Silently Slipping Away

You don’t know what you’ve got til it’s gone.

Did you ever criticize the government?  Maybe the President, maybe a Congressperson, maybe the local dog catcher.  Maybe when you did some folks agreed with you, maybe most folks thought you were nuts.  But you were able to speak your mind.

People in authoritarian regimes do not have that right. There could be no impassioned speeches against wars or for the right to vote, against child abuse and for child labor laws.  In authoritarian regimes one is told what to think and that is the only opinion that is allowed expression.

Prohibitions on Free Speech

In the USSR, Stalin created a law “against terrorist groups and terrorist actions” that was used to prosecute, imprison, execute not just “terrorists” but artists and writers and dissidents – virtually anyone who spoke a word against Stalin and the party power structure.  Section 10 of Article 58 made "propaganda and agitation against the Soviet Union" a triable offence, while section 12 allowed for onlookers to be prosecuted for not reporting instances of section 10. In effect, Article 58 was carte blanche for the secret police to arrest and imprison anyone deemed suspicious, making it useful as a political weapon.

The current Communist Chinese government also has a law that silences speech against the government narrative.  Article 105, paragraph 2 of the 1997 revision of the People's Republic of China's Penal Code states:  "Anyone who uses rumor, slander or other means to encourage subversion of the political power of the State or to overthrow the socialist system, shall be sentenced to fixed-term imprisonment of not more than five years. However, the ringleaders and anyone whose crime is monstrous shall be sentenced to fixed-term imprisonment of not less than five years."

In the United States

We, of course, have the First Amendment which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  These words give us the right to form our own opinions and to speak them, even if they are not in line with the government’s narrative.

But, as of February 7, 2022, we also have the National Terrorism Advisory System Bulletin issued by our Department of Homeland Security.  While spending much of its time discussing the possibility of violent threats it also includes significant language against speech that counters the government narrative.

The “Summary of Terrorism Threat to the U.S. Homeland” begins by stating that “The United States remains in a heightened threat environment fueled by several factors, including an online environment filled with false or misleading narratives and conspiracy theories, and other forms of mis- dis- and mal-information (MDM) introduced and/or amplified by foreign and domestic threat actors. These threat actors seek to exacerbate societal friction to sow discord and undermine public trust in government institutions to encourage unrest, which could potentially inspire acts of violence.”

The document continues with “Key factors contributing to the current heightened threat environment include: 1. The proliferation of false or misleading narratives, which sow discord or undermine public trust in U.S. government institutions:  For example, there is widespread online proliferation of false or misleading narratives regarding unsubstantiated widespread election fraud and COVID-19. Grievances associated with these themes inspired violent extremist attacks during 2021.”

Losing Free Speech; Easing into Authoritarianism

I don’t know about you, but to me this sounds eerily similar to the USSR and Chinese documents (see my highlighted language in each).  Its focus is on areas in which the narrative of the Right counters and is often a thorn in the side of the Left’s narrative certainly seems a political weapon.  And we have seen this terrorism before in the collaboration between the White House and Teachers’ Unions to weaponize the DOJ against parents speaking out at school board meetings.

Perhaps the controversy over Joe Rogan on Spotify sparked this HHS document. (FYI, Joe Rogan has a pod cast in which he brings on speakers with a variety of views.  When he had two scientists, including one involved in invention of mRNA technology on and they differed in opinion from the narrative of the White House, attempts were made to cancel Rogan from Spotify, including statement by the White House that Spotify should do so, but Spotify declined, instead taking a stand for Free Speech.) Perhaps more generally the many assertions against Leftist narratives brought this on.

Whatever prompted this latest attempt to silence free speech, it is clear that the position of our current administration, spoken here by DHS, is not that different from the authoritarian rules summarized above.  Speak out in contradiction of the government, even simply disagree, and you are a terrorist.  Indeed, under a broad reading of the above, as I write these words I am acting as a terrorist.  Many of my blog posts would be considered terrorism.

But America is not the USSR and is not Communist China (even if we are told not to speak out against China and our government does not stand against its atrocities including genocide against the Uyghur people). 

America holds faith in the free marketplace of ideas (or at least it did until the Leftists took power).  The marketplace of ideas holds that the truth will emerge from the competition of ideas in free, transparent public discourse and concludes that ideas and ideologies will be culled according to their superiority or inferiority and widespread acceptance among the population.  It is the basis of free speech and of our Constitutional right to that speech.

Free speech can be uncomfortable.  People disagree; people contradict one another; people point out fallacies in one another’s arguments and positions; passion sometimes leads to less than kind language.  But this lively debate also inspires new thought and betterment of existing policies.  It is what allows improvement and forward movement, whether it is in a science lab leading to a new discovery or in the world of politics leading to societal improvement, improved laws, and a better world.

Only narrow-minded autocrats try to silence oppositional speech.  Those who believe they are somehow superior and therefore deserve power over others also think that they should be able to control every aspect of your life, including your thoughts.

The Soviet government made propaganda and agitation against the Soviet Union a triable offense.  The Communist Chinese require imprisonment for “slander or encouragement of subversion of the political power of the State or to overthrow the socialist system.” 

Our government finds our right to free speech to be terroristic and the exercise of that right to be terrorism when it contradicts the administration’s narrative.  And our freedom to speak against that view will slip away if we continue in silence to ignore our rights and this administration’s attempts to silence them. 

But, hey, those of you that are upset by the discord within this country can rest assured that under an authoritarian regime, all such discord will be silenced.  And you won’t realize what you had until it’s gone.

 

Different Strokes for Different Folks

Today, in a 5-4 decision, the Supreme Court ruled that the decision of DHS to rescind DACA was arbitrary and capricious under the Administrative Procedures Act.  Basically, the majority opinion finds that the DHS reason given for recission was not sufficient.  That reason was that, based upon opinions of the 5^th Circuit and the Attorney General, DACA implemented by the prior administration’s DHS was unlawful.  Those opinions explain that Obama’s DHS overstepped its authority by conferring benefits that were in excess and violation of the Immigration and Nationality Act.  

There are essentially 2 parts to DACA – the authorization of benefits to illegals covered under DACA and the Obama DHS decision to at least temporarily not enforce immigration laws as to this group of illegal aliens.  Apparently because the Trump DHS does not address these two parts separately, but instead conflates them together in the reasoning for rescission, the majority finds the decision to rescind the original illegal DACA to be arbitrary and capricious and hence insufficient.  It is, then, insufficient to justify the rescinding of a law on the fact that the law is an illegal exercise by the Obama DHS.

So, as Justice Thomas notes in his dissent, under this decision future administrations can bind their successors “by unlawfully adopting significant legal changes through Executive Branch agency memoranda.” The agency, in this case DHS, must continue to administer an unlawful program from a previous administration.  One administration gets to exceed the law, the second is not allowed to correct that excess.

Two DHS memos.  One creates DACA, essentially amending and altering current law and in contravention of INA and beyond any powers granted to DHS, and thereby provides benefits and stops deportations of a group of illegal aliens.  The second DHS memo rescinds the first based on the fact that the first unlawfully creates benefits and contradicts existing law.  Two memos, both by DHS, one from the Obama administration, the other from the Trump administration.  The first which has been found to be illegal stands, the second is found unlawful. 

It feels like we have entered Alice’s rabbit hole, or perhaps more accurately are living out Orwell’s 1984 – up is down, right is wrong, and 2 + 2 = 5. 

Chief Justice Roberts, in writing the majority opinion, also expresses his concern for the “reliance rights” of DACA individuals.  It seems that in his view the Trump DHS should have considered these reliance interests and held off or delayed the recission or at least instructed immigration agents to “give salient weight to any reliance interest engendered by DACA when exercising individualized enforcement discretion.”  Well, that is simply another way of saying keep the illegal law in place. 

The majority opinion states that “The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination.”  But, while that determination did not address the option of retaining forbearance or accommodating other reliance interests, the DHS “should have considered those matters but did not.  That failure was arbitrary and capricious in violation of the ADA.”

Justice Thomas, in his dissent, states “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.”  Exactly!  Chief Justice Roberts and the majority are allowing their own emotions and the emotions of the vocal pro-DACA demonstrators to color their thinking. 

It is easy to have sympathy if not empathy for children taken at a young age to another country who then discover they are there illegally and essentially have no country to call their home, face the possibility of deportation to a land they don’t even know.  That is a problem.  And that problem is addressed (or not) by our legislative branch. 

The Obama DHS did not have the authority to essentially create new rules to address that problem.  Obama himself admitted that the action was done through DHS because he knew that Congress would not enact it as law.  DACA is illegal.  Its recission will cause heartache.  But its rescission is legally the right thing to do.

In this opinion the Court is essentially making law or perhaps even endorsing illegal law when it is emotionally compelling.   That is not the Court’s role.  That role also does not belong to DHS.  It belongs to the Legislature. 

We expect the Court to be dispassionate and logically look at the law.  But here we have a decision that seems in large part to be based on emotion, on what the court thinks is the right thing to do or what it would do if it had the authority to make law.   When the court so clearly and openly loses its way, America as we know it is in big trouble.

There are many court decisions as well as many laws with which I do not agree.  I used to say “be patient, the system will work” meaning that if the Court went beyond its authority the legislature would hold it in check by amending or writing legislation.  And if the legislature or administrative agencies exceeded their power, the court would hold them in check. 

But, if the Supreme Court cannot follow the rules, if it puts emotion, popular sentiment (mob rule), and politics in the place of dispassionate deliberation, then we no longer have a system to follow or to trust. 

I want to note here that this opinion, with majority, concurring, and dissenting opinions, is 79 pages long.  I obviously cannot do it full justice in this short blog, and I would encourage everyone to read it in its entirety and form their own opinions about it.  But that reading should be done objectively and dispassionately. 

Even if you agree with the outcome, if your heart is with the DACA group, that outcome can and should be achieved through the appropriate processes and not by playing legal mumbo-jumbo games to enforce what should be an illegal action by a government agency.  Allow that once, and you are justifying it again when you may not be so happy with the result.