30 May 2009

Criminalizing Thought, Speech, & Opinion

I promised in an earlier post to respond to some comments made by a historian on another Civil War blog. The comments that are the subject of this post were related to the never-ending debate regarding both free blacks and slaves that served in the Confederate Army and how, if at all, those individuals should be recognized, honored, and remembered. I'm not going to get into that debate again. I've written about it here and other places. I've also addressed the issue, to some extent, in my book about Stonewall Jackson and his black Sunday school class. I spent countless hours researching that book and touched on, at least in a narrow sense, that controversial subject. Suffice it to say that I believe some have inflated the numbers of blacks who did serve and have not done the research required to substantiate their claims. Others seem to want to ignore their service altogether; whether that service was as a cook, teamster, laborer, or in some circumstances, a soldier. My own position is simple. Since these men were in the army, they deserve to be recognized and honored in an appropriate manner that brings dignity to their memory.

But my comments here are specifically in response to this particular historian's suggestion that those who interpret this aspect of history differently than he does should be charged criminally. My comments are only in response to that suggestion, and not to this individual personally.

Regarding the original post, the relevant comments made by this historian are:

"I’m not advocating jail time—at least not for most cases. It depends on the present-day goal for which one is abusing an essential historical truth."

And . . .

"If that means issuing citations (outlawing can mean misdemeanors), then so be it."

And . . .

"Perhaps the fear of violating this mild law would free up historians. . ." (Emphasis mine).

Yes, perhaps fear would "free up" some historians - it would also "shut up" others. Is that the real purpose?

When I first read these comments and the comments that followed, I had to do a double-take. The rather late and tepid response of the blog host also surprised me. The lack of chastisement (with a few exceptions) from the many academics that read this particular blog was also a big surprise and, in my opinion, a damning indictment.

Before I get into my comments, a little about my background may help some of you understand my passion in responding to the suggestion that government agents should police "essential historical truth", thought, academic freedom, speech, opinion, historical interpretation, and free expression. Though I'm not an attorney and certainly no legal scholar, I do have extensive technical training in the area of criminal law. I'm a trained paralegal, worked as a magistrate for the Commonwealth of Virginia for 12 years, and served on Virginia's Criminal Justice Services Board for 4 years. During that time, I interacted with local, state, and federal law enforcement agencies and officers, judges, bail bondsman, and attorneys on a daily basis. I still have some contact with many of these professionals and remain friends with many of them as well. During this time I witnessed, up close, the daily sausage mill that is our criminal justice system. Sometimes, it works well and as it was intended. At other times, it does not work at all and grinds out great injustices. Please keep that in mind.

In addition to my initial training, magistrates are required to fulfill annual continuing education requirements which were often taught by judges, constitutional attorneys, law-enforcement professionals, and law professors. These CE classes were also approved for attorney's fulfillment of their CE requirements. The position also required magistrates to keep up with the annual legislative changes, attorney general opinions, and court rulings that impacted laws and procedure and the rights of citizens.

During this time, (but not connected to my state positions) I also co-produced a video series with a constitutional attorney and legal scholar which won a national award from the Freedoms Foundation at Valley Forge. This project involved research at the National Archives and, along with my technical training, gave me an even broader understanding of the underlying principles upon which our law is based. Also adding to my knowledge on this topic was my work with a well-known, national, non-profit legal organization which specializes in defending churches and Christians on first amendment issues.

One of a magistrate's most frequent duties is conducting probable cause hearings for arrest warrants - both for law enforcement officers as well as citizens' complaints. We also conducted probable cause hearings for search warrants and were well-versed in 4th amendment search and seizure issues. Issuing a search warrant incorrectly or without probable cause could, and did, result in cases being tossed out of court. I took my duties seriously. Of course, issuing the search warrant gave government agents the authority to legally intrude upon a citizen's privacy and always made me a little squeamish if there was ANY hint of uncertainty. While I would consider myself "pro law-enforcement", I was not at all shy about denying warrants to police if probable cause was weak or absent. My refusal to become a rubber-stamp for law enforcement gained me respect, as well as a few enemies. It also allowed me to sleep well at night.

While most law-enforcement officers are honorable, duty-conscious, and are committed to doing the very best job possible, there were always those who were over-zealous cowboys out to make an impression, who took criminal offenses personally, or who were just plain sloppy in their work. Fortunately, they were in the minority.

But I've seen what the abuse of our legal system can do to someone. I've seen it close up. Even the innocent get their name splashed all over their local newspaper, are often forced to spend thousands and thousands of dollars to defend themselves and then, when the state fails to prove their guilt, have no way to recoup their money or the terrible drain on their emotions and time, not to say what it does to their families and reputations. Yes, fear is a powerful motivator, no doubt.

I've seen this abuse committed by law-enforcement, by over-jealous prosecutors, other magistrates, and judges. It is one of the reasons I've become somewhat of a cynic when it comes to our legal system specifically, and our political system in general. Everyone who works within the system knows it's broken, but very few are willing to admit it, for obvious reasons. The ever-increasing power of the state should be of great concern; regardless of your political affiliation. If you're ever so unfortunate to fall victim to abuse within our legal system, you're in for a very rude awakening.

With this knowledge as a background, I hope readers can appreciate why I was appalled by the suggestion that we hand the power of policing thought, speech, academic expression, and historical interpretation over to government agents. It is absolutely unconscionable.

Let that notion sink in for a moment. It has been put on the table for consideration. Think about it and all the ramifications. There are many.

First of all, who will define, enforce, and police "essential historical truth"? It would have to be a federal statute, certainly we would want "consensus" since that's ostensibly the problem - disagreement over history. Would this responsibility be given to the FBI? Or would we have to create a new agency? What would we call this new law? The Anti-State Academic Non-Intellectual Noncompliance Enforcement act (A.S.A.N.I.N.E)? Who would set the guidelines for what is and what is not acceptable historical interpretation? Legal scholars? Academics? Which ones - those from Harvard and Yale or those from Liberty University and Regent University? Perhaps we would have a "Truth Czar." Who would you recommend, Nancy Pelosi or Dick Cheney?

What would be the punishment? Fines? Jail? Both? Would offenders be required to attend "re-education camps" where they would be given the opportunity to "get their mind right?" What about repeat offenders? Enhanced penalties for the non-compliant? What about forfeiture of assets associated with the "crime?" How would a complaint be investigated? Would the FBI interrogate your local librarian about what books you've checked out recently? Would they interview the clerk at your local bookstore and look at the tapes from the security cameras to see what you've been reading in order to support their case? Or would all libraries and bookstores be purged of any history related material that's not "approved" by the government? What would happen to that material and those books? Would they be burned? Or perhaps put in a state-approved museum with an interpretive plaque with state-approved text? Would RFID chips be planted in certain books so the reader could be tracked to any meeting he might attend and to see who he shared the book with?

Would classrooms be monitored to make sure teachers and professors don't stray from the party line? Would students who ask "dangerous" questions be interrogated as to what their intent was in posing the question?

Would your computer files be searched, your internet browsing tracked? Would discussion boards be monitored by government agents watching for comments which challenge state-approved thought and "truth?" If you were "non-cooperative" would a SWAT team be sent to your home with automatic weapons to break down your door, confiscate your library, and search your home for "contraband" literature?

And what about all the current literature already in print that challenges whatever the current orthodoxy happens to be? Would it have to be rounded up and disposed of? Or would it be "grandfathered" with the new law only applying to new works published? Would there be enhanced punishment for "dealers" (Publishers and bookstores) and lesser penalties for simple "possession?"

And if this were to become law, shouldn't it be expanded to other academic disciplines as well? After all, in the 1960's it was just against the law to throw paper out on the highway, now we have all kinds of environmental laws in place that can land you in jail for a very long time. The natural inclination for laws and statutes are to expand their scope and reach. Every year in Virginia alone we see between 2000 and 4000 new bills (laws) introduced into the legislature. Being a "crime-fighter" gets you lots of votes from the paranoid masses.

Why not apply this concept to environmental studies and science? If a scientist or climatologist suggests that global-warming is either non-existent or a natural occurrence, shouldn't that be made a criminal offense, as some have already suggested?

And what about those who deny evolution and Darwinism? Isn't that dangerous? Should they be allowed to teach such non state-approved beliefs, especially to children? After all, most academics embrace Darwinism so isn't that enough to prove it as "accepted fact" and wouldn't it be in the best interest of the state to outlaw the teaching of Creationism by anyone?

Suppose the "extreme right-wing" gets control of government again? Would they turn the tables and make it a crime to . . .

  • Deny Creation?
  • Deny the evils of Communism? It's a proven historical fact, is it not, that millions have died under the brutality of Communism? Yet we have many in academia who sing the praises of Mao and Marx.
  • Deny the benefits of a free market? (Again, rather easy to prove this "essential truth.")

If these questions make you uncomfortable or angry, good. That is the intent.

I hope I've demonstrated that suggesting that academic interpretations should be policed by government agents is an outrageous idea and is antithetical to the uniquely American ideal of a free people with the freedom to express ideas and views - even if they are wrong.

Unfortunately, we are seeing an alarming acceleration in government efforts to limit freedom and liberty in this country, including speech and thought. This is the natural outgrowth of political correctness. This statist philosophy does not trust citizens. It treats us all like children; unable to make the right decision, unable to discern truth, unable to take care of ourselves, unable to choose the right car, the right food, the right education, the right books, the right light bulbs and always in need of "guidance" and "policing" by those who are (ostensibly) smarter than the rest of us; for our own good of course.

Sorry, this is one American who sees through the statist's real goal - power and control.

"We trust Americans to recognize propaganda and misinformation, and to make their own decisions about what they read and believe." ~ The American Library Association

“I would prefer some obnoxious speech [rather] than teaching students that they must please government officials if they want special benefits or opportunities.” ~ Jonathan Turley, professor of law, George Washington University

“I also believe that academic freedom should protect the right of a professor or student to advocate Marxism, socialism, communism, or any other minority viewpoint-no matter how distasteful to the majority . . .” ~ Richard Nixon

“I do this real moron thing, it's called thinking, and I'm not a very good American because I like to form my own opinions.” ~ George Carlin

"He that would make his own liberty secure, must guard even his enemy from opposition; for if he violates this duty he establishes a precedent that will reach himself." ~ Thomas Paine
"It is error only, and not truth, that shrinks from inquiry." ~ Thomas Paine

"Errors of opinion may be tolerated where reason is left free to combat it." ~ Thomas Jefferson

"All tyranny needs to gain a foothold is for people of good conscience to remain silent." ~ Thomas Jefferson
"I am mortified to be told that, in the United States of America, the sale of a book can become a subject of inquiry, and of criminal inquiry too." ~ Thomas Jefferson
"Without Freedom of Thought there can be no such thing as wisdom; and no such thing as public liberty, without freedom of speech." ~ Benjamin Franklin

Wouldn't you agree?

(Image is Norman Rockwell's Freedom of Speech)


Greg Rowe said...

Very thoughtful post. The free exchange of ideas is what makes the field of history one I thoroughly enjoy. To take the debate away is not only dangerous to other freedoms in our society, but would make this a very boring field to study.

Richard G. Williams, Jr. said...

Absolutely Greg! It causes all of us, including me, to increase our knowledge, re-examine our beliefs, and expand our horizons.

Thanks for the input.

Marc Ferguson said...

Freedom of speech is a bedrock of liberty and crucial to free inquiry and exchange of ideas. I suspect that the reason there wasn't a larger uproar on Kevin's blog over the suggestion to criminalize certain opinions is that no one gave the notion any credence. I personally think that the Holocaust denial laws in certain countries, which the commenter referenced as models, are understandable but ill-conceived, and that the best way to combat poisonous ideas is with free speech.

Brboyd said...

Anyone who wants "truth police" only want them because they are too lazy to research and to craft their beliefs. They would much rather someone tell them what to believe, so that they do not have to be troubled with reading and thinking.

Doug Walker said...

Nice post.

I teach at Regent University.

Let me mention every professor I know believes in complete religious and academic liberty, with no restrictions whatsoever on what anyone can say or what faith they may follow.

While I know only a few professors from Liberty, my impression is that they, too, hold to complete religious and academic liberty.

Unfortunately, I cannot say this is the case for Harvard and Yale. On the subject of academic freedom at these once great universities one might wish to speak with the former President of Harvard, Larry Summers, who make the mistake of speaking his mind on a controversial subject and was brought to heel by his colleagues.

Richard G. Williams, Jr. said...


I would tend to agree. The Holocaust was on such a level of evil, that denial laws are at least understandable, but I believe you're right. Lies and err are better combated with truth. Quashing any opinion risks the credibility of those doing the quashing. I wish I was as convinced as you over the timid response on KL's blog. Hopefully, you are correct.


No doubt that is true with some - others truly don't want their views challenged, others know their views can't be defended, others are motivated by power - there are many reasons why some want the free exchange of views limited.


Thank you for your input. I used Regent simply for contrast to make a point. Yes, I'm familiar with the Summers episode. It is a perfect example.

Please feel free to comment often.

Richard G. Williams, Jr. said...


Let me be clear - I am in 100% agreement with your comment about free speech being the bedrock of liberty and crucial to free inquiry.

Though you and I often disagree, I would never suggest your right (or anyone else's for that matter) to express your views be outlawed.

Thanks for your comment.

david scott said...

Although, I personally am so far to the left, that even the even the democrats appear to me to be "right-wing," I consider myself to be a strict constitutionalist. It is my opinion that since its inception there has been an organized and systematic assault by the conservatives in the United States on the civil liberties written into the US Constitution. The “War on Drugs”; “War on Terror”; “War on Communism” and a host of other wars waged by the right wing are really nothing more than a War on People--an excuse to erode civil rights to the point of non-existence. I invite you to my website devoted to raising awareness on this puritan attack on freedom: http://freethegods.blogspot.com/

Michael Bradley said...

I taught at a college for 36 years. The academy depends on free speech and unlimited inquiry. Those who attempt to limit either are misguided and, if successful, would destroy the academic profession.

Richard G. Williams, Jr. said...


Thanks for stopping by and thanks for your input. Though we probably would disagree on quite a bit, certainly some of these "wars" have been used by government to restrict our liberties. I think that *sometimes* these things are well-intended, at other times, not so much. But let's not let the left off - "war on poverty", class envy, "fairness", and the attacks on the free market have all been rallying cries of the left which have also curtailed liberties.

Government intrusion and overreach, regardless of whether it comes from the right or left, is dangerous.

Richard G. Williams, Jr. said...

Dr. Bradley:

Thanks for the comment. It was a pleasure meeting you in Lexington this year at the Lee-Jackson Day memorial.

And you are right about limiting speech and inquiry. Thanks again.

James F. Epperson said...

I'm going to go out on a bit of a limb and say that the Summers incident at Harvard was *not* about free speech or academic freedom. Nobody tried to tell Summers he could not hold or express certain views. The faculty of Harvard simply said that they did not want a President who held those views; frankly, that is their right to do so. Being President of Harvard is not a right or an entitlement, it is a privilege, which can be revoked at the pleasure of the faculty.

Richard G. Williams, Jr. said...

You fell off the limb James.

James F. Epperson said...

Is it your opinion that once Harvard (or any school) names a President, that the school is supposed to retain that President regardless of what they say?

Richard G. Williams, Jr. said...

Don't muddy the waters James. He lost his position because he left the reservation and voiced an opinion that is in opposition to pc orthodoxy. Plain and simple.

James F. Epperson said...

"He lost his position because he left the reservation and voiced an opinion that is in opposition to pc orthodoxy. Plain and simple." --- Maybe that is true. Are you saying that Harvard (or any other school) has to retain a President regardless of what they say?

Richard G. Williams, Jr. said...

I'm sure there are other examples as well. PC is widespread in academia.

Anonymous said...

The well-documented Summers incident showed the closed-mindedness of elite academia and their bias against true open inquiry. Academia often appear to not want a working president, rather they want a political marketing rep exemplifying today's version of the moral highground.