Category: First Amendment

Before he says anything else about the Pledge of Allegiance, @RealDonaldTrump should read this . . .

Posted on | by Sam

Of course, we know he won’t — but that doesn’t mean the rest of us shouldn’t brush up on the actual history of the Pledge, and the actual meaning of the flag. When we do, there can be no room for alternative facts — only a history that, based on how we define patriotism, either puts us on the side of some courageous young schoolchildren of a generation ago, or on the side of totalitarianism. . .

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Billy Gobitas knew that refusing to salute the flag in his fifth-grade classroom could result in expulsion from school, loss of friends, and even persecution in his hometown of Minersville, Pennsylvania. But on October 22, 1935, he did it anyway. “I do not salute the flag,” he later wrote to the school board, “because I have promised to do the will of God.” The next day, twelve-year-old Lillian Gobitas followed her brother’s lead and also refused to salute the flag. “This wasn’t something my parents forced on us,” she later explained.  “I did a lot of reading and checking in the Bible and I really took my own stand.”

The Gobitas children were not alone. Other members of their church — Jehovah’s Witnesses — faced the same dilemma in school districts throughout the nation where saluting the flag was compulsory. As Billy explained in his letter, Witnesses believe that a flag salute is a form of idolatry, violating the biblical injunction not to “make unto thee any graven image, nor bow down to them.”

Two years earlier, in 1933, Adolf Hitler had banned the Witnesses in Nazi Germany for, among other things, refusing to give the Fascist salute in schools and at public events. Over the next decade, more than ten thousand Witnesses were imprisoned in concentration camps. These events in Nazi Germany led the leader of the American Witnesses, Joseph Rutherford, to denounce compulsory flag salutes in a speech delivered in 1935. Witnesses, he said, “do not ‘Heil Hitler’ nor any other creature.” Rutherford’s speech inspired the Gobitas family and other Witnesses to refuse to participate in the flag ceremony in the name of religious liberty.

The Witnesses’ objections to the flag salute failed to impress the members of the Minersville school board. In their view, the Pledge of Allegiance helped fulfill the public schools’ mission to instill “love of country.” They saw failure to salute the flag as insubordinate and unpatriotic. Most people in mostly Roman Catholic Minersville were equally unsympathetic with the unpopular Jehovah’s Witnesses. Consequently, Billy and Lillian Gobitas were expelled from school.

Eighteen months later, the children’s father, Walter Gobitas, filed suit. With the help of the Watch Tower Society of the Jehovah’s Witnesses and the American Civil Liberties Union, Gobitas argued that the Minersville school board had deprived Billy and Lillian of their right to freedom of religion and speech under the First Amendment. The Gobitas family won in the federal district court in Philadelphia and won again in the U.S. Court of Appeals. Both courts dismissed the school board’s contention that refusal by schoolchildren to salute the flag on religious grounds was a danger to the nation. On the contrary, the judges said, Lillian and William Gobitas were exercising the very “liberty of conscience” that was sought by many of our ancestors when they first came to the New World.

The Minersville school board appealed the case to the U.S. Supreme Court. Minersville v. Gobitis was decided on June 3, 1940. (Due to a printer’s error, the Gobitas family name is misspelled in legal records.)  By an eight-to-one vote, the Court reversed the lower courts and ruled that the government had the authority to compel students to participate in the flag salute. Writing for the majority — and against the backdrop of an impending world war — Justice Felix Frankfurter pointed to the need for “a common feeling for the common country.” The flag, he argued, “is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution.” Justice Harlan Stone was the lone voice of dissent. The very essence of liberty, he wrote, “is the freedom of the individual from compulsion as to what he shall think and what he shall say, at least where the compulsion is to bear false witness to his religion.”

The Gobitis decision had an immediate and devastating impact on Jehovah’s Witnesses in the United States. Within weeks of the Court’s ruling, hundreds of attacks on Witnesses were reported to the Department of Justice. Mobs, sometimes assisted by police, attacked and humiliated Witnesses across the nation. “In the two years following the Gobitis decision,” federal officials wrote, “the files of the Department of Justice reflect an uninterrupted record of violence and persecution of the Witnesses. Almost without exception, the flag and the flag salute can be found as the percussion cap that sets off these acts.”

Disturbed by the violence, three justices began to rethink their vote in Gobitis. When told by Justice William O. Douglas that Justice Hugo Black had changed his mind, Frankfurter asked, “Has Hugo been re-reading the Constitution during the summer?” Douglas replied, “No, he has been reading the papers.”

In 1943, the U.S. Supreme Court agreed to hear another flag-salute case, West Virginia State Board of Education v. Barnette — this time with three changed votes and two new justices. The case involved children of three Jehovah’s Witnesses in Charleston, West Virginia. Walter Barnette, Lucy McClure, and Paul Stull had been expelled from school for refusing to salute the flag.

This time, by a vote of six to three, the Court struck down the West Virginia flag-salute law, overruling the Gobitis decision. In one of the most eloquent and powerful decisions in Supreme Court history, Justice Robert Jackson cited examples from history of repressive government efforts to enforce national unity:

“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 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. Compulsory unification of opinion achieves only the unanimity of the graveyard.”

The First Amendment, Jackson argued, was designed to avoid such tyranny by denying government the power over basic freedoms:

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

The American flag, Jackson reminded the nation, stands for freedom — including the freedom to dissent. And to deny people their inalienable rights is to deny the very meaning of the First Amendment:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

The U.S. Supreme Court announced its decision in Barnette on June 14, 1943 — Flag Day. Soon thereafter, attacks on Jehovah’s Witnesses ceased.

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Postscript: For an understanding of what today’s debate is really about, take 30 seconds to hear directly from San Francisco 49ers safety Eric Reid. This is what patriotism looks like — courageous, uncomfortable, informed, principled.

This is also who we are . . .

The Good, the Bad & The Maybe on Charter Schools

Posted on | by Sam

Three recent articles seem to capture the promise and the peril of the charter movement all at once.

First, there was my piece exploring the evolving case law that challenges the notion that public charters are indeed, under the law, public schools.

Then there was the news from a recent study suggesting that charters are not, as is widely believed, pushing out kids with special needs at a disproportionate rate.

And then there was the question of whether charter schools should allow children who live in the neighborhood to receive preferential treatment in the admissions process.

Good food for thought on all fronts — and a reminder to me that anyone who speaks of charter schools as purely good or evil should not be trusted. As with interpreting the law, the best answer is almost always, “It depends.”

Happy Friday.

In Balancing Freedom and Security, A Tale of Two Cities

Posted on | by Sam

All this talk of Edward Snowden and the tension between freedom and security has reminded me that back in 2006, as part of a documentary history of First Amendment Rights in America, we included Section 215 of the Patriot Act as one of the book’s 37 primary sources.

I think what we wrote then has relevance now, but you, dear reader, will have the final word on that point. Enjoy —

Emotions were running high as more than two hundred people crowded into the city council chamber in Eugene, Oregon, on November 25, 2002. At issue was Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act), passed by Congress a month after the terrorist attacks at the Pentagon and World Trade Center on September 11, 2001. Following passionate testimony from citizens, the Eugene City Council voted unanimously to support a statement opposing the Patriot Act. It reads in part: “We resolve that, to the extent legally possible, no city resources, particularly administrative or law enforcement funds, will be used for unconstitutional activities conducted under the USA Patriot Act or recent Executive Orders which permit activities listed above.”

With that vote, Eugene became the fifteenth city in the United States, and the first in Oregon, to adopt such a resolution. By the summer of 2005, seven states and 382 cities and counties had taken similar action. Indeed, the debate over the Patriot Act had moved an extraordinary number of Americans to exercise their First Amendment rights of free speech, petition, and assembly.

Other city governments took the opposite view, turning aside efforts to condemn the Patriot Act. In Springfield, Oregon, located on the outskirts of Eugene, the city council issued a statement in support of the act. Councilor John Woodrow explained the city’s officials position this way: “I would submit that, as elected officials, the Springfield City Council has either sworn or affirmed to uphold the Constitution and the Laws of the United States and the State of Oregon. As such, we should not take a position of noncompliance with federal law, nor is it necessary to pass a resolution or take a position affirming compliance with federal law, as we do that per our oath of office.”

The backdrop for the debates in Eugene and Springfield is a question as old as the republic: To what extent, if any, does the demand for more security necessitate greater restrictions on individual liberties? Key events in American history, from the passage of the Alien and Sedition Acts in 1798 to the Vietnam-era legal battle between the New York Times and Washington Post and the federal government, illustrate the ongoing challenge of negotiating the tension between security and freedom in times of national emergency.

The “war on terrorism” in the twenty-first century has provoked a vigorous new debate in the United States about how to balance the demands of security with the need to protect personal freedoms. Did Congress go too far – or perhaps not far enough – when it passed the USA Patriot Act?

Critics of the act argue that the 342-page bill was rushed through the House and Senate, and passed with little debate. While acknowledging the need for additional law enforcement tools after September 11, they charge that some of the act’s provisions and some of the executive orders issued in wake of the act’s passage are unconstitutional. Proponents respond that Congress was right to move quickly after the attacks to meet the heightened threat from domestic and international terrorists. They argue that changes in the law under the Patriot Act do little more than apply existing legal principles to the fight against terrorism. Resolutions opposing the Patriot Act in Eugene and elsewhere have focused on provisions that give the government expanded powers to detain people suspected of terrorism; make it easier for the government to obtain records about people from libraries, hospitals, businesses and elsewhere; and provide the government with new tools for wiretaps and searches.

The biggest lightning rod for opposition to the act has been section 215, the provision that expands the power of federal investigators to obtain library, bookstore, and other records secretly. This section amends the Foreign Intelligence Surveillance Act, enacted in 1978 to prescribe procedures for requesting judicial authorization for electronic surveillance and physical search of people engaged in espionage or international terrorism against the U.S. on behalf of a foreign power. Under this amendment, it is no longer only the personal records of suspected foreign agents that can be accessed. The government may now obtain the personal records of any citizen as long as the information being sought is, in the words of the Patriot Act, “part of an authorized investigation to protect the United States from international terrorism.”

Librarians, civil libertarians, and others from across the political spectrum worry that section 215 gives the government too much police power without enough accountability. Prior to the Patriot Act, federal investigators needed a warrant and probable cause that a crime had been committed to access otherwise private library records. Now, critics charge, records of people who are not themselves suspects can be searched with minimal judicial oversight as long as the government asserts that the search is part of an investigation to protect against terrorism. Moreover, section 215 places a gag order on the person who is required to turn over the records. A librarian, for example, may not notify anyone that his or her records are being searched.

In reports to Congress, the Justice Department says that section 215 has not been used to obtain library or bookstore records. Critics point to a 2002 University of Illinois study that found 178 public libraries in the U.S. had received FBI visits in the first year after the Patriot Act passed. The Justice Department maintains that those requests for records were part of criminal investigations and were not authorized under section 215. Many librarians and booksellers, however, contend that the threat of secret searches has had a chilling effect on First Amendment freedoms. They worry that people may avoid borrowing or buying books that might trigger FBI interest. Some libraries have installed computer systems that erase a library user’s records as soon as a book is returned. And a number of cities have adopted resolutions calling on libraries to post section 215 warnings and advising bookstores to regularly destroy customer records.

During the testimony before the city council in Eugene, many citizens voiced concerns about the potential for the federal government to abuse the powers granted under the Patriot Act. Misa Joo warned against accepting a mentality of fear similar to the one that led to the internment of her grandparents and other Japanese Americans during World War II. Nadia Sindi claimed that Muslim Americans were suffering persecution as a result of religious profiling. She described how the FBI had searched her home, even though she had been an American citizen for thirty-two years.

On a national level, objections to portions of the Patriot Act have created an unusual coalition. Groups ranging from the conservative Americans for Tax Reform to the liberal People for the American Way joined together in the fall of 2003 to support legislation that would scale back the act. And in the spring of 2005, a coalition of 38 Republicans and 199 Democrats supported an amendment to a funding bill that blocked section 215 as it applies to libraries and bookstores.

The American Civil Liberties Union (ACLU) and other civil liberties groups challenged the constitutionality of parts of the Patriot Act. In a 2003 press release from the ACLU, associate legal director Ann Beeson warned of government abuses of power under the act: “Sadly, our government has an ugly history of using its investigative powers to squelch dissent. We saw it during the Japanese internments of World War II, the Red Scare of the 1950’s and the civil rights movement of the 1960’s and now we see it in the post-9/11 investigations and detention of Arabs and Muslims.”

The U.S. Department of Justice mounted a vigorous defense of the act, arguing that it “has played a key part – and often the leading role – in a number of successful operations to protect innocent Americans from the deadly plans of terrorists dedicated to destroying America and our way of life.” According to the Justice Department, the act makes only “modest, incremental changes in the law,” and contains adequate safeguards for the protection of civil liberties. In fact, Justice Department officials characterize many of the objections to the Patriot Act as “myths” that need to be dispelled. For example, against the charge that section 215 gives overly broad powers to monitor the personal records of citizens in libraries and other places, the Justice Department argues that “historically, terrorists and spies have used libraries to plan and carry out activities that threaten our national security. If terrorists or spies use libraries, we should not allow them to become safe havens for their terrorist or clandestine activities.”

In sum, what many civil libertarians see as abuse of state power, the government views as an essential tool in national security investigations. According to the ACLU, the Patriot Act unconstitutionally expands the government’s authority to spy on American citizens. By contrast, the Justice Department insists that investigators have no interest in the reading habits of ordinary Americans.

Many of the Patriot Act’s provisions, including those intended to enhance border security, toughen penalties for existing federal crimes related to acts of terrorism, and strengthening of federal money-laundering laws, enjoy strong public support. But in addition to section 215, other portions of the act covering secret searches of private homes and businesses, wiretaps, and changes in immigration laws have sparked widespread debate. Given the complexity of the act’s many provisions – and the secrecy surrounding terrorism investigation – understanding the constitutional arguments for and against the USA Patriot Act is challenging, to say the least. But however confusing and complex, the act has become a symbolic target for Americans who are concerned about expanded government powers to fight an open-ended war on terrorism. Indeed, the grassroots movement that led to the resolution in Eugene and more than three hundred other communities continues to spread across the nation.

The debate over the Patriot Act, much like previous debates during other times of national crisis throughout American history, is a reminder of the importance of First Amendment rights in a democracy. Once again, Americans on all sides of the debate are speaking out, organizing, and petitioning – and by so doing helping to define the future of democratic freedom in the United States. The crowded city council meetings in Eugene, Springfield, and across America are powerful reminders of how much Americans care about their freedoms.

In the spring of 1944, another time when America’s character was deeply tested, Federal Appeals Court judge Learned Hand spoke to a crowd of mostly new Americans in New York City’s Central Park about what it takes to sustain freedom in a time of national crisis: “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”

Origins of a Dream

Posted on | by Sam

Every year, we pay tribute to the legacy of Martin Luther King Jr. with school assemblies, community programs and – to the delight of students and teachers alike – a national holiday. Yet how many of us directly connect Dr. King’s heroism and accomplishments to his faith in – and use of – the five freedoms of the First Amendment?

Consider the August 28, 1963 March on Washington for Jobs and Freedom, the iconic rally that introduced King’s “I Have a Dream” speech to white America – he had delivered those lines to black audiences many times before – and produced the most memorable petition for a redress of grievances in the nation’s history. Nearly every American is familiar with King’s speech that day. Many of us were asked to memorize it as students. But few if any of us were also taught about that day – and the Civil Rights Movement – in the specific context of our founding principles as a nation.

At the time, Congress was wrestling with whether or not to pass President John F. Kennedy’s civil rights legislation, and young and old people across the country were being jailed for peacefully assembling to protest the South’s policies of institutional racism. And although African American leaders had talked for more than twenty years about staging a national march for civil rights in Washington, one that could harness all the energy and persuasive power of the movement thus far, the decision to have the march on August 28, 1963, was not finalized until July 2; that meant march officials had less than two months to coordinate, transport, organize, and prepare for the thousands – maybe even tens of thousands – of marchers they expected.

The organizers rushed to plan the march so it could occur while Congress was still debating the president’s civil rights program. They also wanted the march to coincide with the centennial celebration of the Emancipation Proclamation, the January 1, 1863 declaration by President Abraham Lincoln, in the midst of the nation’s third bloody year of civil war, “that all persons held as slaves” within the Southern states “are, and henceforward shall be free.”

Almost a hundred years since that war’s end, African Americans were still waiting for Lincoln’s words to be fulfilled. Indeed, although the formal institution of slavery had long since passed, laws discriminating against African Americans had immediately replaced it. In response, march spokesmen promised that the event would be a mass demonstration for freedom, and that the protesters would, peacefully, assemble at and around the Lincoln Memorial. The goal was to pressure Congress to pass Kennedy’s proposed civil rights legislation and to establish 1963 as the year racial discrimination in America ended for good.

Concerned about a backlash in Congress, Kennedy administration officials expressed reservations. Speaking to a Washington Post reporter, Attorney General Robert F. Kennedy sympathized fully with the cause and supported the marchers’ right to petition the government, but wondered if the march would achieve its desired result. “I certainly think at the present time Congress should have the right to debate and discuss legislation without that kind of pressure,” he said. Meanwhile, President Kennedy met privately with the leaders of the march to express his concern that it might damage the chances for passage of the civil rights bill.

According to John Lewis, the Chairman of the Student Nonviolent Coordinating Committee (SNCC) and, at 25, the youngest of the civil rights leaders , the President said: ‘We want success in Congress, not just a big show at the Capitol.’ Publicly, however, the President praised the planned march as a “peaceful assembly for the redress of grievances”–with strong emphasis on the word “peaceful.”

In the weeks leading up to the national march, newspapers ran small stories about violent clashes between civil rights protesters and local authorities in different parts of the country. While white officers wielded clubs and occasionally fired shots, black protesters were arrested by the hundreds – sometimes after demonstrating peacefully, sometimes after throwing bricks or breaking windows.

Meanwhile, the prospect of tens of thousands of black protesters in the nation’s capital–at a time in the nation’s history when racial stereotypes were deeply grounded in ignorance and fear–was enough to prompt some rather extraordinary measures. For the first time since the days of Prohibition, Washington, D.C., banned liquor sales. Fifteen thousand paratroopers in nearby North Carolina were placed on alert. And white journalists peppered black commentators with questions such as, “What is it that Negroes really want?” The African American psychologist Kenneth B. Clark did not shy away from the question. The black community, he told The New York Times three days before the march, wants to “give vitality to the democratic promise by using the machinery of democracy–the courts and the constitutional guarantees of freedom–to press relentlessly toward unqualified equality.”

Like Clark, the leaders of the march understood that the best way to counter the general population’s willful ignorance of racial injustice was by utilizing each of the First Amendment’s five freedoms to appeal to the nation’s conscience. They also realized the fight could not be seen as theirs alone; they had to demonstrate that all Americans had a stake in their success. Consequently, at a press conference in New York on August 18, Rabbi Joachim Prinz, the president of the American Jewish Congress, called on American Jews to join the march. In so doing, he urged, American Jews would also be protecting their own freedom, “for we have long known that no group is secure unless the rights of all are safeguarded.” On August 23, the Catholic Bishops of the United States urged in a joint pastoral letter that Catholics get involved as well, declaring that the conscience of the nation itself was on trial.

That spirit of brotherhood was reflected in the final program of speakers for the march, which began with an invocation from the Catholic archbishop of Washington and included remarks from the clerk of the United Presbyterian Church and the president of the Synagogue Council of America. “America must not become a nation of onlookers,” urged Rabbi Prinz, who was also on the program. “America must not remain silent. Not merely black America, but all of America. It must speak up and act, from the President down to the humblest of us, and not for the sake of the Negro, not for the sake of the black community but for the sake of the image, the idea and the aspiration of America itself.” Prinz’s words reached thousands of television viewers across the country, who tuned in to see images of white, brown, and black faces at the massive assembly. ABC and NBC even broke away from their regularly scheduled afternoon soap operas to join CBS and broadcast the program in its entirety.

The march neared its conclusion when the final speaker – thirty-four-year-old Martin Luther King Jr. – approached the podium. By 1963, King’s eloquence and charisma had led him to become the person most identified with the goals of the campaign for civil rights. By the time he rose to speak, police estimated that the crowd had grown to more than 200,000 people – far surpassing even the most optimistic estimates of the organizers.

Although he had spoken to countless black audiences over the years, most white Americans – including President Kennedy, who was watching the march on TV – had never heard King deliver a complete speech. Aware of the importance of the opportunity before him, King stayed up late into the night before the march, working on the language of his remarks. By the time he put down his pencil, however, he felt the speech was not his best work. Emotionally powerful in some places while politically subdued in others, King’s prepared remarks reflected his conscious decision, given the audience and occasion, to sacrifice some passion in order to achieve the march’s ultimate goal – the passage of Kennedy’s civil rights legislation.

King approached the podium on the steps of the Lincoln Memorial, looked out at the sea of faces silently awaiting his words, and began – still with mixed feelings, one would imagine – to deliver his remarks. Initially, the young preacher followed his prepared speech word for word. But toward the end, the spectacle of the moment, the history of the location, and the historic promises of the man whose marble likeness towered behind him prompted King to wander off the script.

As he began searching for a different note on which to conclude, gospel singer Mahalia Jackson, sitting just behind King on the platform, asked for the refrain of a speech she knew he had given many times before. “Tell ‘em about the dream, Martin.”

So he did. “I say to you today, my friends, that in spite of the difficulties and frustrations of the moment, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident: that all men are created equal.’ I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slaveowners will be able to sit down together at a table of brotherhood. I have a dream that one day even the state of Mississippi, a desert state, sweltering with the heat of injustice and oppression, will be transformed into an oasis of freedom and justice. I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream today.

The rest is history. Yet despite progress, including passage of the Civil Rights Act of 1964 and other subsequent changes in the law, much of King’s vision for America remains unfulfilled today. Indeed, despite King’s plea to his fellow Americans to “lift our nation from the quicksands of racial injustice to the solid rock of brotherhood,” racism and prejudice continue to plague the United States. For an afternoon, however, the image of thousands of peaceful protesters stretched out before a solitary, passionate young preacher gave Americans a glimpse of what Lincoln – the Great Emancipator—once termed “the better angels of our nature.” The New York Times called it “the greatest assembly for redress of grievances in the capital’s history.” And President Kennedy, in a press statement following the march, spoke about the hope the march had embodied: “What is different today is the intensified and widespread public awareness of the need to move forward in achieving these objectives – objectives which are older than the Nation,” he said. “The cause of 20 million Negroes has been advanced by the program conducted so appropriately before the Nation’s shrine to the Great Emancipator, but even more significant is the contribution to all mankind.”

(This story originally appeared in the book First Freedoms: A Documentary History of First Amendment Rights in America.)

Murdering Innocent Sikhs Does Not Make You a Patriot

Posted on | by Sam

Reading the initial reports of the mass shooting in Wisconsin that claimed six Sikh worshipers, I’m reminded of a little-known event from more than a decade ago. Taken together, the two events say a lot about where we are, and who we aspire to be.

It was September 15, 2001. The terrorist attacks that took down the Twin Towers and damaged the Pentagon had just occurred, and everyone felt angry, frightened, and shell-shocked. For Frank Roque, however, mere anger or sadness was an insufficient response; he wanted blood for blood.

Roque, an aircraft mechanic from Mesa, Arizona, spoke ceaselessly in the days after the attacks about “killing some towel-heads” or “slitting some Iranian throats.” On September 15, he spent the afternoon getting drunk at a local bar and openly threatening to “kill Middle Eastern people.”

After getting kicked out of the bar, Roque drove to a local Chevron station owned by a Sikh-American named Balbir Singh Sodhi and fired five bullets from a .38 handgun through the open window of his truck, killing Singh instantly. Later, when police arrested him at his home, Roque offered a simple explanation for his actions: “I’m a damn American,” he said proudly.

Although detailed information about yesterday’s assailant in the Sikh temple has not been released, what has been confirmed is that the gunman was a 40-year-old white man. And I worry that if he hadn’t been killed at the scene, his rationale would have sounded eerily similar to the addled, ignorant patriotism of Frank Roque.

The notion that anyone could think murdering fellow citizens reflects American values tells us a lot about the ways we have failed as a nation to ensure that all people understand, at its core, what it means to uphold those values.

To be sure, extremists like Frank Roque are rare, and there are plenty among us who can distinguish not only between extraordinary terrorists and ordinary Muslims, but also between Islam and Sikhism. And yet it is also true that too many of us believe that some people are more American than others, allowing institutions like a Sikh Temple in Wisconsin to become emblematic of the false notion that there are enemies in our midst.

Since its founding, the United States has been known as the world’s first new nation because it is the only place in human history where one’s standing in the civic order is not determined by bloodlines or kinship, but by a fundamental allegiance to principles and ideals. Anyone can be an American, at anytime, and equally so. We can practice any religion, proselytize any worldview, and promote any cause. And in a way the only guidance we have to do so and not rip each other to threads in the process comes from the 45 words of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Frank Roques among us threaten that social compact by their willingness to threaten the safety and security of their fellow citizens. But the rest of us also play a part when we refuse to heed the implicit instructions woven throughout the First Amendment’s five freedoms – not the right to say whatever we want, but the responsibility to guard the rights of others, especially those with whom we most deeply disagree.

In a better, more hopeful version of who we are, the first people to come to the defense of a brown Sikh minority in Wisconsin will be their white Christian neighbors. The first thing children will learn in school is how to balance individual rights and civic responsibilities.  And the last people to lay claim to being American will be ignorant, violent extremists like Frank Roque.

(This article also appeared in the Huffington Post.)

When it comes to the free-speech rights of teachers, the joke’s still on us

Posted on | by Sam

The good news is that Republican lawmakers in Arizona are now retreating from their recent proposal to require teachers to limit their speech to words that comply with FCC regulations on what can be said on TV or radio — a half-baked idea rightly characterized by one critic as the “most hilariously unconstitutional piece of legislation that I’ve seen in quite some time.”

The bad news is that, Arizona’s foolishness aside, when it comes to the free-speech rights of teachers, or any other public employee, the joke is on us.

The dark days began back in 2006, when a closely divided U.S. Supreme Court handed down a 5-4 ruling in the case Garcetti v. Ceballos. Up to that point, courts had always looked for two things when evaluating a public employee’s free-speech claims: first, whether the person was speaking out on a matter of public concern, and not just some personal grievance; and second, what the proper balance was between the individual’s right to free expression and the employer’s interest in ensuring an efficient, disruption-free workplace.
The legal precedent for this test stemmed from a 1968 Supreme Court case in which a public school teacher had been fired for writing a letter to his local paper in which he criticized budgetary decisions by the local school board. A lower court upheld the school’s decision to fire the teacher, but the highest court in the land reversed. Writing for the Court, Justice Thurgood Marshall was clear: “Absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.”
Then came Garcetti in 2006, a case that began when an assistant district attorney from Los Angeles, Richard Ceballos, wrote a memorandum criticizing the failure of his office to dismiss a case that was marred by false testimony. Ceballos no doubt felt comfortable that his actions would be protected under the existing standard for public employee speech, and, sure enough, the Ninth Circuit Court of Appeals upheld his right to blow the whistle on his superiors. But five Justices of the U.S. Supreme Court disagreed, resulting in not just a dramatic turn of events for Richard Ceballos, but a new categorical exclusion for official, job-related employee speech.
As First Amendment Center scholar David Hudson explains, “The Garcetti decision caused a sea change in public-employee First Amendment jurisprudence, as many employees who speak out on important issues or blow the whistle on corruption no longer have a constitutional claim.”
Sure enough, since 2006 it has become increasingly difficult for public employees to speak out on matters of public concern that relate to their official duties. As Hudson explains, “After Garcetti, the importance of the information is not relevant. Many employees have spoken out on matters of public concern – even rank corruption in the workplace – but if the speech can be classified as official, job-duty speech they have no First Amendment protection.” Hudson says this new climate has led to a new term lawyers use to describe their clients who still seek First Amendment protection. Instead of getting justice, they get “Garcettized.”
So let’s enjoy a short laugh at the foolishness and the poorly-constructed effort of Arizona’s lawmakers to muzzle their state’s public school teachers. And then let’s remember that a more carefully constructed bill may not be as outlandish, and unlikely, as we think.
(This article also appeared in the Huffington Post.)

Require kids to stay in school? Not so fast…

Posted on | by Sam | 4 Comments on Require kids to stay in school? Not so fast…

Anytime you hear government officials mandating new behaviors to a broad swath of the population, that mandate is likely to run afoul of the First Amendment. And so it is with President Obama’s announcement last night that all states must “require that all students stay in high school until they graduate or turn 18.”

Although Mr. Obama made other pronouncements about education — see Dana Goldstein’s good summary analysis in The Nation — the stay-in-school mandate was the one that caught my ear, since enforcing it would run afoul of both the United States Supreme Court and our historic commitment to religious liberty.

The case that established the precedent originated in Wisconsin, where a group of Amish families were convicted of violating the state’s school attendance law by withdrawing their children after they graduated from the eighth grade (the law required kids to stay in school until they turned 16). In the place of further formal schooling, the Amish children were expected to begin vocational apprenticeships in their communities that would better prepare them for the particulars of Amish life (and shield them from the vagaries of high school, which their parents felt would endanger their eventual salvation in the eyes of God).

The Wisconsin Supreme Court upheld the rights of the Amish families, a ruling the U.S. Supreme Court then affirmed. As Chief Justice Warren Burger wrote, “There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. . . [But] however strong the State’s interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests.”

I would imagine that Obama’s logic for the new mandate mirrors the logic that drove Wisconsin’s state officials, who advanced two arguments in support of their compulsory-education law. Referencing the writings of Thomas Jefferson, they pointed out how essential some degree of education is toward preparing citizens to “participate effectively and intelligently in our open political system if we are to preserve freedom and independence.” And they noted that education “prepares individuals to be self-reliant and self-sufficient participants in society.”

The Court accepted the merit of both assumptions — and saw a limit to the logic. “When Thomas Jefferson emphasized the need for education as a bulwark of a free people against tyranny,” Burger wrote, “there is nothing to indicate he had in mind compulsory education through any fixed age beyond a basic education. . . . The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

Consequently, the likelihood that this idea goes beyond last night’s speech is almost nil.  But the bigger issue is our willingness to accept such a simplistic notion about how to solve our school’s dropout crisis. Although there are myriad reasons why young people drop out of school, many do so because they feel uninspired and unengaged. If we begin with that basic fact, the real crime is less that so many children are dropping out, and more that so many of our schools are failing to ignite their students’ passion for learning or adequately prepare them for the world they will enter as adults.

The president’s proposal is therefore merely the latest example of our tendency to craft policies that address the symptom, and ignore the root. And that’s not change I can believe in.

Is this Occupy DC’s future?

Posted on | by Sam | 1 Comment on Is this Occupy DC’s future?

It was a nightmarish image for any American President to consider – U.S. soldiers attacking U.S. veterans in the shadow of the U.S. Capitol. But on July 28, 1932, Herbert Hoover believed it had to be done. “For many weeks,” he announced in a press statement, the veterans gathered in Washington had “been given every opportunity of free assembly, free speech and free petition to the Congress.” Now, he said, “in order to put an end to this . . . defiance of civil authority, I have asked the Army to . . . restore order.”

It had all started peacefully, three months earlier, when the first groups of First World War veterans gathered in the nation’s capital to demand early payment of a bonus Congress had promised them. The payment was not scheduled until 1945, but the veterans could not wait that long. As a result of the Great Depression, many had lost their jobs and been stripped of their life savings, leaving them struggling to keep their families from starving. Believing protest was better than idleness, large groups of veterans – who became known as the Bonus Expeditionary Forces (B.E.F.) – set out for Washington, D.C., to peaceably demand that Congress give them their bonus.

Their cause quickly became front-page news across the country. Hitching rides and relying on the kindness of strangers, the veterans ingratiated themselves by heeding the gentlemanly instructions of their unofficial “commander,” Walter W. Waters, a former sergeant who had been unemployed for eighteen months. Waters insisted that the men agree not to panhandle, drink, or cause trouble, and rallied veterans along the way with the cry, “Let’s hit the road to Washington!”

The good feelings for the B.E.F. continued when the first forces, also called the Bonus Marchers, arrived in the nation’s capital. Police superintendent Pelham Glassford, a retired brigadier general, arranged for the marchers to camp in two abandoned federal buildings, and secured portable kitchens for them. Secretary of War Patrick Hurley ordered two thousand beds for the men, and several civic organizations provided two tons of straw for extra padding.

As more and more men arrived, however, Congress worried about how the veterans’ protest could peaceably be resolved. “If they come here and sit down and have three meals furnished free every day,” worried one congressman, “then God knows what will happen to us. There are more than 8,500,000 persons out of work in this country, most of them with families. If the government can feed those who are here, then we can expect an influx that will startle the entire country.”

To make matters worse, the veterans were demanding their bonus – between two and four billion dollars in total – at a time when the federal government was already in dire financial straits. But Waters was unmoved. “We mean to stay until the bonus is paid,” he said, “whether it is next year or 1945.”

To help their uphill cause, the B.E.F. had a key ally in the House, a freshman congressman from Texas named Wright Patman. Patman kept the marchers’ hopes alive by steadily presenting new bonus bills, and urging his fellow congressmen to put money in the hands of “the little fellows in every nook and corner of the nation” instead of “the big boys [in] New York.” None of the bills was passed, but Patman’s public support convinced thousands of discontented veterans that their protest in Washington was worth a protracted fight.

Then, on June 15, the House passed Patman’s latest bill. With the Senate set to vote on it two days later, the veterans migrated to the steps of the U.S. Capitol, eagerly awaiting good news and a return to their families. The Senate, however, voted against the marchers yet again. At that point, hundreds of veterans, convinced their cause was hopeless, headed home. But thousands more stayed. Encamped on the mud flats of the Anacostia River, their new rallying cry became “Stay ‘till 1945.”

Wives and children joined the men, swelling the camp’s ranks to between ten and fifteen thousand. With an increase in the camp’s population came a decrease in the quality of life. Rats and flies abounded; there was no running water, no electricity, and no toilets. By early July, the lack of food had gotten so bad that Superintendent Glassford spent a thousand dollars of his own money to provide temporary relief.

The conditions, made worse by the sweltering midsummer heat, prompted President Hoover to make a last-gasp effort at easing the tension. With the help of Congress, he secured funds to send willing veterans home. Many–approximately five thousand–accepted the offer. The rest remained in the camps.

As the summer droned on, as it got hotter, and as the conditions of the camp grew worse, many veterans grew irritable. Before long, the first minor clashes between marchers and police broke out. The situation worsened when Congress adjourned for the summer, and D.C. officials decided the marchers had worn out their welcome. They ordered Glassford to remove the veterans from the two federal buildings, which were awaiting demolition. Glassford refused to remove the marchers by force, warning that a bloodbath would follow if he did.

On the morning of July 28, when workmen arrived on Pennsylvania Avenue to begin the demolition, the trouble began. According to a New York Times report, “the clash with the police . . . was short and furious. The advancing police, met by a hail of brickbats, first used their nightsticks and then began to shoot.”

Later that day, the commissioners of the District of Columbia wrote President Herbert Hoover: “This morning, officials of the Treasury Department, seeking to clear certain areas  . . . in which there were numbers of these bonus marchers, met with resistance and a serious riot occurred . . . In view of the above . . . the Commissioners of the District of Columbia, therefore, request that they be given the assistance of Federal troops in maintaining law and order in the District of Columbia.”

Hoover granted the request. “There is no group,” he explained forcefully in a July 28, 1932 press statement, “no matter what its origins, that can be allowed either to violate the laws of this country or to intimidate the Government.”

A reporter for the Baltimore Evening-Sun wrote one version of what happened next:

The cavalry clattered down Pennsylvania Avenue with drawn sabers. The infantry came marching along with fixed bayonets. All Washington smelled a fight, and all Washington turned out to see it. Streets were jammed with automobiles. Sidewalks, windows, doorsteps were crowded with people trying to see what was happening . . . Veterans in the rear ranks of a mob that faced the infantry pushed forward. Those in front pushed back. The crowd stuck. An order went down the line of infantrymen. The soldiers stepped back, pulled tear-gas bombs from their belts, and hurled them into the midst of a mob. Some of the veterans grabbed the bombs and threw them back at the infantry. The exploding tins whizzed around the smooth asphalt like devil chasers, pfutt-pfutt. And a gentle southerly wind wafted the gas in the faces of the soldiers and the spectators across the street.

Gradually, the army pushed the marchers back across the Anacostia Bridge to their shantytowns along the river’s edge. Then, according to the New York Times, “the infantry and cavalry donned gas masks and moved systematically in a contracting circle, hurling tear gas bombs before them and giving the veterans an unwilling taste of old times, when they used similar methods on German strongholds in the World War.” Everyone was evicted.

Was the use of the U.S. military on the veteran marchers justified? Douglas MacArthur, head of the U.S. forces that day, believed it was. In MacArthur’s Report on the Battle of Anacostia Flats, he wrote: “Had the president not acted today . . . had he let it go on for another week, I believe that the institutions of our government would have been severely threatened.” And Attorney General William D. Mitchell, in his private report to the President, said “the prompt use of the military to outnumber and overawe the disturbers prevented a calamity . . . The right peaceably to petition Congress for redress of alleged grievances,” wrote Mitchell, “does not include assemblage of disorderly thousands at the seat of Government for purposes of coercion.”

The public disagreed. Americans across the country reacted to the images of soldiers attacking veterans. “What a pitiful spectacle is that of the great American Government,” wrote the editors of the Washington Times, “mightiest in the world, chasing unarmed men, women and children with Army tanks. If the Army must be called out to make war on unarmed citizens, this is no longer America.”

One bonus marcher, Henry Meisel, described it differently in his book, Bonus Expeditionary Forces: The True Facts: “America, you belong to your people! Herbie Hoover, we shall not rest until you and your favored few are out of office. You cannot run our country . . . We shall beat you and yours with the mighty American vote.”

Four months later, Herbert Hoover lost the Presidential election to the former governor of New York Franklin Delano Roosevelt. And in 1936, the veterans’ initial decision to exercise their First Amendment right to peaceably assemble and to petition their government paid off. They got their bonus, nine years early.

(NOTE: This story is part of the collection included in First Freedoms: A Documentary History of First Amendment Rights in America.)

BOOK TV Coverage of We Must Not Be Afraid to Be Free

Posted on | by Sam

This weekend, Book TV aired coverage of the March 19 discussion of my new book We Must Not Be Afraid to Be Free: Stories of Free Expression in America, which occurred as part of this year’s Virginia Festival of the Book.

Aside from a few crowd shots, where it appears people are preparing to have their teeth drilled without novocaine, I think it was an engaging, lively discussion about a topic that is as relevant today as ever. But judge for yourself at http://www.c-spanvideo.org/program/298563-1.

What It Means to be Free

Posted on | by Sam | 1 Comment on What It Means to be Free

On a Saturday evening in March 1919, attorney Robert H. Jackson, age 27, attended a lecture at Jamestown (New York) City Hall.  The lecturer, a lawyer named Winter Russell, was a somewhat prominent American Socialist.  The lecture occurred in a period of global turmoil, devastation caused by the just-concluded Great War and, in the United States, ideological clashes, violence, law enforcement excesses and widespread unease.

Jackson, who had just completed a short term as Jamestown’s corporation counsel and was building a private law practice, attended Russell’s lecture by assignment.  Jamestown’s mayor had appointed Jackson and other lawyers to serve on a committee that evening to “censor” the lecture.  It was anticipated, at least by the mayor and other Jamestown leaders, that Russell’s speech might cause disruption and need to be shut down.

Russell delivered a scathing speech.  He attacked the U.S. government for its recent prosecutions of Socialist Party leaders Eugene V. Debs and Victor L. Berger for claimed crimes that really were, as Russell saw things, right principles and human ideals.  Russell criticized the federal judges who had sentenced Debs and Berger to prison.  But no censorship occurred—Jackson and his colleagues watched, listened and, at the end of the evening, returned to their homes.

Jackson stewed, then wrote.  On Monday, he delivered this letter to the mayor, who was his mentor and friend, and to the Jamestown newspapers:

Dear mayor:

According to the duty which you thrust upon me, I attended the Socialist meeting last Saturday night addressed by Winter Russell, and desire to report to you that so far as I observed, there was no infraction of the letter or the spirit of our laws, and I desire to take this opportunity to decline any further service upon committees of this character and to respectfully suggest that they be discontinued.

The speech at this meeting consisted of a bitter attack upon the government for prosecuting, and upon the courts for convicting Eugene V. Debs for his attacks upon President Wilson and his policy.  He [Mr. Russell] denounced it as an attack upon free speech and complained that Debs was serving a long term in jail, while Theodore Roosevelt had not been prosecuted tho he called the president’s policy “treasonable,” and other attacks by richer and more influential men had passed unnoticed.  He [Russell] concluded with the usual dreamy nonsense about the time when four hours shall constitute a working day.  He predicted that if the government continued its policy of imprisoning men like Debs and Berger, it would bring on a revolution.

I see nothing illegal in any of this.  That we have a right to criticize a conviction was pretty thoroly established when the whole North arose in indignation at the conviction of John Brown, and when Abraham Lincoln made bitter attacks upon the Supreme Court of the United States because of the Dred Scott decision.  I suppose there is nothing treasonable in dreaming about a four-hour day, that is merely moonshine.

I must admit that I never understood why men like Roosevelt and [Senator Henry Cabot] Lodge are immune from laws which condemned Debs and Berger.  Not that I believe Roosevelt and Lodge should be prosecuted, but I believe that a Socialist has as good a right to criticize a Democratic president as a Republican has.  In fact, Mr. Mayor, the whole speech was very moderate compared with those attacks upon the government which I have been reading at the hands of eminent senators and gentlemen.

It is useless for us to have a cold chill every time the Socialists have a meeting.  We have embarked upon a policy as a government of imprisoning people who oppose the government.  Many of our eminent and well meaning citizens are rubbing their hands and saying, “Now that we have Debs in jail and Berger convicted, Socialism will die out.”  So said the Czar when he saw his political enemies exiled to Siberia; so said Louis the Fourteenth before the French Revolution; so said the Sanhedrin when they thought to kill out Christianity by crucifying Christ; so said the priesthood when they thought to kill out the Reformation by inquisitions.

Indignation meetings are the natural result of conviction of men like Debs and Berger, one several times a candidate for president of the United States who polled 897,000 votes in 1912, the last time he ran, and the other elected by the people of his district to represent them in Congress.  I have read somewhat of history, and I just now fail to recall any government which has set about the suppression of unrest by putting popular citizens or class leaders in jail which has not stirred up a revolution, and I do not expect the United States to be any exception to a rule so universal.  The prosecution of Debs and Berger is a tragic blunder.  Sound law perhaps, but bad state policy, provoking class hatred and social unrest.

Mr. Mayor, I am opposed to Socialism and its insidious and vicious policy but I am equally opposed to those short-sighted people who expect to stamp it out by persecution.  I am opposed to spying upon and persecuting and prosecuting and searching the Socialists, for they thrive on it.  No doctrine of military necessity now requires suppressing opposition to the draft.  All that is past.  Appointing smelling committees to go to these meetings merely advertises the meeting.  I think half the joy that the Socialists found in the Winter Russell meeting was in the knowledge that they were being watched, which proved to them that they had finally got under somebody’s sensitive skin and after I had heard the speech, I confess I felt a little ridiculous and I looked at the other members and they looked as ridiculous as I felt.  Mr. Mayor, it is quite time that we quit letting these Socialists make fools of us.

Our forefathers were a canny crowd.  They knew that free speech and a free press constitute the greatest safety valve that can be devised.  They provided for it in this country, that is they thought they did, so that people who have grievances can meet and discuss them and solicit votes and carry on their opposition peaceably.  The inevitable result of suppressing public gatherings and free speech is private gatherings and covert acts of violence and then the mob and then revolution.  In every country which is now suffering from Bolshevism the government has for years tried stamping it out by suppressing free speech, exiling, and imprisoning labor leaders and radicals, preventing public gatherings, and in general adopting the very measures which seem to be getting some standing in respectable circles in the United States.  We cannot adopt one half so drastic a measure against the Socialists as Russia did nor one half so effective, yet Russia failed, as we shall fail if we attempt similar methods.  Bolshevism has gained the least ground in the countries allowing the greatest freedom of discussion and the most ground where most oppressed and penalized.

When Civilization is in convulsions, it seems to me not only petty but rather dangerous to be sitting on the safety valve.  I think that our assumption of the right to censor what shall be said in these workingmen’s meetings is like our conviction of their leaders in that it seems to add to the hatred and bitterness already existing between capital and labor, and that if we desire these two great forces to co-operate we should cease to do these things which provoke antagonism and arouse slumbering hatred.

Very respectfully yours,

Robert Jackson

Jackson, of course, went on to become one of the U.S. Supreme Court’s most stalwart defenders of free-speech rights. But in 1919, still a young man, he delivered this letter on March 17 — a fitting St. Patrick’s day celebration.

(I share this courtesy of John Barrett, a professor at St. John’s Law School, by way of my good friend — and ace attorney — Dave Bowker.)