DON PEMBER
INTERVIEWED BY D. RUSH ALLISON
Winston Churchill once said that democracy is a bad system, except when you compare it to all of the other systems. In the wake of the bombing of the federal building in Oklahoma City that killed more than 160 people, including 19 children, the costs of American democracy have been called into question. Some have called for new legislation that would limit the rights of extreme right-wing newscasters and militia groups perceived as responsible for the bombings.
Professor Don R. Pember of the University of Washington's School of Communications shared his thoughts on the possible re-definition of rights to free speech. He is the author of Mass Media Law, Mass Media in America, and Privacy and the Press. He's also written numerous scholarly articles, and is known as an expert on First Amendment rights and the freedom of the press.
Since the Oklahoma bombing, President Clinton and some members of Congress have spoken out against the "voices of hate on airwaves," such as G. Gordon Liddy and other extreme rightists. Do you see this as a trend that might jeopardize First Amendment rights to freedom of the press and expression?
I don't consider it censorship if the President says these people are hatemongers. If we pass laws, arrest them, prosecute them, intimidate them, or if the FCC threatens to take away broadcast licenses, then that is censorship. But, if the President or members of Congress, or you and I, say that these people are crackpots filled with hate, that's not censorship. That's free speech. I was really pleased to see Clinton speak up. Somebody has to take a stand and single out these people and say what they are doing is probably wrong for the country.
Do you see some of the speech and publications of these militia groups and broadcasters as being seditious, or a "clear and present danger?"
No, I don't consider it seditious at all. In order to prove sedition today, they would have to be much more direct, not abstract, in their incitements to violence than what I've heard. The law says specifically you have to advocate a specific act of violence before you get to the point of creating sedition.
You don't see Mr. Liddy's statement that federal law enforcement officers coming on one's property should be shot as a statement inciting violence?
I really don't think so. I think if he told people to shoot a specific agent at a specific time we would have the specificity required by the Supreme Court.
Bob Fletcher, who is head of the Militia of Montana, was recently in Seattle. His book publishes the actual recipes and formulas for making bombs, including fertilizer bombs. Also, there is information on the Internet on how to make bombs, and poison gas such as was used in the Japanese subway incident. Should this type of publication be censored or banned?
No, you could find those things in a number of books and a good chemistry text could teach you how to do it. That's a far cry from actually doing it. People who read this and do it, should be arrested, prosecuted and punished. I think we have to be given the freedom to publish anything that doesn't amount to a direct incitement to a specific act of violence. That is what our Constitution protects.
Many say that prosecuting after a bombing does not save lives, and are calling for safeguards to prevent bombing.
If Mr. Fletcher or anybody else is proven to have been a part of a conspiracy that led to blowing up a building, they should be prosecuted for their actions. The question is: when do you stop it? Let's take a classic case of arson. Let's say a guy buys a can of gasoline and a pack of matches and goes to a building and burns it down. When do you stop that? Can we stop it when he buys gasoline? Matches? When he is stopped in front of the building? Maybe he's on his way home to have a barbecue and cut his lawn and his car is just stopped in front of the building. Can we stop it when he gets up to the building with the gasoline and matches in his hands? Now we're getting closer, but I don't know that we can even stop it then. We have laws to punish him only if he burns the building down. I don't think Fletcher's book with the recipes is really as close as being in front of the building with the bomb. In other words, I think Fletcher and those who read his book are at the point of buying gasoline and matches and we can't stop it.
So if legislation is not the answer to stopping these acts before they occur, what can be done about it?
I don't think we should tolerate this sort of speech from a moral or humanistic standpoint. We should speak out against it. We need Americans to stand up and basically show their colors and put these people in their place. These right-wing radio stations have become the private domain of the right in many instances and I think other people have to wake up to that fact and ask: Why aren't there any liberal talk shows? Where is the other side and the people who want to take these hatemongers off the air? Why don't they form an association such as Donald Wildmon's American Family Association that is anti-adult material, pro-family values, and puts tremendous censorship power on radio and television merely because their members are active? Why don't people go to radio stations and say we don't want you to carry G. Gordon Liddy anymore, get him off the air or we're going to boycott your advertisers? What we need is more of the other side.
But, if these people didn't have an audience they wouldn't be on the radio. This stuff that Gordon Liddy, Rush Limbaugh and Ollie North and the others have been doing is the visible part of a much larger iceberg. There is a tremendous amount of discontentment with a lot of the things government is doing. These broadcasters are expressing the frustrations that a lot of people feel. We've had disaffected people confronting federal authorities throughout history. There was the Whiskey Rebellion shortly after we became a country, confrontations in the Midwest during the Depression, and the Haymarket Riots in the late 19th century.
This is a first for this generation to go through. I've lived through assassinations of presidents, a presidential candidate and a prominent civil rights leader. It was awful, but every generation has these things that occur when stupid, crazy people take the law into their own hands. But, I don't think society can fundamentally change the precepts of democracy simply because these things happen. The danger is that we give away our freedoms and give government more power than they have right now.
The FBI is not an agency without stains on its records. I personally consider the FBI to have framed Leonard Peltier of the American Indian Movement at Wounded Knee. I didn't think he was guilty of that crime, although he may have been guilty of other crimes. I don't think it was right what they did to Randy Weaver in Idaho. I don't think the ATF acted responsibly in Waco. Of course, blowing up a building is not the solution. We have laws making it illegal to blow up a building or conspiring to do so. They need to be enforced and people need to be prosecuted. But our federal officials need to become better at what they do and held more accountable for the power they now have.
Americans might have been sympathetic to peaceful protests from these groups.
I couldn't agree more. There are peaceful demonstrations all over the country regarding this. But Oswald and Sirhan Sirhan were not peaceful demonstrators. Many of the protests of the 1960s were violent. At the University of Wisconsin, Carl Armstrong drove up with a truckload of fertilizer and blew up the math research building and served seven years in jail. Who were the first Americans in the last half of the 20th century to visibly carry weapons? The Black Panthers; the extreme left of the '60s who were on the absolute opposite side of the political spectrum from the right wingers of today. We lost our sensitization to that type of behavior and rhetoric during the '60s and what really bothers me is that we will lose our sensitization to bombings. The next time it happens we're going to be a little less shocked, and the third time it's going to be less and less shocking. That bothers me a lot.
The 1960s were certainly a time when our constitutional rights were being tested, issues surrounding freedom of the press, freedom of assembly and protest marches arose. Peaceful marches indeed turned violent, such as the incident at Kent State where four students were killed by National Guardsmen 25 years ago. What are some of the parallels between the 1960s and what is happening today?
There are some good historians who have suggested in recent weeks that essentially this is the mirror image of the '60s. People in the 1960s were disaffected. The government had gotten them in a war that they didn't like, they felt government was exceeding its authority and that Lyndon Johnson was not following the constitution and was exaggerating his power. People felt many of the benefits of government were being stripped away in order to provide for the war, and they were angry and couldn't get anybody's attention. You can say a lot of these same things about the disaffected right today. They think government is leading them down the wrong path, they can't get their attention and they haven't been able to get anywhere by simply voting in elections. They're constantly outvoted, so they are taking things in their own hands. Some of these militia people today are farmers who have had their land stripped from them by banks and savings and loans, and they see the government as legally assisting these banks. The potential for violence is clearly there. But the militias will go away when the people find that government is serving their needs. I don't think we need to or can change the Constitution.
D. Rush Allison is a student at the University of Washington's School of Communications, and a participant in the UW News Lab.
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