The high emotions that brought federal agents to Reingold’s and Brown’s doors took an ugly twist when Marcia Perez got into a spat with her son’s roller hockey coach, Pete McGurty, who had lost friends in the World Trade Center. Right after a game on September 28, 2001, “I gave him my condolences,” Perez recalled, “and I told him that I hope the U.S. begins to reconsider its foreign policy.” In other words, she pushed the button that seemed to say: we were at fault.
“He got really antagonistic and said, ‘What does foreign policy have to do with what happened in New York?’ I said, ‘I simply don’t think bombing women and children in Afghanistan is the answer.’ He stated to me in a loud voice, ‘I don’t care if they bomb those fuckers and their families too.’ I told him I agree that what happened in New York was very saddening, the death of anyone was saddening. He said the answer was to go after the terrorists and kill them all. I told him innocent lives should not be sacrificed, that my husband was an orphan because of U.S.-trained death squads in Guatemala, that we understand the costs of war. He was ranting and raving. He didn’t have a political view except just rage in his heart. He called them sister fuckers, right in front of the kids. My son was hearing this.”
Then it got “racial,” she said. “If they bomb East L.A., how would La Raza feel?” she quoted him as asking, and as he did, he made a gesture of slicking his hair back. “How would Mexicans feel?”
She replied, “I don’t know. I’ve never been Mexican in East L.A.” Perez is half Mexican, half Japanese; her Guatemalan husband was standing there, too, listening, along with other parents.
When I called McGurty to check this account with him, three years later, he got mad at me for just asking. The question revived all the pain of loss, he said, and he refused to offer his version, except to flail at Perez.
“She was so cruel,” he practically shouted through the phone, his voice breaking in anger and near tears. “She was cruel, she was mean and inhumane. She was a cold, heartless woman. I’m from New York, and my personal friends passed away that day in New York. She was cruel. She picked on somebody who was emotionally devastated. She was inhumane.… I was in mourning then, and I’m probably going to be in mourning the rest of my life.”
Their argument might have ended as a sad rift at a terrible, raw moment of the American experience. But several days later, Perez got a call from Mike Stallings, director of parks and recreation for Daly City, south of San Francisco, which ran the hockey league. “He called me into his office,” she said. “He offered me my money back for hockey. I said no, my son’s playing hockey. He loves hockey. He said he can’t play anymore. We’ve made a decision that your son be removed from the league.” He’d heard that she supported the attack on the Trade Center, he told her. She set the record straight. “I said, ‘So you’re saying that my eight-year-old son can’t play hockey because the coach disagrees with the political views of the parent.” She threatened to sue, and she’s a lawyer.
Here was local government punishing a small child for the political views of his outspoken mother. The error must have been recognized by someone in city hall, for Stallings soon sent her a letter of compromise moving the boy, Marcelo, to another team after a week’s suspension (“We will issue a refund … for the value of one week of the program”). It was still a hardship for a lad of eight. “The Ranger’s [sic] coach has requested that your son, Marcelo, be placed on another Pee Wee hockey team,” Stallings wrote on official letterhead. “Marcelo will not be able to play hockey this week on the Rangers and will begin with the Wild on Oct. 8.” He added a censorship order to Perez: “Please remember that this is a youth recreation hockey program and that conversations with the coaches should be about hockey.”68
Marcelo took it badly. “He cried. He really cried,” his mother remembered. “He said, ‘Why do I have to leave the team, Mama?’ Actually, it’s his first lesson in racism and, I guess, overzealous patriotism. And I explained to him when people don’t agree with you and they have power over your life, they do these things. I explained that this is an issue of control and power, and your coach is a white male and I’m a female and I’m brown, and my opinion doesn’t really matter to them, nor do your feelings. This is his first real-world lesson in racism and fighting for his rights of free speech.”
After his new team, the Wild, played his old, the Rangers, the kids and coaches lined up to shake hands. When he got to Coach Pete McGurty, Marcelo pulled his hand away.
Acting like thought police, some guardians of decorum have silenced discordant Americans to keep the comfort zone placid, anodyne: don’t disturb the harmony, don’t let bothersome ideas from the margins rankle the general mood of unanimity. Proprietors do not want ripples of resentment and offense. Owners of shopping malls seem to fear unpleasant thoughts interrupting customers’ bland contentment as they glide from store to store. Employers worry about conflicts distracting workers who are getting paid to work. Colleges want to protect their minority and female students from racist, sexist sneers and epithets.
The First Amendment restricts only government, so with some exceptions, private actors can muzzle unwelcome speech without legal sanction. If Marcelo’s hockey league had been run by a Rotary Club or a YMCA, his mother would have had no leverage on the free speech issue alone, only on her charge of ethnic discrimination. If Raed Jarrar had been hassled by JetBlue without the federal TSA’s involvement, he would not have had a First Amendment case, which in his lawsuit he reserved for the TSA alone, accusing JetBlue of discrimination only.
This creates a complex First Amendment culture, with private actors often imposing their own sanctions on dissent in ways that government cannot.
When the singer Natalie Maines of the Dixie Chicks told a London audience how ashamed she was that President Bush came from her home state of Texas, the group got death threats, had to install metal detectors at their concerts, and became the target of a privately organized boycott in which some American radio stations stopped playing their music.
When the German composer Karlheinz Stockhausen called the attack on the World Trade Center “the greatest work of art imaginable for the whole cosmos,” a performance of his work scheduled at the Cooper Union in New York was canceled by the Eastman School of Music’s Ossia Ensemble. A concert was also canceled in Hamburg. He later explained apologetically that he was referring to the art of Lucifer, the prince of destruction who takes a role in his opera Licht.69
When the artist Christopher Savido created a portrait of Bush composed of tiny images of chimpanzees, the entire exhibition in which the work appeared was ordered closed by a director of the Chelsea Market in Manhattan, who threatened to seize all sixty pieces of art and have the organizer, Bucky Turco, arrested and evicted from his rented office.70
When a few librarians at Florida Gulf Coast University in Fort Myers wore “I’m Proud to Be an American” stickers after 9/11, their superiors asked them to remove them, lest they offend foreign students. “If some people are offended by another person’s speech,” countered Howard Simon of the ACLU, “that’s the price of freedom in this country.”71
At another library, in Topeka, Kansas, supervisors banned an employee, Bonnie Cuevas, from speaking at work about the Supreme Court ruling that overturned a Texas law used to prosecute homosexuals for sodomy. After a few colleagues expressed delight with the decision, and reporters called her for comment, she was told by two managers that another employee had complained about her pro-gay conversations creating “a hostile work environment.” A private firm might have had the right to impose censorship, but this was a government-run library, and federal case law bars the government from silencing speech on a public issue just because someone is offended.72
Privately owned facilities open to the public are another matter. They fall into an ambiguous category overseen by a variety of disparate state constitutions and court interpretations that have allowed the owners of shopping malls to test the limits of their censorship powers. At the
Westlake Center mall in Seattle, a week before the Iraq war began, a security officer ordered a shopper either to remove a small, one-and-a-half-inch “No War” pin or to leave the building.73
Around the same time in upstate New York, Stephen Downs went into the Crossgates Mall in Guilderland with his adult son, Roger, to perform a test of their own. They asked a store in the shopping center to make them two T-shirts, for which they paid $22 each. Stephen’s said “Give Peace a Chance” on one side and “Peace on Earth” on the other; his son wore one reading, “No War in Iraq” and “Let Inspections Work.”
They put the T-shirts on over their other shirts and went to a food court to eat. All was peaceful in the mall until the inflammatory messages promoting peace were spotted by two security guards assigned to keep the peace, who told them to remove the T-shirts or leave. “I said I wasn’t going to take off the T-shirt,” reported Stephen, an attorney who was then chief counsel in the Albany office of the Commission on Judicial Conduct.
The guards disappeared, returned a few minutes later with a policeman, and informed the father and son that they were causing a disturbance, which seemed odd, since the group was surrounded by nonchalant shoppers who were calmly consuming, as Americans were advised to do by their president after 9/11. The only disturbance came from the peace officers objecting to peace messages and threatening to lock up the father and son.
The two had decided in advance that Roger would avoid arrest, so he took off his shirt, and Stephen, who had a Subway sandwich in one hand and a drink in the other, held them out in front of him, saying, “Do what you have to do.”
Then he felt something new. “After they handcuffed me, I had an out-of-body experience,” he said. “I’m a lawyer but was surprised. You’re really helpless.”
He was arrested not for unpleasant speech—which would have been patently unconstitutional—but for trespassing, the most common tool used by government to enforce private censorship. At a police station inside the mall, Stephen and the cop sparred for a while. “The basic premise was that if I went to somebody’s house and I was doing something that offended the people and they asked me to leave, I should get up and leave. This was like a person’s house, private property. I said this is more like a marketplace, people coming and going.”
And that is precisely the divide that the Supreme Court has left to state courts and legislatures to sort out. Some have interpreted state constitutions as protecting speech in privately owned malls because they are public forums (California, Massachusetts, Oregon, and New Jersey, for example), and others allow malls to curb messages they deem offensive (Connecticut, New York, Arizona, Georgia, Pennsylvania, South Carolina, and Minnesota among them), creating a patchwork across the nation.74
Crossgates dropped the trespassing charges against Downs, but he sued the company, which retained a vaguely worded code of conduct on its Web site. A section titled “Please Dress Appropriately” declared: “The wearing of apparel which is likely to provoke a disturbance or embroil other groups or the general public in open conflict is prohibited.”75
A saving grace of open societies is this: in most cases of suppression, the offending statement receives more publicity than it otherwise would. The Dixie Chicks may have suffered some at home, but the remark about Bush gained circulation far beyond the audience in London, and the group continued to perform globally and sell a lot of CDs, setting a record for a country-music act of $62 million gross that year.76 The Bush portrait made up of chimps was widely viewed when published in The New York Times. And Downs’s shirt was added to the T-shirt collection of the New York State Museum in Albany.
The conclusion from all these episodes, whether they are momentous or merely minor scuffles at the margins of free speech, is that Americans do not like to be told what to say or what to think. At least that is what we want to believe about ourselves. Although national trauma does not foster reasonable discourse, as we have seen since 9/11, the idea of America remains the din of ideas. Our founding truth makes room for a multitude of truths, spoken by each of us in our own voice, clashing and competing and drowning out orthodoxy.
This right to speak serves as the wellspring nourishing other rights. Art cannot flourish, literature cannot inspire, the powerless cannot dissent, the press cannot probe, the voter cannot choose wisely, the space for dialogue cannot remain open, and our system cannot be self-correcting without the First Amendment’s guarantee.
That makes free speech bigger than an individual possession, for the right to be heard is also the right to hear: your freedom to speak determines my freedom to know. As citizens of dictatorships discover, imposing silence on one imposes deafness on all. They lose the privilege of listening, and into silence marches tyranny.
CHAPTER SEVEN
A Redress of Grievances
Democracy is not a quiet business.
—Anthony D. Romero,
executive director, ACLU
DECORUM AND DISSENT
THERE IS NO STRONGER magnet for protest than the nation’s capital, and no more intimate opportunity for face-to-face (or in-your-face) encounters with power than the white-domed Capitol and the flanking House and Senate office buildings. Nowhere else can a dissenting citizen so easily cross paths with the legislators who write laws, shape budgets, and determine the course of the country. If you stroll the corridors, you can buttonhole senators and representatives as they hurry to floor votes or committee hearings, which are almost always open to the public.
Until May 10, 2007, Gael Murphy freely roamed those hallways and hearing rooms as a leader of two groups trying to end the war in Iraq: the congressional co-chair of United for Peace and Justice, and co-founder of the women’s movement that named itself Code Pink in a spoof on the Department of Homeland Security’s colored levels of alert, which usually stayed at Code Orange or Red.
That day, as a Senate committee hearing ended, she tried to unfurl a banner reading “Stop Funding War.” She was immediately arrested, jailed overnight, and then banned by court order from the entire Capitol grounds, including all office buildings and surrounding streets. The “stay-away order” lasted ten months, and although she managed to get a slight relaxation from the judge, she could not lobby as before. She could attend specific hearings only when armed with an invitation from a sympathetic congressional aide, so she could not hang out in the offices to chat with staff members, drop in on last-minute hearings, or talk on the run with legislators. Her effectiveness was practically extinguished.1
It would be hard to argue that Code Pink hastened the withdrawal from Iraq. It certainly didn’t prevent President Obama from adding troops in Afghanistan. As an exercise in First Amendment rights, demonstrations are usually born of frustration, and their impact is debatable. They typically open space for dissent where authorities have stopped listening, but they don’t usually force policy change without becoming intensely dramatic, either by incurring violence from the police, as during the civil rights movement, or by their overwhelming size and persistence, as during the war in Vietnam—two rare successes in the annals of American street protests.
The marchers against segregation in the South prevailed mainly because their opponents, represented by beefy white civilians and cops, played the thugs by attacking peaceful protesters with dogs, fire hoses, and truncheons, as if fulfilling roles in a pageant of injustice. Civil rights leaders understood very well how powerfully the televised scenes of crude brutality against passive resistance would mobilize the conscience of the country against the segregationists.
The Vietnam protests grew so huge, and their spin-offs so intrusive on college campuses, that they amplified the larger public’s gathering doubts about the failing war and eventually propelled the American withdrawal. Other grievances were pulled into the vortex of the demonstrations, including the draft—which was ended before the war ended. Students who occupied university buildings against imperious administrators won major revisions in parietals and other campus policies, so that t
oday’s undergraduates can thank the protesters for ending the rules that women be in their dorms by 10:00 or 11:00 or midnight and have no male guests after hours.
Typically, though, most demonstrations are futile, so it’s remarkable how eagerly government tries to impede them. That happens especially during wartime, when the right to free speech is most needed and most vulnerable, when the country requires candor but cries for common purpose. Among the many strengths that war demands, and one of the hardest to muster, is the power to listen.
But listening to Gael Murphy or seeing her banners did not appeal to the congressional leadership or the Capitol Police, who applied the stay-away order as a convenient countermeasure. It is a tool normally used to prevent real crime, usually issued as a condition of release pending trial for drug dealing or domestic abuse—a method of keeping the defendant away from a neighborhood, a witness, or a victim.2
Stores, libraries, and other institutions have issued banning orders without court authorization to exclude suspected shoplifters and vagrants. Washington prosecutors routinely request them to suppress demonstrative messages on Capitol Hill, and the practice has caught on elsewhere. Police slapped one on Andrew Silver as they expelled him from the 2007 North Carolina State Fair. His offense: wearing a sandwich board and collecting signatures on a petition urging that Vice President Dick Cheney and President George W. Bush be impeached.
“They took me to the police precinct at the fairground,” said Silver. He smiled while they snapped his mug shot and posted it on their wall along with pictures of shoplifters and drug dealers who were banned. The cops “said I’d be arrested if I ever came back. There was no end date on it.”
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 31