Imprimis

The Left’s War on Free Speech

Kimberley Strassel
Author, The Intimidation Game: How the Left Is Silencing Free Speech


Kimberley StrasselKimberley Strassel writes the weekly “Potomac Watch” column for The Wall Street Journal, where she is also a member of the editorial board. A graduate of Princeton University, her previous positions at the Journal include news assistant in Brussels, internet reporter in London, commercial real estate reporter in New York, assistant editorial features editor, columnist for OpinionJournal.com, and senior editorial page writer. In 2013 she served as a Pulliam Distinguished Visiting Fellow at Hillsdale College, and in 2014 she was a recipient of the Bradley Prize. She is the author of The Intimidation Game: How the Left Is Silencing Free Speech.



We’ve seen this strategy unfold, in a coordinated fashion and using a variety of tactics, since 2010.

One tactic is the unleashing of federal and state bureaucracies on political opponents. The best example of this is the IRS targeting of conservative non-profits. To this day, Obama acolytes and Senate Democrats characterize that targeting as a mistake by a few minor IRS employees in Cincinnati who didn’t understand the law. That is a lie.

Congress held several investigations of this targeting, and the truth is clear. In the months following the Citizens United ruling, President Obama delivered speech after speech on behalf of Democratic midterm candidates, repeating the same grave warning at each stop—thanks to Citizens United, he would say, shadowy and scary organizations are flooding into our elections. He suggested these organizations might be operating illegally and might be funded by foreign players. He noted that somebody should do something about it.

These speeches acted as a dog whistle to an IRS bureaucracy that was already primed to act. Former IRS official Lois Lerner was well aware of Democratic demands that the agency go after conservative Tea Party and non-profit groups. Senate Democrats and left-wing interest groups had been sending letters to the agency for months, demanding it go after the very groups it ultimately went after. And Ms. Lerner had her own biases—we know this from her recoverable emails—that put her politically and substantively in the anti-free speech camp. The result is that the IRS deliberately put some 400 conservative organizations, representing tens of thousands of Americans, on political ice for the 2010 and 2012 elections.

It is hard not to believe that this was designed to help Democrats in those elections. We know that senior members of the Treasury Department were aware of the targeting abuse in early 2012, and took steps to try to slow it. Yet those officials did not inform Congress this was happening, and chose not to divulge the abuse until well after that year’s election.

Another intimidation tactic is for prosecutors to abuse their awesome powers in order to hound and frighten political opponents. The most terrifying example of this was the John Doe probe in Wisconsin. Democratic prosecutors in Milwaukee launched a bogus criminal campaign finance investigation into some 30 conservative groups that supported the public-sector union reforms championed by Governor Scott Walker. Wisconsin’s John Doe law gave these prosecutors the right to conduct this investigation in secret and to subject their individual targets to gag orders. Prosecutors secretly looked through these individuals’ financial records, bank accounts, and emails.

Prosecutors also conducted pre-dawn raids on some of their targets’ homes. In one horrifying instance, the target of such a raid was on an out-of-town trip with his wife, and their teenage son was home alone. Law enforcement came into the house and sequestered the boy, refusing to allow him to call a lawyer or even his grandparents, who lived down the road. They hauled items out of the house, and as they left they told the boy that he too was subject to the gag order—that if he told anyone what had happened to him, he could go to jail.

We only learned of this because one brave target of the probe, Eric O’Keefe, told The Wall Street Journal what was going on. We broke that story, and it became national headline news. But it ultimately took a lawsuit and the Wisconsin Supreme Court to shut down the probe. In its ruling, the Court made clear its view that the probe’s purpose had been intimidation. The prosecutors had been sending the message: if you dare to speak, we will turn your lives into a living hell and potentially put you in prison.

More recently we have seen this tactic in the joint action of 17 state attorneys general, who launched a probe into Exxon and some 100 different groups that have worked with Exxon over the years. The implicit prosecutorial threat: get on board with our climate change agenda or we might bring racketeering charges against you.

A third intimidation tactic is for activist groups to use blackmail against corporations and non-profits in order to silence them. One subject of such attacks was the American Legislative Exchange Council (ALEC), a group that works to promote free-market policies at the state level. As a non-profit, it is largely funded by corporate donations. Because it is so successful, it has long been despised by left-wing activist groups.

These groups focused their efforts on ALEC in 2012, in the wake of the tragic shooting of 17-year-old Trayvon Martin in Florida. ALEC had played a tangential role in crafting the popular stand-your-ground laws that the Left attacked after the shooting. On that basis, left-wing activists branded ALEC a racist organization and threatened to run ad campaigns against its corporate donors, branding them as racists too—unless they stopped funding ALEC. In a coordinated action, Democratic U.S. Senator Dick Durbin sent letters to a thousand organizations across the country, demanding to know if they supported ALEC and suggesting they’d get hauled in front of Congress if they did. ALEC lost nearly half of its donors in the space of a few months.

We’ve also seen this tactic employed against private individuals. One such person was Idaho businessman Frank VanderSloot, who Barack Obama’s reelection campaign singled out in 2012, following a VanderSloot donation to Mitt Romney. The campaign publicly branded him a disreputable person, painting a target on his back. Not long after that, VanderSloot was audited by the IRS and visited by other federal agencies.

Out in California, left-wing activists targeted donors to the state’s Prop 8 ballot initiative, which supported traditional marriage. They combed through campaign finance records, and put the names and addresses of Prop 8’s donors on a searchable map. Citizens on this list had their cars keyed, their windows broken, their small businesses flash-mobbed, and their voicemails and emails flooded with threats and insults. Some of them even lost their jobs—most notably Brendan Eich, the founder and CEO of Mozilla. In later depositions, many of these targets told lawyers that they wouldn’t donate to future ballot initiatives. So the attacks were successful in silencing them.

Note the use of disclosure in these attacks. We have come to associate transparency and disclosure with good government. But unfortunately, our system of disclosure has been turned on its head. Disclosure was supposed to enable citizens to keep track of politicians; but if you followed Hillary Clinton’s server scandal, you know that politicians have now become expert at hiding their business. Instead, disclosure is increasingly becoming a tool by which government and political thugs identify people and organizations who oppose them.

Sadly, our federal judiciary has refused to honor important precedents that protect anonymity in politics—most notably the famous 1958 case, NAACP v. Alabama. In that case, a unanimous Supreme Court ruled against the Alabama attorney general, who had demanded a list of the state’s NAACP members. The civil rights group knew this was tantamount to making targets of its members in a state that was riven at the time with race-related violence. The Court held that some level of anonymity is sometimes required to protect the rights of free speech and free assembly. The Court expanded on this precedent until the Watergate scandal, when it too got caught up in the disclosure fad. Political privacy rights have been eroding ever since.