Ed Meese, John Yoo, and free speech

One of the worst things about modern American politics is the use of inflammatory mailings to raise money. I used to worry about such tactics when I worked at Common Cause: our mailings, while not partisan, weren’t exactly fair and balanced. It pays to send a core constituency of like-minded people a message that will make some of them angry enough to write you a check. As a result, there are large, passionate, but completely separate political conversations going on in America.

It would help if we put communications from various ideological groups into the public domain so that what they said to their own constituencies could become part of a diverse public deliberation. Consider, then, the following “Dear Mr. Levine” letter that I recently received from good old Edwin Meese III, on behalf of the American Council of Trustees and Alumni. He writes:

So much of what’s wrong in our country has its roots in the 60s revolt at our colleges and universities. I remember–I was there.

Let me tell you about my experience with the 60s radicals.

At my old law school, the University of California at Berkeley, an alliance of radical students, hippies, and street thugs got together with a view to destroying so much of what you and I value. They plunged a great institution into a crisis unprecedented in American higher education.

These people, calling themselves the Free Speech Movement, were actually interested in creating a mob scene. …

I told Governor Brown that if the radicals were allowed to stay there would be another mob scene, even bigger, the next day. I believed restoring order was important and necessary. The building was cleared and a potentially dangerous situation was defused.

And then I participated in prosecuting them.

There would be many ways to respond to this, but let me counter an anecdote with an anecdote. It is to Ed Meese’s “old law school” that John Yoo has returned after a stint in the Bush Administration. As David Cole writes, “Yoo’s most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime–even though the United States has signed and ratified a treaty absolutely forbidding torture under all circumstances, and even though Congress has passed a law pursuant to that treaty, which without any exceptions prohibits torture.”

One can argue that Yoo’s memo provided any American torturers with a legal defense. Their behavior cannot be “patently illegal” (which is the standard for conviction under US military law) if a Berkeley law professor said that it was legal. Thus Yoo’s writing changed the actual legal situation regarding torture. Nevertheless, Yoo’s colleagues (some of those “60s radicals” whom Meese believes “are now entrenched in college faculties and administrations”) uphold his right to teach at their institution. Could it be that the Free Speech Movement was actually about–free speech?