Indicting the First Amendment

June 3, 2010 • Commentary
This article appeared in The Arizona Daily Sun on June 3, 2010.

This is a story that should be a warning to Americans, regardless of political party, because it dramatically illustrates what pre‐​eminent civil liberties attorney Harvey Silverglate documents in his current book, Three Felonies A Day: How the Feds Target the Innocent (Encounter Books) by means of the ever‐​increasing broad and vague federal laws that allow prosecutors to “pin arguable federal crimes on any one of us, even for the most seemingly innocuous behavior.”

Consider what happened to an unemployed American, Bruce Shore, because of e‐​mails he sent to the website of Kentucky Sen. Jim Bunning (Republican). I suggest you keep in mind what Irving Brant wrote in my bible, The Bill of Rights: Its Origin and Meaning (Mentor, New American Library):

“Men (and women) are truly free only when they do not have to ask themselves whether they are free.”

As reported by Arthur Delaney (“Bruce Shore, Unemployed Philadelphia Man, Indicted For ‘Harassing Email to Jim Bunning” (huff​in​g​ton​post​.com, May 25), Shore, watching the Senate in inaction on C‐​Span, was angered when Bunning complained that, gosh, he has missed the Kentucky‐​South Carolina basketball game because he had to be in Congress to debate an unemployment benefits bill. (Bunning’s contribution by being there was to delay the bill from being voted on.)

“I was livid, I was just livid,” recalled the 51‐​year‐​old jobless Shore. “I’m on unemployment, so it affects me.”)

Here is part of his Feb. 26 messages to Bunning staffers: “Are you’all insane. No checks equal no food for me. DO YOU GET IT?”

The next month, FBI agents came calling to Shore’s home in Philadelphia. They read him excerpts from his citizen’s complaints and asked whether he was the author, which Shore readily admitted. Apparently these agents had heard something about the First Amendment, and told this indignant American, “All right, we just wanted to make sure it wasn’t anything to worry about.”

But the ever‐​vigilant Obama administration’s executive branch was not satisfied. On May 13, Delaney writes, U.S. Marshals appeared at Shore’s door and handed him a grand jury indictment. (James Madison, the father of the First Amendment, had insisted that “the great right” of freedom of speech must be placed beyond the reach of any branch of government. But that was then.)

This is the indictment that forced Shore into federal court. The language is that of Communications Act of 1934 (FDR’s time) as amended and updated to include electronic messages in the Telecommunications Act of 1996 (including the Communications Decency Act) signed into law by President Bill Clinton.

Bruce Shore, unemployed for the past two years and recently the recipient of his final unemployment check, is accused thusly by his government:

Shore “did utilize a telecommunications device, that is a computer, whether or not communication ensued, without disclosing his identity and with the intent to annoy, abuse, threaten, and harass any person who received the communication.”

Any person. Even if Bruce had chosen to be anonymous, the Feds could have tracked him. So this case should also be a constitutional test of anonymous First Amendment speech. This dragnet federal statute, without protest from Obama and Attorney General Eric Holder, states that if you intend to “annoy” or “harass any person” by exercising speech, you will be hauled into court.

If found guilty, Shore — or anyone indicted for sending such so‐​called harassing messages — could be imprisoned for up to two years in prison and a maximum fine of $250,000. I am often very annoyed by my senator, Democrat Charles Schumer; but so far, I have confined my “harassing” messages to him in my columns, which are transmitted in print and electronically. The same is true of my many “annoying” rebukes to the president, who is apparently quite sensitive to criticism.

I’d better watch out.

As Silverglate tells me about this indictment of the First Amendment “That a citizen is being charged under this statute for pestering a senator for not doing his public duty just shows the dangerous powers that these kinds of statutes give to heedless prosecutors. Even if Citizen Shore ultimately wins the case, his life will have been turned upside‐​down and inside‐​out. This, of course, is the reason indictments like this are brought — to deter unwelcome speech.”

Says this newly indicted “person of interest,” Shore, to the Obama administration: “I’m walking around in my head: ‘jail for e‐​mail, jail for e‐​mail,’ At this point I’m just looking at my government and going, anything is possible. When do the adults wake up and say, ‘This gentleman is just angry and frustrated?’ I’m just speechless. Shocked.”

Since Shore is a citizen actively involved in his government’s fidelity to our founding document, I doubt he will remain speechless for long. For the rest of us, Frederick Douglass had this advice:

“Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them.” And on you and me.

This has largely been a passive citizenry as the Constitution is being razed during these last 9–1/2 years. But maybe Citizen Shore, Harvey Silverglate, and another crucial book, In the Name of Justice (Cato) edited by Timothy Lynch, a colleague of mine at Cato Institute, can arouse more Americans in self‐​defense — to ask themselves — as Judge Alex Kozinski does in one of the sections, whether they are also federal criminals. Not yet indicted.

Actually, says this unusually straightforward judge, “most Americans are criminals and don’t know it.”

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