When the First Amendment dies: Jackboot tactics in the Heartland

By Andrew Napolitano

When the freedom of speech and of the press die, it will happen by a thousand small cuts.

Last Friday night, in the sleepy 1,900-person town of Marion, Kansas, all five police officers in the town were summoned to work because of an urgent need. They were ordered by their chief to execute a search warrant immediately, which they did.

The cops broke into a small company and seized all computers, servers and personal devices of all employees. When the police learned that the owner of the company was at home, they went there and broke into his house. They ransacked the house, took his computer and server and checkbook and so terrified his 98-year-old mother that the next day, she dropped dead.

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Who were these threats to civilization that they were stripped of all human decency and the federally mandated protection from police raids? A small-town daily newspaper. And what was this all about? A restaurant review. And how scurrilous was the review? It was never published.

But the restaurant owner wanted to strike back at a reporter who discovered that the restauranteur – though holding herself out as a municipal paragon while applying for a liquor license – had a DWI conviction. So the restauranteur told the police that the only way the reporter could have learned of the DWI conviction was by stealing the restauranteur’s identity, pretending to be the restauranteur, looking up “her own” driving record and then writing about it.

Until the judge who authorized this homicidal madness releases the affidavit that the police submitted to her in order to obtain the search warrant, we won’t know precisely what the judge knew. But we do know that DWI records in Kansas are public and anyone can look them up. And we do know that all government officials involved in this escapade took an oath to uphold the U.S. Constitution and all laws written pursuant to it; and none of them did so.

Here is the backstory.

The First Amendment reads in part “Congress shall make no law … abridging the freedom of speech, or of the press.” This iconic language was written not to grant the freedom of speech or of the press, but to restrain the federal government from interfering with it. We all enjoy from our dignity as human beings the right to think as we wish and say what we think and publish what we say.

From and after the enactment of the 14th Amendment, federal and state courts have uniformly interpreted the “Congress shall make no law” language to apply to all government.

Thus, FBI agents and local cops, presidents and school board members, congressmen and soldiers all are bound to protect the freedom of speech and are expressly prohibited from interfering with it.

In order to underscore the unique role played by the press in our once-free society, Congress enacted the Privacy Protection Act of 1980. It recognizes that the First Amendment expressly and uniquely views the press in America as the eyes and ears of the public. This legislative determination was made shortly after the Supreme Court issued its ruling in the Pentagon Papers case.

In that case, the late great Daniel Ellsberg, a civilian employee of the Pentagon, stole thousands of pages of secret documents about the Vietnam War and shared them with reporters from The New York Times and The Washington Post. The documents revealed that President Lyndon B. Johnson and his senior generals had been lying to the American public about the true status of the war.

When the Nixon administration sought and obtained an injunction against the publication of the papers, the Supreme Court intervened and held that matters material to the public interest are fair game for publication, no matter how they were acquired. Thus, the Times and the Post and their reporters were immune from civil or criminal liability for the acquisition and publication of the papers.

Ellsberg was prosecuted for theft – in his case, espionage, as the stolen papers contained national defense information – but the case against him was dismissed when the trial judge learned that the FBI broke into his psychiatrist’s office and stole his medical records during his trial.

In response to all this, Congress made it the law of the land in 1980 that journalists and their publishers are not subject to police raids in America. If the government – local, state or federal – wants data from a journalist or publisher, it must obtain a subpoena from a grand jury and serve it civilly on the custodian of the records that the government seeks. This gives the journalist and the publisher 10 days in which to challenge the subpoena. It also preserves the institutional integrity of the press.

The raid on the Marion County Record was particularly reprehensible because the data sought was all digital. Thus, instead of stealing cellphones and servers, a simple subpoena to the computer service provider of the newspaper and its employees would have sufficed.

Now, it turns out that the police chief who ordered the Gestapo-like tactics in mid-America was the subject of an unflattering series of articles in the Record, which, like the piece about the restaurant and its liquor license, was never published.

Freedom of thought and speech and the press are not only essential to our form of government; they are essential to our humanity and our happiness. We fought a revolution of secession from England so that we might be able to pursue happiness without a government permission slip. We adopted a Constitution to keep the government off our backs and out of our living rooms and bankbooks so that we might pursue happiness.

We cannot be fully happy or even human if we can be silenced or frightened by the government and its jackboot tactics. Those tactics chill expressive freedoms.

Even in small-town America, power corrupts and liberty perishes.


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