Hell No: Your Right to Dissent in 21st-Century America | By Michael Ratner & Margaret Ratner Kunstler | The New Press | 176 pages, $17.95
A number of twentieth-century legal decisions helped establish the US as having one of the freest press systems on earth. In 1925, the US Supreme Court ruled that the First Amendment protects citizens not only from federal abridgment of speech, but also from interference by state governments. In 1931, the Court largely declared prior restraints to publication unconstitutional. In the 1960s, the Court made it splendidly difficult for public officials to successfully sue journalists for libel.
Nonetheless, the book Hell No: Your Right to Dissent in 21st-Century America, by Michael Ratner and Margaret Ratner Kunstler, reminds us why scores of countries are typically cited as having freer media environments than the US. The landmark Supreme Court decisions listed above protect freedoms to publish and speak, but they do not guarantee protection from all forms of government mischief after dissent occurs. Indeed, the Court’s 1925 decision in Gitlow v. New York ruled that, while the First Amendment protects citizens from some abuses by state governments, citizens may still be punished for speech “inimical to the public welfare, tending to corrupt public morals, [or] incite to crime or disturb the public peace.”
The United States vigorously protects what citizens can say—but after dissenting speech is aired, the government’s responses to these activities, including covert surveillance of citizens, can be constitutionally dubious. Hell No reminds us why the US isn’t really even close to being the world’s chief guardian of free speech (in 2010, Freedom House listed twenty-three countries as having greater press freedom than the US, while Reporters Without Borders counted nineteen. The laurel for greatest press freedom usually goes to Finland or Norway). Although the book is geared more toward radical political activists than journalists, it jolts all readers awake with an icy reminder that the US government often monitors and even punishes dissent.
Since 2008, the Ratners point out, the FBI’s authority to investigate the provenance of dissenting speech has dramatically expanded. The FBI’s so-called Mukasey guidelines, conjured by the former attorney general of the same name and adopted whole ham by the Obama administration, give the government extraordinary power to secretly investigate citizens over even lawful activity related to foreign affairs. The Mukasey guidelines themselves acknowledge that the FBI may use espionage to siphon from citizens information related to foreign affairs, even if the “information so gathered may concern lawful activities” (emphasis mine).
Such an investigation, the Ratners point out, can target “anyone with any connection to a foreign policy issue—even a professor writing about a foreign country.” (Gulp). Not only is this constitutionally suspect, but it would appear to also violate the 1948 Universal Declaration of Human Rights, which embraces the “freedom to hold opinions without interference regardless of frontiers.” And, of course, using covert surveillance in response to lawful speech violates not only the First Amendment, but also the Fourth Amendment’s guarantee against unreasonable searches and seizures.
Reporters in the US can be incarcerated for thorough reporting and keeping promises to confidential sources. When I taught journalism at the American University in Cairo, my non-American students were shocked to learn that journalists in the US could be, and in some cases are, jailed for refusing to reveal to grand juries the identities of confidential sources in their reporting. I’ve used the Borders & Bylines column to cry foul on free speech shortcomings in many countries, including Israel, Turkey, Tunisia, Egypt, and Kuwait, and these countries are indeed hard-core offenders, but my own country does plenty to speech that defiles its constitution. Hell No is an important reminder of this.
The Ratners warn that with the blessing of the Patriot Act, the FBI and other federal agencies can distribute “National Security Letters” and, with no judicial oversight, subpoena from banks, libraries, and phone companies sensitive information about people who may be under no criminal investigation whatsoever. This is one of the most seamless ways that the US government can “legally” obtain information about dissenters of which it is wary. The US government mails nearly a thousand National Security Letters every week. Look out.
To be sure, there are a number of ways in which the US does lead the world in freedom of speech. It is literally legal to advocate anarchy and the violent overthrow of the US government, and dissidents can be rather specific in their rally cries as long as their plans aren’t “imminent.” Additionally, I don’t know of a country that protects more false and hateful speech, such as Holocaust denial and the defamation of dead soldiers, than the US. Fabricating news in the United States, while a journalistic death wish, is not generally illegal.