This Week's Government Attacks on Freedom of Speech and of Thought

I fear that for a variety of reasons, American governments, and especially the federal government, are increasingly willing to infringe Constitutional guarantees of freedom of thought and of speech. Sometimes the assault is head on, on stages that are brightly lit by politically spotlights. Sometimes the assaults are apparently minor skirmishes, at hard-to-notice spots in remote regions of the bureaucracy.

Here are three I have noticed this week.

The first is the Stolen Valor Law, about which George Will has a smart column. This is the law--passed unanimously in the Senate and on a voice vote in the House--that criminalizes lying about one's military service. Of course nobody could think it was fine for someone to pretend to be a veteran. The question is whether making a false statement about military service is the kind of lying for which the proper remedy is a conviction under federal law, fines, and imprisonment. Why not?

Well, here is why not. Because when a federal law criminalizes lying, it puts the government in the business of determining what the truth is, and deciding whom to go after for shading it. Sometimes that is what we want--we do want the government to protect us against fraud, for example, where real money is at stake. Same for defamation, where truthfulness is, traditionally at least, an absolute defense. But in general, the courts have held that lying is protected by the First Amendment.

And we should not be arming federal prosecutors with weapons they can use for selective harassment. In a Veterans Day service I attended, all veterans were asked to stand at one point. From the context it was clear that the reference was to military veterans, so I remained seated, even though I think I am some kind of veteran, having served as a Junior Assistant Health Services Officer (equivalent to LtJg) in the commissioned corps of the US Public Health Service, on active duty 7/1/68-6/30/70 (sir!). If I had stood, would I have been committing a felony?

Every one of our elected representatives who voted for the Stolen Valor Law (note the misleading use of a material-goods metaphor to describe a speech act) wants us to know it. My other two examples are a lot more subtle.

The second is a proposal--now withdrawn, happily--to amend the rules that implement the Freedom of Information Act. The change, had it gone forward, would have stated that

When a component applies an exclusion to exclude records from the requirements of the FOIA …, the component utilizing the exclusion will respond to the request as if the excluded records did not exist.

In other words, it would have allowed the government to a respond to a request to disclose a document it had a legal right (through specific provisions of the law) to withhold by stating, falsely, that the document does not even exist. Welcome to 1984, 2011 style, as proposed by the government that promised to be the most transparent in history. Thanks to the ruckus caused by Harvey Silverglate and others, this proposal has been withdrawn. I am guessing that it has been put in the bottom drawer against the day when some horrible act is perpetrated against the U.S. It will then be pulled out, ready to go as the PATRIOT Act was a few years ago, and implemented when the nation is in a spirit to sacrifice liberty for security.

Finally, what would you say if the government told you that you could have certain information as long as you did not think about it too hard or try to relate it to anything else you know? Sound like thought control? Then consider this report from the November 9 New York Times (thanks to Latanya Sweeney for bringing it to my attention):

A federal health agency on Wednesday restored to its Web site a database of doctor disciplinary actions two months after removing it from the Internet in response to a doctor’s complaints. 

But the return of the information came with a catch. It has a new requirement that anyone who uses it must first promise not to link information in the database with publicly available information, like court files, that would identify individual doctors. 

And that was exactly the way journalists for many news organizations had used the national data bank, which masked individual doctors’ names, as material for articles about weaknesses in the oversight of doctors with dozens of malpractice cases and gaps in disciplinary actions.

But the return of the information came with a catch. It has a new requirement that anyone who uses it must first promise not to link information in the database with publicly available information, like court files, that would identify individual doctors. 

And that was exactly the way journalists for many news organizations had used the national data bank, which masked individual doctors’ names, as material for articles about weaknesses in the oversight of doctors with dozens of malpractice cases and gaps in disciplinary actions.

I have been thinking for awhile that something like this could happen. In several talks I have given, I have suggested that we could, in the interest of protecting privacy, see government rules limiting how much data on a particular subject individuals could collect--making information sort of like fertilizer, legal in small quantities but requiring government permission to possess in gross. This is a different approach to the same problem--it has the government allowing people to have database A and database B, but prohibiting them from performing the trivial computer operation of "joining" them (seeing which parts of A line up with some parts of B). Since the regulations don't mention computers, just how the data is "use[d]," presumably even remembering something you had seen in one database and connecting it in your mind to the other database would be improper.

I am in favor of privacy, but there is nothing in the Constitution about it that is as absolute as the guarantees of freedom of thought and freedom of speech. As databases grow and we increasingly use our computers to amplify our guaranteed rights to think and to speak, we had better beware of well-intentioned but dangerous precedents like these, whether obscure or not.