Man Indicted for Using Right to Free Speech

[Magda Hassan]

Man Indicted for Using Right to Free Speech

By Nat Hentoff

June 25, 2010 "Reading Eagle" -- This is a story that should be a warning to Americans, regardless of political party, because it dramatically illustrates what pre-eminent civil liberties attorney Harvey Silverglate documents in his book, "Three Felonies A Day: How the Feds Target the Innocent" by means of the ever-increasing broad and vague federal laws that allow prosecutors to pin arguable federal crimes on any one of us, even for the most seemingly innocuous behavior.

Consider what happened to an unemployed American, Bruce Shore, because of e-mails he sent to the Web site of U.S. Sen. Jim Bunning, R-Ky. As reported by Arthur Delaney on huffingtonpost.com, Shore, watching the Senate in inaction on C-Span, was angered when Bunning complained that, gosh, he has missed the Kentucky-South Carolina basketball game because he had to be in Congress to debate an unemployment benefits bill.

"I was livid, I was just livid," recalled the 51-year-old Shore. "I’m on unemployment, so it affects me."

Here is part of his Feb. 26 messages to Bunning staffers: "Are you’all insane. No checks equal no food for me. Do you get it?"

The next month, FBI agents came calling to Shore’s home in Philadelphia. They read him excerpts from his citizen’s complaints and asked whether he was the author, which Shore readily admitted. Apparently these agents had heard something about the First Amendment, and told this indignant American, "All right, we just wanted to make sure it wasn’t anything to worry about."

But the ever-vigilant Obama administration was not satisfied. On May 13 U.S. Marshals appeared at Shore’s door and handed him a grand jury indictment. James Madison, the father of the First Amendment, had insisted that the great right of freedom of speech must be placed beyond the reach of any branch of government. This is the indictment that forced Shore into federal court. The language is that of Communications Act of 1934 as amended and updated to include electronic messages in the Telecommunications Act of 1996: "(Shore) did utilize a telecommunications device, that is a computer, whether or not communication ensued, without disclosing his identity and with the intent to annoy, abuse, threaten and harass any person who received the communication."

Even if Shore had chosen to be anonymous, the feds could have tracked him. So this case should also be a constitutional test of anonymous First Amendment speech. This dragnet federal statute, without protest from President Barack Obama and Attorney General Eric Holder, stated that if you intend to annoy or harass any person by exercising speech, you will be hauled into court.

If found guilty, Shore — or anyone indicted for sending such harassing messages — could be imprisoned for up to two years and fined $250,000. I often am annoyed by my senator, Charles Schumer, D-N.Y., but so far, I have confined my harassing messages to him in my columns, which are transmitted in print and electronically. The same is true of my many annoying rebukes to the president, who apparently is quite sensitive to criticism. I’d better watch out.

Silverglate said about this indictment of the First Amendment: "That a citizen is being charged under this statute for pestering a senator for not doing his public duty just shows the dangerous powers that these kinds of statutes give to heedless prosecutors. Even if citizen Shore ultimately wins the case, his life will have been turned upside-down and inside-out. This, of course, is the reason indictments like this are brought — to deter unwelcome speech."

Said Shore: "I’m walking around in my head: ‘jail for e-mail, jail for e-mail,’ At this point I’m just looking at my government and going, anything is possible. When do the adults wake up and say, ‘This gentleman is just angry and frustrated?’ I’m just speechless. Shocked."

Since Shore is a citizen actively involved in his government’s fidelity to our founding document, I doubt he will remain speechless for long. For the rest of us, Frederick Douglass had this advice: "Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them." This largely has been passive citizenry as the Constitution is being razed during these last 9½ years. But maybe Shore, Silverglate and another crucial book, "In the Name of Justice" edited by Timothy Lynch, can arouse more Americans in self defense to ask themselves whether they are federal criminals not yet indicted.

Nat Hentoff is a syndicated columnist for Newspaper Enterprise Association. He is a renowned authority on the Bill of Rights. A native of Boston and a graduate of Northeastern University, Hentoff was a Fulbright fellow at the Sorbonne in Paris in 1950. He has written several books on subjects ranging from jazz to education.