Chapter Eight

Popular Struggle

1. For the U.S. Constitution's provision that blacks are three-fifths human, see Article I, Section 2 (emphasis added):

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons [i.e. the slaves].

In 1865, the Thirteenth Amendment outlawed slavery; and in 1868, the Fourteenth Amendment's Section 2 implicitly removed the notion that the former slaves were "three fifths" people, stating:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.

2. On free speech cases in the U.S. Supreme Court, see for example, Harry Kalven, A Worthy Tradition: Freedom of Speech in America, New York: Harper & Row, 1988. An excerpt (p. xv):

The First Amendment has been part of the Constitution and of American life since 1791. Yet it was only during World War I that the process of defining freedom of speech by means of judicial review really got started. . . . [A]s of the cutoff date of this book, 1974, more than 50 percent of all First Amendment cases had been decided since 1959 -- in other words, more than half were the work of the Warren Court.

3. The Sedition Act, 1 Stat. 596 (1798) [The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845, Boston: Little, Brown, 1848, Vol. I, p. 596 (published by Authority of Congress)], provided in part:

That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them or either or any of them, the hatred of the good people of the United States . . . then such person being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

For commentary, see Harry Kalven, A Worthy Tradition: Freedom of Speech in America, New York: Harper & Row, 1988. An excerpt (p. 64):

The apparent qualifications on the face of the Act as to falsity and malice were illusory, since . . . under the common law of defamation, if a statement was judged defamatory, malice and falsity were assumed, leaving the burden of proof on the defendant. . . . When Jefferson came to power in 1800 . . . he pardoned the violators still in prison.

On prosecutions under the Sedition Act, see for example, Leonard Levy, Emergence of a Free Press, New York: Oxford University Press, 1985. An excerpt (pp. 201-202, 300, 307-308):

[There was an] entire corpus of prosecutions for seditious libel under the Sedition Act of 1798. . . . President Adams willingly signed the Sedition Act and eagerly urged its enforcement, and Cushing, then an associate justice of the Supreme Court of the United States, presided over some of the trials and charged juries on the constitutionality of the statute. . . . [T]he Sedition Act, the capstone of the new Federalist system, expressed the easy rule of thumb offered by the party organ in the nation's capital, "He that is not for us, is against us. . . ." Incapable of distinguishing dissent from disloyalty, the Federalists easily resorted to legal coercion to control public opinion for party purposes. . . .

In a memorandum of 1801 President Jefferson . . . dismiss[ed] the prosecution, initiated under his predecessor, against William Duane, the republican editor of the Philadelphia Aurora, who had been indicted under the Sedition Act. . . . Yet the hard fact remains: Jefferson, Madison, Gallatin, Livingston, Nicholas, and Macon explicitly endorsed the power of the states to prosecute seditious and other criminal libels . . . [and] either endorsed the basic concept of . . . the criminal responsibility of the writer or printer for abuse of his rights, or they failed to oppose it.

David Kairys, "Freedom of Speech," in David Kairys, ed., The Politics of Law: A Progressive Critique, New York: Pantheon, 1982 (revised and expanded edition 1990), pp. 237-272. An excerpt (p. 242):

The most prominent person prosecuted under the Sedition Act was Matthew Lyon, a member of Congress critical of the Federalists [the governing political party]. Lyon was imprisoned and his house sold to pay his fine (nevertheless he was reelected in the next election). The longest prison term, two years, was served by a laborer for erecting a sign on a post that read, in part, NO STAMP ACT, NO SEDITION . . . DOWNFALL TO THE TYRANTS OF AMERICA, PEACE AND RETIREMENT TO THE PRESIDENT.

4. The Espionage Act, 40 Stat. 219 (1917), as amended 40 Stat. 553 (1918) [Statutes at Large of the United States of America from April, 1917, to March, 1919, Washington: U.S. Government Printing Office, 1919, Vol. 40, pp. 217f, 553-554], provided in part:

Whoever, when the United States is at war, shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the flag of the United States, or bring the uniform of the Army or Navy of the United States into contempt, scorn, contumely, or disrepute, or shall willfully utter, print, write, or publish any language intended to incite, provoke, or encourage resistance to the United States, or to promote the cause of its enemies, or shall willfully display the flag of any foreign enemy, or shall willfully by utterance, writing, printing, publication, or language spoken, urge, incite, or advocate any curtailment of production in this country of any thing or things, product or products, necessary or essential to the prosecution of the war in which the United States may be engaged, with intent by such curtailment to cripple or hinder the United States in the prosecution of the war, and whoever shall willfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated, and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.

Eugene Debs's conviction and ten-year prison sentence for having "caused and incited and attempted to cause and incite insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States and with intent so to do delivered, to an assembly of people, a public speech," was upheld by the Supreme Court. See Debs v. United States, 249 U.S. 211 (1919). Justice Oliver Wendell Holmes's opinion, rejecting the idea that the First Amendment protected Debs's speech, summarized the facts of the case:

The speaker began by saying that he had just returned from a visit to the workhouse in the neighborhood where three of their most loyal comrades were paying the penalty for their devotion to the working class -- these being Wagenknecht, Baker and Ruthenberg, who had been convicted of aiding and abetting another in failing to register for the draft. . . . He said that he had to be prudent and might not be able to say all that he thought, thus intimating to his hearers that they might infer that he meant more, but he did say that those persons were paying the penalty for standing erect and for seeking to pave the way to better conditions for all mankind. Later he added further eulogies and said that he was proud of them. He then expressed opposition to Prussian militarism in a way that naturally might have been thought to be intended to include the mode of proceeding in the United States. . . .

The defendant spoke of other cases, and then, after dealing with Russia, said that the master class has always declared the war and the subject class has always fought the battles -- that the subject class has had nothing to gain and all to lose, including their lives; that the working class, who furnish the corpses, have never yet had a voice in declaring war and never yet had a voice in declaring peace. "You have your lives to lose; you certainly ought to have the right to declare war if you consider a war necessary. . . ." The rest of the discourse . . . [involved] the usual contrasts between capitalists and laboring men, sneers at the advice to cultivate war gardens, attribution to plutocrats of the high price of coal, &c., with the implication running through it all that the working men are not concerned in the war, and a final exhortation, "Don't worry about the charge of treason to your masters; but be concerned about the treason that involves yourselves."

For the New York Times's attitude towards Debs's right to free speech twenty years earlier, see Editorial, New York Times, July 9, 1894, p. 4. An excerpt:

[Debs] is a lawbreaker at large, an enemy of the human race. There has been quite enough talk about warrants against him and about arresting him. It is time to cease mouthings and begin. Debs should be jailed, if there are jails in his neighborhood, and the disorder his bad teaching has engendered must be squelched. Gen. Miles evidently intends to squelch it. It may be a rude business, but it is well to remember that no friends of the Government of the United States are ever killed by its soldiers -- only its enemies.

5. The Smith (or "Alien Registration") Act, 54 Stat. 671, 18 U.S.C. §2385 (1940) [United States Statutes at Large, 1939-1941, Washington: U.S. Government Printing Office, 1941, Vol. 54, pp. 670-676], provided in part:

It shall be unlawful for any person . . . to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government . . . [or] to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof.

The legal scholar Harry Kalven stresses the conduct for which Smith Act criminal convictions were upheld (A Worthy Tradition: Freedom of Speech in America, New York: Harper & Row, 1988, p. 191):

The exact charge is not advocating overthrow. Nor is it conspiring to overthrow, no doubt the Government's real grievance. Rather it is conspiring to advocate overthrow and conspiring to organize a group to advocate overthrow.

For examples of Smith Act prosecutions, see footnote 6 of this chapter.

6. For some significant Supreme Court rulings upholding sedition prosecutions under the U.S. Constitution's First Amendment, see for example, Dennis v. United States, 341 U.S. 494 (1951)(approving the constitutionality of the Smith Act in an appeal by eleven American Communist Party leaders convicted of "advocacy" and "organizing," because there was a "clear and present danger" that their revolutionary Marxist teachings would succeed in the United States; a dissenting opinion points out that the conduct underlying these convictions was "organiz[ing] people to teach and themselves teach[ing] the Marxist-Leninist doctrine contained chiefly in four books" which remained in full and free circulation); Scales v. United States, 367 U.S. 203 (1961)(upholding a Smith Act conviction for "membership" in a group whose teachings advocated violent overthrow, i.e. the Communist Party); Frohwerk v. United States, 249 U.S. 204 (1919)(upholding a conviction for conspiracy to obstruct military recruiting with a ten-year prison sentence, solely for publishing a newspaper that suggested that the war was wrong, that it was being fought "to protect the loans of Wall Street," and which depicted the sufferings of a drafted man in a way "made as moving as the writer was able to make it").

For an early case delineating the scope of Constitutional free speech protections, see Davis v. Massachusetts, 167 U.S. 43 (1897). This case accepted as consistent with the Constitution the arrest and punishment of Reverend William F. Davis, an evangelist and opponent of slavery and racism, for preaching the Gospel on the Boston Common, a public park. The decision quotes Oliver Wendell Holmes's opinion for the Supreme Court of Massachusetts, which also upheld the conviction, analogizing as follows: "For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house."

For commentary on the history of sedition prosecutions in the U.S., see David Kairys, "Freedom of Speech," in David Kairys, ed., The Politics of Law: A Progressive Critique, New York: Pantheon, 1982 (revised and expanded edition 1990). An excerpt (pp. 250-251):

[Although there were] over two thousand prosecutions . . . [n]one of the Espionage Act convictions was reversed by the Supreme Court on First Amendment grounds. . . . [As Harvard law professor Zechariah Chafee concluded after a detailed examination of these prosecutions,] "the courts treated opinions as statements of fact and then condemned them as false because they differed from the President's speech or the resolution of Congress declaring war. . . . [I]t became criminal to advocate heavier taxation instead of bond issues, to state that conscription was unconstitutional . . . to urge that a referendum should have preceded our declaration of war, to say that war was contrary to the teachings of Christianity. Men have been punished for criticizing the Red Cross and the Y.M.C.A."

For more on the suppression of dissent in the U.S. generally, see for example, Murray B. Levin, Political Hysteria in America: the Democratic Capacity for Repression, New York: Basic Books, 1971, ch. 2 (on the Red Scare of 1919); Robert Murray, Red Scare: A Study of National Hysteria, 1919-1920, Minneapolis: University of Minnesota Press, 1955; William Preston, Aliens and Dissenters: Federal Suppression of Radicals, 1903-1933, Cambridge: Harvard University Press, 1963 (second edition 1994); Robert J. Goldstein, Political Repression in Modern America: From 1870 to the Present, Cambridge: Schenkman, 1978 (tracing U.S. government repression of dissent from the post-Civil War labor movement through the Black Panthers and anti-Vietnam War movement); David Brion Davis, ed., The Fear of Conspiracy: Images of Un-American Subversion From the Revolution to the Present, Ithaca: Cornell University Press, 1971 (reviewing a vast literature of alarmism in the U.S., starting in the days of George Washington); James Aronson, The Press and the Cold War, New York: Monthly Review, 1970; Harold L. Nelson, ed., Freedom of the Press from Hamilton to the Warren Court, Indianapolis: Bobbs-Merrill, 1967, especially "Introduction" (giving an overview and chronology of the topic) and pp. 253-263 (on repression during World War I, noting that U.S. Postmaster Burleson barred a pamphlet on the suffering under British Rule in India, and removed from a Catholic journal a statement by the Pope in which he said that "no man can be loyal to his country unless he first be loyal to his conscience and his God"); Howard Zinn, A People's History of the United States: 1492-Present, New York: HarperCollins, 1980 (revised and updated edition 1995) (in general, an extremely important book).

7. For the Schenck case, see Schenck v. United States, 249 U.S. 47 (1919). Schenck was the secretary of the Socialist Party, in charge of the headquarters from which the leaflets were sent. He did not write the leaflet, he merely arranged to have fifteen thousand copies printed and mailed. Harry Kalven points out (A Worthy Tradition, New York: Harper & Row, 1988, p. 131):

[T]he Schenck leaflet is startlingly mild. One side simply presented an argument that conscription violated the involuntary servitude prohibition of the Thirteenth Amendment. It contained references to "venal capitalist newspapers," "gang politicians," and "monstrous wrongs against humanity." The action words were: " . . .join the Socialist Party in its campaign for the repeal of the Conscription Act. Write to your congressman. . . . You have a right to demand the repeal of any law. Exercise your rights of free speech, peaceful assemblage and petitioning the government for a redress of grievances . . . sign a petition to congress for a repeal of the Conscription Act. Help us wipe out this stain upon the Constitution!" [The] . . . most strongly worded sentence [of the other side of the leaflet was:] "Will you let cunning politicians and a mercenary capitalist press wrongly and untruthfully mould your thoughts? . . .Do not forget your right to elect officials who are opposed to conscription."

For another so-called "victory" for freedom of speech, see Near v. Minnesota, 283 U.S. 697, 713-714 (1931)(holding that the First Amendment bars prior restraint of speech or publication, but not punishment afterwards if the thoughts are then held to be unacceptable).

8. For the case striking down seditious libel laws in the U.S., see New York Times v. Sullivan, 376 U.S. 254, 273, 276 (1964). Justice Brennan's words:

Authoritative interpretations of the First Amendment's guarantees have consistently refused to recognize an exception for any test of truth. . . . [Injury] to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. . . . If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798 . . . which first crystallized a national awareness of the central meaning of the First Amendment. . . . Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . These views [i.e. of men from Thomas Jefferson to Harvard Professor Zechariah Chafee] reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.

9. For Kalven's book, see Harry Kalven, A Worthy Tradition: Freedom of Speech in America, New York: Harper & Row, 1988. His exact words (p. 63):

In my view, the presence or absence in the law of the concept of seditious libel defines the society. A society may or may not treat obscenity or contempt by publication [i.e. commenting on or disclosing evidence from pending court cases, another category of speech that can be constrained by the government,] as legal offenses without altering its basic nature. If, however, it makes seditious libel an offense, it is not a free society, no matter what its other characteristics.

10. For the case employing the "incitement to a criminal act" standard, see Brandenburg v. Ohio, 395 U.S. 444 (1969). Note that the "clear and present danger" test actually is not mentioned in the majority's opinion. Concurring opinions by Justices Black and Douglas called for its abandonment -- but the majority simply applied the stricter "inciting or producing imminent lawless action and . . . likely to incite or produce such action" standard.

Chomsky remarks (Deterring Democracy, New York: Hill and Wang, 1991, p. 400):

It is also worth recalling that victories for freedom of speech are often won in defense of the most depraved and horrendous views. Th[is] Supreme Court decision was in defense of the Ku Klux Klan from prosecution after a meeting with hooded figures, guns, and a burning cross, calling for "burying the nigger" and "sending the Jews back to Israel." With regard to freedom of expression there are basically two positions: you defend it vigorously for views you hate, or you reject it in favor of Stalinist/Fascist standards.

11. On the Zundel case and Canada's "False News" and "Anti-Hate" laws, see for example, Douglas Martin, "Canadian Wins Appeal on Anti-Jewish Book," New York Times, March 27, 1985, p. A14. An excerpt:

A Toronto publisher, Ernst Zundel, was convicted last month of maliciously spreading false news, specifically that the Holocaust did not happen. On Monday, he was sentenced to 15 months in prison and 3 months' probation. . . . Jewish groups in Toronto said that they had begun compiling petitions to deport Mr. Zundel. . . . Earlier, leading members of the opposition Liberal Party had urged his deportation. . . . [The] False News Law . . . is aimed at anything printed that harms the community, not specifically hate literature.

This article also notes that Mr. James Keegstra of Alberta was prosecuted under Canada's "Anti-Hate" law, and that a Canadian appellate court ultimately decided that Keegstra would be allowed to "keep a book that had been confiscated on the ground that it was anti-Semitic."

See also, Douglas Martin, "Anti-Semite Is On Trial, But Did Ontario Blunder?," New York Times, February 15, 1985, p. A2. An excerpt:

A native of Germany who has lived in Canada for 28 years, Mr. Zundel [author of "The Hitler We Loved and Why"] is accused of knowingly publishing two pieces of false news detrimental to the public interest, specifically news likely to incite intolerance. . . . [T]he issue in this case is whether the views Mr. Zundel expressed about the mass killing of Jews are false under Canada's law against false news. As a result, their merits must be thoroughly discussed. . . .

Similar issues were raised in the 1981 conviction in France of Robert Faurisson, a French historian who called the mass killing [in the Holocaust] "a giant historical lie. . . ." He was convicted of libel, racial defamation and of not upholding his responsibility as a historian.

In 1992, the Canadian Supreme Court overturned Zundel's conviction by a 5-4 vote on the ground that the "false news" law conflicted with the Canadian Charter of Rights and Freedoms. A few years later, however, Canadian prosecutors still were attempting to punish Zundel and others for their speech. See for example, "Anti-Semitic Site Tests Canada Law," International Herald Tribune, August 3, 1998, Finance section, p. 11. An excerpt:

Just days after a pro-Nazi trilogy of novels called "Lebensraum!" was published in the United States last April, Canadian customs agents confiscated a shipment of the books at the border, contending that they promote hatred against Jews and violate Canada's anti-hate laws. . . . Canadian customs agents regularly seize books, magazines and compact disks that violate standards of decency or promote hate. Now, for the first time, there is a serious attempt to address the issue of the same kind of material on the Internet. The Canadian Human Rights Commission has charged Mr. Zundel with spreading hate propaganda and is intent on shutting down [a web site run by a Californian but called] "Zundelsite." The commission contends that although the site is run from California, Mr. Zundel controls its content and thus can be prosecuted under Canadian laws.

12. For the editorial supporting the Zundel verdict, see Editorial, "The Big Lie of the Neo-Nazis," Boston Globe, March 2, 1985, p. 14.

13. On the British police raid on the B.B.C. and freedom of speech in England, see for example, Geoffery Robertson, Freedom, The Individual and The Law, London: Penguin, Seventh Edition, 1993 (a "guide to citizens' rights" and an "up-to-the-minute account of civil liberties -- and the lack of them -- in Britain"). An excerpt (pp. 165-166, 275):

The Official Secrets Act offers remarkably extensive powers of search and seizure which sidestep some of the safeguards in P.A.C.E. [the Police And Criminal Evidence Act]. This came dramatically to public attention in 1987, when Special Branch officers raided the B.B.C. offices in Glasgow and seized all master tapes of Duncan Campbell's Secret Society series, raided the homes of three New Statesmen journalists and spent over four days examining files in the offices of that magazine. . . . The whole episode related to Duncan Campbell's exposure of "Project Zircon," a £5-million spy satellite being planned by the MoD [Ministry of Defence] to put Britain in the business of eavesdropping from space. . . . The Government's case for suppression was undermined both by the fact that the project seemed to be common knowledge amongst defence contractors and by the impossibility of keeping the satellite a secret from the Russians once it was launched. . . .

The Home Secretary's power to ban broadcasts . . . was invoked in 1988 for the purpose of direct political censorship when the B.B.C. and the I.B.A. were ordered not to transmit any interviews with representatives of Sinn Fein, the Ulster Defence Association, or the I.R.A., or any statement which incited support for such groups. . . . The ban is a serious infringement on the right to receive and impart information: it prevents representatives of lawful political parties (Sinn Fein has an M.P. and sixty local councillors) from stating their case on matters which have no connection with terrorism, and it denies to the public the opportunity to see and hear those who support violent action being questioned and exposed. . . . The ban prevents the re-screening of such excellent programmes as Robert Kee's Ireland: a Television History or Thames Television's The Troubles, which contain interviews with I.R.A. veterans.

See also, "Bid to Prosecute Rushdie Is Rejected," New York Times, April 10, 1990, p. C16. An excerpt:

England's High Court today rejected a Muslim group's request to prosecute Salman Rushdie and the publishers of his novel "The Satanic Verses" on charges of blasphemy and seditious libel. . . . [The court upheld a ruling] that England's blasphemy law applied only to Christianity, not to other religions, including Islam. . . . The judges agreed . . . that for seditious libel to be proven, the evidence must show -- "and it did not" -- that an attack was made "against Her Majesty or Her Majesty's Government or some other institution of the state. . . ."

The last prosecution for blasphemy [in England] was in 1979, when the magazine Gay News was convicted under the law of publishing a poem that depicted Jesus as a homosexual.

14. Chomsky recounts some examples of official censorship in France and Spain (Necessary Illusions: Thought Control in Democratic Societies, Boston: South End, 1989, p. 344):

In 1988 . . . the government of France, under no threat, "prohibited the sale, circulation and distribution" of a Basque book on grounds that it "threatened public order," and banned publication of the journal El-Badil Démocratique that supports Algerian dissidents on grounds that "this publication might harm the diplomatic relations of France with Algeria." The director of the Basque journal Abil was sentenced to twenty months in prison by the French courts for having published an "apology for terrorism," while the Spanish courts fined a Basque radio station for having broadcast insults to the King on a call-in radio show and the government brought three activists of a political group to trial on charges of "publication, circulation and reproduction of false information that might disturb public order," among many other cases of punishment of public statements and cancellation of peaceful demonstrations [see El Pais (Madrid), May 3, 1988; Egin (San Sebastian), June 28, August 2, June 22, July 24, 28, 1988].

15. On domestic violence after the Superbowl, see for example, Bob Hohler, "Super Bowl gaffe: Groups back off on violence claims," Boston Globe, February 2, 1993, p. 1 (while the claim that Superbowl Sunday is the single worst day of the year for domestic abuse cannot be substantiated, certain cities reported a notable increase of domestic violence on that day; advocates for battered women maintain that "the increase in domestic violence on Super Bowl Sunday is similar to other key days of the year, like Christmas and Thanksgiving," but the previously-voiced speculation that it increases by 40 percent on that day is not supported).

16. On the privatization of radio in the United States, see for example, Robert W. McChesney, Telecommunications, Mass Media & Democracy: The Battle for the Control of U.S. Broadcasting, 1928-1935, Oxford, U.K.: Oxford University Press, 1993; Robert W. McChesney, Rich Media, Poor Democracy: Communication Politics in Dubious Times, Urbana: University of Illinois Press, 1999, chs. 4 and 5; Robert W. McChesney, "Conflict, Not Consensus: The Debate over Broadcast Communication Policy, 1930-1935," in William Solomon and Robert McChesney, eds., Ruthless Criticism: New Perspectives in U.S. Communication History, Minneapolis: University of Minnesota Press, 1993, ch. 10 (on the unsuccessful broadcast reform movement that arose in the U.S. in the 1930s).

17. On the privatization of television in the United States, see for example, Robert W. McChesney, Rich Media, Poor Democracy: Communication Politics in Dubious Times, Urbana: University of Illinois Press, 1999, p. 126; Robert W. McChesney, Telecommunications, Mass Media & Democracy: The Battle for the Control of U.S. Broadcasting, 1928-1935, Oxford: Oxford University Press, 1993, p. 250.

18. The N.A.F.T.A. that was enacted substantially increases the mobility of North American investors, and reduces the capacity of governments to regulate business effectively. It does this in three main ways:

(1) By improving the "security" of investments in Mexico against "loss of value" due to regulation or competition from government monopolies or enterprises. This is done in part by reducing trade barriers and extending legal protections for "investor property" and "intellectual property" rights. These protections increase the mobility of transnational corporate investment and exert new pressures on Canadian and American governments -- particularly strong at the state and local level -- to reduce regulatory standards and reduce corporate taxes so as to maintain a "competitive" environment for corporate capital investment.

(2) It imposes new legal restrictions on regulation of corporations, in part through unsustainable "compensation" burdens that must be paid by governments (i.e. the government must "compensate" companies when regulations harm corporate profits). This has an especially significant impact on labor and environmental standards enacted at all levels of government in the three countries, which like other forms of regulation under N.A.F.T.A. are subjected to the strictest degree of legal scrutiny or else held invalid. Thus, all other policy objectives are subordinated to the objective of increasing the free movement of goods, services and investment across borders.

And (3) the treaty increases the domestic political power of foreign corporations by creating new common ground between their interests and those of domestic businesses, because any effort to regulate foreign investors also applies to domestic investors under the "National Treatment" principle. Consequently, these regulatory efforts will be resisted by the political power of both domestic and foreign businesses (which in effect includes all transnational corporations, since rights under the treaty apply to any company incorporated in a N.A.F.T.A. country, regardless of its country of origin). Furthermore, government regulations can be contested easily and inexpensively by individual investors, who under N.A.F.T.A. may launch their own challenges without securing the assistance of their national government, in either an international tribunal with binding arbitration powers or in the domestic courts.

The side deals on minimal labor and environmental standards, appended to the N.A.F.T.A. to secure its passage in the face of significant popular opposition, were weak and possibly even counterproductive. See for example, Ian Robinson, North American Trade As If Democracy Mattered: What's Wrong with N.A.F.T.A. and What Are the Alternatives?, Ottawa: Canadian Centre for Policy Alternatives/ Washington: International Labor Rights Education and Research Fund, 1993, pp. 37-47. This careful study concludes (pp. 44, 47):

[T]he side deals actually represent a step backwards. . . . Notwithstanding the important symbolic gain that the side deals represent, they are far too weak to offset the negative impacts that the N.A.F.T.A. will have. Even considered on their own, they weaken rather than supplementing and strengthening domestic trade law provisions protecting international worker rights and labour standards, resulting in a net loss in the economic leverage that can be exercised in their defence. Consequently, the N.A.F.T.A., with or without the side deals that have just been completed, will carry North America further down the undesirable road it traveled in the 1980s, and at an accelerating pace. In effect, it will push the pedal to the floor. In the process, the N.A.F.T.A. package will further dim economic development and democratic prospects in all three countries.

For a revealing case that illustrates the effects that N.A.F.T.A. can have on environmental and other laws, see Laura Eggertson, "Ethyl sues Ottawa over M.M.T. law," Globe and Mail (Toronto), April 15, 1997, p. B4. An excerpt:

The U.S. manufacturer of a gasoline additive is seeking nearly $350-million in damages from Ottawa, the first time Canadian taxpayers could feel the effect of a provision in the North American free-trade deal that gives corporations the right to sue governments for breaking promises. Ethyl Corp. based in Richmond, Va., filed a claim with the Justice Department yesterday that accuses the [Canadian] federal government of breaching its obligations under N.A.F.T.A. by passing Bill C-29. The bill, which the [Canadian] Senate passed last week, bans the importation and trade among provinces of M.M.T. The fuel additive was designed to boost octane in gasoline. But the federal government says M.M.T. could cause health ailments. . . . Two other cases have been filed against the Mexican government by the U.S. waste management industry. . . .

"It could be a major headache," Mr. Dattu [a trade lawyer with McCarthy Tetrault] said in a telephone interview from Toronto. "There is a potential for abuses of these provisions. You could certainly see an aspect to them that could verge on harassment." The harassment potential increases because companies no longer have to persuade governments to argue a case on their behalf, as they did under the Canada-U.S. free-trade deal. For instance, Ethyl Corp. does not have to convince the U.S. Trade Representative's office to challenge the import ban on M.M.T. Canada is one of the few countries that still use the additive. . . . Ethyl, the lone North American manufacturer of M.M.T., claims the government's ban amounts to expropriation without compensation for Ethyl Canada.

John Urquhart, "Canada Removes Its Ban on Ethyl Corp.'s Additive," Wall Street Journal, July 21, 1998, p. A2. An excerpt:

The Canadian government, faced with the prospect of losing a costly trade fight, decided to lift its ban against a manganese-based gasoline additive produced by Ethyl Corp., Richmond, Va. . . . The auto industry, which campaigned for the M.M.T. ban, said the additive hampers electronic systems in automobiles that monitor tailpipe emissions, thereby potentially contributing to air pollution. Ethyl welcomed the government's decision to lift the restrictions against M.M.T. and said it will terminate legal actions against Canada.

See also, Joel Millman, "Metalclad Is First to Sue Mexico Under Nafta," Wall Street Journal, October 14, 1997, p. A2. An excerpt:

Metalclad Corp., a hazardous-waste management firm, has become the first U.S. company to sue the Mexican government under the protection of foreign-investment provisions outlined by the 1993 North American Free Trade Agreement. Metalclad, of Newport Beach, Calif., is asking for $90 million in damages for what it says were actions taken by Mexican officials that prevented the opening of a hazardous-waste landfill site the company built in 1995 in the state of San Luis Potosi. . . . According to Metalclad's complaint, [the governor] Mr. Sanchez effectively expropriated the site when he declared it part of a 600,000-acre ecological zone.

Scott Morrison and Edward Alden, "Ottawa faces claim over P.C.B. waste ban," Financial Times (London), September 2, 1998, p. 4. An excerpt:

A U.S. company specializing in the clean-up of hazardous wastes is seeking C$10m (U.S.$6.3m) in compensation from the Canadian government over Ottawa's ban on the export of polychlorinated biphenyls (P.C.B.) waste. The claim, filed under the investor-state arbitration provisions of the North American Free Trade Agreement (Nafta), charges that Canada's 1995 ban amounted to an expropriation of the business of S.D. Myers, an Ohio-based company. The case is the second in as many months to raise fears that Canada's ability to uphold its environmental laws has been curtailed by Nafta's investment protection provision.

Nafta allows a foreign corporation to request compensation through binding arbitration if a government directly or indirectly expropriates that company's investment in that country. . . . S.D. Myers alleges that a 1995 ban on exports of P.C.B.s, a highly toxic coolant used in electricity transformers, prohibited it from conducting business in Canada and benefited its Canadian competitors.

In both the Metalclad and S.D. Myers cases, the N.A.F.T.A. tribunal ruled for the corporations. See "N.A.F.T.A. Panel Sides With Metalclad On Claim," Los Angeles Times, August 31, 2000, p. C3; "S.D. Myers wins N.A.F.T.A. Claim against Canada," Canada NewsWire, November 13, 2000 (available on Nexis database).

19. For the Office of Technology Assessment's report, see U.S. Congress, Office of Technology Assessment, U.S.-Mexico Trade: Pulling Together or Pulling Apart?, I.T.E.-545, Washington: U.S. Government Printing Office, October 1992.

20. For denunciations of the labor movement's supposed position, see for example, Anthony Lewis, "If Nafta Loses," New York Times, November 5, 1993, p. A35. An excerpt:

The arguments made against Nafta by such significant opponents as the United Auto Workers seem to me to come down to fear of change and fear of foreigners. . . . Unions in this country, sad to say, are looking more and more like the British unions that have become such a millstone around the neck of the Labor Party: backward, unenlightened. . . . The crude threatening tactics used by unions to make Democratic members of the House vote against Nafta underline the point.

Bob Davis and Jackie Calmes, "Drawing Back: Nafta's Odds Improve, But U.S. May Reduce Its Trade Leadership," Wall Street Journal, November 17, 1993, p. A1. An excerpt:

The coalition [of N.A.F.T.A. opponents] ties together labor unions, upscale environmentalists, suburban Perot supporters and thousands of local activists nationwide, all convinced that trade is a sucker's game played for the benefit of multinational corporations. Their rhetoric is pure down-with-the-rich populism. . . .

The conspiratorial, antielitist arguments made by Nafta foes may resonate even more loudly with G.A.T.T. [the General Agreement on Tariffs and Trade] -- an obscure but powerful trade organization tucked away in Switzerland and run by bureaucrats unknown in the U.S. G.A.T.T. arbitration panels meet in secret, don't make their findings public and deem U.S. environmental laws improper if they block trade. And the G.A.T.T. deal now being negotiated . . . proposes to increase the G.A.T.T. bureaucracy's power, and decrease U.S. authority to use trade sanctions to protect the environment or the domestic economy.

See also, John Aloysius Farrell, "Clinton rips labor on N.A.F.T.A.; Points to 'pressure' in tactics," Boston Globe, November 8, 1993, p. 1. An excerpt:

President Clinton said yesterday that the "roughshod, muscle-bound tactics" of organized labor have proved to be the greatest obstacle in winning congressional approval of the North American Free Trade Agreement. . . .

Members of Congress are complaining to him that the business community is not working hard enough for N.A.F.T.A., while union representatives are "pleading . . . based on friendship, or threatening . . . based on money and work in the campaign," Clinton said. . . . But "at least for the undecided Democrats, our big problem is the raw muscle, the sort of naked pressure that the labor forces have put on," said Clinton.

Editorial, "Running Scared From N.A.F.T.A.," New York Times, November 16, 1993, p. A26. An excerpt:

Local Democrats fear the wrath of organized labor. And well they should. As the accompanying table shows, labor political action committees contribute handsomely to their election campaigns. Though it's impossible to say just how much the P.A.C. money explains opposition to Nafta, there's an unsettling pattern.

Note that this lead New York Times editorial, the day before the N.A.F.T.A. vote, was not accompanied by any table listing corporate contributions.

After much wailing about the terrifying power of labor, the day after the N.A.F.T.A. vote the Times ran a front-page story which revealed the truth: that corporate lobbying utterly overwhelmed the pathetic efforts of the labor movement. The article even spoke the usually forbidden words "class lines." See Michael Wines, "After Marathon of a Debate, A 6-Minute Dash to Settle It," New York Times, November 18, 1993, p. A1. An excerpt:

President Clinton and his Congressional supporters played the Oscar-quality underdog during the week leading up to tonight's vote on the North American Free Trade Agreement. But anyone who looked inside the offices of the lobbyists for and against the accord walked away with a different view of the fight.

The lobbyists supporting the agreement -- Chamber of Commerce types, accountants, trade consultants -- occupied a stately conference room on the first floor of the Capitol, barely an elevator ride away from the action in the House chamber. Murals plastered the ceilings outside. Weighty quotations ("We Defend and We Build a Way of Life Not for America Alone, but for All Mankind") were inscribed above every door. A television was installed. Cellular telephones were everywhere -- not clunky low-rent models, but the teeny ones that fold to the size of lemons. . . .

The boiler room for the forces opposed to the pact, by contrast, was more of, well, a boiler room. Set in the spectacularly ugly Rayburn House Office Building, in a barren hearing room of the Education and Labor Committee, it was two elevators, a subway and a long walk from the House debate. The dress was union-label, inexpensive suits and nylon jackets inscribed with numbers and insignias of various locals. There was a telephone, decidedly not portable, and basic black. . . . The fight over the trade accord was a nastier and more divisive battle, a class-lines split that cleaved both parties and left everyone feeling sullen.

On the media's coverage in general before N.A.F.T.A. was passed, see for example, Fairness and Accuracy in Reporting, "Happily Ever N.A.F.T.A.?," Extra!: Update, October 1993, p. 1 (a comprehensive survey of coverage of N.A.F.T.A. in the New York Times and Washington Post from April through July 1993 found that of 201 sources quoted by name, only 6 -- 3 percent -- represented the environmental movement, and "[n]o representative of a labor union was quoted during the four-month period." "In all, 68 percent of quoted sources had pro-N.A.F.T.A. positions, with 66 percent in the Times and 71 percent in the Post in favor. Only 20 percent of the two papers' sources were opposed to N.A.F.T.A. -- 24 percent in the Times, 17 percent in the Post. In other words, almost three times as many sources were defenders of N.A.F.T.A. as critics in the New York Times; in the Post, the ratio was more than four to one").

On the U.S. public's attitude towards N.A.F.T.A., see for example, Gwen Ifill, "The Free Trade Accord: The Mood; Americans Split on Free Trade Pact," New York Times, November 16, 1993, p. A1 (reporting a New York Times/C.B.S. poll the week of the N.A.F.T.A. vote which, despite the massive media barrage in favor of the trade pact, revealed that the public still opposed it by 41 percent to 37 percent, with a 3 percent margin of sampling error).

For some of the ignored "constructive" proposals about N.A.F.T.A., see American Federation of Labor & Congress of Industrial Organizations, International Trade: Where We Stand, Washington: A.F.L.-C.I.O., 1992; J. Faux and W. Spriggs, U.S. Jobs and the Mexico Trade Proposal, Washington: Economic Policy Institute, 1992; G.C. Hufbauer and J. Schott, North American Free Trade: Issues and Recommendations, Washington: Institute of International Economics, 1992; Ian Robinson, North American Trade As If Democracy Mattered: What's Wrong with N.A.F.T.A. and What Are the Alternatives?, Ottawa: Canadian Centre for Policy Alternatives/ Washington: International Labor Rights Education and Research Fund, 1993, pp. 29-36; Kristin Dawkins, N.A.F.T.A.: The New Rules of Corporate Conquest, Westfield, NJ: Open Magazine Pamphlet Series, 1993. See also footnote 22 of this chapter.

21. For the Trade Act, see 19 U.S.C.A. §2155 [original: P.L. 93-618, 88 Stat. 1978 (1974)].

22. For the Labor Advisory Committee's report, see Labor Advisory Committee for Trade Negotiations and Trade Policy, Preliminary Report of the Labor Advisory Committee For Trade Negotiations and Trade Policy on The North American Free Trade Agreement, Submitted to the President Of The United States, The United States Trade Representative, and The Congress Of The United States, September 16, 1992. An excerpt (pp. 1-3):

Section 135 of the Omnibus Trade and Competitiveness Act of 1988 requires that the [Labor Advisory] Committee's report shall be provided " . . .not later than the date on which the President notifies the Congress under Section 1103(1)(1)(A) of such act of 1988 of his intention to enter into that agreement." The President's cynical rush to conclude negotiations and to then notify Congress of his intent to enter into an agreement with Mexico and Canada has rendered this requirement meaningless. While the agreement was announced on August 12, 1992, copies of a complete draft were not made available to the L.A.C. Even the chapters that were provided remained classified, contained numerous bracketed sections, were not released to the general public, and were not distributed to the full membership of the Committee. It is clear that negotiations continued for weeks after the announcement of a "completed" agreement. It was not until September 8, 1992, that all the chapters were made available to some advisors. Nevertheless, U.S.T.R. [the United States Trade Representative] informed the Committee that its report should be submitted by September 9, 1992, giving the L.A.C. insufficient time to review, analyze and prepare a report on a trade agreement that took 14 months to negotiate. Obviously, such a deadline made it impossible for the Committee to carefully examine the entire agreement. Indeed, with such short notice, the L.A.C. could not formally meet -- as directed by law -- to discuss the agreement and fulfill the requirements of the Federal Advisory Committee Act, which mandates advance public notice of Committee meetings.

These circumstances were anticipated by the L.A.C. in a June 18, 1992, letter to Ambassador Hills [the Trade Representative], which stated: "Given the acceleration of negotiations, and the possibility of reaching an agreement in the near future, the L.A.C. is concerned that there will be insufficient time to review and analyze a completed text and submit a report to the Congress. . . . The L.A.C. takes its responsibility to advise the Executive Branch and the Congress on trade agreements seriously. In the case of N.A.F.T.A., notice of just a few weeks would not permit the Committee to effectively carry out that responsibility and would greatly diminish the value of private sector advice as required by U.S. trade law." Regrettably, the Administration chose to ignore the Committee's concerns and has, in our judgment, violated the spirit, if not the letter, of the law. . . .

[T]he Committee believes that this agreement, if entered into force, would worsen the serious economic and social problems facing the United States today by encouraging U.S. investment in Mexico and thereby reducing domestic employment and levels of compensation. . . . The issue is not whether the United States should be engaged internationally. Rather, the issue is how to structure this engagement so that the benefits of economic activity are equitably distributed. . . . Where are the protections in this agreement against further deindustrialization of the American economy? Where are the protections against the erosion of our skill base in manufacturing? Where are the counter-incentives to massive transfers of investment and production to Mexico? Where are the protections for Mexican workers to help ensure that they, and not just their employers, will reap benefits from increased investment -- that would mean they might become consumers for the products that they and we produce? As N.A.F.T.A. is currently drafted, we know that U.S. corporations, and the owners and managers of these corporations, stand to reap enormous profits. The United States as a whole, however, stands to lose an enormous amount.

23. For an advocate's statement about N.A.F.T.A.'s likely effects on "unskilled" workers, see for example, Paul Kru