James M. Redwine

Freedom of Speech

Mental Gymnastics

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Former President Donald Trump is facing both state and federal charges in several courts of law. These charges present difficult challenges to the judges in each case with the most important judicial task being to guarantee that all parties receive a fair trial. However, that duty to the people directly impacted by each case must be carried out without violating the right that our Founders knew to be the right that was essential to guaranteeing all of our rights, Freedom of Speech.

While several of the Founders championed freedom of expression as fundamental to democracy, Benjamin Franklin, a newspaper publisher himself, led the debate:

“Freedom of speech is a pillar of a free government;
When this support is taken away, the Constitution of
a free society is dissolved, and tyranny is erected on its ruins.
Republics derive their strength and vigor from a popular
examination into the action of the magistrates.”
 

Benjamin Franklin was born in 1706 and was immersed in the printing of politically focused newspapers in Philadelphia when fellow printer John Peter Zenger was prosecuted for libeling British Governor William Cosby in New York City in 1734. Zenger was jailed pending his jury trial but when he was tried the jury acquitted him in spite of the clear violation of the British Colonial law. The jury made up its own mind in spite of an atmosphere of bias from the government.

Currently, some of the judges in Donald Trump’s cases have fashioned gag orders that threaten punishment if Trump says things about the possible evidence, the witnesses, the prosecutors or the judges. The reasons given by the judges for these gag orders all claim they are to protect the parties and witnesses from attempted coercion and to prevent the tainting of any future jury pool. In other words, the judges have no faith that potential jurors can do what judges must do in every case. That is, put aside any irrelevant matters and decide Trump’s cases only on the law and the facts.

As a judge for over forty years I find this lack of confidence in jurors ill founded. Judges decide almost all cases without a jury if there is no plea agreement in criminal cases or no settlement in civil cases. In other words, people have confidence a judge in a criminal case may receive an indictment from a grand jury the judge impaneled or approve a charge brought by a prosecutor and still decide the case. Or, a judge may issue an arrest or search warrant based on in depth out of court statements and then set that information aside and still fairly decide guilt or innocence. If one person, a judge, can do this so can twelve. Of course, statements by parties that threaten physical harm should not be tolerated. However, comments about the evidence, the prosecutor or the judge that offend the judge come with the robe, even if those comments are unfair, unkind and untrue. Just ask John Peter Zenger, Benjamin Franklin, Thomas Jefferson, James Madison, etc., etc.

Jurors can be trusted, just as judges can be, to do their duty. CNN or FOX News can be eliminated from the jury room. The voir dire procedure is designed to exclude potential jurors who cannot do that. Does the legal system occasionally fail and a biased judge or jury render a decision based on pre-trial publicity or emotion? Unfortunately, that happens. But to deny America the vital protection of the First Amendment in an attempt to eliminate human frailty is a fool’s errand and an affront to our Sixth Amendment, Right to Trial by Jury.

Gentle Reader, I would like to share with you one of my own experiences as judge as an example of the public’s faith in the ability of a judge, or jury, to set aside bias and still fairly handle a case. Now, I might not process this case today the way I did a few years ago but I will let you be the judge of what happened then. Anyway, what follows is true, if perhaps, somewhat askew legally.

When I received my honorable discharge from the United States Air Force the only job I could find in Indianapolis, Indiana where I lived with my wife and son was selling P.F. Collier Encyclopedias door-to-door. We only owned one car, a 1956 Ford Fairlane convertible. I really liked that car but we decided we needed a new one so I sold it to a guy I worked with on the basis he would pay me each week. Well, the week after I gave him the keys he disappeared with my car. I did not see him again for twenty-five years when he appeared in my courtroom charged with a home burglary.

I had forgotten his name and he surely did not recognize mine. He and his attorney and the prosecutor had filed a plea recommendation and requested that I approve it based on a pre-sentence report prepared by my probation department. After reading the report I realized this man in front of me had stolen my car. When I confirmed that fact, I told him I would recuse and get him another judge. He said, “Ah, Judge, were you going to take the deal before you remembered who I was?” I said, “Yes”. He said, “Well go ahead.” I said, “No, go out and talk to your attorney”. He did. Then he and his attorney and the prosecutor said, “Judge, we really want you to stay on the case so we can get this done now”. I said, “Okay, but what did you ever do with my car?” He said, “Well, when we got to Oregon it quit running and my wife had me cut off the top and fill it with potting soil then she made a planter out of it.”

Now, I know I had other options but one thing this case showed me was a judge or jury can be fair even when personally offended. So suck it up judges and have faith the jurors will not be any less pure than you.

 

TikTok

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Photo by Peg Redwine

Congress and President Biden have decided to save America from the disclosure of state secrets by the Kardashian wannabees of our society. Peg and I do not do TikTok but occasionally some marginally functioning teenager will create a TikTok post that is so lacking in taste and talent that the main stream media airs it as a parody. Those are the only TikToks I have seen; that’s plenty.

Physically unattractive people gyrating to two-beat music while wearing too small bikinis is not my choice of leisure listening and viewing. Fortunately, the shameless exhibitionists who are totally lacking in true self-images almost never say anything. So, at least, we only are assaulted by their physical repugnance.

Why we are paying our leaders to spend countless hours on the foibles of misguided or unguided youths while Congress is profligately spending 100 billion dollars per year arming every country from Ukraine to Israel is a mystery to me. Perhaps they should concentrate on such issues as war and the environment or even why our banks are failing and why inflation is wreaking havoc on our 401(k)s. Regardless, the CEO of TikTok, Shou Zi Chew, is going before Congress’ House Energy and Commerce Committee this month to explain the First Amendment to people who should already know it.

When our Constitution was adopted the very First Amendment provided:

“Congress shall make no law respecting an establishment of religion, or prohibit 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.”

The great English legal philosopher, John Locke (1632-1704), helped lead the Enlightenment. The American legal philosopher, James Madison (1751-1836), owed so much to Locke in Madison’s drafting of our Constitution, particularly the Bill of Rights. Both Locke and Madison strongly believed Freedom of Speech was essential to preserving all other freedoms.

It is ironic that our leaders of today cite fear of Russia and China as they call for restrictions on free speech. We have long rightfully complained that China and Russia severely restrict their citizens’ right to freely express themselves. Now we want to make federal law based on that same fear of American citizens that the Chinese and Russians enforce as to such patriots as Alexei Navalny. At least, Navalny actually has something to say that Putin should fear, that is the truth. TikTokers pretty much simply wish to share their irrelevant and boorish behaviors.

My guess is our leaders are as clueless about the workings of TikTok as I am and that they are simply knee-jerking to baseless fears of the very people who put them in office. What about such public policy as the 1966 Freedom of Information Act that was enacted to guarantee the people could monitor their government? Then there is the 2014 Digital Accountability and Transparency Act that allows taxpayers to track government spending. Have our current leaders decided too much information in the hands of Americans is dangerous, at least if that information can be accessed by foreign governments, as they can easily do with a simple request for data?

Of course, Congress and the President say they fear China and Russia and other countries will mine the internet data and use it against us. But every credit card transaction, every online post such as filing a tax return, every cell phone use is already “mineable.”  Any hostile foreign country can already legally obtain more information than they would ever need via our own legal system. I ask you, Gentle Reader, is there anything on TikTok that could be used to start a lawnmower much less build a nuclear weapon?

I would like for our leaders to revisit Joseph Goebbels who was evil but prescient when he said, “If you repeat a lie often enough, people will believe it, and you will even come to believe it yourself.” In other words, our government is making its own reality and using that as the basis to restrict our rights under the First Amendment.

Another author that should be considered is Franz Kafka whose hero, Joseph K in The Trial, pointed out that the enacted laws made it impossible for anyone to rely on what the law truly is. This is much like George Orwell’s “Newspeak” in 1984 where the only true purpose of governmental language was to control the populace.

In other words, instead of taking Vladimir Putin and Xi Jinping as our free speech guides, perhaps we should look to our Constitution and our history and rationally analyze TikTok and its mainly pathetic users. I point out that just last year (2022) the European Union, which we look upon favorably, passed the Data Act (Digital Accountability and Transparency Act) that was designed to standardize international contracting and commerce by standardizing digital and internet language. Should we not also want to clarify by expanding instead of restricting internet usage even if the usage may be frivolous?

I call upon Congress and the President to not put the means as Kafka might say, “to exercise discretionary moral judgment” by the lone U.S. Secretary of Commerce to determine “freedom of speech” when it comes to foreign technologies and companies. That is how the proposed anti-TikTok law is structured. Instead, let’s have faith in ourselves and also recognize the banality and futility of trying to draft laws that defy human nature and common sense and by the way, are most likely unconstitutional and unenforceable.

Be Bold, It’s Worth It!

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Peg’s Gift! Photo by Peg Redwine

Thousands of free people gathered in front of the country of Georgia’s parliament in the capitol city of Tbilisi this past week to protest two new general laws the ruling political power, The Dream Party, wanted to impose on Georgia’s citizens. Although it has been denied by Russia, both bills were inspired by Russia’s draconian statutes that suppress dissent and oppress would-be dissenters in Russia. The Russian Duma and President Putin have managed to enact a series of laws that would make Joseph Goebbels envious and George Orwell prophetic.

Georgia’s reactionary, pro-Russian, anti-Western ruling party thought to run roughshod over freedom of speech, freedom of the press and freedom of the Georgian citizens to peacefully assemble and ask their government to address their grievances. In the case of these two new laws, the attempt by The Dream Party was to prevent foreign support for Georgian democracy and to punish by fines of up to 25,000 Georgian lari ($9,600 U.S. dollars) or even up to 5 years imprisonment, anyone who accepted foreign support of over 20% of their budget for pro-Western/anti-Russian activities and thoughts. These two statutes would have designated such support as coming from “foreign agents”, say America for example. In fact, since Peg and I were paid and dispatched to Georgia by the American Bar Association, the United States Agency for International Development and the East-West Management Institute, those two Alice in Wonderland epistemological abominations might well have resulted in our appearance in the very courts we were sent to help.

Most of Georgia’s northern border is bounded by Russia. In 2008 Russia simply drove its army into Georgia without need for much military activity and took over 20% of Georgia’s sovereign territory that it still occupies. Russia exerts great influence over much of Georgia, but a majority of Georgians see themselves as being entitled to a free and democratic country that looks to Europe and the West for its future. Russia and Georgia’s governmental majority Dream Party demur from this position.

When Peg and I were sent to Georgia beginning in June 2022 and permanently leaving 25 February 2023, we were instructed to work with several of Georgia’s judges, court staffs, attorneys, law students and university pupils with the main goal of helping to enhance judicial independence and citizen access to the justice system. We were impressed with the desire of the Georgian people for freedom and democracy and especially the goodwill we experienced as representative Americans. We made many wonderful friends and greatly enjoyed the people.

In general, Georgians like and respect America and most of them are oriented toward the West and evince western values of justice and democracy. Peg and I were reminded of our halcyon days on our college campuses and our own protests against the Viet Nam War and for the Women’s Movement and the anti-discrimination movement to help Black people. I already had my honorable discharge when I returned to campus and Peg was not subject to the draft. However, we both engaged in First Amendment activities without regard to other possible repercussions, such as cutting class.

Much of my motivation came from growing up during days of Black/white segregation and losing one of my childhood friends to combat in Viet Nam. Peg was and is, of course, a member of that class of persons most affected by gender discrimination. Those are some of the reasons we respect what the people of Georgia are standing up for. They have much to lose personally but they do not want to lose their beautiful country. Therefore, they are making the hard sacrifices and standing up for their own rights and those of all their fellow citizens. And as President Theodore Roosevelt said, “The Glory Belongs to the Ones in the Arena.” We say to our Georgian patriots, if it were easy, it would not mean much. But, since there is much to dare, we say, as did World War II General “Vinegar” Joe Stillwell, in faux Latin, “Illegitimi non carborundum!” Be bold, it’s worth it!

A reminder in a coffee shop in Batumi, Georgia. Photo by Peg Redwine

Rattling Sabres

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Folk singer Phil Ochs (1940-1976) wrote a ballad about old people, mainly politicians, giving young people orders on how they should behave and believe. The closing verse is:

“So keep right on a talking
And tell us what to do.
If nobody listens,
My apologies to you.
And I know that you were younger once
‘Cause you sure are older now,
So when I got something to say, Sir,
I’m going to say it now.”

Ochs applied his sarcastic insight to the United States as well. In a song he wrote about American incursions from South America to Southeast Asia he criticized our government for interfering militarily when a country elected a leader we did not like and could not control:

“We’ll find you a leader
You can elect.”

Just based on media reports of our current actions in Venezuela and Iran, among others, Ochs’ message has had little resonance for our contemporary leaders. And hearing people on all sides of the military intervention issue from President Trump to each of the twenty-one 2020 presidential hopefuls and everyday folks from Maine to Monterey, perhaps Ochs might agree with Yogi Berra (1925-2015): “It’s deja vu all over again.”

That is not to say either Ochs or Berra or anyone else should encourage America to cease vigilantly preparing for danger. As our son, Jim Redwine, learned from personal experience while fighting on the front lines of the 1990-1991 Gulf War and in 2006-2007 in the Iraq War, we must not allow ourselves to fall behind the curve of military technology. Iraq’s military technology simply could not compare to ours. America must not allow itself to be on the weak side of the military equation.

What that concern does not require though is our penchant as the world’s preeminent military power to “Keep right on telling others what to do and whom they should elect.” Our power should remain potentially dominant but our desire to dominate other countries should remain in check. Our Constitution calls for “national defense”, not aggression.

With our current yearly national debt standing at 104.1% of our total gross national product it might behoove us to look to the source of this imbalance between production and debt. It began when we decided to drive the old Soviet Union into financial collapse via its military spending. Unfortunately our own spending rapidly increased from 30.9% of debt to GNP in 1981 mainly through our own massive military spending to where we are today. That is spending a lot of money we do not have. And it is always a good idea to learn from the mistakes of others. We do not want to become a broke and crumbling version of the old Soviet Union due to our own overspending on unnecessary world-wide military incursions.

Perhaps we should do what Russia should have done fifty years ago and concentrate on our domestic needs such as infrastructure, health care, global warming and our environment while continuing to keep pace, but not be profligate, with our national defense. A reasonable first step might be a policy of non-intervention in the internal affairs of other countries as long as they return the favor.

I know we often get legitimately upset with the behaviors and cultures of other countries. But countries are made up of people and we may want to step back from the dangerous and expensive practice of telling others how to behave and believe. It is analogous to how many of us view Freedom of Speech. We will allow others to say whatever they want and behave as they see fit as long as they say and do what we agree with. As that wise Hoosier war correspondent Ernest T. Pyle (1900-1945) observed during WWII:

“When you have lived with the unnatural mass cruelty that mankind is capable of inflicting on itself, you find yourself dispossessed
of the faculty for blaming one poor man for the triviality of his faults.”

We might want to consider a similar thought for other countries and other peoples.

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.

It Sounds So Simple

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The Babylonians of Mesopotamia formed a written code of laws designed to resolve all human needs and control all human behavior. That was over 3,500 years ago. It did not guarantee Freedom of Speech.

Fear not, after the Babylonians the Hebrews took a shot at it and adopted, after first rejecting, the Ten Commandments that were supplanted by first Greek then Roman laws. None of these directly recognized the essential right to publicly disagree.

Then along came history’s greatest conquerors, the British, who promulgated a system of law that encompassed much of prior legal systems. What each Code contained was a written desire to account for all human behavior. But the right to peaceably assemble and tell the rulers they were either great or full of bug dust was not specifically included.

In 1787-89 a small group of white, Anglo-Saxon men made up largely of lawyers put forth the U.S. Constitution that was amended ten times before it was even adopted. The first of these amendments attempted to provide for free speech and assembly, an ideal that has helped preserve our democracy for over 200 years. Perhaps those prior legal systems should have included it.

I was musing about these attempts to avoid conflict by applying written words when I watched and read the accounts of President Trump’s campaign stop in Evansville, Indiana on August 30, 2018. And I was transported back to when I took our son out of school to see President Ford when he led a motorcade down Main Street in Evansville on Friday, April 23, 1976.

Jim and I were crushed by the crowd of about 20,000; however, we managed to not only see President Ford but to even get to shake his hand. I thought such an opportunity was of more educational value than one day of sixth grade class. The school disagreed and still marked his absence “unexcused”.

Regardless, while Peg and I did not take the opportunity to praise or protest President Trump, it was not due to politics or philosophy but simply an inability to be two places at once; we were previously committed and our absence from the conflicting event would most assuredly have been “unexcused”. Had President Clinton, Hillary that is, been the campaigner we would have wanted to see her too. In other words, that First Amendment was and still is quite a good idea.

I am appending my column on President Ford’s visit that was first published the week of January 8, 2007. I hope you find it worthwhile if you are seeing it for the first time and not excessively boring if this is a repeat for you. There were many Americans pro and con then too.

Pardon Me, President Ford

(Originally Published Week of January 8, 2007)

President Gerald Ford died December 26, 2006.  In a life filled with public service, he will always be best known for his pardon of President Nixon in 1974.

President Nixon personally chose Gerald Ford to replace the disgraced Vice-President Spiro Agnew who resigned in 1973 amid disclosures of bribery while Agnew was Governor of Maryland.

Vice-President Ford served under President Nixon until Nixon resigned in August of 1974.  One month after President Nixon resigned, President Ford issued him a full pardon for any crimes he may have committed while president.

At the time, I and most Americans were calling for a complete investigation of the Watergate debacle and especially Nixon’s involvement in it.  It was a time of a media feeding frenzy and blood in the water.

President Ford took the unprecedented step of going personally before Congress and flatly stating that President Nixon and then Vice-President Ford had no deal to pardon Nixon if he would resign.

I recall how dubious I was when President Ford stated that he issued the pardon only to help our country to start healing from the loss of confidence caused by Watergate.

Yet, after a few months I began to have second thoughts about my initial reaction to the pardon.  I began to see how much courage it took for President Ford to go straight into the anti-Nixon firestorm sweeping the United States.

As a country, we were almost paralyzed by the partisan fighting at home and the War in Vietnam.  We needed a new direction and a renewed spirit.

Surely President Ford with his twenty-two (22) years in Congress knew he was committing political suicide by not giving us our pound of flesh.  Still, he put his country first.  Of course, the country rewarded his sacrifice by booting him from office and electing President Jimmy Carter to replace him.

But during the campaign of 1976, when President Ford came to Evansville on April the 23rd, I took my son, Jim, out of school and we went to the Downtown Walkway to cheer the man who put country above self.

For while William Shakespeare may almost always get his character analysis right, when it came to President Ford, “The good he did lived after him.”   Julius Caesar, Act III, sc. ii.

Even President Carter, one of America’s most courageous and best former presidents said of President Ford:

“President Ford was one of the most admirable
public servants I have ever known.”

And when it came to the pardon of President Nixon, Senator Ted Kennedy, while admitting that he had severely criticized the pardon in 1974, said that he had come to realize that:

“The pardon was an extraordinary act of courage
that historians recognize was truly in the national
interest.”

So, President Ford, since even your political opponents came to appreciate your courage and goodness, I am confident that you have long ago “pardoned” all of us who doubted you back when we needed your leadership.