by Jonathan Wallace firstname.lastname@example.org
Year Zero is a series of essays mixing my personal account of September 11 and its aftermath with reflections on ethical, legal, political, religious and other implications. The essays are all collected here. You can also subscribe to the Year Zero mailing list here.
The categories of speech protected by the First Amendment are well-known, and despite the repetitive chatter on Internet mailing lists, are not in serious dispute. Supreme Court decisions interpreting the constitution have made absolutely clear that highly unpalatable political speech, and even words of quite hateful and violent import, have absolute protection (so long as they don't fall into the very narrow pigeonhole of threats conveying an immediate fear of violence to a specific individual). We can argue about what the First Amendment ought to protect, debate whether and how to change the Constitution. But there can be no serious discussion today of whether, for example, web pages calling for Jihad or approving the destruction of the World Trade Center and the murder of Americans, are protected by the First Amendment. They indisputably are.
Justice Holmes, creator of the operative metaphor for U.S. speech freedoms, the "marketplace of ideas", made clear in a famous dissent that the First Amendment's sweep reaches the most offensive political speech imaginable:
If in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.
Yet pages approving violence and terrorism against the U.S. were pulled from numerous U.S.-based servers soon after September 11, without any recourse for the people maintaining them. The reason that there was no constitutional violation was that (as Internet debaters sometimes forget) the First Amendment only protects us against government interventions in speech. It doesn't protect us against each other.
Purveyors of free web space such as Geocities and Tripod have "Terms of Service" (TOS) contracts that users must accept which give the companies broad discretion to reject and close web sites for their presentation of constitutionally-protected but politically unpalatable speech. TOS violations were probably the single most important justification for the acts of commercial censorship which occurred this fall.
However, another more widespread but even less visible force at work chilling speech was the fear of job or social consequences of expression of unpopular ideas. In the first flush of emotion after the attacks, we had several remarkable examples, unusual mainly for being examples of public rather than highly private retaliations. Television host Bill Maher (paid after all for saying outrageous, attention-getting things) made the comment that terorrists who are willing to give their lives, whatever else they may be, cannot accurately be described as "cowardly". (By the way, he is right about this and I have made the same observation myself.) He then went a step further and said that firing cruise missiles from a distance is more properly described as "cowardly". Whatever you may believe about Maher's taste and timing, his words fall squarely within the protected realm of vivid American political speech--which extends in fact much further, to include radio talk show hosts describing how to kill federal "gun-grabbing" agents and NRA board members day-dreaming out loud about the murder of gun control advocates.
Maher soon after his statement was in danger of losing his job--something which hasn't happened yet--and received an unprecedented public rebuke from Presidential spokesman Ari Fleischer, whose remarks were later toned down in the official transcript:
There are reminders to all Americans that they need to watch what they say, watch what they do, and this is not a time for remarks like that; there never is.
In the weeks after the attacks, we also heard of newspaper columnists losing their jobs for remarks that were actually rather mild compared to the rhetoric heaped on Bill Clinton for the last eight years. An Oregon newspaper, the Daily Courier, fired columnist Dan Guthrie after he wrote on September 15 that the president hid "in a Nebraska hole" when he should have returned to Washington after the attacks. First the newspaper's editor wrote a column apologizing for Guthrie, and stating that "Criticism of our chief executive and those around him needs to be responsible and appropriate..." Then publisher Dennis Mack fired Guthrie, describing it as a "private personnel matter".
Tom Gutting, city editor of the Texas City Sun was also fired by his publisher for commenting on the President's behavior the day of the attacks:
There was W. flying around the country like a scared child seeking refuge in his mother's bed after having a nightmare....W. has behaved like you would expect a first lady to.
(For what its worth, I also agree with Guthrie and Gutting and spoke of Bush's disappearance in my own essay written on September 11.)
The conservative National Review dropped columnist Ann Coulter for the following opinion:
We should invade their countries, kill their leaders and convert them to Christianity...
(Do I need to mention I don't agree with Coulter? However, I defend her right to blither.)
Through-out our history, more valuable information and debate has been stifled by private censorship (including the chilling fear of it) than by government intervention. Alexis de Tocqueville recognized the contradictory nature of U.S. society, in which freedom of speech so often translates into freedom to jump on the bandwagon:
In our time, the most absolute sovereigns of Europe would have no idea how to prevent certain ideas, hostile to their authority, from circulating silently in their countries and even in the heart of their own courts. Its not at all the same in America: as long as the majority is uncertain, everyone speaks; but as soon as the majority has irrevocably decided, everyone shuts up, and friends and enemies alike seem then to jump, with one accord, on the public bandwagon. The reason is simple: there is no monarch so absolute that he can hold in his hand all of society's force and vanquish all resistance, to the same extent as a democratic majority with the right to make and execute the laws.
As disturbing as the firing of columnists is, an incident with even worse implications for U.S. democracy was the mainstream media's almost total obedience to the President's request that videos of bin Laden and other al Quaeda members not be televised. By all traditional standards, these were highly newsworthy. Transcripts of all of these were made available by the translation service of the BBC. For example, on November 3, Al Jazeera broadcast a bin Laden video. Bin Laden claimed that polls showed that the Islamic world approved of the attacks by a wide majority; spoke of world-wide demonstrations opposing U.S. action in Afghanistan; said that the Islamic world has been under the "crusader yoke" for 83 years, since World War I; and attacked the United Nations, which is widely respected in Arab nations for its support of Palestinians, for having tolerated or promoted violence against Moslems.
The bin Laden broadcast is newsworthy for several reasons. First, consistent with his other utterances, he never denies involvement in the U.S. attacks and goes to some length to justify them, supporting the circumstantial evidence of his involvement. Secondly, even in translation, his precise, rather Talmudic style of argument, with constant reference to long-past historical events, gives us significant insight into the personality of a once-faceless adversary. Third, his reference to the U.N. introduced a potential new target of Al Quaeda attacks.
I vaguely recall knowing who Osama bin Laden was before September 11: a clever murderer, lurking somewhere, who was linked to the killing of U.S. troops in Somalia, the African embassy bombings, and the attack on the Cole. Today, I have an intense interest in him, as someone who is trying to kill me personally, and that produces a desire to find out everything I can.
As I never tire of telling you, I arrived at the World Trade Center that morning just as the second plane hit. I saw the flames and falling paper, and tiny fragments of glass rained on my head. People were dying a short distance away from me; minutes later, as I was running across the bridge, I saw someone jump from the south tower.
I have a "pay to play" theory of democracy. I made a partial payment on September 11, and I'm willing to pay more: serve on the jury trying an Al Quaeda member, even join the armed forces if they'd have me. What I want in return is very simple: my seat at the table. And that means the information that goes with it. There can be no democracy without information; how do you decide what to do, what to support or to oppose, without it?
The excuses given by the government for its request not to broadcast or even print a transcript of the bin Laden video were laughable. Most prominently, the government announced that the videos might contain hidden messages, a technique called "steganography". Further terrorist attacks might be launched as a result of the bin Laden video being broadcast on CNN.
To which I say: Steganography, my ass. How stupid do President Bush, Dick Cheney and Donald Rumsfeld believe we are? There has not yet been the slightest showing of any hidden messages in any bin Laden video, despite obedient, silly news pieces on CNN interviewing experts who could only say that it is imaginable that they could be there. In these supposedly balanced pieces, where were the experts saying how silly the idea was and that it was unsupported by any evidence?
Multiple choice question: If you were a terrorist trying to send a message to activate a U.S.-based cell, the most effective way to do so would be a. a telephone call b. an anonymous email c. Placing a classified ad in an obscure newspaper the cell was previously instructed to monitor d. Hiding the message in a fifteen minute video which you courier to Al Jazeera network and relying on them to broadcast it in its entirety enough times for your U.S.-based cell to see it.
Raise your hand if you think (d) is the best answer.
However, if bin Laden was strange enough to conceal messages in the video or in the language he used, asking CNN and the networks not to carry it was a completely ineffective way to block transmission of the message, given the fact that it had already been broadcast by Al Jazeera, translated and made available by the BBC, etc. Successful interdiction of a hidden message still wouldn't prevent the follow up phone call or email.
Note also that Rumsfeld et al. failed to run the football through the goalposts. If they had taken the steganography chimera to its logical conclusion, they could have asked American media to black out the war entirely. Taliban mortars might be firing rhythmically in some obscure Islamist Morse-like cadence. Afghan refugees in the background of crowd scenes might be making hand gestures. John Walker, the American Taliban member captured this week, might be twitching in code.
Vague, unsupported claims about steganography don't trump my interest in receiving accurate information about someone who is trying to kill me.
Our government's other statement justifying censorship of the bin Laden videos was more honest, though it got less play. Why give airtime to Al Quaeda propaganda? This is one of those statements that sounds credible, but is not. It pre-supposes two insulting things. One is that there is a U.S. audience susceptible to bin Laden's message (and Holmes would say that even if there were, they're entitled to hear it). The other is that the rest of us don't need or are not entitled to the information contained in the "propaganda". Propaganda is information; it is an extremely valuable source of knowledge about history, intention, and psychology. Mein Kampf is freely available in the U.S., and is read much more by people interested in understanding what happened than by those looking to reaffirm their hatred and desire to commit genocide. Like fundamentalists who condemn a book without having read it, the government message is that there is information in the world so volatile that we are better off being protected from it.
I wanted to be treated as an adult even before September 11, and with my life in danger I feel even more strongly about it. Truth is one of the cornerstones of democracy; our vote, our decision-making ability, is impaired or destroyed when the government lies. The steganography story was a silly lie. The truth--the government's desire that bin Laden's ideas not be communicated, even though that means denying important information to citizens of a democracy--shows how far we have fallen from Justice Holmes' defiant and cheerful understanding that we can trust ourselves.
I was astonished by the way that the broadcast media immediately lined up behind the government without the mildest protest. Twenty-four hour news organs, like CNN, are extremely hungry for content, and had repeatedly played prior videos in their entirety, with simultaneous translation. Once the government asked them to stop, the newly-released video warranted only a brief mention without even a clip (for fear of those hidden messages).
Why were the broadcast media so docile? In part, for the same reason everyone else was. But broadcast media have a unique problem of their own, which we ignore or forget in trusting them for information. They are licensed and regulated by the FCC. Could the FCC legally pull a license from a station which broadcast the bin Laden video in full? No. Could the agency make its life quietly miserable? Absolutely. Broadcast media executives never forget who holds the leash.
Ernst Renan said that hold together based not only on collective memory but on collective forgetting as well. As a nation we have completely forgotten that the regulation of broadcast media began with a bloodbath about seventy years ago. The Federal Radio Commission, the FCC's predecessor, targeted political programming and drove it off the air to free the spectrum for commercial broadcasters. Even seven decades later, the bland, mainstream, nonchallenging nature of broadcast media is a product not only of audience desires but of the shadow of government regulation. As the ACLU's Morris Ernst said in the 1930's, "So long as the Department can determine which individuals shall be endowed with larynxes, it does not need additional power to determine what shall be said."
What about the print media? I was startled by the way they lined up too. In the New York Times, which I count on for much (too much) of my information about the world, the bin Laden video was no longer front page news and no transcript was published. Again we seem to have fallen a long way from the days of the Pentagon Papers and the brave stand the Washington Post and the Times made against the Nixon administration.
De Tocqueville provides the explanation. For most of the 1960's, the press also lined up to support the Vietnam war. When the press first began to examine the other side of the war--to ask questions about whether the strategy made sense, the tactics were working, whether civilians were being killed--they were moving in accordance with a power shift that was already taking place in America. The press was leading, but it was also following, like a middle manager or a mid-level military officer. Significant constituencies in U.S. business and politics had not waited for the Pentagon Papers to start wondering if the war made any sense. In de Tocqueville's terms, powerful people had already started jumping from the bandwagon. Which is not to say that the Post and Times were not brave, did not behave admirably, to stand up to the power (including the threat of illicit action and even violence) of the Executive Branch.
After September 11, everyone was on the bandwagon. As three months have passed without further Al Quaeda violence, and as we seem to be winning the war, the print media are less frightened and there is a slightly wider spread of opinion. Opposing voices have been heard on the military tribunals, for example.
Speaking as a hawk, one who believes this is a just war, I want to know where the antiwar voices were. CNN presented us with the usual assortment of ex-generals analyzing air strikes, but where was Noam Chomsky, saying that we shouldn't be bombing Afghanistan at all? I did not see Chomsky in the Times op ed pages either, nor any other guest editorial opposing the war. Certainly those voices are out there; Chomsky spoke out forcefully in the small publications which carry him. Why were antiwar views not represented in a mass media which still likes to think of itself as the "fourth estate", affected with a public interest?
Arriving at the truth in a democracy (as elsewhere) is a dialectical process, where opposing views muster information in support and each of us then makes our decision. Since September 11 the press has consistently and miserably failed to present the other side of a debate. It has not just failed to present the Al Quaeda side-- that Americans deserve to be killed--though that has informational value in evaluating personal risk and deciding what government responses to support. The press has even failed to present the view that the bombing of Afghanistan was a use of excessive force, or force applied in the wrong place; or the view that law, rather than war, is the answer.
My libertarian friends claim that the public responsibilities of the press are a myth, that a newspaper is a business like any other, and will only print what most of its audience wants to hear. But the paper serves other minorities, such as those who read the bridge column or the coverage of less popular sports; and in other times, diversity and even adversity on the op ed pages was thought to sell papers. No, I think the true explanation of the obedient silence of the U.S. press is not fear of its own readership, but is due to a disturbance elsewhere in the force: a fear of offending a government and a majority strongly aligned with one another, de Tocqueville's "democratic majority with the right to make and execute the laws." But it is precisely in times like these that we most desperately need the information, as well as exposure to the variety of viewpoints that convey it.