more on Well worth thinking about djf TSA Says It Can Decide Who Can Learn

[David Farber <dave () farber net>]

Begin forwarded message:

From: John Gilmore <gnu () toad com>
Date: October 25, 2004 12:54:31 AM EDT
To: Bill Marcy <wmarcy () stny rr com>
Cc: dave () farber net, gnu () toad com
Subject: Re: [IP] TSA Says It Can Decide Who Can Learn

[for publication]

> Exactly where in the COnstiutution is the "right to learn" codifified?

I said "This violates the fundamental right of freedom of inquiry".
Freedom of inquiry is very similar to the right to learn, but note
that the freedom to inquire does not necessarily result in learning
the answer that one sought.

First I'll go into this informally, then give a few citations and
quotes from court cases.

The roots of freedom of inquiry are in the european Enlightenment,
which shaped the intellectual climate of the founding of the United
States.  The founders' ancestors had fled from countries where they
were flogged, imprisoned, or killed for merely seeking to learn.  For
seeking to learn about a religion other than the official state
religion, for example.  For teaching such a religion to others.  For
inquiring into physics and then stating that the Earth revolved around
the Sun.  For believing in witchcraft or for seeking to teach how
medicinal plants could be used to heal.  For seeking to learn the
truth about the King, when it was inconvenient for the King.

It's clear that freedom of speech also includes freedom to listen.
The freedom to speak would be irrelevant if nobody was permitted to
hear what you had to say, in the same way that the freedom to publish
a newspaper would be much less valuable if people would be imprisoned
if they were caught reading it.

So the "freedom to listen" half of the right of free expression
is what students exercise when they attend a school.  (Of course,
they can and do also speak up.)  The "freedom to speak" is exercised
by the teachers.  The government cannot prevent people who know how
to fly an airplane from speaking or publishing that information -- and
indeed there are thousands of books on how to fly, and large numbers
of flight schools all over the country and the world.

Also at the heart of the freedom to learn is the freedom to associate
with others.  A school is a community.  The government may not say,
"These people are permitted to be part of your community; you must
shun these other people."  They can't tell you who not to invite to
your house, who not to have lunch with, or who not to have in your
classroom.

Learning works best in association; it's possible to learn alone, but
much harder.  Indeed that's why TSA seeks to prevent flight schools
from teaching.  Non-citizens are free to read books, run
flight-simulator software on their computers, and even rent time in
airplane simulators.  If they pass a safety exam, they are free to
rent or buy airplanes and fly them around.  But they're more likely to
learn well if they do it in a class with teachers and other students.

What TSA wants is that certain people -- picked by TSA under secret
criteria -- to have to learn those skills the harder way.  If TSA had
its way, those people would be prohibited from buying books or
software about flying, too.  Would it be OK for Cat Stevens to learn
to fly an airplane?  How about his brother, or the head of his charity
foundation?  What exactly ARE the rules for who's allowed to learn
flying?  TSA wants all the information to flow to it -- all the
students' names and passports and pictures and course schedules --
with the only information that flows back being the decision: yes or
no, this person is permitted to learn or that person is not.  In a
free society, a lot more information needs to flow to the public.
Like: What are the rules TSA is administering, exactly?  And why do
those rules exist?  And are those rules fair?  And are those rules
followed scrupulously, or sloppily?  And do those rules provide a way
for people who are maltreated under the rules to correct their
treatment?  And are those rules constitutionally permitted?

Freedom of inquiry goes beyond the freedom to speak and listen and
associate, though.  It also reaches the solitary philosopher or
theologian who ruminates over the structure of the universe or of
society.  It reaches the lone physicist who thinks the speed of light
in vacuum is constant and who tries to prove it.  It reaches the
engineer who seeks to understand how his competitor's product works.
It reaches the reporter who inquires into the workings and failings of
his neighborhood or its government.  It reaches the voter, can
research the strange people who run for elected office.  It relates to
the even more fundamental freedom of thought -- the right to hold your
own opinions, inquire into their truth or falsehood, and to not have
the government forcibly alter the workings of your brain, whether with
the rack, the Lynndie, with drugs, or by withholding drugs.

OK, you've heard my opinion.  Now let's hear who backs it up.

  The vigilant protection of constitutional freedoms is nowhere more
  vital than in the community of American schools. "By limiting the
  power of the States to interfere with freedom of speech and FREEDOM OF
  INQUIRY and freedom of association, the Fourteenth Amendment protects
  all persons, no matter what their calling. But, in view of the nature
  of the teacher's relation to the effective exercise of the
  rights which are safeguarded by the Bill of Rights and by the
  Fourteenth Amendment, inhibition of freedom of thought, and of action
  upon thought, in the case of teachers brings the safeguards of those
  amendments vividly into operation. Such unwarranted inhibition upon
  the free spirit of teachers . . . has an unmistakable tendency to
  chill that free play of the spirit which all teachers ought especially
  to cultivate and practice; it makes for caution and timidity in their
  associations by potential teachers." Wieman v. Updegraff, 344
  U.S. 183, 195 (concurring opinion). "Scholarship cannot flourish in an
  atmosphere of suspicion and distrust. Teachers and students must
  always remain FREE TO INQUIRE, to study and to evaluate . . . ."
  Sweezy v. New Hampshire , 354 U.S. 234, 250.

That's Justice Stewart, writing the majority Supreme Court opinion in
Shelton v. Tucker, 364 U.S. 479 (1960), page 487 (capitalized emphasis
mine).  They were striking down an Arkansas law that teachers had to
disclose all of their associations, or be barred from teaching.  The
court invokes the Fourteenth Amendment as well as the Bill of Rights,
because that's how the First Amendment came to apply to state
governments.

Here's a famous case, an appeal from the Supreme Court of Connecticut
to the Supreme Court of the US.  The issue was whether people have the
right to learn about birth control.  The laws of Connecticut punished
patients who use "any drug, medicinal article or instrument for the
purpose of preventing conception", and any doctor or other person who
"assists, abets, counsels, causes, hires or commands another" to do
so.  "Counsels", i.e. teaches.  The defendants "gave information,
instruction, and medical advice to married persons as to the means of
preventing conception" at a Planned Parenthood office.  They were
arrested and fined.  Justice Douglas wrote the majority opinion:

  The association of people is not mentioned in the Constitution nor
  in the Bill of Rights. The right to educate a child in a school of
  the parents' choice -- whether public or private or parochial -- is
  also not mentioned. Nor is the right to study any particular subject
  or any foreign language. Yet the First Amendment has been construed
  to include certain of those rights.

  By Pierce v. Society of Sisters, supra, the right to educate one's
  children as one chooses is made applicable to the States by the
  force of the First and Fourteenth Amendments. By Meyer v. Nebraska,
  supra, the same dignity is given the right to study the German
  language in a private school. In other words, the State may not,
  consistently with the spirit of the First Amendment, contract the
  spectrum of available knowledge. The right of freedom of speech and
  press includes not only the right to utter or to print, but the
  right to distribute, the right to receive, the right to read (Martin
  v. Struthers, 319 U.S. 141, 143) and FREEDOM OF INQUIRY, freedom of
  thought, and freedom to teach (see Wieman v. Updegraff, 344
  U.S. 183, 195) -- indeed the freedom of the entire university
  community. Sweezy v. New Hampshire, 354 U.S. 234, 249-250, 261-263;
  Barenblatt v. United States, 360 U.S. 109, 112; Baggett
  v. Bullitt, 377 U.S. 360, 369. Without those peripheral
  rights the specific rights would be less secure. And so we reaffirm
  the principle of the Pierce and the Meyer cases.

That's Griswold v. Connecticut, 381 U.S. 479 at 482-483 (emphasis mine).

Here's another case -- a District Court case from Nebraska in 1971,
over whether a prison inmate was free to receive the Black Muslim
newspaper "Muhammad Speaks".  The court noted that the plaintiff was
not a Black Muslim, and sought the newspaper for its coverage of racial
issues.  Here's what Judge Urbom had to say:

  In the present case the restraint is upon the receipt of a newspaper,
  rather than the expression by the prisoner of his own ideas. The
  threshold question, therefore, is whether the First Amendment, as
  applicable to the states through the Fourteenth Amendment,
  affords protection to a person as a passive receiver of ideas
  generated by another. Lamont v. Postmaster General, 381 U.S. 301, 85
  S. Ct. 1493, 14 L. Ed. 2d 398 (1965) demonstrates that the First
  Amendment protection extends to both ends of a communication to
  protect the receiver as well as the initiator of ideas. Mr. Justice
  Brennan in his concurring opinion in Lamont stated:

      "* * * I think the right to receive publications is such a
      fundamental right. The dissemination of ideas can accomplish
      nothing if otherwise willing addressees are not free to receive
      and consider them. It would be a barren marketplace of ideas that
      had only sellers and no buyers."

That's Rowland v. Sigler, 327 F. Supp. 821, pages 824-825.  Let's get
this clear.  The First Amendment even prohibits the government from
blocking Mr. Rowland, a "belligerent and uncooperative inmate" -- in
prison -- after conviction -- from receiving information and education
of his choice, as long as it does not incite in him a clear and
present danger of violence.  If that's true, then the First Amendment
clearly permits a non-citizen, lawfully admitted to the United States,
not in prison, not convicted, not even accused of any crime, to
receive information and education of his choice.

Even more interestingly, the TSA regulation is a "prior restraint" on
First Amendment protected activities.  It's not that TSA goes snooping
around flight schools, seeing who's learning even though it's
prohibited by law, and then arrests and convicts people AFTER they
learn to fly.  That's what the Connecticut police did to Planned
Parenthood.  That would be unconstitutional.  But TSA does something a
hundred times worse.  They PREVENT people from learning to fly.  They
REQUIRE A LICENSE of people who wish to learn to fly.  They exercise
total ADMINISTRATIVE DISCRETION over whether a given person will be
permitted to learn or not.

(Perhaps some readers will be reminded of Prof. Bernstein's court case
about the similar licensing scheme prohibiting publication of software
and other information about encryption.  It was struck down in the
1990s.  I instigated that case.  Our web browsers and cellphones have
encryption today because Prof. Bernstein, EFF and I won that case.)

TSA's actions exactly violate the main purpose of the First
Amendment -- to prohibit prior restraints on free expression.

Now, no rights are absolute, not even First Amendment rights.  But the
very strongest rights are the prohibitions on prior restraint of First
Amendment rights.  The government would need to come up with a very,
very, very strong case to justify a prior restraint on the teaching of
particular subjects to non-citizens.  Publishing an in-depth analysis
of the war, in wartime, did not justify such a restraint (the Pentagon
Papers case).  Publishing how to build an atomic bomb did not justify
such a restraint (the Progressive case).

Neither TSA nor the statute they are enforcing have made ANY strong
case.  The fact that three years ago some people died because four
guys knew how to fly planes is ZERO excuse for building a licensing
scheme to prohibit everyone else from learning to fly planes.  At
least if we live under a constitutional government rather than a
dictatorship.

        John Gilmore

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