Tag: free-speech

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.”

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.)

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.)

The Protest That Made Occupy DC Possible

Posted on | by Sam

As the protesters in McPherson Square enter their seventh week inhabiting a “city within the city,” what was the first national effort to Occupy DC – and how did it change the ways Americans saw their nation’s capital city?

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On a windy Easter morning in 1894, an unusual parade moved down the main street of Massillon, Ohio. The idea of an eccentric local businessman named Jacob S. Coxey, the parade featured an African American flag bearer, a hundred unemployed white men, and an infant named Legal Tender.

At the time of the parade, the United States was in the second year of a major economic depression and millions of Americans were unemployed; Coxey believed he had the answer to the nation’s economic woes. He proposed that the federal government issue $500 million in treasury bonds, that it apply those funds to initiate a massive program to build up the nation’s roads, and that it hire an army of workers, all of who would be guaranteed eight-hour days and daily wages of $1.50.

Convinced his plan would be ignored unless he presented it in person, Coxey intended to lead his peaceful parade of unemployed citizens all the way to Washington, D.C., where they would present a “petition in boots” to Congress on May 1 – International Labor Day. By the time they arrived, he promised reporters at a press conference on January 27, “We’ll have 100,000 men. We’ll not take a dollar with us, and instead of muskets every man will carry a white flag with the words, ‘Peace on Earth, Good Will toward Men, but Death to Interest-Bearing Bonds.’”

What Coxey did not know was that a law forbade him – without the official permission of the Vice President and the Speaker of the House – from presenting his petition in the way he envisioned. The Act to Regulate the Use of the Capitol Grounds, originally passed in 1882 to “subserve the quiet and dignity of the Capitol of the United States,” prohibited “any harangue or oration” and outlawed the display of “any flag, banner or devices designed or adapted to bring into public notice any party, organization, or movement” on the grounds of the U.S. Capitol.

Prior to Coxey’s arrival, the act had almost never been enforced. Yet it reflected the sentiment of the time, which held that Washington was a place for official business, not active protest.

Jacob Coxey was willing to challenge that sentiment on behalf of millions of unemployed Americans, even though he was not one of them. A successful businessman, he owned a sandstone quarry, bred racehorses, and amassed a personal fortune. Despite his own success, the wealthy Ohioan was disillusioned with the major political parties. Gradually, he became influenced by the growing Populist movement in America, which strove to offer an alternative to the dominant political parties by suggesting, among other issues, that the federal government take a more active role in solving the country’s economic problems and not defer to the states. [Founded in February 1892, the Populists garnered over one million votes in the presidential election that same year, and elected governors in both Kansas and Colorado.]

Three years before the Ohio parade, Coxey first lobbied for a Good Roads Bill to help shock the nation out of its economic stupor. It required the issuance of $500 million in legal tender – a.k.a. U.S. currency and, later, the inspiration for his youngest son’s name – and a massive construction project. Coxey was unconcerned that the proposal would have increased the federal government’s total expenditures by nearly 75 percent. But federal officials thought differently, and Coxey’s proposal was ignored.

Then, in the summer of 1893, Coxey met a man named Carl Browne at a national conference on monetary policy. Browne was even more eccentric than Coxey – born on July 4 in a log cabin, Browne spoke with a deep baritone voice and dressed daily in a sombrero and leather jacket – but he was equally passionate about economic reform. He was also a natural salesman. In fact, when Browne convinced the American Federation of Labor to support Coxey’s Good Roads Bill, the experience emboldened Browne to think bigger.

What emerged was the idea of sponsoring a massive rally of the unemployed, all of who would walk to Washington and present their demands en masse.  Coxey was skeptical at first – an event like that had never occurred in America. Indeed, as a reporter for the Washington Post later wrote, “One must go back to the impoverished peasantry of France marching upon Paris to find a parallel, for there is none in our own history.” But Browne had tremendous powers of persuasion; he even got Coxey to convert to Theosophy, a mystical belief in reincarnation that Browne first adopted when, after his wife died, he felt her soul enter his body.

In time, the two came to believe their march was sanctioned by God, and that each of them was a partial reincarnation of Christ. (Coxey also believed he was a partial reincarnation of former President Andrew Jackson, prompting a Washington Post reporter to quip: “Coxey has only to show that the soul of Andrew Jackson is residing upon his person, and he may be assured of a cordial, if not an enthusiastic welcome” in Washington.)

They also believed that their cause was protected by the First Amendment. As Browne told a reporter from the Chicago Daily Tribune, “Having faith in the rectitude of our intentions and believing that we are acting from inspiration from on high, we believe that the liberty-loving people comprising this indivisible and undividable American Union will respond in such numbers . . . assembling under the aegis of the Constitution upon the steps of the Nation’s Capitol to assert their prerogative, shielded as they would be by right and justice, and guided by him in the interest of good and higher government.”

In reality, the traveling band that Coxey and Browne called the “Commonweal of Christ” – and that the press jokingly labeled “Coxey’s Army” – struggled to attract a large number of marchers. As one Daily Tribune reporter put it, “like windmills waiting for wind, Coxey is waiting for men.” Another remarked that newsmen covering the event outnumbered the marchers. But because “Coxey’s Army” received so much press, and because nothing like this had ever occurred before, D.C. and federal officials spent the weeks before May 1 wondering what legal tools existed to help them respond to the marchers’ arrival.

On March 24, the day before the march was scheduled to begin, Washington police superintendent William G. Moore announced publicly that Coxey would not be able to present his petition on the grounds of the U.S. Capitol. Referring to the 1882 Act to Regulate the Use of the Capitol Grounds, Moore said: “This act is very stringent. It will serve to prevent the meeting on the steps of the Capitol and its provisions are ample in allowing the police force to deal with loiterers in the Capitol grounds.”

Newspapers across the country editorialized in favor of the 1882 law. “Upon the whole,” wrote the editors of the New York Times, “our institutions do not totter before the ‘armies’ of tramps.” By contrast, Populist politicians rallied on Coxey’s behalf. On April 19, William Peffer, a U.S. senator from Kansas, introduced a resolution calling for the appointment of a committee of senators to personally receive Coxey’s petition. Peffer was joined by Senator William Allen of Nebraska, who urged his colleagues to agree that “citizens of the United States, regardless of their rank and station in life, have an undoubted and unquestionable right to peaceably assemble and petition the government for a redress of grievances.” The third part of Peffer’s resolution directly addressed the 1882 act. All citizens, it read, “have a right to enter upon the Capitol grounds and into the Capitol building itself as fully and to as great an extent as other citizens or persons.” Any threats of violence or arrests against such persons “would be a clear violation of their constitutional and inalienable right.”

Peffer and Allen were in the minority, and their resolution failed. Meanwhile, on April 23, district officials – under orders from President Grover Cleveland – issued a proclamation condemning the proposed assembly. “The National Capitol is chiefly devoted to public business and it is the center of federal legislation,” they announced. “The Constitutional right of petition does not justify methods dangerous to peace and good order, which threaten the quiet of the National Capitol, which are contrary to law and opposed to the ordinary means of obtaining legislative relief under our system of government.”

Coxey was undeterred. “I have learned that there is a statute preventing parades of any kinds on Capitol grounds,” he told a United Press reporter, who then asked if he was planning to violate the law. “No,” Coxey responded.  “The Constitution gives us the right to do that, and Congress has no power to pass laws in violation of the Constitution. There is no legal authority on the part of anybody to prevent my making a speech on the steps of the Capitol, and that I propose to do.”

At 10:15am on May 1, Carl Browne summoned the five hundred men gathered just outside Washington to begin the final leg of their journey. It was a far cry from the 100,000 marchers Coxey and Browne had initially predicted, yet their small numbers were more than offset by the thousands of faces that lined the streets of Washington to see them. Some observers guessed that the total number was more than had even been seen at past Presidential inaugurations.

As they had done back in Ohio, the marchers provided an unusual spectacle. Coxey’s teenage daughter Mamie dressed in white to embody the spirit of peace and rode a white horse. Seven footsore musicians played “See, the Conquering Hero Comes!” on their drums, trombones, and cornets.  The men themselves, described by a Times reporter as “spruced up a bit for the great parade [but still] a sorry-looking lot,” marched in twos.

The marchers passed without major incident down Pennsylvania Avenue until the group approached the Capitol. The crowd that had gathered at that point was so densely packed that Coxey got out of his open carriage and Browne got off his horse. Amid the chaos, the two leaders pushed into the crowd and toward the Capitol. After reaching the low stone parapet that frames the grounds, Coxey and Browne slid over the top and made their dash for the Capitol steps. Browne was quickly surrounded and arrested; Coxey, meanwhile, made it all the way to the eastern steps. He pulled out his speech and prepared to deliver his remarks, but policemen stopped him before he could say anything of substance. He and his army had marched more than five hundred miles, only to be stopped just short of their ultimate goal.

On May 5, in a packed courtroom, Jacob Coxey and Carl Browne were charged with violating the Capitol Grounds Act. Arguing on their behalf in court as a witness, Senator Allen declared that the arrest of the defendants was an affront to the First Amendment rights of petition and peaceful assembly. The judge disagreed, sentencing each man to spend twenty days in jail and pay a $5.00 fine.

Coxey and Browne served their sentences and paid their fines. Most of the marchers left for home. (Those who did not were later put out by force.) And newspapers such as the New York Times approved of the decision. “The right to assemble and petition for a redress of grievances is not a right to assemble in any place where lawful business, public or private, will be disturbed by the assembly.” The Chicago Daily Tribune put it another way. “Thus ends,” the paper editorialized, the first national march on Washington and “the greatest march of the nineteenth century.”

Except it had not ended. Coxey returned to the Capitol, first in 1914 and then again in 1933, to renew his requests of the government. And then, on May 1, 1944, a ninety-year-old Jacob S. Coxey ascended the eastern steps of the U.S. Capitol to deliver the final incarnation of a speech he had first tried to deliver fifty years earlier. Addressing the crowd of two hundred or so reporters, servicemen, and curious passersby, Coxey – wearing an old-fashioned stand-up collar, a black string tie, and a faded blue suit – lambasted the federal government’s financial policies one last time.

The afternoon must have felt bittersweet. Coxey’s speech was permitted only because he had received official permission from the Speaker of the House and the Vice President; the Capitol Grounds Act was still law, after all. (Incredibly, it was not overturned until 1972.) But the nonagenarian must have felt secure by 1944 that his “army’s” march across the country had at least helped transformed the nation’s understanding of the Capitol. Indeed, as a Washington Post reporter wrote in 1937, “Coxey’s appearance signalized the birth of thousands of marchers” who, taken together, have “established Washington as the most marched-upon place in the world.”

(NOTE: This story first appeared in First Freedoms: A Documentary History of First Amendment Rights in America.)

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.)

Free Speech for Teachers? Think Again . . .

Posted on | by Sam | 1 Comment on Free Speech for Teachers? Think Again . . .

In case you missed it, there was a major case last week involving the First Amendment rights of teachers to make curricular content decisions. And the Sixth Circuit Court of Appeals’ ruling puts another nail in the coffin of the free-speech rights of public employees.

In the most recent case, an Ohio teacher’s contract was not renewed after controversy erupted over a few book assignments she made with her High School English class. As recently as a decade ago, the teacher may have had a legitimate chance in court (although not neccesarily). That’s because, prior to 2006, the U.S. Supreme Court evaluated public employee free-speech claims by using a test with two basic prongs. First, the court would determine whether the speech in question touches on a matter of public concern. If it did not, the teacher would receive no First Amendment protection whatsoever. If the speech did touch on a matter of public concern, the court would proceed to the balancing prong of the test, in which it would balance the teacher’s interest in commenting upon a matter of public concern against the school officials’ interest in promoting an efficient workplace of public service.

Prior to 2006, courts sometimes sided with school officials even though the public school teachers’ speech touched upon a matter of public concern. In one 2001 case, for example, the Eighth Circuit determined that a school principal did not violate the First Amendment rights of three teachers who were ordered to quit talking about the care and education of special needs students. Subsequent appeals in the case acknowledged that the teachers’ complaints about the lack of care for special needs students touched on matters of public concern. Nonetheless, the appeals court noted that the teachers’ speech “resulted in school factions and disharmony among their co-workers and negatively impacted [the principal’s] interest in efficiently administering the middle school.”

Conversely, in 1993 the Eleventh Circuit reached a different conclusion in the case of Belyeu v. Coosa County Board of Education. In this decision, a teacher’s aide alleged that school officials failed to rehire her because of a speech she made about racial issues at a PTA meeting. The aide said the school should adopt a program to commemorate Black History month. Immediately after the meeting, the principal asked to speak with her and told her he wished she had raised this issue privately rather than publicly. A lower court determined that the speech clearly touched on a matter of public concern, but that the school system’s interest in avoiding racial tensions outweighed the aide’s right to free speech. On appeal, however, the Eleventh Circuit reversed, writing that the aide’s “remarks did not disrupt the School System’s function by enhancing racial division, nor, based on the nature or context of her remarks, was her speech likely to do so.”

This is all a precursor to 2006, however, when the U.S. Supreme Court effectively eliminated the free-speech rights of public employees in its 5-4 decision in Garcetti v. Ceballos. As my friend and former First Amendment Center colleague David Hudson explains, since Garcetti “public employers are able to defend themselves against allegations of retaliation by claiming that employees’ criticisms of government operations were made as part of their official duties.”

Indeed, a pattern has emerged in this post-Garcetti world, in which it has become almost impossible to mount a successful First Amendment lawsuit based on speech that relates to the workplace. In other words, a teacher who wishes to claim First Amendment protection for decisions about curricular content must do so knowing that the same protections s/he would be afforded as a private citizen will not apply to anything so directly related to his or her official duties.

Ironically, the 1969 case that is hailed as the high-water mark for student free-speech, Tinker v. Des Moines, features these lines: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.”

No longer.

(Postscript: If you’re a junkie for First Amendment law, check out my three books on the subject, including answers to all of the most frequently asked questions as they pertain to First Amendment issues in schools.)