Balkinization: What the Bush Administration Can Teach Myanmar About Free Speech

What the Bush Administration Can Teach Myanmar About Free Speech

Brian Tamanaha

Brave demonstrators in Myanmar continued protests against the ruling junta for several weeks despite harassment and arrests by the government. On August 31, the New York Times reported that:

The authorities are hunting down opposition figures, raiding their homes, distributing photographs of them and reportedly telling hotels to notify officials of their presence. The main opposition party told Reuters that at least 100 people have been arrested in the past week….

[The] government has created the civilian gangs that have beaten and arrested demonstrators this month. Wielding brooms and hoes, they pose as members of the public, chiding the demonstrators before beating and seizing them, according to wire service reports….[T]hey appear to have taken the place of military intelligence enforcers in combating protests.

Alarmed by these outrageous tactics aimed at inhibiting free speech, President George W. Bush called on Myanmar to “stop its intimidation” of demonstrators, saying, “I strongly condemn the ongoing actions of the Burmese regime in arresting, harassing, and assaulting pro-democracy activists for organizing or participating in peaceful demonstrations.”

In the United States, the land of free speech, we are far more artful in our suppression of dissent. On this score, the ruling junta has much to learn from the Bush Administration.

As detailed here by Timothy Zick, in America today we intimidate protesters, for example, by conducting surveillance on and infiltrating protest groups (including musicians for peace, poetry readings, and the like) or by having officers photograph or videotape protesters. Protesters must obtain permits, which require them to remain in designated areas, often behind barriers, usually a significant distance away from the event they aim to protest (out of sight of the media coverage of the event).

Sure, our government agents occasionally slip up and arrest protesters for the crime of wearing anti-Bush T-shirts, but that’s not our standard operating procedure for suppressing dissent.

Bush ought to send the Myanmar government his Presidential Advance Manual (available here), which has great tips they can learn from:

There are several ways the advance person can prepare a site to minimize demonstrators. First, as always, work with the Secret Service and have them ask the local police department to designate a protest area where demonstrators can be placed, preferably not in view of the event site or motorcade route.

If anyone objects to this policy, one can immediately respond that anti-Bush protesters are a manifest threat to security and the public order, so of course the Secret Service and local police must sequester them at a distance.

Additional tips from the Presidential Advance Manual:

The formation of rally squads is a common way to prepare for demonstrators by countering their message….

These squads should be instructed to always look for demonstrators. The rally squad’s task is to use their signs and banners as shields between the demonstrators and the main press platform. If the demonstrators are yelling, rally squads can begin and lead supportive chants to drown out the protesters (USA! USA! USA!). As a last resort, security should remove the demonstrators from the event site. The rally squads can include, but are not limited to, college/young republican organizations, and fraternities/sororities….

Rally squads should be dispatched to surround and drown out demonstrators immediately.

What the Myanmar junta did not understand is that in countries that respect free speech, you don’t hire thugs to beat peaceful demonstrators with brooms—you get college kids to surround them with signs and shout them down.

That’s how we do it in good old USA! USA! USA!

Posted 10:18 AM by Brian Tamanaha [link]

Comments:

Surrounding protesters with signs and leading counter-cheers sounds to me like countering speech with more speech. Do you have a problem with that? Free speech doesn't mean that no one gets to disagree with you, though university professors and administrators sometimes interpret it that way.

# posted by

sean : 10:48 AM

Good point, Sean. In addition, I'd ask the professor whether he thinks it is impossible that terrorist recruiters also infiltrate protest groups (including musicians for peace, poetry readings, and the like)?

# posted by

Charles : 10:52 AM

We'd better be careful here, though, since our "free speech" can provoke Lederman and Balkin to DELETE THREADS . . . perhaps the Bush Administration Can Teach Myanmar About Free Speech better than Balkinization can.

# posted by

Charles : 11:05 AM

Good thing that the "Balkination Censorship Manual" is not on-line . . .

# posted by

Charles : 11:12 AM

Surrounding protesters with signs and leading counter-cheers sounds to me like countering speech with more speech. Do you have a problem with that?

I think it should be obvious, even to the Bush Administration and its more rabid supporters, that there's a big difference between actions by the citizens and actions by the government. Citizens exercise their 1st A rights. The tactics described above are government actions designed to suppress those rights.

I'd ask the professor whether he thinks it is impossible that terrorist recruiters also infiltrate protest groups (including musicians for peace, poetry readings, and the like)?

It's possible that terrorists have infiltrated the Republican party and the Federalist Society. That seems like the most plausible explanation for why those groups support unAmerican policies designed to damage our economy and undermine our freedoms.

# posted by

Mark Field : 11:29 AM

# posted by

sean : 11:36 AM

I guess college/young republican organizations, and fraternities/sororities are "State actors" now too ; )

# posted by

Charles : 11:48 AM

Is it my "free speech" right to call the White House Advance Office and advise them the Manual has been posted on-line?

# posted by

Charles : 11:50 AM

Mark Field said...

sean: Surrounding protesters with signs and leading counter-cheers sounds to me like countering speech with more speech. Do you have a problem with that?

I think it should be obvious, even to the Bush Administration and its more rabid supporters, that there's a big difference between actions by the citizens and actions by the government. Citizens exercise their 1st A rights. The tactics described above are government actions designed to suppress those rights.

The advance manual instructed private party members, not government agents, how to deal with protest speech with speech of their own.

It is amusing that protesters, whose intent is to disrupt and prevent the President's speech, are whining when GOP party members try the same tactic against them.

Goose and gander.

# posted by

Bart DePalma : 12:55 PM

Although several of these responses are quite silly (to some extent, of course, intentionally), I agree with their implicit objection to this type of post. Although I agree with its sentiment, I don't see how it contributes to maintaining the generally high quality of this blog. I am very interested in the bloggers' professional opinions on legal issues, but not at all interested in their personal opinions on political behavior per se.

If there are legal issues hiding in these policies, they should be raised. But the mere observation that the current administration plays an especially hard version of poliical hardball is not exactly a hot news item.

There are a few volokh bloggers whom I skip over because of their proclivity to this kind of post. I hope I don't have to put any balkin bloggers on that list.

- (Another) Charles

# posted by

Charles T. Wolverton : 1:02 PM

As always.
Reverse the political affiliations of the actors here.

Can the conservatives here honestly say that they would have no problem with President Clinton or her staff sending a group of liberals to disrupt a protest by, say, young Republicans?

I have no problem with exercising the first amendment by individuals or groups if they want to organize a counter protest.

Rally squads should be dispatched to surround and drown out demonstrators immediately.

However, when that counter protest is a tool of a government, be it Democrat or Republican, especially when the goal of that counter protest is to stifle protest.

See, if the rally squads were an intellectually honest action to support the figure, they wouldn't be trying to stamp out the protest itself rather than merely making themselves be heard on their own.

# posted by

Paul Weimer : 1:03 PM

The comparison between a dictatorship hunting down and beating protesters and our police photographing public protests, attending public protest meetings or -heaven forfend - following court rulings separating the protests and objects of that protest so they can each have unfettered speech is pretty weak.

The fact that the press does not provide as much coverage of wingnut protests as the wingnuts would like says more about how well or not wingnut messages sell papers than about a government conspiracy to stifle speech.

In a sprawling free US media where anti Bush programming, books and articles far outnumber pro Bush communications, I have an extremely difficult time taking seriously the claim that Mr. Bush is in any way suppressing speech, nevertheless the claim that his administration is somehow comparable to the Myanmar dictatorship.

Get a grip.

# posted by

Bart DePalma : 1:09 PM

I don't believe that the First Amendment or the principle of free speech prohibits whatever administration is in power from rallying its supporters in the public square. Is that what you are suggesting, Mr. Field?

You're dodging. The purpose of the behavior quoted is to diminish the free speech rights of the protestors. That's precisely what the 1st A forbids the government from doing.

# posted by

Mark Field : 1:12 PM

Paul said...

As always. Reverse the political affiliations of the actors here.

Can the conservatives here honestly say that they would have no problem with President Clinton or her staff sending a group of liberals to disrupt a protest by, say, young Republicans?

This would be useful to show the speciousness of the comparison with Myanmar.

I protested the traitor Jane Fonda at Boston College back in the day. Members of the Carter Administration would have been welcome at our public meetings and we would have waved at any police taking our photos. Hell, we were protesting to gain attention to our message.

Unlike today's leftist protesters attempting to shout down the President and deny his right to speech, we politely listened to Ms. Fonda and her hubby Tom Haden to give their pitch for "economic democracy" (socialism) and then politely attempted to ask questions about her treason with the North Vietnamese.

(As a side note, Ms. Fonda did answer two of our questions and proved to be what the Communists called a useful idiot. She actually responded that she did not know much about the North Vietnamese regime and relied upon her husband to keep her informed.)

Back to the subject at hand, I would note that, despite our polite behavior, the Boston College paper ran a cartoon of us the next week dressed in the obligatory cartoon Nazi uniforms and wielding clubs against innocent cowering students attempting to attend the speech to absorb the wisdom of Hayden and Fonda.

It is interesting that leftists still cannot tell the difference between real fascist thugs like those in Myanmar and opposing partisans with whom they disagree.

# posted by

Bart DePalma : 1:25 PM

# posted by

sean : 1:51 PM

Too bad about the persistent trolls. I infer that the owners of the blog generally prefer to let people talk, even if the talking is trolling. But as a reader, it's becoming a waste of time to read the comments. For every good thread here are three like this one. At this point, I'd respectfully suggest that the proprietors shut off comments, at least for now. We readers can email the posters, and the posters can put up any replies they think relevant.

PS to Mark Field: Feeding trolls only encourages them.

# posted by

sparky : 2:20 PM

I guess you all missed the part in the post that refers to government imposed permit policies and to the actions of the police in intimidating protesters and restricting their speech (including being arrested for wearing an anti-Bush T-shirt). You must read Zick's posts to get the full flavor of these actions.

We should also not forget the extent to which the Bush Administration has blurred the line between Republican party actions and government actions (Who was Karl Rove, a paid public servant, working for--the American People or Bush or the Republican Party?). As the post indicates, the advance group utilized the Secret Service and local police to serve their own agenda of "managing protesters."

Having said that, I certainly do not equate the Myanmar junta with the Bush Administration.

The point of my post is that we too restrict speech for political reasons, albeit in more subtle ways. I find these actions alarming, as should all libertarians who value free speech. It's fine to lecture Myanmar, but we

The clock is ticking on the Bush Administration. Those on this comment thread who constantly defend and rationalize everything the Bush Administration has done in the past six years perhaps should begin to think instead about what kind of government we want.

So here is the question: do we want a government that finds ways to squelch dissent? Or do we want a government that in good faith encourages--or at least truly allows--dissent?

If you believe in the latter, then we should not consider the Bush Administration a model for the future.

# posted by

Brian Tamanaha : 2:22 PM

No government, or State actor, should squelch dissent in violation of the First Amendment. Can you answer my questions now:

1) Do you think it is impossible that terrorist recruiters also infiltrate protest groups (including musicians for peace, poetry readings, and the like)?

2) Perhaps the Bush Administration Can Teach Myanmar About Free Speech better than Balkinization can?

3) Is it my "free speech" right to call the White House Advance Office and advise them the Manual has been posted on-line?

# posted by

Charles : 2:30 PM

sparky said...

Too bad about the persistent trolls. I infer that the owners of the blog generally prefer to let people talk, even if the talking is trolling. But as a reader, it's becoming a waste of time to read the comments. For every good thread here are three like this one. At this point, I'd respectfully suggest that the proprietors shut off comments, at least for now.

This is amusing considering the theme of the lead post.

# posted by

Bart DePalma : 2:49 PM

Professor Tamanaha:

If you did not intend an analogy between the Myanmar dictatorship and the Bush Administration, why did you make the comparison in your post?

In any case, if your objective was to critique the actions cited by Zick as "intimidation," I would suggest that your opening citation to true intimidation by the Myanmar thugs does not advance your argument. Indeed, in comparison to the stories coming out of Myanmar, the Zick complaints sound petty and insignificant.

# posted by

Bart DePalma : 3:05 PM

Which is why I asked whether the the Bush Administration Can Teach Myanmar About Free Speech better than Balkinization can?

# posted by

Charles : 3:10 PM

oMr. Field, I'm not following you. I believe in free speech even for Nazis, but if the Nazis were having a rally in my town, I might go and join a counterprotest. It's possible that our chants might drown out the Nazi chants, or our signs obscure the Nazi signs, or our group so outnumber them that no one heard or saw them at all. That isn't a violation of their free speech rights.

Last time: your hypothetical is NOT what the post is criticizing. It's fine if you counterprotest the Nazis. What's not fine is for the government to organize the counterprotest.

# posted by

Mark Field : 3:16 PM

It is in fact an attempt to dilute a person's free speech when a group surrounds a speaker with counter-demonstrators.

Just as it is when trolls spew multiple, largely content-free comments into a discussion thread, perhaps hoping to shut down the thread or at least make it unreadable.

To conspire with others to do so is worse, but still not as bad as making the machinery of government party to the process, as the Bush administration has done.

Still worse is to arrest or kill demonstrators to prevent their speech, but make no mistake: these efforts differ in their extent, not in their aim.

# posted by

C2H50H : 3:28 PM

"I guess you all missed the part in the post that refers to government imposed permit policies and to the actions of the police ..."

From my few classes in writing from long ago I recall that you should close an essay with your primary point, not bury it in the middle.

The first third of the post is about Myanmar, the last half focuses on the manual which addresses the (admittedly obnoxious) admin/party policies and suggests that operatives "ask for" the designation of protest zones. The designating may be of questionable constitutionality, but the asking is at most obnoxious.

If the point was merely to convey the "full flavor" of Zick's posts, a pointer with minimal commentary would have sufficed. As it is, the commentary clearly diluted if not obscurred that point.

I stand by my original comment.

- Charles (II)

# posted by

Charles T. Wolverton : 3:33 PM

Mr. Field, I guess we just disagree. I think it's fine for any presidential administration to rally its supporters to stage demonstrations in support of its policies. I think it's fine for any administration to ask columnists (say, people like Sidney Blumenthal) to write columns attacking its opponents. I think it's fine for them to encourage grassroots groups (say, moveon.org) to criticize prosecutors or other government officials who are embarrassing the administration. I think all those sorts of activities are part of the marketplace of ideas.

Prof. Tamanaha, you said yourself that arresting people in critical t-shirts was not standard operating procedure. It was obviously the action of an overzealous low-level cop, not an administration strategy. So that is why no one is addressing that issue. But, for the record, it would be wholly inappropriate for an administration to arrest people who disagree with it for expressing their disagreement. Okay?

# posted by

sean : 3:35 PM

So, make no mistake, Bart and I posting here "differ only in their extent, not in their aim" to Myanmar government-sponsored murder? Well, at least you have the right to express such opinion.

# posted by

Charles : 3:35 PM

My observations were general.

Others can assess the insights provided in the 8 out of 26 comments by one commenter and come to their own conclusions as to the purpose.

# posted by

C2H50H : 3:50 PM

As I said, at least until our hosts shut of comments, at least you have the right to express such (general) opinions.

# posted by

Charles : 3:54 PM

Excellent post, Brian. Bush's lecturing Myanmar about free speech was about as absurd as Sen. Larry Craig and his condemnation of Pres. Clinton's scandal vis-a-vis Monica Lewinsky several years ago, declaring him a "naughty, nasty, dirty boy."

# posted by

Terry Hildebrand : 3:56 AM

I protested the traitor Jane Fonda at Boston College back in the day.

No, Bart. You protested Jane Fonda, who never levied war against the United States nor adhered to its enemies. And now, you have falsely accused her of being a traitor.

# posted by

Dilan : 10:21 PM