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Abe Lincoln, a 'thought criminal'?
By Leon D'Souza
November 21, 2007 | In 1861, while North and South
teetered precariously on the brink of war, Abraham Lincoln
stood up in Washington to deliver his inaugural address.
The public mood, by all accounts, was somber and the
newly-elected president must have sensed it.
He had spent what we might assume were long and taxing
hours mulling over the exact language of his speech.
The lingering question: "Shall it be peace or sword?"
His final message, albeit conciliatory, contained
this memorable admonition: "This country, with its institutions,"
he declared, "belongs to the people who inhabit it.
Whenever they shall grow weary of the existing government,
they can exercise their constitutional right of amending
it or their revolutionary right to dismember or overthrow
it."
Frightening words for a nation divided against itself.
In fact, so frightening that had he uttered these very
words today, the 16th president might have found himself
in a bit of a legal bind. Especially after the passage
last month of House Bill 1955, the evocatively named,
"Violent Radicalization and Homegrown Terrorism Prevention
Act."
Under the new bill, which passed the House with an
overwhelmingly bipartisan 404-6 vote, "homegrown terrorism"
is defined as the "planned" or "threatened use of force
or violence to intimidate or coerce the United States
government, the civilian population of the United States,
or any segment thereof, in furtherance of political
or social objectives."
That is to say, Cal Poly Pomona historian Ralph E.
Shaffer explains, that "no force need actually have
occurred as long as the government can argue that the
individual or group thought about doing it."
By this standard, any American referencing Lincoln's
inaugural address over a microphone could legally be
decried as a terrorist.
This is an outrageously reprehensible violation of
our First Amendment rights. And quite frankly, it doesn't
even stand the test of judicial or constitutional scrutiny.
When the Supreme Court struck down Ohio's similarly
worded Criminal Syndication statute in 1969, Wikipedia
notes, it ruled that the state law was unconstitutional
"because it broadly prohibited the mere advocacy of
violence rather than the constitutionally unprotected
incitement to imminent lawless action."
"Imminent lawless action" remains the legal standard
today, and according to the precedent set in Brandenburg
v. Ohio, public protests cannot pass this test unless
they are "likely to cause violation of the law more
quickly than an officer of the law reasonably can be
summoned."
Simply put, merely raising the specter of violence
isn't legally considered terrorism.
Indeed, democracy has long been associated with a
degree of aggression, or what the Founding Father Alexander
Hamilton characterized as "the amazing violence and
turbulence of the democratic spirit." To stifle such
expression would undermine the distinctive ethos and
strength of our democracy.
The members of the Senate Homeland Security Committee
would do well to remember this as they consider California
Democrat Jane Harman's Orwellian House bill in the weeks
ahead.
An endorsement of the measure would be, without doubt,
the most virulent attack on our civil liberties.
For additional references, visit http://leondsouza.blogspot.com/
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