Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  Timimi had not gone to the camps or anywhere else; he had merely spoken, but he was charged the following year, and three who testified against him were rewarded with release, at the request of the prosecutor, after just three years of their ten- and eleven-year sentences.15 One had been Timimi’s host at the dinner, Yong Ki Kwon, a Korean convert to Islam. Another, Muhammed Aatique, told the jury in Timimi’s 2005 trial, “He encouraged us to participate in the coming jihad.… He said the battle in Afghanistan was imminent and that the Americans were going to attack.” Aatique quoted Timimi as calling the victims of 9/11 “combatants, not civilians,” since their taxes funded the war against Islam. Following Timimi’s talk, he said, “me and everyone else at that meeting was excited and charged up.”16 A year after his testimony, Aatique was freed from federal prison, seven years early.

  The premature releases drew a sardonic comment from Timimi’s lawyer, Edward B. MacMahon Jr. “I thought we were about protecting the American people,” he said, “and here the U.S. Attorney is releasing the actual terrorists. Have they been rehabilitated?”

  The jury took seven days to convict Timimi. Judge Brinkema sentenced him to life plus seventy years for inducing the young men to conspire to levy war against the United States and for inducing them to conspire to use firearms and explosives in criminal acts.

  The jurors evidently accepted the government’s strategy: project him onto a large screen, magnify him into the “spiritual leader” of young jihadis, portray him (in the prosecutor’s words) as a “rock star” held “in awe” by young men who would do “their best to do what he told them to do,” although in fact he hardly knew them.17 The narrative confirmed the story line that many Americans were braced to hear after 9/11: a kind of Voldemort, preaching invisibly from the mysterious depths of a hostile Islam, intoxicating youth with poisonous ideas—and right in our own backyard, embedded in suburban Virginia. This is how terrorists sow terror.

  The man uttered offensive words, no question. Against him, the government used even those unrelated to the case, devoting nearly two of the indictment’s sixteen pages to his long statement celebrating the crash of the space shuttle Columbia in 2003. It was hardly a public call to his “followers,” as pictured in the indictment; his lawyer, MacMahon, countered that it had been made in an intercepted phone call to a friend in Saudi Arabia, and “none of them had ever heard it until an FBI agent played it for them.”

  When he learned of the Columbia’s demise, Timimi told his friend, “My heart felt certain good omens,” the indictment alleged. The name of the shuttle, derived from Columbus, was “a strong signal that Western supremacy (especially that of America) that began five hundred years ago is coming to a quick end, God Willing.” Then, with the presence of an Israeli astronaut in the crew, Israel’s “hope and ambitions were burnt with the crash and burning of the shuttle.” And with the news that the crash had occurred near Palestine, Texas, “I said to myself, ‘God is Great.’ This way, God Willing, America will fall and disappear.”18

  It is not hard to find such rants among religious lunatics of various stripes, but they don’t usually get life in prison. “Some of it, frankly, rises to the level of hate speech,” MacMahon acknowledged to the jurors, then relied on them in vain to uphold Timimi’s “First Amendment right to have these opinions. You don’t have to agree with him to realize he has a right to free speech.”19

  Furthermore, MacMahon tried repeatedly to have Timimi’s statements to the paintball crew ruled as protected speech, given that the remarks did not meet the test of inciting imminent crime. Judge Brinkema decided against him before the trial by allowing Timimi’s words into evidence. She did instruct the jurors that they could acquit if they found no imminence. After conviction, MacMahon raised the First Amendment issue again, requesting the judge to conduct a constitutional analysis of the statements in question, which she declined to do.

  That left free speech impaired. A trial is not a precedent, but it can be a point of reference, and here the line between protected and unprotected speech had been moved to a place remote from a violent act that had not even occurred. “The case really sticks in my craw,” said MacMahon, “because it’s not just what he said at the dinner party. It’s the use of his religious speeches,” which were excerpted selectively and introduced by the government into evidence. As such, MacMahon believed, Timimi was condemned for his religion—for a distorted version of his religion. The prosecutor told the jury that Islam approved of lying.

  “The way our law is developing in the United States right now, there’s two sets of rules,” said MacMahon. “There are terror defendants and regular defendants. If it was a business case and I said Bernie Madoff [of the Ponzi scheme] is a Jew so he stole all the money, you’d laugh at me. But if you said Ali al-Timimi is a Muslim so he’s at war with the United States, that’s taken seriously.”

  With no court willing to do a searching review of the First Amendment issues in the case, there could be no broader correction to the government’s power to prosecute for speech. That may still come if more such indictments are brought and are scrutinized with the same standards used to end the criminalization of Communists’ utterances during the Cold War.

  High-level misgivings were evident years before prosecutions of Communists were closed down. Even as the Supreme Court upheld Eugene Dennis’s conviction in 1951, Justice Felix Frankfurter, while concurring with the majority, worried that ideas would be suppressed when they were coupled with calls for illegality; it would be hard to disentangle them—precisely the problem in Timimi’s case more than a half century later. Justice William O. Douglas took the argument further in a passionate dissent in Dennis. The open market of belief and expression had rendered communism in America “crippled as a political force,” he observed. “Free speech has destroyed it.” The movement’s adherents “are miserable merchants of unwanted ideas; their wares remain unsold.”20 It can only be hoped that Islam’s violent aberration will suffer the same.

  But terrorists are real, and many are inspired by charismatic preachers. Actual Communist agents were in government, too, as files in Moscow revealed following the collapse of the Soviet Union. Most of the real spies and subversives were missed by sweeps following Dennis, however, because authorities concentrated on open speech rather than criminal behavior. In the six years after the Court delivered its opinion, while espionage flourished secretly, the FBI arrested the party’s overt leaders throughout the country, prosecuting 145 Communists for violating the Smith Act by teaching or attending classes on the writings of Lenin and Stalin, who had advocated violent proletarian revolution. There was no evidence that the defendants had any such plans.21

  The net of arrests caught Oleta Yates, a Communist Party leader whose case illustrated how the vicissitudes of fear determine the scope of free speech. She was sentenced to five years along with fellow party members in California for espousing Marxism-Leninism. But by the time her appeal found its way to the Supreme Court, the climate in the country had changed, and so had the Court’s composition. Four new justices had been seated, including Chief Justice Earl Warren. Stalin was dead and had been denounced by his successor, Nikita Khrushchev, leading Russia to a slight internal thaw. The Communist-hunter Senator Joseph McCarthy had been censured by the Senate. The tense anxiety over Communist infiltration had eased.

  Writing in 1957 for a majority of six, Justice John Marshall Harlan deftly narrowed the interpretation of the Smith Act without reaching an opinion on its constitutionality. The law did not bar the “advocacy and teaching of forcible overthrow as an abstract principle, divorced from any effort to instigate action to that end,” even if such advocacy “is engaged in with evil intent,” he wrote. “The statute was aimed at the advocacy and teaching of concrete action for the forcible overthrow of the Government, and not of principles divorced from action.” The Court overturned five of the convictions and sent the other nine back for retrial.22 The government dropped the charges against those nine and
other party leaders across the country.

  “Yates sounded the death knell for the Smith Act as a weapon in the campaign against American Communists,” Stone notes. “Thereafter, the Court eviscerated virtually all of the anti-Communist loyalty programs that had been instituted in the 1940s and 1950s. In a series of decisions, it held unconstitutional a law denying Communists passports, invalidated denaturalization orders based on membership in the Communist Party, held unconstitutional a statute denying Communists property tax exemptions, and set aside a federal law making it difficult for individuals to receive foreign ‘Communist propaganda.’ ”23

  In 1969, the Supreme Court appeared to close the door firmly on government’s power “to invade that sanctuary of belief and conscience,” in Justice Douglas’s words, by extending the shelter of the First Amendment to a leader of the Ku Klux Klan, Charles Brandenburg. He had gathered Klansmen for an organizing rally on a farm near Cincinnati, and the Court overturned the Ohio law leading to his conviction and ten-year sentence. In a concurring opinion, Douglas sketched the damage done to the rights of speech and association by the Court’s varied applications of Holmes’s ambiguous standard over the previous fifty years.

  “Out of the ‘clear and present danger’ test came other offspring,” Douglas wrote. One was the tool of forcing a citizen under oath to confirm or deny his membership in the Communist Party, to expose him either to prosecution for belonging or to blacklisting for invoking his Fifth Amendment right not to incriminate himself by answering. “And so the investigator roams at will through all of the beliefs of the witness, ransacking his conscience and his innermost thoughts.” A criminal act can be prosecuted, Douglas continued, but “all matters of belief are beyond the reach of subpoenas or the probings of investigators.”24

  Not all, not today. Today, Timimi is regarded as such a grave national security threat that he is held under the Bureau of Prisons’ Special Administrative Measures, denied the right to speak publicly or to contact other inmates. He is allowed out of his cell for one hour a day.

  So, in his final exercise of his right to speak freely before disappearing into prison, Timimi projected himself onto a large screen, too, telling the court that he claimed innocence not “because my Muslim belief recognizes sharia law rather than secular law, as somebody might argue. It is merely because I am innocent.” To believe that “an individual who has never owned or used a gun, never traveled to a military camp, never set foot in a country in which a war was taking place, never raised money for any violent organization, would be—could be—the author of so much harm” meant that a conviction came “simply out of fear,” he declared.

  “In the end, Your Honor, I too, like Socrates, am accused and found guilty of nothing more than corrupting the youth and practicing a different religion than that of the majority. Socrates was mercifully given a cup of hemlock. I was handed a life sentence.”25

  SYMBOLIC SPEECH

  Very few Americans can identify with Timimi—he is an outlier on the spectrum of opinion, a Muslim of Arab background whose religious politics make him a minority within a minority. Hardly anyone can imagine thinking or saying what he did, and therefore we can’t imagine ourselves being arrested for our speech.

  The assumption seems reasonable until more thought is given. Since constitutional rights apply to everyone, so do their violations. Too many mainstream Americans who couldn’t imagine their speech being suppressed have learned that once a tool of censorship is sharpened, it can be turned in any direction, including back on them. First Amendment guarantees, said Justice Hugo Black, “must be accorded to ideas we hate or sooner or later they will be denied to the ideas we cherish.”

  The concept had not taken root in the Colorado town of Alamosa when John Fleming relied on that bible of American values, the Boy Scout Handbook, instructing that the American flag may be hung upside down as a sign of distress. He did just that in the front window of his book and music store, the Roost, to signify the distress he saw his country causing by invading Iraq.26

  Fleming stood on firm constitutional ground, but as he quickly discovered, it’s ground that has to be constantly reinforced against the floods of popular outrage. The right to use a flag as a symbol of speech protected by the First Amendment has been developed in a line of cases reaching back to Stromberg v. California in 1931, when the Supreme Court courageously invalidated one clause of a California law banning the red banner as an “emblem of opposition to organized government.” In that instance, it was the red flag of the international workers’ movement, raised every morning over a Communist youth camp while the children stood and pledged allegiance to “one aim throughout our lives, freedom for the working class.” A camp supervisor, a nineteen-year-old woman, was arrested, tried, and convicted. The Court found the law so vague that it could prohibit any criticism of government, including by peaceful means.27

  Tested by war, religion, and other contentious issues, a divided Court then expanded the First Amendment’s shield in using the American flag for dissenting views. In 1969, a slim majority ruled that contemptuous words about the flag were not punishable (in this case, “We don’t need no damn flag”). “It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,” the Court declared.28 In two 1974 cases growing out of Vietnam War protests, the justices ruled it permissible to tape a peace sign to a flag,29 and to deride the flag by wearing it on the seat of your pants.30

  Those opinions laid the groundwork for the landmark ruling on flag burning, Texas v. Johnson. The case emerged during the 1984 Republican convention in Dallas, when Gregory Johnson was handed an American flag taken from a flagpole by a fellow protester in a march against government and corporate policies under the Reagan administration. In front of city hall, he poured kerosene on the flag and set it ablaze. While it burned, demonstrators chanted, “America, the red, white, and blue, we spit on you.” Johnson was arrested for violating a Texas law prohibiting the “desecration of a venerated object,” which explicitly included state and national flags. He declared at his trial: “The American flag was burned as Ronald Reagan was being renominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at that time.” He was convicted and sentenced to a year in prison and a $2,000 fine.

  When his appeal reached the Supreme Court, Chief Justice Rehnquist was able to gather three other justices to his minority view that the law was constitutional. A burning flag was equivalent to fighting words that could provoke violent reactions, he wrote, and the curb on free speech was insignificant: “The Texas statute deprived Johnson of only one rather inarticulate symbolic form of protest—a form of protest that was profoundly offensive to many—and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy.” Rehnquist supported his legal argument with a mawkish rehearsal of the flag’s history in battle, quoting at length from “Barbara Frietchie,” John Greenleaf Whittier’s melodramatic poem:

  “Halt!”—the dust-brown ranks stood fast.

  “Fire!”—out blazed the rifle-blast.

  It shivered the window, pane and sash;

  It rent the banner with seam and gash.

  Quick, as it fell, from the broken staff

  Dame Barbara snatched the silken scarf.

  She leaned far out on the window-sill,

  And shook it forth with a royal will.

  “Shoot if you must, this old gray head,

  But spare your country’s flag,” she said.

  Five justices, however, recognized flag burning in this circumstance as “expressive conduct” intended to communicate ideas, similar to picketing, protest marches, and sit-ins at segregated lunch counters. “The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word,” the ma
jority acknowledged, but the governmental interest in doing so must be compelling and not aimed at suppressing speech. So protesters who block traffic can be arrested for blocking traffic, not protesting. A flag burner could be arrested for violating a fire code but not for expressing antipathy toward the United States.31

  Texas had given two reasons for prohibiting the act: to prevent disorders and to preserve the flag as a symbol of nationhood and national unity. On the first point, Justice William J. Brennan Jr. observed in writing for the majority, “no disturbance of the peace actually occurred or threatened to occur because of Johnson’s burning of the flag.” The act wasn’t directed at anyone as a personal insult, so couldn’t be construed as “fighting words.”

  The second goal, nationhood and unity, “is related to the suppression of expression,” the Court found. Had Johnson disposed of a torn or dirty flag by burning it ceremonially, the method approved by federal law, he would not have been arrested, Brennan noted. If flag burning in protest were outlawed, then the symbolic act would be legal when it meant one thing and not another, producing an unconstitutional regulation of content: silencing a particular message.

  “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” Brennan declared. “We have not recognized an exception to this principle even where our flag has been involved.”