Saturday, April 09, 2005
Seeking out Some Hidden Passageways in "Bryant's 'Bleak House'"
By Larry W. Bryant
Readers in the market for a classic case study in how a (typical?) federal agency reacts administratively to a citizen's persistent challenge to the agency's impingement upon First Amendment rights need look no farther than the recent case of Lackland Air Force Base, Texas.
Lackland's March 28, 2005, response to my freedom-of-information request of Dec. 16, 2004, leaves no doubt that my series of whistleblower-solicitation ads sent during the past few years to such "commercial enterprise" newspapers as the Lackland AFB "Talespinner" has touched a deep nerve of resistance/anxiety within the USAF's public-affairs and judge-advocate circles. That response rounds out my pursuit of an administrative remedy to Lackland's blatant abuse of authority in rejecting my two ad submissions "Blow the Whistle on Bush's 'Gulf of Persia' Resolution!" and "Blow the Whistle on Depleted-Uranium Contamination in Iraqnam!" (You'll recall that the former ad remains the focus of my First Amendment lawsuit of Bryant v. Rumsfeld, et al., filed in June 2004 in U. S. District Court for the District of Columbia -- see: http://www.markskatz.com/militarycases.htm -- which now has reached the discovery stage as the Army's "Pentagram" newspaper staff tries to defend its censorship of the ad.)
Lackland's package of "responsive records" consists mostly of various e-mail exchanged among me, the Lackland public affairs (PA) officer, her staff, the local judge advocate's office, the Hq-USAF public affairs office, and the USAF inspector-general system. Alas, the textual content of most of the internal-staff e-messages has been withheld from disclosure -- on the alleged grounds that to so disclose "would reveal the deliberative process privilege of the Air Force and attorney work product information" (as per FOIA exemption No. (b)(5)). It remains to be seen, of course, whether any of that withheld information can be subpoenaed as part of my collateral case of Bryant v. Rumsfeld, et al. II (filed in January 2005 -- see: http://www.markskatz.com/complaintlwb2005.pdf ), on the grounds that the court should prevent a First Amendment violator from using any special privilege to shield herself from accountability. You'll recall that the "Rumsfeld II" case centers on the anti-political-ads provisions of the Defense Dept./Army/Navy/Air Force/Marine Corps's regulations governing content of ads submitted for publication in CE newspapers. In the case of Lackland's rejection, we see that the base PA chief, Lt. Col. Antoinette T. Kemper, relies not only on those provisions but also on just about anything else in the base's anti-free-speech toolbox -- e.g.:
(1) (Re: "the 'Gulf of Persia' Resolution"): "This is in response to your request received via our website. First of all, thanks for your interest in advertising in the Lackland Talespinner. However, I cannot publish this in our classified ads. The base newspaper is our commander's primary internal information product to keep the base community informed about command policies, issues and events. Since the primary audience is comprised of servicemembers, it would be contrary to good order and discipline to publish statements against our Commander in Chief." (Dec. 13, 2004)
(2) (Re: Depleted-uranium contamination): "Respectfully suggest you find a more suitable media outlet than a base newspaper for your platforms. There are many commercial media publications who would run your ads for an appropriate fee." (Dec. 14, 2004); and: "First of all, your proposed text isn't a classified ad. More relevant, however, is the subject matter. Air Force newspapers support Air Force command leadership communication requirements. I'm responsible for ensuring content is objective and communicates command priorities. Editorial material cannot imply criticism of other government agencies nor advocate political positions. This is directly in accordance with Air Force policy and instructions." (Dec. 14, 2004) LWB Note: while she's at it, why doesn't Kemper try, single-handedly, to reinstate the Sedition Act of 1798?
If, in the package of "responsive records," there be anything near a "smoking gun" revelation (or a hidden passageway to/from officialdom's mind-set), it has to be the e-message sent Dec. 13, 2004, by one Wayne Bryant, a subordinate of Kemper's. He addresses it to the "Talespinner's" commercial printer, stating: "Sylvia - Just in case you get this ad [re the "'Gulf of Persia' Resolution"]. Please don't run it. We're getting a reading from the Legal folks and will respond directly to him [i.e., to Larry W. Bryant] concerning him not being able to run the ad. Thanks in advance." To which, on Dec. 21, Sylvia replied: "Will be on the lookout. Thank you - SB." Thus has the Lackland hierarchy, in a behind-the-scenes collusion with its contract printer, preempted that printer's sole authority to pass judgment on a proposed ad's content. And the USAF inspector general merely winks as the PA community continues to violate its own regulatory standards.
Coming, so ironically as it does, from a public affairs officer, Kemper's unabashed "viewpoint discrimination" (a cardinal sin in First Amendment jurisprudence) puts the Air Force in both a tenuous and an embarrassing position. It will fail judicial scrutiny, and it even may leave an indelible mark upon the U. S. military establishment's integrity and credibility. When Kemper's ad-rejection rationale arrives in court, the judge probably will take his cue from a key lesson in First Amendment history, as pointed out by eminent First Amendment litigator Floyd Abrams in his 2005 memoir "Speaking Freely: Trials of the First Amendment": ". . . there always seemed to be plausible-sounding reasons to stop publication of a controversial work or to punish it when it occurred."
With her hands, feet, and tongue now firmly stuck in the First Amendment's tarbaby, will Kemper soon will have to experience wave after wave of SELF-punishment?