The First Amendment of Brandon Raub
By R Tamara de Silva
August 22, 2012
The point of demarcation between political expression and dangerous dissent is being discerned in much the same manner the Romans augured the future by looking at the entrails of birds. Enter social media, which has been flexing its muscles on the topic even managing to draw the somnolent Media to bring national attention to the odd arrest and detention of a 26 year old former combat Marine, Brandon J. Raub. Brandon, who had served his country in Iraq and Afghanistan from 2005-2011, was taken from his home by this same government in the form of the FBI, Secret Service and police agents for what looks to the outside world as his expression of his First Amendment right to criticize his government and his President. Is he the first known victim of the National Defense Authorization Act or Virginia's involuntary commitment statute?
One of my favorite people at the University of Chicago was the late Allan Bloom. He once suggested that the First Amendment was a grand waste- no longer needed in America. He said this because he observed that most people simply have nothing to say. Most people may have opinions about many things but they are merely repeating what someone told them seeming to be incapable of forming a worthwhile thought on their own. He was right in that as he went on to say, peoples' opinions are about as distinct and undifferentiated as the individual Kleenex are in a tissue box.
Social media bears this ought. Except Brandon Raub was not using his Facebook account to post the perfunctory braggadocio or a travel itinerary. Or the equally common antipode of the plea of a starving third world child- a picture of a full plate of food with an introduction about how good it is. Brandon's posts were not so excruciatingly dull, as to be entirely devoted to self aggrandizement or the scatological- but they have all the marks of seditiousness in a Soviet Russia or Hussein's Iraq. But in America, Brandon, like many Americans was expressing his discontent at the state of his country and its government. Like many other of his countrymen, intellectually engaged in matters of governance, Brandon Raub used Facebook for what is inarguably its highest use-a gargantuan virtual public square. Used this way, Facebook is not an ode to the elevation of the miniscule and mundane but a truly interesting and potentially important phenomenon. Important because it is perhaps also a guardian of liberty in every way the Fourth Estate has been.
Opinions expressed in a public square can be diverse and some may even be out there. However, were the American Revolutionaries alive today and speaking of sedition as they did then, they would not be called Patriots as history has called them-they would today be called terrorists. This country was the birthplace of sedition and the refuge of many people the Crown considered way too "out there"-a remote place across a vast ocean fitting for the lunatic fringe.
The concerns of many about young Brandon are that free speech must be protected especially when what rights we were given by the Constitution have come under an onslaught of multiple new assaults like the monitoring of online computer searches, indefinite detention, indefinite detention without any due process of law [Mr. Eric Holder's invention of something called "Executive due process," which provides for a kind of due process and judgment but with no lawyer, no court of law and no trial] regular warrantless taping and tapping of all cellphone calls, the tracking and sale of customer information via credit card use, and the Department of Homeland Security's tracking of social media and all use of the internet, tracking of all online activity, tracking of all financial transactions, the National Defense Authorization Act ("NDAA"), etc.-with all this, the willingness to still speak at all is a singularly brave but crucial act. The law has not kept up with technology and most people are unaware of what their rights are in its wake. The First Amendment safeguards that one act, speech, which may be one of the few gossamer threads that yet binds together our fragile and aging civil liberties.
Admittedly, some of Raub's postings were outside of mainstream thought in that he cited conspiracy theories related to 9/11 being an inside job and appeared to post a threat when he wrote that he would, "Sharpen up my axe; I'm here to sever heads"-repeating the words of a song called, "Bring Me Down."
Were his posting lyrics to this song tantamount to a national security threat? After the Colorado shootings and the shootings at Virginia Tech, many would argue it makes sense to preemptively lock people up for communications that are even ambiguously threatening. The problem with this line of thought is that it is a slippery slope and it vests a dangerous amount of discretion in the hands of the government that can easily be abused. It is also profoundly un-American.
When faced with any crisis or a 24 hour news-media human interest story, we seem to think it best to make more laws and invest the government with even more authority to "fix it" -never fully understanding that powers so eagerly bestowed can be abused and turned against their bestower. As Benjamin Franklin famously wrote and anyone with even a cursory reading of history will understand, "those who can give up essential liberty to obtain a little temporary safety, deserve neither liberty not safety."
One nation that has effectively used the pretext of danger to the state to imprison all who would criticize it is the Soviet Union. All societies have normative values and at times some of them are pretextual-designed to mask much baser values. Security is a value of the Soviet system used to hide the interests of its leaders from Nikita Krushchev to Vladimir Putin, to control the population and public opinion. Putin's record of repressive psychiatry and the imprisonment of anyone who would insult his distastefully enormous opinion of himself belies any claim that he has divested himself fully of Khrushchev's repressive regime. Police psychiatry allows for the routine imprisonment of dissidents in mental health institutions effectively silencing all dissidents and protestors from Garry Kasparov and Andrei Sakharov to current human rights lawyers. Before we magnanimously proffer up parts of the First Amendment on the altar of security, we should imagine living in any one of the many parts of the world where the expression of dissent is met with death, a Soviet labor camp or more typically imprisonment in an asylum. America must never strive to be a Soviet Union.
There is little evidence if any, to suggest that Brandon Raub is being detained or was taken into custody for violation of the NDAA. By all appearances Brandon Raub was involuntarily taken into custody and detained under Virginia's civil commitment law. Most states have some variant of this law by which on the word of someone in the mental health profession, or a doctor, a nurse or even a social worker, a person can be locked up if they are deemed either a threat to themselves or others. The standard of proof the person wishing to have someone else locked up under must meet is the presence of "clear and convincing evidence" at an hearing before a magistrate at which the accused is not provided an opportunity to have an independent mental health expert rebut or evaluate the evidence offered.
The problems with this are numerous. Judges and lawyers are ill equipped to evaluate mental illness. The concept of mental illness itself is a bit like ether, "[M]ental disorder is such a vacuous phrase that the law should consider dispensing with it as an independent criterion for intervention and instead simply identify as precisely as possible the types of mental dysfunction it wants to treat specially." Social workers and mental health professionals may have no basis by which to discern the difference between sincere political protest and the condition of "dangerousness to society." Unfortunately for those involuntarily committed by other people, the clear and convincing standard is not difficult to overcome because it is not objective when applied to cases of civil commitment.
The Diagnostic and Statistical Manuel of Mental Disorders ("DSM") is used to categorize mental disorders but its categorizations are constantly being revised and subject to debate within the mental health field. The authors of the DSM themselves warn against using the DSM for legal proceedings because of the danger that the diagnostic descriptions contained within it will be misunderstood and misused. Of course, I do not mean to presume that the social worker or health care person calling for involuntary commitment has read the DSM.
The Fifth and Fourteenth Amendments of the United States Constitution prohibit the government from taking from taking away a person's "life, liberty or property" without due process of law. Civil commitment hearings perform an end run around due process-taking away liberty without the protections given to a criminal defendant.
This all begs the question what was it about Brandon Raub's Facebook posts that the FBI and Secret Service considered a threat? Several of Brandon's posts expressed concern about an elite ruling class, the Federal Reserve, and the enormity of the Federal government. He must be insane for being critical of the government in the following post written on his Facebook wall on November 11, 2011,
The Truth by Brandon J Raub on Friday, November 11, 2011 at 10:00 am
America has lost itself. We have lost who we truly are. This is the land of the free and the home of the brave.
This is the land of Thomas Jefferson.
This is the land of Benjamin Franklin.
This is the land of Fredrick Douglas.
This is the land of Smedley Butler.
This is the land John F. Kennedy.
This is the land of Martin Luther King.
This is the land where the cowboy wins. This is the land where you can start from the bottom and get to the top. This is the land where regardless of you race and ethnicity you can succeed and build a better life for you and your family. This is the land where every race coexists peacefully. This is the land where justice wins. This is the land where liberty dwells. This is the land where freedom reigns. This is the land where we help the poor, and people help each other. This is land where people beat racism.
The Federal Reserve is wrong. They have designed a system based off of greed and fear. They designed a system to crush the middle class between taxes and inflation. This is wrong, and it is unjust. It is wrong.
We have allowed ourselves to be deceived and seduced by the powers of the printing press. It is not a good system. It discourages saving: the foundation for all stable economic activity. The Federal Reserve is artificially manipulating interest rates and creating phony economic data.
This thing has deceived our entire nation.
They created it in 1913. They also created the income tax in 1913. They encouraged the growth of debt so they can tax you on it. There is interest on the debt. Your government is in bed with these people. They want to enslave you to the government so that they can control every aspect of your lives. It is an empire based on lies. They operate of greed and fear.
There is a better way. It's called freedom. Freedom is called a lot of things. But there is a true meaning. It means very simply that you have the right to do whatever you want as long as you are not infringing on the freedoms of other people.
I firmly believe that God set America apart from the other nations of the world. He saved a place where people could come to to escape bad systems of goverment. This system we have created works. It really works.
There is evil going on all around the world. The United States was meant to lead the charge against injustice, but through our example not our force. People do not respond to having liberty and freedom forced on them.
Men and Women follow courage. They follow leadership, and courage. Our example has paved the way for people all around the world to change their forms of government.
Force is not the way because liberty is a powerful concept. The idea that men can govern themselves is the basis for every just form of government.
We can govern ourselves. We do not need to be governed by men who want to install a one world banking system. These men have machine hearts. Machine and unnatural hearts.
They have blocked out the possibility of a better world. They fear human progress. They have monopolies on everything.
This life can be free and beautiful. There are enough resources on this earth to support the world's population. There are enough resources on this earth to feed everyone. There is enough land for everyone to own their own land and farm, and produce their own energy.
These people have been hiding technology. There are ways to create power easily. There is technology that can provide free cheap power for everyone. There are farming techniques that can feed the entire world.
The Bill of Rights is being systematically dismantled. Men have spilled their blood for those rights.
Your sons and daughters, your brothers and sisters, and Americas best young men and women are losing their limbs. They are losing their lives. They are losing the hearts. They do not know why they are fighting. They are killing. And they do not know why.
They have done some extraordinary acts. Their deeds go before them. But these wars are lies. They are lies. They deceived our entire nation with terrorism. They have gotten us to hand them our rights. Our Rights! Men died for those rights!
September Eleventh was an inside job. They blew up a third building in broad daylight. Building 7.
Your leaders betrayed you.
You elected an aristocracy. They are beholden to special interests. They were brainwashed through the Council on Foreign Relations. Your leaders are planning to merge the United States into a one world banking system. They want to put computer chips in you.
These men have evil hearts. They have tricked you into supporting corporate fascism. We gave them the keys to our country. We were not vigilant with our republic.
There is hope. BUT WE MUST TAKE OUR REPUBLIC BACK.
President Andrew Jackson was also critical of the central bank and would most certainly be detained as a lunatic or worse were he alive today by both political parties and the pundit class,
"Gentlemen, I have had men watching you for a long time and I am convinced that you have used the funds of the bank to speculate in the breadstuffs of the country. When you won, you divided the profits amongst you, and when you lost, you charged it to the bank. You tell me that if I take the deposits from the bank and annul its charter, I shall ruin ten thousand families. That may be true, gentlemen, but that is your sin! Should I let you go on, you will ruin fifty thousand families, and that would be my sin! You are a den of vipers and thieves."
The Department of Homeland Security would consider Brandon a potential terrorist as they would also consider most of the people that express views critical of the government as potential terrorists. According to a study by the National Consortium for the Study of Terrorism and Responses to Terrorism entitled, "Hot Spots of Terrorism and Other Crimes in the United States, 1970-2008," funded by the Department of Homeland Security, terrorists are likely people, "reverent of individual liberty...suspicious of centralized federal authority or anti-government," including people who are extremely conservative or extremely liberal.
Do not depend on some judge or lawyer to protect your First Amendment rights. Too often I have observed judges and lawyers slavishly reciting precedence and statute with the Constitution being but a tertiary concern. Law review articles about involuntary civil commitment regurgitate a parade of judicial affronts on due process. Given this way or reasoning, which is the absence of reasoning but mere recitation of the past as authority binding on the future, un-Constitutional decisions have a theoretically infinite half-life. We need to pay attention to Brandon Raub's fate just as much as John Bradford observed the fate of fellow going to the scaffold from the Tower of London and remarked, "there but for the grace of God, goes John Bradford." The scaffold is still there and the tower remains claiming many inhabitants who thought they would certainly never reside there.@
R. Tamara de Silva
August 22, 2012
R. Tamara de Silva is a securities lawyer and independent trader
 Christopher Slogogin, Rethinking Legally Relevant Mental Disorder, 29 OHIO N.U.L. REV. 497, 498 (2003).