Saturday, 29 March 2014

That's not what she said.

     One of the basic rules of quotation marks is that they're supposed to go around actual verbatim quotes, not paraphrases of what you think someone means. This morning a Facebook acquaintance shared an image macro (I hate to call them memes) which showed the following quote over a picture of Senator Diane Feinstein at a committee hearing:
"Freedom of speech is a privilege intended for educated professionals. It should be illegal for a high-school dropout to promote anti-government propaganda on his 5 dollar blog, if he cannot properly verify his statements."
     That is so preposterous a statement that I could not believe it would have been uttered by anyone with any awareness of basic 1st Amendment thinking. So I tracked down the YouTube video [edited April 2 to add link] from which the still picture was taken, and watched it, and of course she never actually utters those words in that grammatical order. Some of the words appear, but not in the way implied by the false quote.

     For example, she does use the word "privilege", although she never says "Freedom of speech is a privilege". In fact, she's talking about privilege in the legal sense, a special exemption from certain kinds of legal obligations that would otherwise apply.
     Consider "attorney-client privilege". There are circumstances in which a person may be legally required to answer questions truthfully, such as when testifying in court or being examined on an affidavit. Privileged communications, however, are exempt; your lawyer cannot be obliged at law to disclose things you tell her in connection with seeking legal advice. If you go to your lawyer to ask how you can hasten your rich uncle's death so you can inherit, and she tells you "Don't do it, because it's against the law," then you know that's not an option and you can obey the law. If your uncle then dies under suspicious circumstances that you actually had nothing to do with, the fact that you sought legal advice should not be used as evidence to bring you under suspicion. We want people to seek legal advice.
     So what Ms. Feinstein was talking about here was whether or not there should be a similar sort of privilege for people who publish official secrets, and if so, what criteria there should be for someone who would enjoy that privilege. You can promote anti-government propaganda on your blog all you want, but if you publish actual secret documents, you might well be subject to criminal proceedings.
     There's a difficult line to draw here. On the one hand, there is sometimes a legitimate state interest in secrecy (although I tend to suspect the state claims this interest more often than they should). Obviously, we do not want people to be able to publish the new names and locations of people in the witness protection program, and claim freedom of speech as their defence. People who expose legitimate secrets ought to face legal consequences, and people who come into possession of such stolen documents might well be legally compelled to say where they got them.
      On the other hand, government secrecy always carries a great risk of protecting corruption and abuse of power. Sometimes the only defense against this is for a whistleblower to leak the information to the press, but if the reporter you give the documents to can be forced to reveal your identity, you're less likely to blow the whistle in the first place. So, because it might sometimes be in the public interest to facilitate such whistleblowing, maybe there ought to be a form of privilege for actual journalists to protect their sources. (Presumably, actual journalists will be bound by some form of professional ethics when they decide whether or not to publish something.)

     Now, I am not saying anything about whether or not Senator Feinstein's position is an appropriate one. How much government secrecy there should be and how it should be protected is a complicated issue, and you can certainly disagree with Ms. Feinstein's approach to it. You can even use the strawman if you want, and say what you think her position is. But putting quotes around your own paraphrased (mis)interpretation of her position in order to imply that you're quoting her actual words? That is, in a word, lying.


  1. No link to the video? No quoting what she ACTUALLY said? I guess you just want us to know what YOU say she said! I try to correct misquotes I see on Facebook but without specifics, your post is not helpful.

  2. Quite right. Sorry about that. I had planned to include a link, and wrote as if it was there or going to be there, but apparently I forgot to actually include it. Edits on the way.

  3. Matthew C. Kaney3 April 2014 at 09:12

    Although I agree with your dislike of paraphrasing, this is probably one of the more accurate instances. That IS basically what she said. Now you're saying she's not talking about freedom of speech because she's talking about a special privilege, but doing an end run around the 1st amendment is EXACTLY what this bill is intended to do.

  4. It may well be that Diane Feinstein really does want to restrict all speech, and maybe the paraphrase is an accurate depiction of what she really in her heart of hearts believes, but I am not a mindreader; I don't know that to be her intention. All I have to go on is what she actually says and does, and what she's saying HERE is about a very specific kind of legal privilege. She is saying that if the law punishing criminal publication of secret documents is to have an exemption (privilege), then there should be some sort of criteria for when that exemption applies; it shouldn't just exempt everyone at all times, or else there can be no such thing as an actual state secret. And maybe there SHOULDN'T be, but if that's your position, you should argue THAT, rather than try to portray Senator Feinstein as saying something she didn't. To take her speech (which I've now linked to) to mean that "It should be illegal for a high-school dropout to promote anti-government propaganda on his 5 dollar blog" is simply absurd.

  5. Matthew C. Kaney5 April 2014 at 12:46

    I agree that since we are unable to read her mind, we have to go on what she says. But we do not have have to limit our understanding of what she says to her specific words. We can place her words in the context of the legislative and judicial processes and precedence. The fact is, no one has ever been successfully prosecuted for *publishing* confidential information. Currently, although only some states of shield laws, the courts have generally determined that a reporter does not have to reveal their source except when it is necessary in a criminal investigation and whoever is seeking the identity of the source has exhausted all other means to obtain the information. And even then, sometimes the court has not forced journalists to reveal their source.

    Compelling speech is most certainly "abridging the freedom of speech." And although the Constitution does not state that the judiciary cannot compel someone to speak, it states very specifically that no LAW shall pass which abridges either the freedom of the press or freedom of speech (both specifically listed, not just the press). If compelling speech were not a violation of the freedom of speech, then there would be no effective freedom of speech. All the government or corrupt officials would have to do prevent most people form speaking out is threaten to force them to reveal their source with legal action. The threat of such legal action would be enough to prevent people from saying anything accusatory about the government or government officials.

    So the only purpose of the law is to codify a specific exemption from revealing sources that the press ALREADY has... the law still has the exception that they may be compelled to reveal the source in the case of a criminal matter. It does not exempt or shield them from prosecution for printing the information, though again that has never been done. So this law does nothing in terms of what it includes, it is what it excludes that makes the legal difference here. It does not include the existing protection via judicial precedence EVERYONE has from being compelled to reveal their source for whatever they publish or say, and by doing this it makes it easier for future judges to be able to force people who are NOT journalists to reveal their source, regardless of the circumstances... It is a very tricky manipulation.

    So no, she is not saying it should be ILLEGAL for said high school dropout with his 5 dollar blog to promote anti-government propaganda,... what it is saying is that it makes it LEGAL for the federal government to compel the dropout to reveal confidential information like his source or suffer legal consequences. What if the guy makes something up and doesn't even have a source and there is no related criminal investigation? There is still the whole issue of the legal fees, time, and other consequences that result from the case being pursued before the guy has a day in court to inform the judge of these details.

    For all intent and purpose, this then removes all protections for non-journalists and then seeks to define what a journalist is. A definition that is already very narrow and could be changed in the future to include government certifications. If this is not the same thing as "It should be illegal for a high-school dropout to promote anti-government propaganda on his 5 dollar blog" then I clearly am just paranoid.

  6. I think there's plenty to be paranoid about, but just not in this particular issue, and the reason is that you are expecting the evil secretive government also to be really, really stupid.

    Sure, they might not WANT people spreading anti-government propaganda, but what's the best way to deal with that? Basically, you marginalize, discredit and dismiss such dissidents as raving, paranoid cranks, unworthy of serious consideration. And since there are so many people saying so many different and contradictory things all over the world, there will ALWAYS be someone criticizing you for being too right or too left, too soft or too hard, too hot or too cold. Any given signal is really just part of the noise.

    But what is REALLY damaging to the government is when those allegations can be substantiated with cold, hard proof, the smoking gun of actual leaked government documents. They really hate that, which is why they make leaking or stealing documents a crime, which of course triggers that whole compulsion issue. When someone accuses the government of doing something bad, and can PROVE it, well, that's very very damaging.

    So what happens if the government goes after the high school dropout for promoting anti-government propaganda, requiring him to reveal his sources? Essentially, it validates him. It advertises to everyone that the government takes this guy's claim seriously enough to think maybe someone DID leak him some secrets. This would be a remarkably stupid move for a government intent on trying to cover up its misdeeds. The government would MUCH rather dismiss its critics as cranks who don't know what they're talking about.

  7. Matthew C. Kaney5 April 2014 at 19:26

    "Sure, they might not WANT people spreading anti-government propaganda, but what's the best way to deal with that? Basically, you marginalize, discredit and dismiss such dissidents" - isn't that one of the things accomplished by creating a formal definition for what a journalist is?

    And you're right it would validate that blogger for the government to go after him, the problem is that probably won't need to occur because of the "chilling" effect of the potential threat of going after him.

    The bottom line is that Feinstein was establishing a credibility difference between a journalist and $5 blogger with her statements, and then she was saying that the $5 blogger does not deserve the same protection under the law. The potential risk alone is enough to keep many silent. Heck, I'm not even sure the law is legal the way it's worded because laws aren't supposed to apply to differently to do different "classes" of people.

    Anyhow, I appreciate your responses. I've watched Feinstein closely and I think she is is a two-faced snake. She supported the Iraq war, and then later claimed she was tricked even though she had much greater access to information tha most who had already figured that out long before. It might have to do with her war profiteering.
    She enthusiastically supports the NSA surveillance and is a vehement critic of Edward Snowden.... so I have a hard time believing the sincerity of anything she says.

  8. I'm not here to defend Senator Feinstein. She may well be all you say she is for all I know. The only point I was trying to make here is that the words attributed to her are not hers; privilege has a specific technical meaning here that is misrepresented in the bogus quote.

  9. Tom and others,
    I appreciate and respect both the well-written article, and also the following thread of comments underneath which represent well-thought out points from all sides, in my opinion.

    Tom, I agree that it's inappropriate to have quoted Sen. Feinstein as having said this when it is not the case. Thank you. And anyone who knows me knows I am the furthest from a defender of Feinstein whatsoever. lol

  10. Thank you for saying so. I'm glad it's been of use to you.

  11. The Bill of Rights contains no privileges!

  12. The word "privilege" does not occur in the Bill of Rights. However, the Bill of Rights is the first ten amendments to the Constitution of the United States, and privilege is mentioned three times in that. Article I, Section 6 provides that members of Congress shall be privileged from arrest while attending Congress. Article I, Section 9 refers to the privilege of the Writ of Habeas Corpus. Most importantly, Article IV Section 2 provides that the privileges and immunities of a citizen of one state apply in all states.

    Moreover, the Bill of Rights actually DOES guarantee a legal privilege, even if it does not use that word to describe it. The 5th Amendment says you cannot be compelled to act as a witness to your own guilt in a criminal case. Meanwhile, the 6th Amendment gives you the right to Counsel (which includes attorney-client privilege, by the way) AND the right to compel witnesses in your defense. So what happens when I'm charged with a crime that you committed, and I try to call you as a witness to establish my alibi? There are some questions you can't be forced to answer, such as "Are you the one who actually committed the crime my client is charged with?" That exemption is a kind of privilege.

    Finally, the 7th Amendment establishes that the general rules of the common law are to apply in civil cases. That means that necessary common law privileges are imported into U.S. law.

  13. Tom, I sympathize. You are clearly right. She is not talking about free speech but about a clause in a reporter-shield law to allow reporters not to divulge their conversations to police. The ability not to reveal conversations is the privilege, not the ability of two people to say what they want. Your lawyer/client "privileged speech" is an excellent parallel; ditto confessions made to a priest. I can't imagine the amount of time it's taken you to explain the obvious.

  14. I avoided mentioning confessions to a priest, because in Canada, at least, those aren't actually privileged; in principle, a priest CAN be compelled at law to reveal what is disclosed to him in the confessional booth. In practice, it just about never happens, in part because if investigators find out a priest might have heard something, they usually already have enough to go on without it. And also priests are seen to be willing to go to jail for contempt rather than comply with a court order, so it's not worth pushing it.

    To be fair, if it were obvious, it wouldn't need to be explained. But it doesn't help that people are so willing to get outraged at something they heard second hand, and forward it as authoritative.

  15. I absolutely despise senator Feinstein. That said, I had the same reaction. Who would say something so egregious...

    She didn't. She clearly thinks there should be some government approved list of people who can have a greater freedom of speech but the (mis) quote is not accurate.

  16. My money says Tom voted for Obama. Twice.

    She clearly stated, "...the language in the bill would grant a special privilege to people who really aren't reporters at all, who have no professional qualifications, whatsoever. The fundamental issue behind this amendment is, should this privilege belong to anyone? To a 17 year old who drops out of high school and buys a website for $5 and starts a blog? OR should it apply to journalists and reporters who have bonafide credentials?" (Translation: "who we can control,")

    Don't believe me? See for yourself. The good stuff starts at about the 30 second mark.

    So, Tom, your background is in philosophy, law and science. All cool stuff, btw. I commend you on your choices. I love discussing all three, although I'm nowhere close to being where I want on any of them, especially law. Personally, I would throw theology in the mix, too. But you seem like a very intelligent young man, just based on your ability to write. However, I would be remiss if I didn't point out that, in my mind, you're the one who missed the call on this one.

    Do you have "bonafide credentials" as a reporter or journalist? Because if you don't, according to her, your page should be targeted to shut down.

    Now, I don't know about the high falootin' educational systems to which you've been exposed, but, frankly, I kinda dig American History and I don't ever recall hearing tale of the Bill of Privileges. Nor do I recall ever reading that a 17 year old was exempt from his or her Constitutional rights. Nor do I recall ever reading any stipulations on level of education. My guess is there were a whole lot more, relatively speaking, high school drop outs when all that "Up yours, king, we're gonna be free" and "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." stuff was written.

    Step away from the dark side, man. You know the bad guys always lose. I don't have to tell you that. Watch any John Wayne movie. Even in The Cowboys, where he was shot and killed, his crew avenged him and became men in the process. Good guys win.

  17. First, I've never voted for Obama. I've voted in every election since I became eligible, but I am a Canadian, so never in any U.S. election.

    Second, despite being a Canadian and having attended a Canadian law school, I am not completely ignorant of the U.S. legal system. Our own Charter of Rights and Freedoms is, in a sense, a second-generation Bill of Rights, heavily influenced by your own Constitution but incorporating almost two centuries of experience watching how it played out in practice. Moreover, both U.S. and Canada rely on the same common law principles, so the basic principles of legal reasoning and statutory interpretation are fairly consistent across borders.

    Third, I actually have watched the video, and at no point does she say anything to suggest she's talking about freedom of speech generally when she talks about this "special privilege". If you go to 0:58, she says, "This bill is described as a reporter shield bill, so I believe it should be applied to real reporters."

    Now, think about that for a bit. She's talking about an amendment to a reporter shield bill. What can that possibly mean? Isn't it at least plausible that it's a bill to protect reporters from prosecution? And why would they need to be protected from prosecution at all, if we're talking about free speech generally? There is simply NO legal basis for prosecuting a reporter who just says something the government doesn't like; the 1st Amendment is already the law of the land, including both freedom of speech and freedom of the press.

    What people CAN be prosecuted for is publishing actual classified government documents. And that's why they're proposing a reporter shield law, to protect genuine reporters who are performing the important service of informing the public of government wrongdoing from being silenced. Who should enjoy the benefit of such a shield? Well, obviously reporters, but how do we define a reporter? That's a tricky question of legislative drafting, which is EXACTLY the sort of thing that committee meetings like this are intended to hash out. Should ANYONE be allowed to publish government secrets, or should it be limited to people who are publishing them in order to expose an actual misdeed of government?

    I am not defending (or attacking, to be sure) Senator Feinstein's position here. There's something you can definitely disagree with here, but in your rush to portray her as Evil Incarnate, you're completely missing the actual point upon which to attack her. It's as if you were criticizing Hitler for forcing school children to take up smoking cigarettes, when in fact he actively promoted non-smoking, and did plenty of genuinely bad things that you could be criticizing instead.

    Don't attack Senator Feinstein for trying to abolish the 1st Amendment, because that's not what she's doing. What she IS doing is trying to maintain the government's ability to keep secrets from the public. THAT is potentially dangerous, and there are plenty of good reasons to attack her on that point. Unless, of course, you think that maybe sometimes government SHOULD be able to keep some things secret, in which case congratulations: you're beginning to see that the world isn't actually divided so tidily into good guys and bad guys.

  18. Tom, your trouble here began when the exact quote was not included. Tsk, tsk.

    1. You're probably right. In my defense, my argument is based on the speech as a whole including its legislative context, so isolating a single sentence did not seem like it would be helpful. But typing out a complete transcript of the whole video might well have avoided some of this confusion.

      On the other hand, it wouldn't do anything for the TL;DR crowd.

  19. Feinstein's still a nasty abuser of liberty, but you are correct and your blog saved me from making a fool out of myself attacking a quote out of context/order. But then, that's why I fact check myself. Thanks the excellent aid.

  20. It is August now. Where is the link to the youtube video?

  21. Well, it is not quite August...but almost is. lol

    1. Here is the actual video. Super easy to find. Just had google it.

    2. I added the link back in April. It's hyperlinked from the words "YouTube video" in the first paragraph after the quoted text.

  22. Sorry... Late to the "Feinstein Hate's the 1st Amendment" party. Just wanted to say this is a really well written piece. And I agree... if we are going to point out problems in our Government we need to do so off of actual statements, not a general fear-mongering cliff-note of what maybe, might have, kind of wasn't said. And you are absolutely right... what is and is not a State Secret is a thin line. Well thought out, well delivered. I believe I will be subscribing.