By Wistar Watts Murray
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 First Amendment to the United States Constitution
Usually it’s a good thing to receive a free T-shirt and get your name in the paper, but not if you’re a winner of a Muzzle award from the Thomas Jefferson Center for the Protection of Free Expression.
Each spring, members of the center’s board of trustees decide who should be distinguished (around Mr. Jefferson’s birthday, no less) for First Amendment infractions out of the hundreds of people and institutions nominated. The Muzzle nominees always come from across the political spectrum, the far right and the far left being essentially in agreement on most First Amendment issues (even on the TJC’s board, Brit Hume of Fox News works alongside Dahlia Lithwick of slate.com).
The nominees come from all over the country and, as Joshua Wheeler, associate director of the center, points out, the internet casts an especially wide net for new Muzzlers. Unfortunately, more violators are precisely what the TJC does not want to see.
So how did free speech rights fare in the final year of the Bush administration?
The 2009 Muzzle Awards dubiously honor a range of free speech violations, although this year the honorees highlight Time, Place and Manner, or TPM regulations or limitations on speech. TPM regulations are subject to less judicial scrutiny than content-based regulations (the “we don’t like that so you can’t say it” variety), but they still dictate when, where and how an individual can exercise his or her First Amendment rights, and hence can easily cross a line into censorship territory.
For instance, Denver law enforcement allowed protesters at the Democratic National Convention, but those protesters had to exercise their free speech rights within certain hours and within certain walls—restrictions that seem to negate the word “free.”
The areas designated as “free speech zones,” “protest pens” and “freedom cages” all have an oxymoronic ring to them, moronic being the operative part of that word. How can someone be free and also limited? How can someone be simultaneously unrestricted and caged in concrete? Who knew the Bill of Rights had so many strings attached?
This year’s Muzzle awards point out the hypocrisy of these First Amendment “zones” in Denver, in St. Paul and on retrogressive college campuses scattered nationwide. For example, it seems absurd to allow students only two hours of free speech activity per week in an isolated area of campus and only with advance approval of the administration, but that’s exactly what the student handbook at Yuba County Community College in Sacramento, Calif. demands. And the South Campus free speech zone at Tarrant County College in Texas recalls the Free Speech Gazebo at Texas Tech that came under fire from activists in 2003. Maybe people should only be able to practice their religions in Tolerant Two-Car Garages.
But TPM regulations were not the only challenges to the First Amendment in 2008. Camp Lejeune military base in North Carolina started cracking down on the content of civilian bumper stickers last year. And a high school in South Carolina prohibited the distribution of an independently funded student newspaper because it featured a front-page editorial about gay marriage. Not to mention the omnipresent T-Shirt Police that patrol the corridors of our nation’s public schools. Perhaps one day the Thomas Jefferson Center will happily end the year with zero Muzzle nominations to review. Until then, here are this year’s winners.
The National Conventions
Sure, the Secret Service will allow your political protest. This is America, after all. We just ask that you protest from a cage during specific hours of the day, out of the line of sight of television cameras, and we also request that you adjourn when the delegates begin arriving at the national convention. No big deal.
Also, if you refuse to comply with this request and you choose to set foot outside your “freedom cage,” we will arrest you for trespassing, disorderly conduct or worse, even if you happen to be a 78-year-old nun or a respected journalist. And so the National Republican Convention 2008 in St. Paul begins. The same rules applied to the protesters at the 2008 Democratic National Convention? They did not fare any better in Denver than they did in St. Paul.
An anti-war demonstrator protests the only way she could during a standoff with Minneapolis police officers in riot gear near the Excel Center at the Republican National Convention in St. Paul, Minn. last September.
The two layers of concrete and chain-link fencing that confined protesters to the 47,000-square-foot demonstration zone at the DNC were challenged by the American Civil Liberties Union at the beginning of August. But its objections were overruled by Federal Judge Marcia S Krieger, who cited security concerns. The same security concerns kept protesters' words and images an ineffectual distance of 700 feet from delegates attending the convention. Calling the establishment of free speech zones "content neutral," Krieger defended the interpretation of security laws that would keep protesters away from the intended recipients of their message.
It seems that not much has changed in the four years since the last time the TJ Center dispatched Muzzles to the Democratic and Republican national parties.
The First Amendment infractions were both overt and subtle this year. During the RNC, a judge refused to return fliers seized during a raid before the convention began. He kept the bulk of them as "evidence," even though one flier would seem to suffice in that regard.
The riot police in St. Paul were criticized for looking overly aggressive, as if they were preparing for a war on words. And these law enforcement officers were indeed looking for a fight. Some 800 people were arrested during the RNC, including over 40 members of the press. On the first day of the DNC, 100 people were arrested. In both conventions the overwhelming majority of those arrested had their charges later dropped.
The Case Against Bumper Stickers
A father who lost his son in the 2000 USS Cole attack off the coast of Yemen was forbidden from driving his car onto the Lejeune military base where he works as a civilian due to the content of his car's bumper stickers. The offending decals on Jesse Nieto's Scion included an exhortation to "Remember the Cole, 12 Oct. 2000." His car was also barred from the grounds of Arlington National Cemetery where his son is buried.
Nieto has worked at Camp Lejeune in North Carolina for 15 years, but his views about Islam and terrorism have become more angry and extreme since the attack that killed his son.
Other bumper stickers on his truck read "Islam = Terrorism" and "Disgrace My Countries [sic] Flag And I will SHIT on your Quran," and one depicts a cartoon Calvin peeing on a Muslim. When Nieto was issued an Armed Forces Traffic Ticket last July, he complied with the base traffic court's request to remove three bumper stickers. But when he was summoned two weeks later to remove the remaining decals, Nieto refused. That's when his vehicle was barred "from this (and every other Federal Installation) until the offensive stickers [were] removed from it."
Military base commanders are understandably prickly about offending people whose country the US happens to be occupying, but the constitutional issue here is that base employees aren't given any objective criteria for what their commanders deem offensive. Other decals that have been spotted at Lejeune in the past five years without objection include Confederate flags, Calvin peeing on all manner of symbols, and the question "Why experiment on animals when there are so many Democrats?"
The decision to target Nieto's opinions seemed purely content-based and arbitrary, hence Nieto is suing the powers that be at Lejeune for their violation of his First Amendment rights.
The Cost of Grievance
Oh Virginia, why did you make it so hard for your residents to exercise free speech last year? In December 2008, Circuit Judge Westbrook J Parker of Gloucester County ordered 40 citizens to pay the exorbitant legal fees of four county supervisors whom they had unsuccessfully petitioned to leave office. Never mind that trifling clause in the First Amendment that gives Americans the right to "petition the Government for a redress of grievances." The price of the petition in this case was $80,000, which the 40 citizens are in the process of appealing.
The four members of the Gloucester County Board of Supervisors were not saints by anyone's standards. In July 2008 they had been indicted on 14 misdemeanor charges of malfeasance and misuse of office.
The criminal charges were eventually dropped for lack of evidence and the petition to have them removed from office (signed by 6,000 concerned citizens) languished as well due to technical errors with the signatures. But the court still held the 40 organizers of the petition accountable for most of the $100,000 in legal fees incurred by the supervisors in defending their offices.
That's $2,000 per petitioner for the privilege of questioning government officials. As newspaper columnist Michael Paul Williams wrote about the case, "[T]he First Amendment…guarantees the right of citizens 'to petition the government for a redress of grievances.' I missed the clause that says, 'but bring your checkbook.'"
One good thing has come out of this case: In February of this year the General Assembly passed a bill that will protect petitioners from financial reprisal in the future. The bill is crucial to the integrity of the First Amendment because for most people monetary concerns would prohibit the free voicing of grievances.
Illegal Bible Quoting
A Baptist preacher and community activist in Benton Harbor, Mich. was arrested last year for writing a newspaper editorial condemning the actions of a local judge. For citing the Bible and the wrath of God to take care of Judge Alfred M Butzbaugh of the Berrien County Criminal Court, Rev. Edward Pinkney was ordered to serve a three- to 10-year sentence for issuing a "true threat," violating the terms of his probation.
Pinkney did not personally threaten Butzbaugh (although he did call him "racist and dumb"), but he did reflect on what God might do to the judge based on his own reading of the Book of Deuteronomy. Pinkney forecast that if the judge didn't change his ways, God would punish him "with consumption and with a fever and with an inflammation and with extreme burning."
According to fellow Judge Dennis Wiley, Rev. Pinkney's editorial constituted a true threat "because of his status as [a] Reverend, that he has some particular—I guess, direct line to the Lord, and…a reasonable person would consider this to be a threat."
After Pinkney was jailed for a year, ACLU lawyers at last managed to release him on bail during his appeals process. Meanwhile, he's still under 24-hour house arrest while he tries to overturn his conviction. The Thomas Jefferson Center has filed a brief in the case.
Campus Free Speech Zone
When is a free speech zone not a free speech zone? When it's a 12 foot concrete platform isolated from the human traffic where the free speech is directed. Last year, Tarrant County College in Texas rejected an email request from students to protest their college's concealed gun laws by wearing empty gun holsters on campus.
The symbolic protest was coordinated with a nationwide Students for Concealed Carry on Campus (SCCC) "Empty Holster Protest," but Juan Garcia, the vice president for student development at TCC, outlawed the wearing of empty holsters anywhere on campus and restricted the protest itself to the South Campus free speech zone, an area so far removed from the attention of passersby as to be essentially ineffectual.
The concealed carry license holders and their supporters were left wondering why, in a protest involving 3,800 students from 600 campuses nationwide, they were discriminated against by their college's administration.
According to the lawsuit filed by the SCCC students, the First Amendment restrictions placed on them by TCC were unconstitutional and content-based, thereby subject to a stricter degree of judicial scrutiny. The lawsuit cited the Supreme Court precedent set in 1969 in Tinker v. Des Moines, the case that allowed students in US public schools to wear black armbands in protest of the Vietnam War.
Illegal Top Ten List
Humorous fliers distributed by members of the Young Conservatives of Texas on the campus of Lone Star College-Tomball during club rush were confiscated last year because the college administration objected to entries on the "Top Ten Gun Safety Tips" list.
The entries in question included: "If your gun misfires, never look down the barrel to inspect it," "Always keep your gun pointed in a safe direction, such as at a Hippy or a Communist" and "No matter how excited you are about buying your first gun, do not run around yelling 'I have a gun! I have a gun!'"
The fliers were confiscated and then reprinted without the top ten list but, upon later review of the fliers, the YCT students were threatened with probation and disbandment of their group. The administration cited the memory of the 2007 Virginia Tech shooting in objecting to the fliers. Good thing David Letterman never attended school at Lone Star.
In 2007, Cypress College in California demanded that members of the pro-life group "Survivors of the Abortion Holocaust" relocate their graphic presentations to a free speech zone near a construction area completely removed from student traffic.
When the three people wouldn't vacate the premises, they were arrested and kept in the back of the squad cars for an hour before being charged with a crime. After all the charges were dropped, the pro-lifers turned around and sued Cypress College and the district for tens of thousands of dollars. And yet after all that, the restrictive free speech laws were not remanded on campus.
In 2008, police were called again when members of Survivors were found advocating their pro-life views outside of Cypress's free speech zone. Same story: All charges were summarily dropped and a lawsuit is pending.
Two Hours of Freedom a Week
Yuba County Community College in Sacramento, Calif. maintains the stingy First Amendment policy of requiring its students to obtain permission two weeks in advance for their free speech activities and to limit said activities to two hours per week.
In February, Ryan Dozier sued his college after he was threatened with both arrest and expulsion by a campus police officer. The charge? "Conducting an assembly without a permit." If he had expressed his religious beliefs between 1 pm and 2 pm on Tuesday or Thursday after receiving permission from his school administration and following numerous other restrictions, he would have been in the clear.
Freedom Writers Diary
At the beginning of 2008, a 27-year veteran high school teacher in Indianapolis was placed under administrative leave for assigning The Freedom Writers Diary by Erin Gruwell to her at-risk 11th-grade students, even after receiving permission from nearly 150 parents. Connie Heermann was suspended without pay for 18 months, all because the Perry Meridian High School Board indefinitely delayed granting her permission to teach the book.
An interesting sidebar to this story is that Hilary Swank and producers of the Freedom Writers movie based on the book have organized a legal team to defend Heermann. The story has been covered internationally due to its irony: The book tells Gruwell's story of using books and writing to teach students about tolerance and freedom.
Freedom of the High School Press
In November of last year, the Horry County School District in South Carolina banned distribution of a student-produced newspaper because it featured an editorial advocating same-sex marriage. The two teenage authors of the paper had failed to request express permission for the editorial from the school administration even though the quarterly paper was an independent project.
Ronnie Burgess, the principal of the Academy for Arts, Science & Technology, was concerned the front-page article and accompanying photo of two young men holding hands would be disruptive to his student body. He gave the two journalists $500 to reprint 500 copies of the paper without the article, even though they normally financed the newspaper independently through ad sales and not through school support.
Vigilant T-shirt Police
Nearly two dozen Millard South High School students in Omaha, Neb. were suspended last year for wearing T-shirts with the phrase "R-I-P Julius," honoring a former classmate who was murdered in May. The murder of 18-year-old Julius Robinson hit especially close to home for the students because two other teenagers were arrested as suspects in the possibly gang-related slaying.
The 23 students were suspended on Aug. 29 because school officials thought the shirts violated the dress code that barred "disruptive" clothing. The ACLU soon got involved, defending the shirts as an expression of the students' grief, not as a message intent on disrupting learning.
Further west, an elementary school student wore an anti-Obama T-shirt to class in Aurora, Colo. last year and was suspended for three days. Daxx Dalton, 11, would not change or reverse his shirt, which read "Obama—A terrorist's best friend," and so Aurora Superintendent of Schools John Barry disciplined the student. He claimed Dalton was suspended because the T-shirt was disruptive and not because he disliked the content of its message.
It seems public school officials sometimes forget that controversy and healthy dialogue are not the same as disruptions. SFR