Occupy Christmas

International Day of Action – December 25

Freedom of Speech is Potentially Offensive

Posted by troublemaker on December 28, 2011

I am a citizen of the United States of America. On my mother’s side of the family, each man that we can count served his country in the military. Her brother served. Her father served. Her grandfather served. My father was the first in his line that was eligible for US military service. As the child of a German immigrant, serving took a bit of creative genealogy as at the time the U.S. was at war with Germany. My father even lied about his age to be eligible to defend the country of his birth. My service was not during war time, but I too served. None in my family were drafted. None in my family were career military. Each served because he loved the country of his birth. That family tradition will end with my children. Although I served my country, I cannot in good conscious ask my children to do the same because doing so requires first swearing an oath to God which amounts to a flat lie.

“I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.” – From the US Army (1)

When I joined the military, I understood I would be setting aside certain rights in order to insure that those rights would continue for civilians. In the military, things such as freedom of speech must often be set aside to create a cohesive fighting force. If given a lawful order, questioning that lawful order can be counterproductive to unit moral. As the president of the United States is both a political figure and the literal commander in chief of the military, it is a very good idea for active members of the military to participate in politics only silently. This is why we tend to see military uniforms worn by Occupy protesters only when they are retired or otherwise no longer on active duty.

Today, we must ask what is it exactly that our military fights for if not the way of life described and guaranteed in the Constitution of the United States of America. While I will continue to teach my children the reverence and respect that our fighting men and women are entitled, I refuse to encourage my children to swear an oath to defend the Constitution of the United States of America to secure a position in which their job is to defend the very people who threaten that constitution. While other nations and rogue terrorists are certainly a threat to our way of life, the greater threat has shown itself to be our own government.

Tennessee Code Title 39, Chapter 17, Part 3 section 308 on Harassment (2)

It is illegal to: “(4)    Communicates with another person by any method described in subdivision (a) (1), without legitimate purpose:””(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

“(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.”

Although part (i) requires “malicious intent” there is no such provision in part (ii). As the definition of the methods includes “telephone, in writing or by electronic communication, including, but not limited to, text messaging, facsimile transmissions, electronic mail or Internet services”, it is entirely possible I am breaking Tennessee law by sharing the painting of Tennessee Governor Bill Haslam and his lovely wife here in this article.

Governor Bill Haslam and His Wife Crissy

Governor Bill Haslam and His Wife Crissy

We first became aware of the relatively new Tennessee law via Brandt Hardin, the artist who created the satirical painting at left. However, the law in Tennessee is just the latest successful attack against the Constitution of the United States. Although the First Amendment guarantees freedom of speech and the interpreted right to freedom of expression, it has long been held that such a freedom is not all inclusive. It has long been held that you may not yell “fire” in a crowded movie house. Such a restriction on freedom of speech does seem logical, however today it is illegal to do so even if that movie house is on fire. Why? Because it might interfere with sales at the concession stand.


“A jury in Minneapolis held blogger John (Johnny North side) Hoff liable for $60,000 in damages for a truthful post charging that the plaintiff was involved in a high-profile mortgage fraud case. The jury agreed with the plaintiff’s claim that the blogger had committed “tortious interference” by meddling with Moore’s employment.” – (4)

Former community leader Jerry Moore was fired from Jordan Area Community Council in January 2009. Moore was later employed by a university to study mortgage foreclosures. When community blogger John Hoff learned of Moore’s new position, Hoff published an article accusing Moore of being previously involved in a “high-profile fraudulent mortgage” (5). Moore was fired the day after the article was made public.
According to The Star Tribune, there was some connection with the Larry Maxwell who was sentenced to a 16 year prison stay. While we can speculate as to why Moore was not himself charged, the important issue in this case is that the statements made by John Hoff were presented in court as being truthful. If those statements had not been truthful, Moore could have sued for libel.

The Jury was right that the actions of Johnny Hoff met the definition of “tortious interference”, but wrong to have sided with the law and against the First Amendment. However, the right of Jury Nullification is not explained to jurors. Juries are commonly informed that they must rule based on the law rather than their sense of the law. As a result, the people are unable to express their true will. If legislators have removed a civil right, a jury is not allowed to restore that right. That situation begs the question what happened to having a jury of ones piers.

“Jane Kirtley, a U of M professor of media law and ethics, called the lawsuit an example of “trash torts,” in which someone unable to sue for libel, which by definition involves falsity, reaches for another legal claim. She predicted the verdict will be overturned.” (5)


Although some claim that cases like these are easily overthrown, we know of at least one man who was given what amounts to a death sentence for similarly truthful statements. In that case, after essentially being fired for becoming disabled, the defendant created an online protest against the Ohio incorporation he felt did not respect the Americans with Dissabuilities Act.

The plaintiff argued that the truth of the defendants statements were immaterial, that Ohio law makes “tortious interference” illegal without respect to the truth of statements made against an Ohio business. The defendant lost at summary judgment without so much as a jury of his peers because he foolishly argued that his detailing of the plaintiff’s illegal actions were true, proven by photographs and investigations conducted by that state’s Attorney General and Environmental Protection Agency. The decision, which included $250,000.00 in punitive damages (the largest amount legally awarded in the State of Ohio) amounts to a death sentence because those punitive damages cannot be dismissed by bankruptcy. The defendant, who is dependent on expensive medications to sustain his life, is permanently disabled. Judgement in hand, the plaintiff has seized the small business property which the defendant used to sustain his life giving medication. As we see in the Ohio case, if one cannot afford a defense attorney one does not in fact have a right to even a trial by jury. The last time I spoke with the Ohio man, his kidneys were failing due to lack of medication.

The Ohio case referenced dealt with internet postings on a server in Florida which were made from a lap top in Kentucky.  I conclude that the Ohio law makes truthful statements and critical commentary illegal across the globe if that critical commentary adversely effects a business within the state of Ohio.

Across the United States

Make no mistake. The attacks on the First Amendment are not limited to Tennessee, Minnesota, or Ohio. These laws are sweeping the nation. These laws are clear in their intention to protect business and politicians (the 1%) from the truthful speech, critical commentary, and even the right to inform the public of illegal activity. Their application is to shield the 1% from the growing power that the Internet has returned to the 99%. They are why my children will be raised to fight for the Constitution of the United States of America but not for the people who truly run it. Not with their service and not with their patronage.

Occupy Christmas during all seasons. Depend on small, local economy and keep your money from supporting further attacks on liberty.

Demand new laws which protect truthful speech and commentary because obviously the First Amendment simply is not enough where it is prohibited by law.


  1. http://www.history.army.mil/html/faq/oaths.html
  2. http://law.justia.com/codes/tennessee/2010/title-39/chapter-17/part-3/39-17-308/
  3. http://dregstudiosart.blogspot.com/2011/07/potentially-offensive-portrait-governor.html
  4. http://www.jdsupra.com/post/documentViewer.aspx?fid=eba7d8dc-9bec-40c0-af42-dc7a5809a9f6
  5. http://www.startribune.com/local/117805398.html

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