James M. Redwine

First Amendment

The National Inquirers

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Investigative journalism that uncovers and publicizes official corruption has an American tradition going back to John Peter Zenger who was born in Germany in 1697 and died in New York in 1746. Zenger was a printer who wrote exposé articles about our English cousins’ ham-fisted governance of New York, especially by the Royal Governor William Cosby. Cosby took umbrage at these early efforts to inform Americans about government malfeasance. Cosby had Zenger charged with libel but in 1735 a jury refused to convict Zenger because the jury determined that what Zenger wrote about Cosby was the truth. What Zenger printed about Cosby related directly and only to Cosby’s actions as governor. Cosby’s personal life was not in issue. Such subjects as the state of his laundry or personal habits were not material to Cosby’s official actions. There was no “need to know” any salacious scatology.

The First Amendment is our best protection from bad government but it should not be cited in support of mere muckraking. Gossip is fun, if it is about others, but it is not germane to curing our body politic of corruption or bad decisions. And a bipartisan cooperation on matters of national importance would be most welcome. We have certainly been blessed many times before with such attitudes. For example, Republican President William Howard Taft appointed Republican Henry L. Stimson (1867-1950) as Secretary of war (now Secretary of Defense) in 1911-1913. Then later two Democratic presidents, Franklin D. Roosevelt and Harry Truman, appointed Stimson for the same position (1940-1945). Stimson had the experience and knowledge America needed. His political party affiliation was irrelevant to understanding and meeting the threats to our country from Japan and Germany.

But even though Stimson was not naïve about foreign designs on American assets he famously eschewed delving into personal matters. Stimson’s most famous quote relates to secret Japanese dispatches. Stimson explained trust cannot be established by distrust. He succinctly posited: “Gentlemen do not read one another’s mail.”

As story after story and book after book come out about Joe Biden and Kamala Harris and Donald Trump and Mike Pence the muckraking inundates the investigative journalism. We do need to know our politicians’ philosophies, positions and past performances. But such information is sometimes obfuscated by “revelations” about their personal lives and peccadilloes.

Every Month Has A Fourth

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America’s court system has several purposes but, in general, they all amount to resolving controversies. Citizens need some place to help them settle their differences with other citizens so everyone can get on with their lives. And one of the most important thing judges can do to start the resolution of a court case is to encourage the competing parties to find common ground. If the competing parties recognize they have similar needs and if all parties can at least consider the possibility that an outcome that benefits their adversary may also benefit themselves, a path leading to a reasonable compromise may appear.

Our country has often struggled with competing strongly held beliefs even going so far as resulting in the Civil War. But short of actual armed conflict we have suffered through numerous periods where political issues at first appeared to be intractable but were assuaged by the parties finding common ground. Our current public debate over such issues as immigration or war with Iran or several other significant matters may feel as if the only solutions are pistols at ten paces. However, when Americans are reminded we have more and better reasons to agree than disagree, we can begin to accommodate, and even celebrate, our differences. Such is the beauty of our national birthday party. Perhaps we should consider having similar periods of healing every month.

Peg and I participated in one such Fourth of July celebration in New Harmony, Indiana last week. Because New Harmony is a small town we personally knew where many of the people attending and involved in the party stand on volatile issues such as immigration, global warming, military involvement, the Me Too Movement, Black Lives Matter and, especially, partisan politics. Many of our friends and family are well informed and passionate on these and other matters. Conversations have often seemed more like a contact sport than reasoned debate.

But for several hours on the Fourth of July we all found common ground in the Declaration of Independence, songs of praise and a First Amendment type respect for our hard won honorable common heritage. In our culture we have numerous monthly events that each of us enjoys and respect such as club and association gatherings, sporting events, birthdays and anniversaries. Maybe we should set aside some time every month to renew our common faith in America.

The Redwines at Maclure Park, New Harmony, Indiana
Photo by Lois Mittino Gray

Cross Examination, The Engine Of Truth

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Freedom of Speech is a good thing. That includes the “right” to lie and disparage anonymously. Cross examination is recognized in legal matters as the greatest engine of truth. It is just as much a Constitutional Right as Freedom of Speech. The First Amendment to the United States Constitution protects one’s right to speak and the Sixth Amendment protects the right to “confront one’s accusers”, i.e. to cross examine them, in criminal cases. Indiana’s Constitution guarantees both Freedom of Speech and “Face to Face” cross examination. It is clear that those who founded both our state and our country considered both rights sacred.

However, as with much of life and law the devil is in the details when particular situations that implicate conflicting Constitutional Rights must be addressed. If CNN and MSNBC want to proclaim President Trump a pariah while FOX News proclaims him a messiah both positions are constitutionally protected even if they might cite to anonymous sources to do so. So, how do those who disagree with either position exercise the right of cross examination. Well, they don’t. Private citizens and non-governmental entities are perfectly within their rights to cite or even make up anonymous sources.

When the government wants to use Confidential Informants in criminal cases to seek an arrest or search warrant, the police officer or Prosecuting Attorney must, under oath, set forth facts whereby the reviewing Judge or Magistrate can determine a C.I.’s information is credible. Such things as the ability and opportunity to observe are essential considerations. And, even if the Judge grants the request for a warrant, when a case is filed the Court has the authority to order the disclosure of a C.I.’s identity so that a person who is charged may cross examine the C.I. or have the case thrown out.

This protection of the truth is not available in the civil area nor should it be. If a media outlet wants to lie or make up sources the outlet might be sued but the government should not be allowed to squelch free speech. On the other hand, those of us who are inundated with a constant barrage of personal invective described by the media as “news” owe it to ourselves and our country to demand that news organizations disclose “anonymous sources” or, at least thoroughly vet them and set out the vetting process along with the source’s bona fides so we can judge for ourselves.

My Way Or The Highway

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After writing this column for twenty-seven years I can easily delude myself into believing that the reason no one writes in with complaints is because people agree with my opinions. Of course, I am fully aware a more likely reason is because no one reads them.

Be that as it may, should you have read “Gavel Gamut” recently you know the general topic has been the state of discourse and discussion in America. More to the point, why do so many people seem so angry with people whose only sin is to voice an opinion with which others disagree?

While even every day conversations among friends now sometimes turn into shouting matches and hurt feelings, the worst practitioners of “My way or the highway” are the cable television news anchors and the editorial writers of large newspapers. These pundits with public pulpits who are purveyors of pusillanimous perfidy often take it upon themselves to state as a fact that some statement by some public figure is false. Frequently no foundation is laid and no leeway is given for a statement being a mistake.

Usually the public figure who is maligned as mendacious, not misguided, has no opportunity to respond. An attack is launched and in our contemporary world of instant Internet access by millions of ill informed users the attack becomes the reality.

An electorate that forms its opinions on such marshy grounds might support government actions which are anathema to our nation’s welfare. Also, a steady diet of such diatribes could result in a backlash against the First Amendment. That would truly lead to a national disaster.

I know calling for self-policing by the media could morph into a call for government policing of the media. So what alternatives do we have? There are many, of course, but I would like to suggest we encourage the application of a few self-imposed procedures that might help make our current hostile environment more positive.

These procedures are neither secret nor complicated and have been slowly and carefully crafted over many years. Well, maybe next week.

Not a Problem

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I recently received a respectfully worded request for excusal from jury duty. I granted it. The potential juror claimed a religious exemption. I am not a theologian although one of my nephews just received his doctorate in Theology from Oklahoma Baptist University. He makes no claim for religious exemption from jury service. I say to each his own.

Should a person assert sincerely held beliefs that her or his god, faith, philosophy or belief prohibits jury service, so be it. Such positions, if rooted in the First Amendment, are fine with me. Religion should not be involved in our legal system. That’s what James Madison, Thomas Jefferson and the rest of the revolutionaries meant to protect.

Those of you who are called for jury service and just find it inconvenient but not in violation of any religious test may think it is unfair to excuse persons who enjoy all the benefits provided by America but refuse to participate in a core responsibility of citizenship. You might feel the same about conscientious objectors to military service or those who refuse medical treatment for their children on religious grounds.

I see such decisions much as I do allowing protestors to demonstrate in support of or against things the majority may oppose or favor. If the Constitution does not protect those with whom most citizens disagree, why have a Constitution? Those whose beliefs fall within the parameters of generally accepted beliefs need not be concerned with their free exercise.

The gracious acceptance of those views most of us adhere to calls for little praise. However, America shines like the beacon most of us want Her to be when She protects those who need protection from the rest of us.

As to the potential juror, I say, and by the way so does the Supreme Court, if you are sincere in your minority belief, the majority will respect your right not only to believe it but also to exercise it.