Jackson then rebutted Frankfurter on “national unity.” To achieve it when moderate methods fail, Jackson noted, leaders both good and evil “must resort to an ever-increasing severity.” The “ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.… It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.”52
This might be called the worst-case-scenario theory of constitutional law. It’s the reason the ACLU and other defenders of civil liberties know no politics as they pick their cases, defending cross burners as well as flag burners, Nazi marchers on the right as well as antiwar demonstrators on the left. In contesting even minor violations, the ACLU’s purpose is often preventive, not unlike the FBI’s preventive approach to terrorism. Both predict the most dreadful possibility and try to head it off. The civil libertarian belief holds that a denial of one person’s rights on a single day can be repeated until it becomes acceptable in culture or in law, so it’s better to put out brush fires before the flames consume the Constitution.
That is why Americans’ right of free speech is guarded so jealously and worried over so anxiously, even while the country stands safely unrestrained amid the raucous rhetoric that has come to dominate political debate. There appears little danger to the free-flowing expression of opinion in the United States, no matter how noxious. Yet to defend this vast homeland of liberty, little fights on behalf of free speech occur almost invisibly at the distant boundaries of the ground protected by the First Amendment. They may seem marginal, even trivial, but in a judicial system resting on precedent, minor skirmishes can shape constitutional principles that are then applied across the broad landscape.
These small tests often bring narrow victories. During the Vietnam War, for example, a California law prohibiting “offensive conduct” that would “maliciously and willfully disturb the peace or quiet of any neighborhood or person” was used to prosecute Paul Robert Cohen, who wore a jacket emblazoned with the words “Fuck the Draft” in the hallway of a Los Angeles courthouse. He made no noise, threatened no violence, provoked no disorder, and was convicted solely for the content of his speech.
By the bare majority of 5–4, the justices found no obscenity (the language not being erotic) and no “fighting words” (the slogan not being aimed insultingly at any individual). They dismissed the argument that the unwilling viewers, who included children, should not have been subjected to such an offensive message, holding that privacy interests wane outside the home. “To shut off discourse solely to protect others from hearing it … would effectively empower a majority to silence dissidents simply as a matter of personal predilections.”53 In other words, permitting an insignificant statement tenuously preserved a greater right.
SMALL VIOLATIONS OF LARGE PRINCIPLES
“We Will Not Be Silent,” declared the young man’s T-shirt, in Arabic and English. The letters were vividly white against black, and the sinuous Arabic script must have looked gracefully sinister. The man had suspiciously olive skin and a closely trimmed beard and mustache, like the desperate faces being televised from war-torn Iraq. His accent when he spoke was slyly softened by the purr of the Middle East. He sat alone waiting quietly, eating a small breakfast in the gate area of New York’s John F. Kennedy International Airport, two days after an airliner bombing plot, unraveled in London, had sent a pulse of anxiety across the Atlantic.
His name was Raed Jarrar, and what happened to him was such a small story. It was an indignity and an inconvenience, not typical and not monumental enough to make a landmark court decision, perhaps not even a footnote in the sweep of American legal history. But it violated a founding principle. And so, like other minor trespasses onto the vast territory of free speech, it tripped an alarm.
On August 12, 2006, Jarrar passed through the metal detector without a beep, en route to a JetBlue flight home to Oakland, California. To avoid hassles at security over new restrictions on liquids and gels, he had checked all his luggage and had only his cell phone, wallet, boarding pass, and the clothes he was wearing. He was pulled aside for a second screening. He was frisked, and his shoes were tested for explosives residue.
Cleared again, he got some cash from an ATM, bought breakfast, and settled down to eat and wait for his flight at Gate 16. Then he saw a uniformed agent of the Transportation Security Administration (TSA) approaching.
“He said, ‘Do you have a minute?’ and he showed me his badge. He asked me to walk with him,” Jarrar recalled. “I was terrified.”
Born in Iraq and raised under Saddam Hussein, Jarrar was schooled in the arbitrary power of the state. Now safely married to an American, he held a green card signifying his legal status as a permanent resident of the United States, but he actively opposed the war and was mindful of his vulnerability as a noncitizen, as an Arab. So as the episode at Kennedy Airport unfolded, he tried to balance his fears against his rights, delicately.
The TSA official, later identified as Supervisory Aviation Security Inspector Garfield Harris, led Jarrar to the JetBlue counter and told him that passengers at the screening checkpoint had, in Harris’s words, “expressed displeasure” at his T-shirt, which he would have to remove.54 Evidently, it took only a couple of narrow minds to mobilize the federal government.
Shock tightened Jarrar’s fear. “I would never have expected that in the U.S.,” he said later. “It reminded me of how I would feel when approached by security forces of any authoritarian regime: you’re in trouble and you might get in huge, huge trouble if you didn’t act like a good citizen. I was being very polite and very communicative in dealing with them, without giving away my rights.”
Surrounded by a small group that included JetBlue crew members, he submitted to Harris’s unjustified questioning: Where did he live, where did he work, where had he traveled, when had he come to New York City, and for what purpose? “I didn’t say, ‘It’s none of your business,’ or get into a confrontation, especially considering that many other Arabs or Muslims were shipped out of the U.S. to be tortured for doing less.”55 When Jarrar opened his wallet to pull out a business card, Harris spotted his green card, asked to see it, and wrote down the personal information it contained, which included his country of birth.
Jarrar resisted only one demand: that he remove his shirt. “I said I would take it off if you present me a lawful order. Otherwise I prefer to keep it on because I consider it’s my constitutional right.”
“People in the U.S., they don’t know anything about constitutional rights,” one of the uniformed men told him—whether an agent of the government or the airline he wasn’t sure. “He wasn’t actually being hostile,” Jarrar remembered. “He was being friendly. He was just informing me: Who is this naive newcomer?”
The naive Jarrar tried to convince Harris of his shirt’s innocence. Its creators, a small organization called the Critical Voice, had given him one when he’d spoken at an antiwar rally in Washington three months earlier, and thousands had been made with the same message in many languages. The slogan had originated in 1942 with the White Rose, a student resistance group in Nazi Germany, which had distributed an antiwar leaflet pledging, “We will not be silent.… We are your bad conscience.… The White Rose will not leave you in peace!” Its members were executed.56
Jarrar might have mentioned this noble history had he known, but the TSA agent may not have been moved. He seemed fixated on the Arabic writing, arguing “that it was impermissible to wear a shirt with Arabic script at an airport, since that was analogous to a person wearing a T-shirt at a bank stating, ‘I am a robber,’ ” Jarrar stated in a later lawsuit.57 The messag
e was no such threat, Jarrar insisted. Harris wasn’t persuaded. Without a translator, he countered, agents couldn’t be sure it didn’t say something quite different from the English. He allegedly ordered Jarrar to turn the shirt inside out if he wanted to board the aircraft.58
As the standoff continued, Jarrar grew gradually more nervous about missing his flight or being arrested. Although the airline later denied threatening to bar him from the plane,59 the group confronting him was joined by a JetBlue man who “appeared openly hostile and threatening,” according to Jarrar’s complaint. Compromise began to seem sensible, so when a female JetBlue agent offered to buy him another shirt, Jarrar considered and reluctantly relented.
She proposed “I Love New York,” but Agent Harris suggested a plain T-shirt, “to avoid the impression that Plaintiff was being asked to endorse a particular message,” he told the court. Jarrar heard it another way: that Harris, having stereotyped him as hateful, thought it would be unreasonable to force him to announce his love for America’s largest city.
Whatever Harris meant, he and the JetBlue crew guarded Jarrar while the airline employee went to an airport shop and bought a gray T-shirt blandly labeled “All Original New York Authentic Blend.” As they kept close watch, Jarrar put it on over the offending Arabic and English message, all the while promising a lawsuit, which he later filed against both Harris and JetBlue with the help of the ACLU.
Humiliated and still worried that he could be arrested or deported, Jarrar avoided the stares of other passengers by waiting a distance from the gate. JetBlue evidently wanted him out of sight, too: a ticket agent allegedly tore up his boarding pass, changed his seat from 3A in the front to 24A in the back, and escorted him onto the plane before anyone else. A Department of Transportation investigation found unjustifiable behavior by the airline based on perceptions of Jarrar’s ethnicity.60
His lawsuit claimed that both Harris and JetBlue had violated the Civil Rights Act by “intentional discrimination” and that Harris, as a government agent, had abridged both the First Amendment’s guarantee of free speech and the due process provision of the Fifth Amendment, which encompasses equal protection under the law.61 Jarrar’s lawyers were asking the courts to play their dual role, to apply the law to a specific infraction and also to judge the constitutionality of government behavior.
Jarrar had not been arrested, he had not been deported, he had not even missed his flight. Yet his wife, Niki, an Iranian-born, naturalized American, was left with a residue of apprehension. When they drove across country together, “she hid all her books in Arabic or Farsi in a bag,” he said. “She buried them as deeply as she could.”62
Angered by what he’d seen firsthand of the war before fleeing Iraq, Jarrar was neither starry-eyed nor cynical about the United States. He gave a touching nod to America’s ideals by working as a consultant for the American Friends Service Committee, speaking across the country on the devastation of Iraq, testifying before Congress, putting U.S. legislators in touch with their Iraqi counterparts. He respected America’s fears, too.
“I would support the right to get any suspicious person off an airplane or a bus,” he said. “But to cover someone’s T-shirt and put him in the back of the plane because of the language, that’s another thing. I didn’t object to the TSA taking me to a secondary check. I don’t have a problem with safety and security, but I have a problem with Islamophobia or this general tendency of calling brown people terrorists or suppressing my right to express myself.”
Once Jarrar’s story hit the news, a sassy blogger wrote on his Web site: “What the hell, this guy got a free T-shirt and he’s complaining?” But others made sure the shirts appeared at many airports. White Anglo passengers wore them onto JetBlue planes without interference, reinforcing Jarrar’s belief that he had been singled out as an Arab.
He decided to keep his own in a drawer while his lawsuit proceeded, “because I wanted to get a legal ruling from the court whether wearing this T-shirt was my constitutional right.” This test of American principle he was not willing to dodge by agreeing to a settlement for mere money; he wanted a jury trial. “I’m not interested in settling unless the settlement will create a legal precedent,” he declared firmly. He envisioned the court issuing an order prohibiting airlines and the TSA from treating passengers as he had been treated.
In a civil suit such as his, though, the most he could win was money, and he could lose something along the way: JetBlue and TSA attorneys dug into his family and subpoenaed his friends for long depositions in an effort to sully his reputation and “intimidate me so I would drop my case,” he said. “I was against taking money,” he lamented. “There are people who sue McDonald’s because coffee falls on them. I don’t want to fall into this group of people.”
But one day the judge asked why the parties hadn’t settled, prompting JetBlue and two TSA agents to dangle $240,000 even as they denied wrongdoing. Jarrar very halfheartedly agreed. He’d won but didn’t feel vindicated. Skeptical, he could only hope that his attorney, Aden Fine, was right in saying, “The size of that settlement really sends a message that this should never have happened, and what they did should never happen again.” From his proceeds, he donated $50,000 to cover the ACLU’s out-of-pocket expenses, a fraction of the hundreds of thousands of dollars’ worth of time the organization had spent.
Jarrar had envisioned a purer victory. He’d imagined a jury of Americans being indignant: “I thought in ten minutes they’d say, ‘What the hell did you do to this guy?’ But I was advised by my lawyer that a jury might not look at you the same way because of where you come from. That’s a bad feeling.” The money did not erase the bad feeling.
Having to pay the money didn’t even deter the TSA from an alarmist reaction to Arabic writing three years later, this time more abusively, when Nicholas George, returning from summer break to Pomona College in California, dutifully emptied his pockets at security in Philadelphia’s airport. He pulled out a set of English-Arabic flash cards, the standard tools of a language student, a weapon in the war on insularity and parochialism. The TSA held him and interrogated him, then called the Philadelphia police to handcuff him and lock him in a cell awaiting the FBI, which finally let him go after five hours. The quality of investigation was revealed by a TSA supervisor’s questions: “You know who did 9/11?” Osama bin Laden, George answered. “Do you know what language he spoke? Do you see why these cards are suspicious?” George sued, too, and the Obama administration actually defended its officers.63
PUNISHING WITHOUT PROSECUTING
There are many ways to muffle dissent short of bringing criminal charges. There are zealous federal agents, for example, who smell some violation of something when the president is the target of protest. Secret Service agents, charged with checking out possible threats, knocked on an apartment door in Durham, North Carolina, about six weeks after September 11, where a nineteen-year-old college freshman named A. J. Brown had hung a poster on her wall. It showed President Bush as a hangman, holding a rope supposedly leading to a noose, with drawings of hanging bodies in the background, and the words “WE HANG on Your Every Word. George W. Bush Wanted: 152 Dead,” the number executed while he was governor of Texas. It was a protest against the death penalty, but to some anonymous neighbor or classmate who called the authorities, it was “anti-American,” the agents told her. They asked incongruously if she had any information about Afghanistan or the Taliban. She said no and complied with their request to fill out a form with her name, race, and other personal information.64
The FBI and the Secret Service visited Barry Reingold, a sixty-year-old retired telephone worker, after he mouthed off in a gym in San Francisco, where he went routinely to lift weights and pontificate. “Discussion turned to bin Laden and what a horrible murderer he was,” Reingold told The Christian Science Monitor. “I said, ‘Yeah, he’s horrible and did a horrible thing, but Bush has nothing to be proud of. He is a servant of the big oil companies, and his only interest in the
Middle East is oil.’ ”
As the rhetoric heated up, one of the other men threw a question: “Aren’t you an American?” Agents rang his bell a few days later, and Reingold went into the hall to meet them. “We’ve heard that you’ve been discussing President Bush, oil, Osama bin Laden,” one of them said; sardonically, Reingold replied that as far as he knew, such speech was still allowed. “They said, ‘You know, you are entitled to freedom of speech.’ And I said, ‘Thank you. That ends our conversation.’ ” He closed his door, hearing one of the agents remark, “But we still need to do a report.”65
Doing reports and checking out every tip after 9/11, no matter how preposterous, agents even showed up at a tiny Houston art gallery half an hour before opening for an exhibit titled Secret Wars, on American covert operations, which had been reported to them as “un-American.” After two hours sneering at various art pieces, they deemed the show “not dangerous.”66 National security was preserved.
Some federal agents dislike this sort of hyperscrutiny, as demonstrated by a strange 2006 incident in Colorado that turned members of Vice President Dick Cheney’s Secret Service detail against one another. It began when Steve Howards made a slight detour while walking his seven-year-old son through a mall to a piano lesson. Noticing Cheney shaking hands with people, Howards went up to him and said something like, “I think your policies in Iraq are reprehensible.” He may have lightly touched Cheney’s shoulder. Nothing happened to him then, but when he returned to the area about ten minutes later with his other son, an agent asked him, “Did you assault the Vice President?” Howards, “in shocked amazement,” as he put it to the court, said he had not, but he was handcuffed in view of his son and hauled off to the police station. The charge was reduced from assault to harassment and was then dismissed by the district attorney. Howards sued, provoking a public rift among Secret Service agents who tried to blame one another for the embarrassing arrest.67
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 30