Rights at Risk: The Limits of Liberty in Modern America (Vintage)
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58. Terry v. Ohio, 392 U.S. 1 (1968).
59. Center for Constitutional Rights, “Advocates Issue Statement Condemning Obama Administration’s Expansion of DHS’ Failed 287(g) Program,” http://ccrjustice.org/newsroom/press-releases/advocates-issue-statement-condemning-obama-administration%E2%80%99s-expansion-dhs%E2%80%99-f.
60. Sheridan, “Va. Police Back Off Immigration Enforcement.”
61. United States v. Brignoni-Ponce, 422 U.S. 873 (1975).
62. Abdul Ameer Yousef Habeeb v. Thomas Castloo et al., No. CVO5-24-GF-CSO, First Amended Complaint (D. Mon. 2006). Government agents enjoy “qualified immunity” from lawsuits if they are faithfully executing their duties according to the Constitution, established law, and regulation, but under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), federal officials can be held liable for punitive damages if they violate the law or the Constitution and deprive persons of their civil liberties. In that case, federal agents entered a suspect’s apartment without a warrant, searched and then arrested him, thereby violating the Fourth Amendment, the Court held. Bivens has since been the main basis of such lawsuits against federal officials, and it was so in Habeeb’s suit.
63. Jeffrey G. Sullivan, U.S. Attorney, Western District of Washington, to Abdulameer Habeeb, June 13, 2007.
CHAPTER SIX: SILENCE AND ITS OPPOSITE
1. Jerry Markon, “Terrorism Case Puts Words of Muslim Leader on Trial in Va.,” Washington Post, April 4, 2005, p. B01.
2. Milton Viorst, “The Education of Ali al-Timimi,” Atlantic, June 2006. Viorst recounts that at his son’s 1977 bar mitzvah, with Ali present among the friends, the rabbi delivered an “anti-Arab diatribe” in his sermon, alleging that Arabs would strive to kill Jewish boys. Al-Timimi told an interviewer years later: “I was offended that I would be associated with seeking to murder my Jewish classmate and one of my closest friends.”
3. Jeffrey Rosen, “Say What You Will,” review of Freedom for the Thought That We Hate, by Anthony Lewis, New York Times Book Review, Jan. 13, 2008, p. 10.
4. Espionage Act of June 15, 1917, 40 Stat. 217.
5. Schenck v. United States, 249 U.S. 47 (1919).
6. Pierce v. United States, 252 U.S. 239 (1920). See also Debs v. United States, 249 U.S. 211 (1919); and Frohwerk v. United States, 249 U.S. 204 (1919).
7. Abrams v. United States, 250 U.S. 616 (1919). Oliver Wendell Holmes was joined in dissent by Louis Brandeis.
8. Whitney v. California, 274 U.S. 357 (1927).
9. Gitlow v. People of the State of New York, 268 U.S. 652 (1925). The appeal was brought on the basis of the Fourteenth Amendment. The majority opinion by Edward Sanford said, “For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Holmes and Brandeis endorsed the extension of the First Amendment and thought the conviction should be overturned.
10. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
11. In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), a unanimous Court struck down a city ordinance prohibiting cross burning or other symbols likely to spark “anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” Justice Antonin Scalia wrote that in proscribing fighting words, “the government may not regulate use based on hostility—or favoritism—towards the underlying message expressed.”
12. Dennis v. United States, 341 U.S. 494 (1951), 6–2 upholding convictions under the Smith Act, with Hugo Black and William O. Douglas dissenting.
13. The Smith Act, formally entitled the Alien Registration Act, prohibits advocating the overthrow of the government “by force or violence.” It was stretched to cover simple membership in communist or fascist organizations and also required all noncitizens to register with the government. 54 Stat. 670, 671, title I, §§ 2–3 (June 28, 1940), current version at 18 U.S.C. § 2385.
14. Geoffrey R. Stone, Perilous Times: Free Speech in Wartime (New York: Norton, 2004), pp. 396–97.
15. Muhammed Aatique, sentenced Dec. 12, 2003, to ten years, two months, released March 31, 2006, and Khwaja Mahmood Hasan, sentenced Nov. 7, 2003, to eleven years, three months, released March 24, 2006. Paul J. McNulty, U.S. Attorney, E.D. of Va., Dept. of Justice, News Release, April 26, 2005; Inmate Locator, U.S. Bureau of Prisons, http://www.bop.gov/iloc2/LocateInmate.jsp.
16. Jerry Markon, “Views of Va. Muslim Leader Differ as Terror Trial Opens,” Washington Post, April 5, 2005, p. B04.
17. Ibid., quoting opening trial statement by Assistant U.S. Attorney Gordon Kromberg.
18. Superseding Indictment, United States v. Timimi, No. 1:04CR385 (E.D. Va., Alexandria Div.), Feb. 2005.
19. Markon, “Views of Va. Muslim Leader Differ as Terror Trial Opens.”
20. Dennis, 341 U.S. 494. In subsequent cases, the Court also upheld contempt citations by the trial judge against all five defense attorneys, who served thirty days to six months in prison and were barred from practicing law. Stone, Perilous Times, p. 398n.
21. Stone, Perilous Times, p. 411. The Supreme Court also ruled that cities could require employees to swear that they had not belonged to organizations advocating the violent overthrow of the government. Garner v. Board of Public Works, 341 U.S. 716 (1951); Adler v. Board of Education, 342 U.S. 485 (1952). In addition, the Court ruled that long-term immigrants in the country for more than thirty years could be deported for having once joined the Communist Party. Harisiades v. Shaughnessy, 342 U.S. 580 (1952).
22. Yates v. United States, 354 U.S. 298 (1957). The vote was 6–1, with Thomas Clark dissenting.
23. Stone, Perilous Times, p. 416.
24. Brandenburg v. Ohio, 395 U.S. 444 (1969).
25. As quoted in Viorst, “Education of Ali al-Timimi.”
26. It is also encoded in federal law: “The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.” 4 U.S.C. § 8(a).
27. Stromberg v. California, 283 U.S. 359 (1931). Section 403a of the California Penal Code read: “Any person who displays a red flag, banner or badge or any flag, badge, banner, or device of any color or form whatever in any public place or in any meeting place or public assembly, or from or on any house, building or window as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character is guilty of a felony.” Of the three clauses, only the first was ruled unconstitutional; the second two involving anarchistic action and seditious propaganda were upheld.
28. Street v. New York, 394 U.S. 576 (1969). After the civil rights activist James Meredith was shot in 1966, Sidney Street took his neatly folded flag, which he had hung on holidays, to a street corner near his Brooklyn apartment, lit it with a match, dropped it on the sidewalk while it burned, and told about thirty people there, “We don’t need no damn flag,” and, “If they let that happen to Meredith, we don’t need an American flag.” Since Street was punished for his words as well as the burning, the two being entangled, the Court ruled on the words only, finding them not severe enough to incite, and therefore protected speech. It did not rule on the burning. John Marshall Harlan wrote for the majority; Earl Warren, Byron R. White, Abe Fortas, and Black dissented.
29. Spence v. Washington, 418 U.S. 405 (1974). A Seattle college student was convicted under a state statute for hanging an inverted flag, half covered with a peace sign made from removable black tape, from his apartment window to protest the 1970 invasion of Cambodia and the shooting of student demonstrators at Kent State. He was charged under Wash. Rev. Code 9.86.020: “No person shall, in any manner, for exhibition or display: (1) Place or cause to be placed any word, f
igure, mark, picture, design, drawing or advertisement of any nature upon any flag, standard, color, ensign or shield of the United States or of this state.” The peace sign, he said at his trial, represented his belief that the United States stood for peace, not for killing. The Supreme Court vacated his conviction.
30. Smith v. Goguen, 415 U.S. 566 (1974). Goguen was sentenced to six months in jail for wearing a four-by-six-inch flag sewn to the seat of his jeans. The Court, 6–3, declared void for vagueness under the due process clause of the Fourteenth Amendment a Massachusetts statute punishing anyone who “treats contemptuously the flag of the United States.” Lewis Powell wrote the opinion, with Harry A. Blackmun, William Rehnquist, and Warren Burger in dissent.
31. Before the 2004 Republican National Convention in New York City, police officers were advised in a legal handbook that while “New York State General Business Law § 136, which prohibits burning, defacing, defiling, or trampling on the American flag, may not be enforced,” the Administrative Code prohibits an open fire in the city. “A summons for this offense, made returnable to Criminal Court, will be issued only when the fire created by the burning flag poses an imminent danger to persons or property.” “New York City Police Department: Legal Guidelines for the Republican National Convention,” March 10, 2004,
32. Texas v. Johnson, 491 U.S. 397 (1989), finding Texas Penal Code Ann. 42.09 (1989) unconstitutional. This was followed by a 5–4 decision in United States v. Eichman, 496 U.S. 310 (1990), striking down the 1989 federal Flag Protection Act, which provided up to a year in prison for anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon” a flag. The government’s brief arguing the law’s constitutionality was co-written by John G. Roberts Jr., the future chief justice. Text of the brief at http://www.usdoj.gov/osg/briefs/1989/sg890147.txt.
33. Norman Thomas, speech to National Student Association, New York, 1969, recounted in letter from his son, Evan W. Thomas II, New York Times, July 19, 1989.
34. ACLU press release, April 15, 2003, http://www.aclu.org/freespeech/flag/11177prs20030415.html; Matthew Rothschild, “An Upside Down Flag and a Dead Coyote,” Progressive, June 4, 2003, http://www.progressive.org/mag_mccoyote2.
35. United States v. O’Brien, 391 U.S. 367 (1968). The vote was 7–1, with Thurgood Marshall not participating and Douglas dissenting.
36. 50 U.S.C. § 462(b).
37. O’Brien, Appendix.
38. Virginia v. Black, No. 01-1107 (2003). The 6–3 opinion (with dissenters David Souter, Anthony Kennedy, and Ruth Bader Ginsburg, who held the law entirely unconstitutional) refined R.A.V., 505 U.S. 377, in which the same justices had unanimously struck down a city ordinance prohibiting the display of a burning cross or Nazi swastika that arouses “anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” That law fell because it was aimed at disfavored topics in an attempt to regulate the political or social content of speech. By contrast, the Virginia statute made no mention of race and the like, thereby making its focus the intimidation, a majority found. The Virginia Supreme Court had ruled it unconstitutional because of its discrimination by content, in that it made only cross burning illegal.
39. “Indiana Man Sentenced for Role in Cross Burning,” Justice Dept. release, PR Newswire, Jan. 4, 2008; “Michigan Man Sentenced to 36 Months for Cross-Burning,” Justice Dept. release, PR Newswire, Dec. 14, 2007; “Defendant Convicted in 2000 of Cross Burning Returns to Prison,” States News Service, July 12, 2006.
40. Daniel J. Sharfstein, The Invisible Line: Three American Families and the Secret Journey from Black to White (New York: Penguin, 2011), p. 110.
41. John Leo, “Don’t Tread on Free-Speakers,” U.S. News & World Report, Nov. 5, 2001.
42. The authorities capitulated by settling out of court. The students, Juan Díaz and John Bohman, who were represented by the Iowa chapter of the ACLU, agreed to take no money damages, just attorney’s fees, and decided not to pursue the case to get a constitutional ruling, according to their lawyer, Randall C. Wilson. Bohman later became Grinnell’s student government president.
43. Andrew and Melanie Black, Livingston, Mont., “Inverted Flag Shows National Distress,” blog, Billings Gazette, Jan. 30, 2010, http://billingsgazette.com/news/opinion/mailbag/article_3e14346e-0d54-11df-a0a5-001cc4c03286.html.
44. Mike McWilliams, “Flag-Defiling Charge Ends in Fight, Arrests,” Asheville Citizen-Times, July 26, 2007; ACLU of North Carolina, Legal Docket: Recently Settled and Ongoing Cases, http://www.acluofnorthcarolina.org/legal/docket.html#speech.
45. Iowa Code §§ 723.4(6) prohibiting “disorderly display of a flag” and 718A.1 on “desecration of flag or insignia.” The latter read: “Any person who in any manner, for exhibition or display, shall place or cause to be placed, any word, figure, mark, picture, design, drawing, or any advertisement of any nature, upon any flag, standard, color, ensign, shield, or other insignia of the United States, or upon any flag, ensign, great seal, or other insignia of this state, or shall expose or cause to be exposed to public view, any such flag, standard, color, ensign, shield, or other insignia of the United States, or any such flag, ensign, great seal, or other insignia of this state, upon which shall have been printed, painted, or otherwise placed, or to which shall be attached, appended, affixed, or annexed, any word, figure, mark, picture, design, or drawing, or any advertisement of any nature, or who shall expose to public view, manufacture, sell, expose for sale, give away, or have in possession for sale, or to give away, or for use for any purpose any article or substance, being an article of merchandise or a receptacle of merchandise or article or thing for carrying or transporting merchandise, upon which shall have been printed, painted, attached or otherwise placed, a representation of any such flag, standard, color, ensign, shield, or other insignia of the United States, or any such flag, ensign, great seal, or other insignia of this state, to advertise, call attention to, decorate, mark, or distinguish the article or substance on which so placed, or who shall publicly mutilate, deface, defile or defy, trample upon, cast contempt upon, satirize, deride or burlesque, either by words or act, such flag, standard, color, ensign, shield, or other insignia of the United States, or flag, ensign, great seal, or other insignia of this state, or who shall, for any purpose, place such flag, standard, color, ensign, shield, or other insignia of the United States, or flag, ensign, great seal, or other insignia of this state, upon the ground or where the same may be trod upon, shall be deemed guilty of a simple misdemeanor.”
46. Summary judgment, Judge Robert Pratt, Roe v. Milligan, 479 F. Supp. 2d 995 (S.D. Iowa 2007). The court did not rule on the First Amendment issue. In a settlement, Roe received $12,500 in damages and $5,000 in attorney’s fees, Klyn $7,000 and $3,000. Klyn’s protest had also been motivated by what he considered a wrongful decision against him as a creditor in a bankruptcy case.
47. Jason Clayworth, “House Approves Revision to Flag Laws,” Des Moines Register, April 4, 2007, p. 5B.
48. The judge was Wayne Sturtevant in Hamilton County. “Flag-Burning Suspect Ordered Not to Touch, Handle, or Possess Any U.S. Flag,” AP, Oct. 9, 2001; http://www.firstamendmentcenter.org//news.aspx?id=4561&SearchString=eichman.
49. New York Times, March 3, 1917. For state laws, see First Amendment Center Web site at http://www.firstamendmentcenter.org/speech/flagburning/topic.aspx?topic=flag_statelaws.
50. Earlier attempts at a constitutional amendment included a close call in 1995, when it lost in the Senate by three votes, and in 1997, when it passed in the House and failed to come to a vote in the Senate. Legislatures in forty-nine states were prepared to ratify. David M. O’Brien, Constitutional Law and Politics, vol. 2, Civil Rights and Liberties, 5th ed. (New York: Norton, 2003), p. 90.
51. Minersville School
District v. Gobitis, 310 U.S. 586 (1940), opinion by Felix Frankfurter.
52. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Robert Jackson noted that the Court had never held that a symbol could be used for one message but not another. See also Schacht v. United States, 398 U.S. 58 (1970), overturning federal law prohibiting an actor from wearing a military uniform to “discredit” the armed forces. The Court muddied the issue in 2009 by refusing to hear an appeal from a circuit court opinion upholding Florida’s law requiring students to recite the pledge unless parents exempted them in writing. This left the suggestion that the First Amendment right in school belongs not to the children but to their parents.
53. Cohen v. California, 403 U.S. 15 (1971). Harlan wrote for the majority. Blackmun, in dissent with Burger, Black, and White, wrote: “Cohen’s absurd and immature antic, in my view, was mainly conduct and little speech.”
54. Garfield Harris, Answer to Complaint and Jury Demand, Raed Jarrar v. Harris et al., No. CV-07-3299 (E.D.N.Y. 2007).
55. A reference to the hundreds picked up in the weeks after 9/11, mostly on minor immigration violations, jailed, and then deported to their home countries, where some were tortured. See Chapter 5.
56. “White Rose,” Holocaust Encyclopedia, http://www.ushmm.org/wlc/article.php?lang=en&ModuleId=10007188.
57. Raed Jarrar, Complaint and Jury Demand, Raed Jarrar v. Harris et al., No. CV-07-3299 (E.D.N.Y. 2007).
58. In his court filing, the agent denied this account without offering a competing narrative. He conceded that Jarrar had asked if there were any laws or regulations banning clothing with Arabic writing from airports, but Harris did not tell the court his answer. Jarrar remembered that he gave no reply. Harris, Answer to Complaint.
59. JetBlue Airways Corporation, Answer, Raed Jarrar v. Harris et al., No. CV-07-3299 (E.D.N.Y 2007). A JetBlue spokeswoman, Alison Croyle, repeated the denial but presented no other version of what had happened. Spencer S. Hsu and Sholnn Freeman, “JetBlue, TSA Workers Settle in T-Shirt Case,” Washington Post, Jan. 6, 2009, p. A2. She did not return a telephoned inquiry seeking the airline’s account.