  The Court ruled that “except where such advocacy is directed to inciting or producing imminent lawless action” — meaning conduct such as standing outside someone’s house with an angry mob and urging them to burn the house down that moment — “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force“ (emphasis added).

As Think Progress explains, Paul’s argument runs directly afoul of these established constitutional principles and ”is especially appalling coming from someone who fashions himself as a staunch defender of civil liberties.”  There’s no doubt about that (and, ironically, some of the rallies from the Tea Party movement, the faction most responsible for Paul’s election, as well as many pro-life rallies, may well qualify as “speeches from someone who is promoting the violent overthrow of our government” if viewed by a hostile government official). 

But what Think Progress doesn’t mention is that the Obama administration is not only advocating views that violently breach the same principle, but has been attempting to act on those violations for more than a year now as they try to kill the American-born Terrorist suspect Anwar al-Awlaki (along with at least three other unknown U.S. citizens targeted for assassination).  Indeed, this is one of the prime principles that has made me view the President’s assassination program as so odious from the start.

What has made Awlaki of such great concern for American officials is not any alleged operational role in Terrorism, but rather the fact that he advocates violent jihad and does so with some degree of efficacy.  To see how true that is, just consider this morning’s New York Times debate forum that asks: “How Dangerous Is Anwar al-Awlaki? With Yemen on the verge of civil war, how aggressive should the U.S. be in trying to kill an American-born cleric?”  The responses from five Terrorism experts span the range of opinion from “he’s not particularly dangerous” to “he’s extremely dangerous,” but all of them — in explaining why he’s attracted so much attention — emphasize the speeches he gives and ideas he advocates, and make only the most passing and cursory reference to the unproven government assertions that he’s involved in plotting Terrorist attacks:

Gerges: Awlaki “is not even the leader of Al Qaeda in the Arabian Peninsula . . . a more effective measure [than killing him] would be to shut down Awlaki’s propaganda shop by convincing the tribe that gives him shelter, the Awalik in southern Yemen, to turn him over to the Yemeni authorities.”

Bodurian and Nelson:  ”Awlaki’s real danger — his potential to incite Islamist terrorism among far-flung constituencies living in the United States, Europe and even Asia. The American-born, Yemeni-raised cleric delivers scathing English-language online lectures to audiences in the West. Awlaki’s rhetoric plays up a war between the West and Islam and has led some Muslims living throughout the world to embrace Al Qaeda’s toxic ideology and to plan attacks.”

Benotman:  ”Awlaki’s fluent English certainly sets him apart from most other Al Qaeda members. It also makes him a potent force among Western Muslims. Thanks to a long immersion in American culture and many years of working with Muslims living in the West, he understands how to recruit impressionable young Muslims with his message that Muslims will never be accepted by the West, and that the only correct Islamic response to the West’s cultural, political and economic influence is jihad.”

Khalil:  ”Awlaki remains a potent threat to U.S. security. He has a proven ability to radicalize would-be violent extremists in the West in a way that Bin Laden, Zawahiri and others could never have. He has a unique talent in reaching out to a segment of disaffected people, mostly male and English-speaking, who may or may not have originally come from a Muslim background. . . . He is able to reach them through snazzy graphics, videos and speeches posted online. Inspire Magazine, an online English publication thought to be published by Awlaki encourages a kind of do-it-yourself terrorism . . . .”

Mendelsohn:  “Few jihadists represent a bigger threat to the United States than Anwar al-Awlaki. He played an important role in a string of attacks in the West and, more than any other figure, proved to be great inspiration for homegrown cells and lone terrorists.”

Plainly, the American obsession with Awlaki has virtually everything to do with his advocacy and, especially, the fear that it’s effective because he can speak to English-speaking Muslims.  In other words, the U.S. Government is trying to kill him primarily because of his constitutionally-protected speech in advocating the justifiability and necessity of violence.

This is not an academic question.  The right at stake here is absolutely vital.  It is crucial to protect and preserve the right to argue that a government has become so tyrannical or dangerous that violence is justified against it.  That, after all, was the argument on which the American Founding was based; it is pure political speech; and criminalizing the expression of that idea poses a grave danger to free speech generally and the specific ability to organize against abusive governments.  To allow the government to punish citizens — let alone to kill them — because their political advocacy is threatening to the government is infinitely more dangerous than whatever ideas are being targeted for punishment, even if that idea is violent jihad.

Indeed, it is simply obvious that an American citizen — Muslim or otherwise — is and should be Constitutionally permitted to stand up and make the following argument:

For decades, the U.S. Government has been engaging in violence and otherwise interfering in the Muslim world.  Hundreds of thousands of innocent Muslim men, women and children have died as a result.  There is no end in sight to this American assault on the Muslim world and those of its client states.  Therefore, it is not only the right, but the duty, of Muslims to engage in violence against Americans as a means of self-defense and to deter further violence against Muslims.  That is the only available means for fighting back against the world’s greatest military superpower.  The only alternative is continuing passive submission to this onslaught of violence aimed at Muslims.

That is Awlaki’s core message in explaining why he supports the use of violence aimed at Americans (while arguing that it should be aimed at military rather than civilian targets):

I have been seeing my brothers being killed in Palestine for more than 60 years, and others being killed in Iraq and in Afghanistan. And in my tribe too, US missiles have killed 17 women and 23 children, so do not ask me if al-Qaeda has killed or blown up a US civil jet after all this. The 300 Americans [targeted by Abdulmutallab] are nothing comparing to the thousands of Muslims who have been killed. . . . The American people are the ones who have voted twice for Bush the criminal and elected Obama who is not different from Bush as his first remarks stated that he would not abandon Israel, despite the fact that there were other anti-war candidates in the US elections, but they won very few votes. The American people take part in all its government’s crimes.  If they oppose that, let them change their government.

One can find that view odious and repugnant.  One can find it dangerous and frightening.  But what one cannot do is dispute that it is pure political speech squarely within the zone of First Amendment protection, as established by Brandenburg.  And to punish or kill an American citizen for expressing those views — which is exactly what the Obama administration is attempting to do with Awlaki — is a grave assault on core free speech rights (let alone to do so without any judicial process).   The Supreme Court, in Claiborne, has also ruled — unanimously — that the First Amendment bars imposing liability on someone for the criminal acts “inspired” by their speech (it so ruled when protecting NAACP officials from attempts by the State of Mississippi to hold them liable for the violent acts their fiery speeches inspired on the part of their followers). If one wants to argue that Awlaki’s speech falls outside the scope of Brandenburg and Claiborne protections, the place to do that is a courtroom after indicting him, not vesting the President with the power to act as judge, jury and executioner.

In recognition of that fact, the Obama administration — once the existence of its hit list became public — began asserting, with no evidence presented and usually anonymously, that Awlaki has an “operational role” in Al Qaeda.  But as Yemen expert Gregory Johnsen said today in response to the NYT debate: ”We suspect a great deal about Anwar al-Awlaki, but we know very little, precious little when it comes to his operational role“; he added in response to Mendelsohn’s claim that Awlaki “played an important role in a string of attacks in the West”:  “We just don’t know this, we suspect it but don’t know it.”  Of course, punishing (or killing) Americans based on government accusations that have never been proven in court happens to violate a different though equally critical Constitutional principle (the Fifth Amendment’s guarantee that “no person shall be deprived of life [or] liberty . . . without due process of law).

It will never cease to amaze me how acquiescent the country is to the seizure by this President of the extremist and warped power to target American citizens, far from any battlefield, for killing, all without a shred of due process.  It’s not just a profound assault on due process rights but also free speech rights. 

Submission to this power is, I believe, based on three factors:  (1) blind faith in political leaders of the type that led Americans to accept the due-process-free punishment at Guantanamo (“my President accuses this person of being a Terrorist and therefore it’s true; I don’t need a trial to know it’s true”); (2) acceptance of anything done to a fellow citizen as long as he has a foreign-sounding, Muslim-ish name like “Anwar al-Awlaki,” who dresses in white cleric robes and is in Yemen and is thus probably guilty of something or other; and (3) the automatic and enthusiastic embrace by America’s Foreign Policy Community of the use of force in response to any problem, as epitomized by this bloodthirsty-rant-masquerading-as-Serious-analysis in Foreign Policy, which notes that Awlaki’s role in Al Qaeda has been drastically overstated but nonetheless concludes — citing the fact that he’s a “brilliant and captivating orator” and that Yemeni officials privately describe “Awlaki’s sermons as convincing and dangerous” – with this:

The most omnipresent terrorist threat the United States faces today is the opportunistic attacks that are either homegrown or stem from weak or failing states, not the spectacular attacks that take months of preparation. . . . And those are the kind of attacks Awlaki has the power to inspire. In the end, it doesn’t help much to ask who the next bin Laden is, since the problem is bigger than any one man. Regardless of whose image captivates the world, al Qaeda figures, including Awlaki, are busy plotting terrorist mayhem. And Washington needs to do all it can to reduce the risk of another attack.

The government “needs to do all it can” in the name of Terrorism:  even targeting its own citizens with assassination without a trial based on the mere suspicion that he’s doing something criminal  — or invading other countries that haven’t attacked us — or dropping a continuous stream of missiles on people’s homes who are purely innocent — or locking people up for life without a trial.  This is the sociopathic mindset of the security fetishist that dominates our political discourse — Terrorism:  the meaningless though all-justifying slogan — and, more than anything else, this is what explains why something as radical and dangerous as the President’s due-process-free assassination program aimed at American citizens triggers so little objection.  ”Washington needs to do all it can” — no matter how violent and lawless — “to reduce the risk of another attack.”  To a militarized, authoritarian, collapsing Empire in a posture of Endless War, security is the only cognizable value.

UPDATE: Last week, I delivered the keynote address to the ACLU in Massachusetts for their annual Bill of Rights dinner.  The topic was the Bipartisan National Security State and President Obama’s continuation of it, and it relates to many of the topics discussed here.  Those interested in listening to the 25-minute speech can do so here.

Haas organized the event to protest the treatment of Isaac Eslava, an LSU student who was charged with felony criminal damage and arson after he stole and burned the LSU War Memorial’s American flag on May 1, shortly after President Obama had announced the death of Osama bin Laden. But Haas now says that by Wednesday morning, the negative reaction had caused him to abandon the idea of burning a flag, and he planned merely to make a speech. Sustained physical and verbal taunting prevented him from doing even that; before he could speak more than a few words, policemen led the student away, as obscenities (and water balloons) continued to fall. (Flag-burning may be legal, but Haas lacked a burn permit, so would technically have been breaking the law had he followed through with his original plan.)

Haas’s colleague and friend Joe Rhodes told us how surprised he was to see a crowd of this size assemble in such a short time. “The real story here is the power of social media and the speed and emotionality that comes with using it,” he said. “In less than 24 hours, Facebook was used to get over 1,000 people to the LSU parade grounds.”

We asked Haas by email about the event, if he had any regrets, and whether he understood why  others might have found his original plan offensive.  (When we asked whether he would support similarly controversial protests, such as the burning of a Koran, he had no comment.) His answers are below.

What did you originally hope to accomplish with the flag-burning?

Burning the flag in protest was not meant to condemn the United States, the government, or the military. It was to demonstrate that burning a symbol is speech act protected by our Constitution, pure and simple, and should not be considered as a factor in the prosecution in the destruction of property. These are separate issues. In the case of Issac Eslava, I saw what I deemed to be an unjust level of prosecution for a crime simply because the object burned was a flag. The police had every right to prosecute him for desecrating the war memorial. That was an act of violence I do not condone. However, when they prosecuted him for a felony, rather than giving him a fine, I concluded that it could only have been the symbolic value of the property which accounted for the increased charges. Moreover, as a teaching institution, I believe the university should possess an ethical conscience. It was this responsibility and code of ethics to which I was appealing, to use in this instance as a teaching opportunity rather than a means of excessive punishment.

Thus my action was intentionally designed to reassert our freedom of expression, and to show how symbolic performances are a vital part of democratic life, no matter how offensive. Additionally, because democratic ideals service varying attitudes and opinions, one symbol can convey vastly different interpretations, as the flag does, and all should be protected. It is part of our birthright as Americans.

Do you feel you proved your point?

My initial purpose to perform flag-burning as an element of free speech has largely been lost. At this point, I think I may have been naïve entering into this situation. The changing point was when I started receiving the threats on my life prior to the day of the event. My protest became about free speech more generally; it became about what our rights and responsibilities actually entail and how much power is invested in symbolic performance acts. Those early actions in response to even the mentioning of a flag-burning demonstrated the need to change the focus of the protest. I chose not to burn the flag even before I was notified about the need for a permit at 8:45 a.m. on Wednesday, largely because of the potential violence that was made apparent to me via emails, message boards, and phone calls. However, I also knew that I wanted to walk out on that field, not because of bravery or courage, but because I refused to be intimidated by a mob, which is what those 1,500 people became the moment they saw me standing alone in the parade grounds.

Did you expect the kind of reaction you got (on both the local and the national level)?

No. The whole event was sublime. The level of violence and hatred was completely unexpected. I thought I might attract a total of a hundred people, some in favor of me and some against. The reaction was obviously far more intense than anything I have ever experienced in my life.

Can you see why people (on the left and the right) might have found your actions needlessly provocative?

Hindsight brings clarity. I know and respect that many people love this country and its flag. And I knew my protest would be misunderstood as an attack on the country instead of a form of expressing dissent, and would associate my cause with Isaac’s rather than seeing my reaction in terms of freedom of speech. I was not trying to be provocative for its own sake, although such an interpretation is inevitable. I simply wished to highlight where free speech acts and property crimes are differentiated.

Were you scared at any point in the course of the protest?

Fear is not the right word. I was terrified. I knew that there were immediate and pressing threats around me; several of the protestors made that perfectly clear to me. I knew before walking out there that some people in that crowd wanted to do me bodily harm. When I was surrounded as I was trying to speak, and as police escorted me across the parade grounds while the crowd spit on me and threw debris, I knew little could be done if I somehow got caught up into the energy of the mob. I am grateful to the LSUPD and East Baton Rouge Parish Police officers for doing an excellent job at keeping me safe and helping me out of a tense and potentially dangerous situation. Without them, things might have turned out differently.

I think the decision is a travesty. But, alas, after reading it, I also find it perfectly defensible, probably even correct.

Right. OK, well, column over. A bit short this week, but that does seem to sum it up nice—wait, I’m sorry, there’s another 650 words? But… why?

Goldberg goes on to quote various editorials about how the case is painful but correct and blah blah blah. Jonah Goldberg has no time for your pointy-headed liberal values that he says he agrees with!

These are fine expressions of general constitutional values shared by most of us. But they’re absolutely useless for figuring out how to treat speech in the real world.

Goldberg notes that many states restrict demonstrations at funerals, and no one complains, because we all agree that some speech is so bad and wrong that restricting it is OK, which is actually not really a thing that everyone agrees with. Goldberg calls Samuel Alito’s dissent “compelling,” in order to try to convince us that he read it, or read anything about the case instead of just seeing something about it on the TV, while he was waiting for “NCIS: Los Angeles” to come on. And some offensive speech is “worthwhile” and some offensive speech is “reprehensible” and it is obviously totally easy to figure out which is which because America is “serious” and it is, as always with Goldberg, a simple, stupid point, obtusely made.

This is my favorite part:

Stephen Wermiel, a professor at American University, warns, “If you start defining and banning offensive speech because someone doesn’t like it, it’s hard to draw the line, and one day you wake up and find you don’t have much protected speech.”

Meh.

That’s the entire paragraph. “Meh.”

Jonah Goldberg is “a visiting fellow at the American Enterprise Institute.”

With Breitbart claiming that Sherrod’s suit is part of a “last-ditch attempt to shock me into silence,” does Sherrod actually have a case? To find out, we spoke with  Floyd Abrams, the renowned constitutional lawyer, who gave us a crash course in what Sherrod has to prove in court in the months ahead.

What is the definition of defamation?

Defamation is seriously defined as a statement that holds someone up to ridicule or the like. It is a statement which is likely to hurt the person — in her [Sherrod's] case in her personal or professional life — in a self-evidently negative manner.

Do Breitbart’s actions meet that criteria?

If it is true that he edited her speech in a way to change the meaning of it, that can pass the test for defamation. I mean, if [Breitbart] made her look as if she was denouncing all white people, when in fact she was explaining how her views changed through the years, that can be defamatory. I have no view on what it is he did or not, I’m just saying [that] if that’s what he did, it can be defamatory.

I should add that she [Sherrod] was at the time he did it a public official, and so her burden is a heavy one. She has to demonstrate not just that he did it, but that he knew what he was doing was false [or] would leave a false impression about what she had said, or [that he] had some serious doubts about what he was doing.

To put it more affirmatively, if he was acting in a good faith manner, but the editing that he engaged in turned out to get her into trouble, then that would not be enough to demonstrate actual malice — which is what you have to demonstrate when you are a public official and you bring a libel suit. If, on the other hand, she can show that for his political reasons, his ideological reasons, his desire to make a name for himself, or whatever, that he purposely distorted what she said in a way that damaged her, then she might have a serious claim.

Breitbart is known for his hyperbolic allegations against the left. A few days ago at CPAC, for example, he referred to liberal groups such as ACORN, Code Pink, and labor unions as “hate-filled, racist sheep” and “monsters.” If Sherrod wins her defamation case against him, what impact will that have on both Breitbart’s statements and what other bombastic pundits are permitted to say?

In a sense, the law is more protective of what we call rhetorical hyperbole than it is of false statements of fact. Calling someone in a political sense “a monster” would not be actionable. And a number of the extreme statements that one routinely hears on right wing radio would be viewed as either simply opinions, and thus not actionable, or simply a rhetorical hyperbole or name calling, which is protected. What’s not protected is knowingly making a false statement of fact which defames the person who sues, and that’s what she must be saying in her lawsuit.

Bottom line, it’s pretty rare to have a situation in which [someone] is literally cutting tape in a way to totally distort what the offended person has said. It happens sometimes, but we don’t live in a world with a lot of libel suits about politics. I mean, the President wouldn’t sue Rush Limbaugh because Limbaugh says he purposely is weakening America. So I don’t think that a victory for her would have any real impact on the ability of right wing media to keep on doing what they’re doing.

The Koch brothers, who use their vast fortunes to encourage the creation of political consensus around various government policies that allow them to pollute as much as they want in order to make as much of a profit while sacrificing as little of said fortunes to the tyrannical government as possible (they’d rather spend a million dollars on a libertarian think tank than see one cent of that hard-earned money go to a wasteful big government school lunch program), held their annual retreat in Rancho Mirage, Calif., last weekend. A bunch of liberals protested the event, in order to call attention to the obscene wealth of the brothers and the ways they use that wealth to quietly influence the political process in their favor.

That protest, across the street from the event, was “an open assault on the rights of association,” according to a lawyer who believes that restrictions on corporate campaign spending are violations of the right to free speech. (Not only is money speech, it is also apparently the only acceptable form of speech.) Various people were arrested.

Yesterday, Politico’s Kenneth Vogel published a very good piece on how the Kochs are “fighting back” against their significantly less rich and influential critics. In addition to aggressive P.R., legal threats and attempts to win the cooperation of reporters by doling out formerly unheard-of access, they have also, in the words of Jon Chait, hired goons.

It is so rude of liberals to dislike the Kochs and to write about what they do, and sometimes protest their secret enclaves. And that is why their goons are perfectly justified in threatening to lock up Politico reporters, in jail, for photographing things.

A perhaps even more egregious example of liberal intolerance is the fact that some blogs wrote some things about how the owners of Chick-fil-A are anti-gay Christians. Or, as Michelle Malkin put it in yesterday’s National Review Online, “several progressive-activist blogs have waged an ugly war against Chick-fil-A.”

So far the actions taken against this company include, in addition to blog posts, an online petition and some Facebook groups. That’s about it. Even excitable New York college students aren’t bothering to protest. There was a New York Times article about it, though. On the whole, a couple thousand people probably learned what many others already knew about the owners of Chick-fil-A, and many more people almost certainly “learned” that evil thug leftists were attacking Chick-fil-A for the crime of loving God, and marriage. Malkin, again:

This is not because they care about winning hearts and minds over gay rights or marriage policy, but because their core objective is to marginalize political opponents and chill Christian philanthropy and activism. The fearsome “muscle flexing” isn’t being done by innocent job-creators selling chicken sandwiches and waffle fries. It’s being done by the hysterical bullies trying to drive them off of college grounds and out of their neighborhoods in the name of “human rights.”

Did you know that I’m “flexing my muscles” by merely writing the words “if you are gay or support gay marriage you might want to reconsider eating at Chick-fil-A”? I am brutally marginalizing Christian activism, by pointing out its existence.

Ha, wait, this sentence about “the left-wing mob” that viciously intimidated Proposition 8 donors is the best thing in the whole Malkin piece: “Businesses that contributed money to the Prop 8 campaign were besieged by fist-wielding protesters.” Protesters besieging businesses with fists! Literally punching or maybe threatening to punch buildings!

The owners of Chick-fil-A are right-wing Southern Baptists. They will do things like donate lunches to meetings of religions anti-gay groups and put “Focus on the Family” materials in your kids’ meal. If this is not widely known, it is perfectly responsible to tell people about it, so that they can make informed decisions about where they spend their money. That is actually how capitalism is supposed to work.