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The Baumgartner free speech case has been decided by the U.S. Supreme Court.
No, not the Elsebeth Baumgartner case of Oak Harbor, Ohio.
The case of the United States against Carl Wilhelm Baumgartner.
Not only are the last names the same, but so is the core issue---government retaliation for the exercise of free speech and expression of opinion.
"Freedom of speech, indispensable to our democratic form of government, acts as a deterrent to the abuse of power. If government can conduct arrests and prosecutions free from public scrutiny, then fertile ground opens for oppression", the U.S. Supreme Court has held.
The Carl Baumgartner case was resolved over 60 years ago, just like other deciding rulings from the U.S. Supreme Court which have held that a person cannot be criminally charged for the criticism of public officials, especially judges.
Elsebeth Baumgartner is currently facing a panoply of charges which all stem from the displeasure and thin-skin of retired visiting judge Richard Markus. Markus and his cronies in the criminal justice system of northern Ohio have conspired together to silence their critic by threatening and intimidating her with a potential of nearly 180 years in prison for having the audacity to criticize Markus for his judicial rulings and express her opinion that some public officials in northern Ohio are corrupt.
Of course, let's not forget that Gov. Bob Taft has already pleaded guilty to ethics violations and been sentenced. Attorney General Jim Petro is under investigation for a pay to play scheme in which lawyers allegedly had to contribute to his election campaign in order to get a share of the lucrative state contract work. Of course there's also Tom Noe, rare coin dealer and GOP fundraiser who allegedly illegally funneled campaign donations to President Bush's reelection campaign. Noe, who is the former chairman of the Lucas County Republican Party, is also under indictment for 53 felony counts in his handling of a $50 million rare-coin investment he handled for the Ohio Bureau of Workers' Compensation.
Then there's Rep. Bob Ney, under investigation for involvement with lobbyist Jack Abramoff, former House Majority Leader Tom DeLay and Indian casino money laundering; Rep. Jean Schimdt, investigated for financial ties to Games Inc. and a proposal to put Ohio State Lottery on the Internet; two aides of Gov. Taft, convicted of ethics violations and the list goes on.
Elsebeth Baumgartner says that Ohio public officials are corrupt. Not only does she have the right to express that opinion under the First Amendment, but it seems like she's right on target.
The U.S. Supreme Court held over 60 years ago that a judge may not hold in contempt one who ventures to publish anything that tends to make him unpopular or to belittle him or punish speech critical of their actions.
In 1944, in Baumgartner v. U.S. (322 US 665) it was held that Americans hold the prerogative to "criticize public men and measures---and that means not only informed and responsible criticism, but the freedom to speak foolishly and without moderation".
In the earlier Baumgartner case, the U.S. had filed suit against the German immigrant to set aside a naturalization decree and cancel his certificate of naturalization because he had criticized the U.S. government during World War II. The U.S. District Court had ruled in favor of the government and Baumgartner appealed to the Supreme Court which granted certiorari.
The government claimed that because Baumgartner had criticized the U.S. government, that he had violated his citizenship oath and claimed that he had not truly and fully renounced his allegiance to Germany, that he did not in fact intend to support the Constitution and laws of the U.S.
But in finding that one of the prerogatives of American citizenship is the right to criticize "public men and measures", the Supreme Court held "Our trust in the good sense of the people on deliberate reflection goes deep. For such is the contradictoriness of the human mind that the expression of views which may collide with cherished American ideals does not necessarily prove want of devotion to the Nation. It would be foolish to deny that even blatant intolerance toward some of the presuppositions of the democratic faith may not imply rooted disbelief in our system of government".
Since the Baumgartner decision of 1944 which reversed the lower court's decision and restored his naturalization decree and citizenship, there have been a plethora of similar decisions, all based on the First Amendment.
It seems clear that if the State of Ohio and more narrowly, the counties of Cuyahoga and Ottawa in northern Ohio, persist in trying to criminalize the speech and criticism of Elsebeth Baumgartner, the case is headed straight to the Supreme Court where case precedent was established more than 60 years ago.
"Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs", Court held in Landmark Communications, Inc. v. Virginia, 435 US 829 in 1978, quoting Mills v. Alabama, 394 US 214 (1966) Government, including courts and judges, possess "no greater immunity from criticism than other persons or institutions." Id. at 839, 98 SCt at 1541.
The First Amendment protects speech even if biased or improperly motivated, the Court held in First Nat'l Bank of Boston v. Bellotti, 435 US 765 (1978); Eastern RR Presidents Conference v. Noerr Motor Freight, Inc., 365 US 127, 139, (1961). If freedom of speech insulated comments only from those whose motives were pure, it would protect very little. A democracy relies on its citizens to judge and evaluate "the relative merits of conflicting arguments." Bellotti, 435 US at 792.
The Supreme Court has already decided, "We face a conflict of fundamentals: free expression versus impartial justice. In our inquiry, we must acknowledge that the First Amendment deserves overarching primacy in most circumstances. Free speech cannot be generally circumscribed, except in restricted settings. United Mine Workers v. Illinois Bar Ass'n, 389 US 217, 223 (1967). Where the right of free speech exists, it is "immaterial whether the beliefs sought to be advanced ... pertain to political, economic, religious or cultural matters... ." NAACP v. Alabama ex rel. Patterson, 357 US 449, 460 (1958). Freedom of speech, indispensable to our democratic form of government, acts as a deterrent to the abuse of power. If government can conduct arrests and prosecutions free from public scrutiny, then fertile ground opens for oppression".
Ohioans, heed that well.
Americans have long maintained the right to challenge and criticize government in its handling of affairs, including the arrests and trials of those charged as criminals. See, e.g., City of Houston v. Hill, 482 US 451, 462-63 (1987). Indeed, the freedom to speak in opposition to acts of law enforcement is "one of the principal characteristics by which we distinguish a free nation from a police state." Id.
If an overbroad interpretation of a statute infringes on the right of free speech, it tends to discourage the exercise of that right. "Ambiguous meanings cause citizens to '"steer far wider of the unlawful zone" ... than if the boundaries of the forbidden areas were clearly marked.'" Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 US 489, reh. denied, 456 US 950, (1982), (quoting Baggett v. Bullitt, 377 US 360, 372 (1964).
It's obvious that Ohio officials, particularly Judge Richard Markus, and prosecutors Daniel Kasaris, Mark Mulligan and Kevin Baxter aren't pleased with Elsebeth Baumgartner and are even more displeased because she's standing her ground and won't go away, despite the assaults on her liberty, her professional licenses, her family, her finances, and near constant, though unsuccessful, efforts to label her mentally unstable.
As the days go on and the indictments are handed down against one public official after another, two things are painfully clear---not only does Elsebeth Baumgartner have the First Amendment right to criticize the judiciary and other public officers, but it appears that she's right about the corruption in Ohio.
"…thou doth protest too much, me thinks" William Shakespeare wrote in Hamlet.
If he were in northern Ohio, no doubt he'd think that it's Markus and prosecutors who are protesting too much. It's the typical case of kill the messenger. It's called smoke and mirrors, a diversionary tactic to redirect the focus from them and their alleged corruption, to Baumgartner.
The taxpayers and citizens in Ohio must put their foot down. The Baumgartner case has already been decided by the Supreme Court. Not only is Markus wasting the taxpayers' money in more ways that one, but the focus of investigation should be turned away from Baumgartner to the rightful target---Markus and the rest. June Maxam 5-23-06
© 2006 North
Country Gazette
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