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Saving Free Speech and Jesus

“Virtually any student speech that school officials find controversial or offensive
hangs in the balance on how the Supreme Court decides ‘Bong Hits 4 Jesus.’ “

David Hudson, First Amendment Center, Vanderbilt University, American Bar Association’s “March Preview” of Supreme Court cases


In the long, embattled history of student free-speech cases, what makes the Deborah Morse, Juneau School Board v. Joseph Frederick case startlingly unique is the number of conservative and religious organizations supporting Joe Frederick’s First Amendment right to unfurl his banner “Bong Hits 4 Jesus.”

Among his allies are the Christian Legal Society, Pat Robertson’s American Center for Law and Justice, the high-powered Alliance Defense Fund, and John Whitehead’s Rutherford Institute, the nation’s most active litigator for free exercise of religion—and also a persistent critic of the administration’s war on the Bill of Rights.

On the side of high school principal Morse and the Juneau Board of Education are, of course, the national associations of school boards, secondary-school principals, and school administrators.

Why have the religious and conservative groups become comrades, in this case, of the ACLU, Student Press Law Center, and Feminists for Free Expression? The reason is that the core of the “Bong Hits 4 Jesus” case is not the famous Tinker decision in 1969 in which the court ruled that student free speech can be censored only if it disrupts school activities or violates the rights of others.

The John Roberts Supreme Court is essentially dealing with a later, much more restrictive Supreme Court decision (Hazelwood School District v. Kuhlmeier, 1988) that gives principals and school boards the power to censor any student speech that is contrary to the “basic educational mission of the school”—as defined by each public school principal and school board in the country.

Also likely to be affected by “Bong Hits 4 Jesus” is the college student press, because a recent Seventh Circuit Court of Appeals ruling in the Hosty case applied the Kuhlmeier standard to colleges as well as secondary schools. The Supreme Court refused to review that
Hosty decision, which means it can be referred to as a supportive precedent by other circuit courts.

The conservative and religious groups are concerned with this case because if the Roberts Court uses Kuhlmeier against “Bong Hits 4 Jesus,” as Jacob Sullum notes in the New York Post, “where does that leave students who condemn abortion or homosexuality, question evolution, or insist on the importance of Holy Scripture in resolving moral issues”? A “politically correct” principal or school board could decide that these student-ignited controversies interfere with “the basic educational mission” of that particular school.

In the March 19 oral arguments at the Supreme Court, Kenneth Starr, the lawyer for the principal and the school board in the “Bong Hits 4 Jesus” case, began by unfurling the
Kuhlmeier standard:

“Illegal drug use and the glorification of the drug culture are profoundly serious problems for our nation,” Starr argued, and if the court gives First Amendment protection to the banner, school anti-drug policies around the country—and like that of Juneau High School—would be undermined.

Justice Anthony Kennedy, often a First Amendment supporter—and a likely swing vote if there’s a 5-4 decision—gladdened Starr by stating that Joe Frederick’s banner “was completely disruptive of the theme that the school wanted to promote.”

And Chief Justice Roberts chimed in: “I thought we wanted our schools to teach . . . something besides just basic elements . . . including character formation. . . . Can’t the school decide that it’s part of its mission to prevent its students from using drugs?”

Justice Stephen Breyer (who often tends to speak as if everyone else is a student and he is the professor) even questioned whether First Amendment law need apply in this case. Astonishingly, Breyer said: “I don’t think [the principal] has to be able to read [such First Amendment standards] as content discrimination, viewpoint discrimination, time-place [context]. The principal doesn’t know the law. His job is to run the school.” (Emphasis added.)

When a Supreme Court justice declares that a public school principal has no obligation to know the law of the First Amendment before deciding whether or not to censor student speech, his respect for the very idea that students have First Amendment rights is so low that he should have recused himself from this case.

Justice David Souter felt it was necessary to go back to the 1969 Tinker decision and its rule that student speech was not protected if it caused disruption in school matters. That still remains one of the criteria even under Kuhlmeier. Souter asked where Joe Frederick’s banner actually caused disruption—unless, he pointedly added, “disruption simply means any statement of disagreement with a position officially adopted by the school.” I think we can count on Souter to affirm the First Amendment.

James Madison, who wrote the First Amendment, would have been heartened by the clear, firm perspective of Justice Samuel Alito in this case. I have been critical of Alito’s views of the Fourth Amendment and other criminal- justice constitutional issues. But as he demonstrated when he was on the Third Circuit Court of Appeals, Alito knows why the First Amendment had to be added to the 1787 Constitution four years later.

Responding to the argument that a school can cut off student speech that is inconsistent with its “basic educational mission,” Alito said: “I find that a very, very disturbing argument because schools . . . can [thereby] define their educational mission so broadly that they can suppress all sorts of political speech expressing fundamental values of the students [that the principals judge to be] inconsistent with their educational missions.” Raise a glass to Sam Alito!

In circulating his opinion among his fellow justices, I hope Alito will remind them that Joe Frederick was intentionally across the street from his high school, and that even in the otherwise restrictive Kuhlmeier decision, that court recognized that “the government could not censor [student speech] outside the school”—including “streets, parks, and other traditional public forums that time out of mind, have been used for . . . communicating thought between citizens discussing public questions.”

Joe Frederick and his banner were on a public street across from the school. If this court fails the First Amendment on other counts in this case, at least students won’t be entirely gagged when they’re away from school. But inside schools, maybe Sam Alito can save free speech—including about Jesus, pro or con.

Joe is now a high school English teacher in China. He sure is needed there.

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Joe Frederick, First Amendment Idol

“In our system, students may not be regarded as closed-circuit recipients of only that which the State wishes to communicate. They may not be confined to expression of those sentiments that the State officially approved. Supreme Court, Tinker v. Des Moines Independent Community School District , 1969

“That boards of education are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount principles of our government as mere platitudes. Supreme Court, West Virginia State Board of Education v. Barnette, 1943


We are in a time when many Americans are far more knowledgeable about Anna Nicole Smith than about the Bill of Rights—its contents and its future as the Constitution keeps shrinking. For example, do you know each of the five freedoms listed in the First Amendment?

But during this perilous indifference to why and how we are Americans, a young citizen in Juneau, Alaska—Joe Frederick—is becoming a model to Americans of all ages on how to live the First Amendment. Even before his current battle with his high school principal and the Juneau school board came before the Supreme Court on March 19, Frederick, earlier in his school years, had been threatened with suspension for refusal, on First Amendment grounds of conscience, to stand and pledge allegiance to the flag.

As Justice Robert Jackson said for the Court in a 1943 school-suspension pledge-of-allegiance case (West Virginia State Board of Education v. Barnette):

“No official, high or petty, can prescribe what shall be orthodox politics, nationalism, religion, or any other matters of opinion, or force citizens to confess by word or act their faith therein.” Those words should be on a laminated card in the pockets of every principal, school board member, and FBI agent in the country.

By this June, the John Roberts Supreme Court will have ruled on whether the First Amendment protects Joe and his unorthodox banner, along with much other student speech around the country.

The case of “Bong Hits 4 Jesus” is Deborah Morse, Juneau School Board v. Joseph Frederick.

I recognize that what the justices say during oral arguments does not necessarily predict the outcome of a case; but the comments on March 19—particularly by Chief Justice John Roberts and the current swing voter, Anthony Kennedy—could lead a majority of the court to gravely limit the free-speech and free-press rights of public school students (including at public colleges) for many years.

Having covered student press wars around the country for the Voice and for my books on the Bill of Rights, I’ve found that those students who become most actively and durably passionate about the First Amendment have worked on school newspapers embroiled in these press wars with principals and school boards. Most other students are indifferent.

If this Supreme Court muzzles the current and future generations of these First Amendment student warriors, even most subsequent American adults will be indifferent to the First Amendment—from which all our other liberties flow. My rites of passion on this issue began when I was fired as the editor in chief of my college paper, the Northeastern News in Boston, for enraging Northeastern University’s president by fomenting controversy. In the introduction to my book The First Freedom: The Tumultuous History of Free Speech in America (1980), I credited school president Carl Ell for inspiring me to embrace the Constitution.

Supported by the ACLU, Joe Frederick’s odyssey to the Supreme Court began five years ago, when he was 18, a senior in high school. The 2002 Olympic Torch Relay was scheduled to pass by the school. Across the street, Joe unfurled a 14-foot banner: “Bong Hits 4 Jesus.”

What was the message? He was having fun, he says, and calling attention to himself and maybe getting on television. “It was certainly not intended as pro-drug or religious,” he recently told Nina Totenberg on National Public Radio. “I conveyed this to the principal by explaining that it was intended to be funny, subjectively interpreted by the reader, and most importantly, an exercise of my inalienable right to free speech.”

The principal, Deborah Morse, is praised by her attorney in this Supreme Court case, Kenneth Starr (yes, the Kenneth Starr, of Clinton impeachment fame) as a “lifelong educator” deeply concerned with the anti-drug message—and mission—of her school.

Seeing Joe Frederick’s banner, this lifelong educator rushed across the street and ordered him to take it down. Undaunted, the student cited his First Amendment rights, whereupon the principal grabbed the banner, mashed it to the ground and, on the spot, suspended Joe for five days for—as she and the school board claimed—promoting drug use and thereby violating the school’s basic educational mission.

Still not intimidated by this dedicated educator, Joe brought Thomas Jefferson and his Declaration of Independence into the conversation to defend the banner. In fiery response, Deborah Morse immediately doubled the suspension.

I know Kenneth Starr, having interviewed him often in the Clinton years and later when he volunteered to teach the Constitution at a “disadvantaged” Washington, D.C., high school. Having read his book First Among Equals: The Supreme Court in American Life (2002), I am not surprised that he eagerly took this case on behalf of the principal and the school board. He’s doing it pro bono. As he writes in the book, he argued the government’s case as solicitor general at the Supreme Court against the free-speech rights of flag burners. He lost 5 to 4.

Next week: Starr’s skillful strategy during oral arguments in Morse
v. Frederick, which came to the court of final judgment after the Ninth Circuit Court of Appeals upheld Joe Frederick’s First Amendment right to unfurl “Bong Hits 4 Jesus.”

Worth noting: At an early point in this case, as NPR’s Totenberg reported, “Joe Frederick and his father offered to settle the case if the school put on an assembly at which students would hear from an ACLU representative and a school board official explaining what student rights are.”

The Juneau School Board refused what would have been a memorable teaching moment for the students, faculty, and school board. It is now up to the Roberts Court to either support Joe Frederick or flunk the First Amendment for what could be at least a generation. The court will focus on whether any student speech that violates “a school’s basic mission” can be forbidden. Each school would decide that for itself.

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Afraid of Freedom?

It is an easy step from restraining the press to making it place the worst actions of government in so favorable a light that we groan under tyranny and oppression without knowing from whence it came.
Abraham Lincoln, Cooper Square, New York, 1860.

Do you agree or disagree with the following statements: Newspapers should honor government requests to withhold publishing information that might hurt efforts to win the war on terrorism? Strongly agree: 57%. Mildly agree: 18%.
Annual First Amendment Center survey, “The State of the First Amendment 2006.”

The Bush administration’s sudden decision to apparently end the president’s illegal unleashing of the National Security Agency’s secret, warrantless spying on us does not offer an armistice on the Bush team’s pursuit of the press as a danger to national security.

If you look behind the curtain of this “retreat” on the commander-in-chief’s “inherent power” to deal with terror as he sees fit, it is not clear whether placing the responsibility on the special Foreign Intelligence Surveillance Court—which hears only government lawyers before it makes a ruling—means the court will issue individual warrants or a blanket dragnet of warrants not attached to a specific person. A classic example are the “John Doe” nameless warrants attached to a particular telephone and everyone using it. Similarly, an Internet provider could be served with such a blanket warrant.

Also, the president in no way acknowledges that he broke the Foreign Intelligence Surveillance Act in the NSA’s warrantless filling of FBI and CIA databases in its secret spying. As New York Times legal analyst Adam Liptak noted on January 19: “The administration continues to maintain it is free to operate without court approval.” The president has not embraced the Fourth Amendment and judicial review of his “inherent” powers, despite his backtracking on the warrantless spying.”

Furthermore, in a little–noticed declaration on January 17, the nation’s chief law enforcement officer, Attorney General Alberto Gonzales, said in a speech at Washington’s American Enterprise Institute that federal judges are not “equipped to make decisions” about actions taken by the commander-in-chief regarding national security. “A judge,” said Gonzales, “will never be in the position to know what is in the national security interest of the country.” So judges should back off.

The ever–loyal attorney general would not have issued this manifesto of unchecked presidential powers without knowing he had the approval of the man who made him what he is today.

Whatever we do find out about Bush’s real deal on National Security Agency and surveillance and the FISA court, the president doesn’t need judges or warrants to keep a constant eye on members of the press who spread “leaks” about his secret decisions to safeguard national security.

At the National Press Club in Washington last September 28, ABC News investigative reporter Brian Ross told what happened after he and his colleague, Richard Esposito, had aroused the government’s ire by reporting on CIA secret prisons and kidnappings. “A short while after we did our stories,” Ross said, “Rich got word from his source: ‘We know who you’re talking to. They’ve got your phone records.'” (One of the calls in those records was by me.)

Brian Ross had not been served with any government subpoenas or been questioned by government agents. Without a judge’s ruling, his phone records, he figured out, had been taken through a National Security Letter—which he pointed out, the FBI can “serve on the phone company, the credit card company, the bank, the library, and that information must be turned over.” Like the “general search warrants,” which British customs officers wrote by themselves so they’d have license to barge into the 18th-century Americans’ offices and homes, National Security Letters do not require a judge’s approval.

And when judges are involved in the government’s tracking of journalists, increasingly reporters are in peril. The First Amendment Center’s Paul McMasters reports:

“Joshua Wolf is a San Francisco freelance journalist and blogger who refused to give up an uncut video of a violent protest to U.S. prosecutors. He has now served more time in prison than the 85 days former New York Times reporter Judith Miller served last year for refusing to reveal her sources in the Valerie Plame leak case.”

In the landmark free-press 1971 “Pentagon Papers” case (New York Times Co. v.
United States)—in which the Nixon administration demanded severe punishment for the New York Times‘s having published highly classified information on government conduct (and lies) in the course of the Vietnam War—Justice Hugo Black, writing in the majority, warned of government brandishing “national security” to silence the press in time of war. “The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic,” Black wrote. “The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.”

But among the dissenters, Justice Harry Blackmun warned: “The First Amendment . . . is only one part of an entire Constitution. Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation’s safety . . . I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment . . .

“If damage has been done . . . and these newspapers continue to publish the critical documents and there results the death of soldiers [and] the prolongation of the war . . . then the Nation’s people will know where the responsibility for these sad consequences rests.”

As George W. Bush continues to act, and believe, in the “inherent power” of the commander-in-chief, the John Roberts Supreme Court will, in time, decide whether Hugo Black’s understanding of the First Amendment prevails or whether Harry Blackmun, Alberto Gonzales, and Commander Bush speak for the nation as the press becomes strictly controlled for a long time to come.

Hugo Black once insisted: “We must not be afraid to be free.” What will the public’s answer be if there’s another 9-11?

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The Enemy Within

I can say, as a matter of first principle, that unauthorized disclosure of classified information [by the press] has actually led to the death of individuals [who would not have been killed] had this information not been inappropriately put into the public domain.
Michael Hayden, Director of the CIA, New York Daily News, December 1, 2006

What we’re really looking at is the criminalization of investigative reporting in this country, and we’re on a very slippery slope that we’re already starting to slide down.
Brian Ross, investigative reporter, ABC News, PEN Press Freedom Petition to Congress, National Press Club, September 28, 2006

The Government’s power to censor the press was abolished . . . by the Founding Fathers . . . so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government.
Supreme Court Justice Hugo Black, New York Times Company v. United States (1971), “Pentagon Papers” case.


In the more than half a century I’ve been a reporter, there has never been as systematic an operation to intimidate and then silence the press as is now taking place under the Bush-Cheney-Gonzales administration. Along with a sharp increase in subpoenas for reporters’ notes and telephone records, there are threats of prosecution under the Espionage Act of 1917 for reporting such classified information as the president’s secret authorization of the National Security Agency’s warrantless secret authorization of the National Security Agency’s warrantless eavesdropping on us.

Adding to the shroud of secrecy, Alberto Gonzales’s Justice Department has convinced a number of judges to close down cases before they’re heard in a courtroom, lest “state secrets” concerning national security be revealed by the press to the public.

Paul McMasters, the First Amendment Center’s ombudsman, makes the necessary point that “while the First Amendment protects the press from overt government censorship, it can’t fully protect the press from full-time government hostility or part-time citizen apathy.”

Nor can the First Amendment prevent certain corporate owners of newspapers, radio and television networks, and other media from ordering reporters and editors to give up the information the government wants. Those who refuse are left to find other legal aid, and possibly other jobs.

A number of us staunchly pledge that we’ll go to prison rather than betray our sources and become agents for the government, but there are always—as some reporters have found out—enough cells to accommodate principled followers of James Madison.

It is time to remind the citizenry and Congress—and the press—of a crucial Supreme Court case, decided in wartime, that makes unmistakably clear how and why the First Amendment to the Constitution mandates that there “shall [be] no law . . . abridging freedom of speech, or of the press.”

Usually referred to as the 1971 “Pentagon Papers” case—in the law books, it’s formally known as New York Times Company v. United Sates because the Times, despite enormous pressure from the Nixon administration, decided—after a fierce internal debate at the paper involving the Times‘ lawyers—to print a more-than-top-secret study commissioned by Defense Secretary Robert McNamara. Stolen by a former Defense Department and RAND Corporation officer, Daniel Ellsberg—a patriotic constitutionalist—the study revealed that vital decisions about the war in Vietnam had been made at the highest levels in ways that deliberately deceived the American people.

The Washington Post had also been given a set of the “Pentagon Papers,” and Attorney General John Mitchell—the Dick Cheney of the Nixon administration—warned the Post‘s owner, Katharine Graham, that she’d get “her tit caught in a big fat wringer” if she violated national security in time of war by printing the classified report. Katharine Graham was not intimidated.

The Times, however, had hesitated. As noted in Oxford University Press’s
First Freedoms: A Documentary History of First Amendment Rights in America (2006), “the newspaper’s [ law firm] warned that publishing classified documents might violate federal espionage laws.”

At that point, The Village Voice and this columnist silently and unknowingly became a factor in the Times’ decision to publish the “Pentagon Papers,” leading to the subsequent Supreme Court decision. I was then writing what was essentially a press column for the Voice and got a call from someone I knew at the Times.

“I know you don’t run blind items,” the person said, “but this is very important. Somewhere in your next column, just say that “a secret debate is going on at the Times in an undisclosed hotel room. I can’t tell you any more than that.” I ran the blind item.

Years later, I was called by the respected Times foreign correspondent, and then an editor, Harrison Salisbury. He was writing a book about the Times, including a section on the “Pentagon Papers.” The blind item in my Voice column had had an effect, and would I tell him who called me?

“Mr. Salisbury,” I said, “you surely know that as a reporter, I can’t give up a source, even if it’s not the government that demands it.” He understood; the conversation ended.

I had found that my first caller—and others at the Times pressing for immediate publication of the “Pentagon Papers”—figured that a blind item in the Voice might lead the decision makers to think we knew enough to soon break the story of the Times‘ hesitation, and they didn’t want that disclosed.

I’m convinced Times publisher Arthur Sulzberger would have anyway fired the paper’s lawyers for objecting to publication, as he did, and gone ahead to publish the classified report had the blind item never appeared. He knew the historic importance of the First Amendment test he was facing. All the Voice did was speed up the printing on June 13, 1971, of the front-page story of what Ellsberg had revealed about the government’s lies.

Next week: a much fiercer debate at the Supreme Court resulting in a decision only 17 days after the first installment of the “Pentagon Papers” appeared in the Times—and how that decision tests all of us now in the last years of an administration determined to overturn that Supreme Court’s rescue of the First Amendment.

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Putting God in His Place

Shortly after school began in September, the teacher told his students at the [public] Kearny High School in New Jersey . . . that only Christians had a place in heaven—according to audio recordings made by a student.
“Talk in Class Turns to God,”
The New York Times, December 18.

By the time of the adoption of our Constitution, our history shows that there was a widespread awareness among many Americans of the danger of a union of Church and State. . . . [And] the founders of our Constitution knew that a “union of government and religion tends to destroy government and degrade religion.”
Justice Hugo Black, writing for the Supreme Court, Engel v.Vitale, June 25, 1962.

When 16-year-old Matthew LaClair, a junior at Kearny (New Jersey) High School, 10 miles west of Manhattan, recorded eight lectures by popular teacher David Paszkiewicz in an accelerated American history course, he started a furor not only in his hometown but elsewhere around this country—whose Constitution has been degraded for the past six years by the president and the Republican-controlled Congress,with the acceptance of many of the citizenry, either ignorant of their constitutional liberties or willing to yield them in fear of homicidal terrorists.

Constitutional law professor Jonathan Turley, a columnist and a litigator in national-security cases, said in an October 18 interview with MSNBC that history will ask this generation of Americans—who “are strangely silent in this national yawn as our rights evaporate”—”Where were you?”

Matthew LaClair will be able to answer that question proudly, although at present he is a pariah among many of his fellow students at Kearny High—and on his computer, there are curses from outraged Americans around the country. He has even received a death threat.

How dare he covertly record the religious beliefs of this esteemed person—described by school principal Al Somma as an “excellent teacher. . . . As far as I know, there have never been any problems in the past.” After all, doesn’t teacher David Paszkiewicz have the academic freedom, under the First Amendment, to tell his students—as Tina Kelley reported in the December 18 New York Times (and LaClair himself taped)—that the doors of heaven are closed to nonbelievers in Jesus and that a “specific Muslim girl would go to hell”?

Also, this teacher, in addition to his position at the high school, is a youth pastor at Kearny Baptist Church. Not surprisingly, he told his students at the public, taxpayer-financed Kearny High that “evolution and the Big Bang were not scientific.”

The teacher, after Matthew turned over his recordings to school officials, is no longer religiously proselytizing in class. And Matthew, who tells me he’s lost a lot of friends, adds that he’s “extremely surprised by the hostile opposition” in much of the community.

Matthew did question the teacher’s conclusions in class, but he also felt it necessary to record those statements. “Because otherwise,” he told me, “nobody was going to believe they’d been made. Even now, students in the class, protecting the teacher, say he didn’t say those things.”

While the school’s principal says there has never before been a problem with this teacher, he is now aware—as bloggers around the world are tuning into this fractious constitutional lesson—that this growing problem goes to the heart of the “Establishment Clause” in the First Amendment.

While the First Amendment insists there be no law “prohibiting the free exercise” of religion, it also forbids any law “respecting an establishment of religion.”

What that means was clearly explained in a New Jersey case, Everson v. Board of Education (1947),by Supreme Court Justice Hugo Black:

“Neither a state nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . No tax, in any amount, large or small”—suchas those that fund Kearny High—”can be levied to support any religious activities . . . or teach or practice religion.”

And, in speaking of public schools, Justice Felix Frankfurter put it as plainly as possible why Matthew LaClair is so valuably instructing his high school and the nation as he stands up for the Constitution—even as some of his friends forsake him. There must be, said Frankfurter, ” strict confinement of the state to instruction other than religious, leaving to the individual’s church and home indocrination in the faith of his choice.” (Emphasis added.) Also left to our choice is to have no religious faith at all. The Constitution protects atheists, too.

To those in and out of Kearny, New Jersey, who scorn atnd rebuke Mathew LaClair, I urge attention to what Supreme Court Justice Robert Jackson wrote, as it applies to the teacher Mathew recorded:

“We start down a rough road when we begin to mix compulsory education with compulsory godliness.”

Matthew’s own road is currently, as he puts it, “a little tough.” He continues, “My faith is in this democracy we have in America, but we have to work at it to keep it. I don’t want to see this kind of teaching in this school now, or when I leave, or anywhere across this country.”

He then read to me from a booklet, “The Program of Studies at Kearny High School,” that, he says, every student receives. Among the goals of instruction are “to think critically [and] understand the role of a good citizen in the practice of democratic ideas and ideals.”

In view of Matthew LaClair’s outstanding dedication to those goals, I would hope that Principal Al Somma would call a school-wide assembly at which to present Mathew with an award named for the chief architect for the First Amendment, James Madison, who started his road to the Constitution at the College of New Jersey (now Princeton University).

James Madison said of the First Amendment that it “strongly guarded . . . the separation between Religion and Government in the Constitution of the United States.” If he were still here, I think Mr. Madison might well be glad to meet Matthew LaClair.

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Mugging the Minutemen

If large numbers of people believe in freedom of speech, there will be freedom of speech, even if law forbids it. But if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them. —First Freedoms: A Documentary History of First Amendment Rights in America (Oxford University Press, 2006), from the introduction by this Voice columnist.


On October 4, at a Columbia University event sponsored by the College Republicans, Jim Gilchrist, leader of the anti-immigration Minutemen—as has been reported far and wide—was physically and furiously prevented from speaking by a mob of righteous gauleiters, some of whom were roaring, “He has no right to speak!”

To again bring into the conversation Mr. Orwell—who did not benefit from a Columbia University education—he had the heretical belief that “if liberty means anything at all, it means the right to tell people what they do not want to hear.”

First Amendment law is clear that everyone has the right to picket a speaker, and to go inside the hall and heckle him or her—but not to drown out the speaker, let alone rush the stage and stop the speech before it starts. That’s called the “heckler’s veto.”

My first reaction on hearing of this mugging of the Minutemen was that, for Columbia University president Lee Bollinger, it would be a blessed “teaching moment”—as they say in the teaching trade. Before he ascended to his present eminence, Bollinger was known in academic circles as a First Amendment scholar. (Columbia is a private university, but professes to adhere to the spirit and letter of the First Amendment.)

President Bollinger did make an aggrieved statement, calling the disruption “one of the most serious breaches of academic faith that can occur in a university such as ours” and promising a thorough investigation of the “incident.” The university has not invited the Minutemen to return under guaranteed protection.

And as of this writing, that was it. I had expected that Bollinger, as a renowned advocate of freedom-of-speech discussions, would seize this teaching moment and hold university-wide debates on the fading knowledge of (and therefore belief in) the First Amendment by students and administrators on many college campuses around the country—not only at Columbia.

As a member of the advisory board of FIRE (the national Foundation for Individual Rights in Education)—which relentlessly protects the rights of speech and conscience of students and professors across the ideological spectrum—I get very frequent reports of the suppression of minority views on campuses, but short of the kicks and punches that attended the silencing of the Minutemen at Columbia.

As a major center of higher learning, Columbia, by actively engaging in the dangerous undermining of the First Amendment across the land—not only by the Bush administration—could have a considerable impact. Such a “teaching moment” would have gladdened the heart of the late Supreme Court justice William Brennan, who often told me that it is “from the First Amendment that all the rest of our liberties flow.”

Just looking at the five freedoms protected by the First Amendment proves his point. How many Americans can list those five freedoms? Can you? In a huge Knight Foundation survey last year of 100,000 high school students, three out of four said they “do not think about the First Amendment,” or that take their First Amendment rights “for granted”—whatever that means. And 36 percent thought newspapers must first get government permission before publishing. There is no evidence of substantial change in these views once they’re in college.

At the very least, President Bollinger could ask Floyd Abrams, the nation’s premier First Amendment litigator—including at the Supreme Court—to conduct a teach-in at Columbia. Abrams is the William J. Brennan Visiting Professor of First Amendment Issues at Columbia’s Graduate School of Journalism.

Abrams, who has long been one of my mentors on all sorts of free-speech issues, will appear in my next column, which concerns a trial in January of defendants charged by the Justice Department with violating the Espionage Act of 1917. These two private citizens, not connected to the government, aren’t journalists, but an eventual Supreme Court decision could further, and radically, limit “the people’s right to know”—under the First Amendment—what the government does in the name of national security. The defendants in this ominous trial are two former lobbyists for the American Israel Public Affairs Committee (AIPAC). They are charged with conspiracy to communicate information about national defense to persons not authorized to receive such information. Those persons included journalists.

Speaking before the House Intelligence Committee, Jane Kirtley, professor of Media Ethics and Law at the University of Minnesota, cautioned that this prosecution could be a prelude to using the Espionage Act of 1917 against journalists who reveal classified information to us, the public.

You may remember that the Justice Department said it would conduct criminal investigations of three of this year’s Pulitzer Prize winners—Dana Priest of The Washington Post for reporting on secret CIA prisons in Eastern Europe, and James Risen and Eric Lichtblau of The New York Times for exposing Bush’s unleashing of the National Security Agency’s secret and warrantless eavesdropping on Americans’ e-mails and phone calls.

In both cases, that information was indeed classified, and Bush said that what these journalists had done was “shameful.” And therefore criminal.

In Floyd Abram’s address “The State of Free Speech” at Syracuse University (excerpted in the October 18 New York Law Journal), he argued:

“Anyone who covers the CIA, the Department of Defense, or the Department of Homeland Security is routinely provided classified information by people in and out of government. Only this permits any serious discussion of the government’s most important acts.” (Emphasis added.)

The students at Columbia University could learn a lot from Abrams, and not only about their peers’ brutish shutting down of the Minutemen’s freedom of speech.

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Supreme Court Obscenity

“Obscenity” is a bag of smoke used to conceal one’s dislikes with regards to aspects of sex.

The late Ralph Ginzburg, First Amendment warrior, in The New York Times, July 7, 2006

There are as many different definitions of obscenity as there are human beings, and they are as unique to the individual as his dreams.

Justice William O. Douglas, a dissenter in the 1966 Supreme Court decision that imprisoned publisher Ralph Ginzburg on federal charges of obscenity


During the reign of J. Edgar Hoover, FBI agents had knocked at my door because of my writings in the Voice about his wholesale violations of the First and Fourth amendments in his pursuit of “un-Americans.” But in the spring of 1962, the imperious knock was by a detective from the office of the Manhattan district attorney.

Packing—but not pointing—a gun, he was summoning me peremptorily downtown to be questioned about an article I had written in the first issue, just out, of Ralph Ginzburg’s hardcover magazine Eros, devoted to multidimensional views of sexuality in paintings, books, and history. I wrote the lead piece, “The Blues of Blacks and Whites,” showing that black blues “speak of sexual love with a spontaneous joy or a wracking sorrow that has been absent from our formal poetry” and in most white popular songs.

At the district attorney’s office, I was asked what I knew of this Ralph Ginzburg and his intentions as a publisher. Citing several Supreme Court First Amendment decisions, I said the questions were improper, and said nothing more. That was the last I heard from the office of the district attorney—this was before the much more libertarian Robert Morgenthau was fortunately elected to that office.

But when the fourth—and as it turned out, last—issue of Eros was published, Ralph Ginzburg was indicted for violating federal anti-obscenity laws by the order of Attorney General Robert Kennedy. (Yes, the Robert Kennedy, who, at the time, had minimal regard for civil liberties.)

When Ginzburg died, at 76, on July 7 of this year, all the obituaries featured his eventual five-to-four loss at the Supreme Court in 1966. And the New York Times obit ended with a quote from Ginzburg, who had been sentenced to five years in prison and a $40,000 fine (he was released after eight months). Said Ginzburg years later—after an active career, following prison, as a publisher and a super news photographer for the New York Post:

“I have always felt that I might have become a major force in American publishing had it not been for my conviction. Instead, I’m just a curious footnote.”

Ralph Ginzburg greatly underestimated his legacy. In his years after prison, he was much more than a “footnote” as a publisher and photographer. But what all the obituaries left out was— as I shall indicate—the impact of his conviction on the Supreme Court itself, which subsequently began to greatly diminish the high court’s concern with obscenity.

The justice who wrote the majority Ginzburg decision was, of all people, William Brennan, until then—and after—a vigorous protector of the First Amendment. Joining him in the wrongful majority were Chief Justice Earl Warren, Tom Clark, Byron White, and Abe Fortas (hardly the most shining moment in their judicial lives). The dissenters were William O. Douglas, Hugo Black, John Harlan, and Potter Stewart. The next morning, the Times editorial said, “[Ginzburg] was strictly an entrepreneur in a disreputable business. . . . Pornographic racketeers have cause to worry.”

Years later, through writing a profile of Justice Brennan for The New Yorker, I got to know him quite well. One day, in his chambers, I asked Brennan if he had any regrets at having sent Ginzburg to prison. The usually amiable Brennan was uncomfortable at the question and snapped, “You haven’t seen that decision quoted by any other judge, have you?”

But in 1973, in Paris Adult Theatre I v.
Slaton
, Justice Brennan, in dissent, finally decided to admit that it was “hopeless confusion” to try to separate obscenity from other sexually oriented but constitutionally protected speech.

And after writing that 1973 decision, Brennan told me, “If you can’t define it, you can’t prosecute people for it.”

As for the Ginzburg case, I believe Brennan had come to realize, seven years later, what should have been clear to him at the time. Ralph’s conviction had been unconstitutional.

Robert Kennedy’s case against Eros and the two other Ginzburg publications, The Housewife’s Handbook on Selective Promiscuity and the newsletter Liaison, was not based on their content—rather on how he had advertised them through the mails. By emphasizing their “erotic” appeal, Ralph was charged with rousing the “prurient interests” of the ads’ readers. (He had been put behind bars for pandering.)

And Brennan, reading his Ginzburg decision from the bench in 1966, had actually written: “Where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of ‘obscenity’ “—even if the content of the publications, taken as a whole, had enough social or literary value to be protected by the First Amendment.

Since 1973, after Brennan threw up his hands and gave up trying to define obscenity, there have been hardly any significant obscenity cases before the Supreme Court. I am convinced that Brennan, even though it was a dissent, turned the court around, in part because of his embarrassment at what he had done to Ralph. As for why he did it, one of his clerks told me, “When Brennan read the Ginzburg decision from the bench, the back of his neck was turning red. You see, at the time, he had a teenage daughter.”

When Ralph lay dying, he told his wife, Shoshana, “I don’t want any memorial services. They’re for the living. People have to come, they want to, but it’s an imposition. My memorials will be in the obituaries in the press.” And when he was near the end, he said, “Shoshana, don’t waste any time when it’s over, immediately call the Associated Press.”

Ralph was wrong. He will be much more than an obituary footnote in the annals of the First Amendment, from which—as Justice Brennan told me long after sidetracking himself in Ralph’s case—”all our liberties flow.”

So long, Ralph, it was an honor to know you.

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Learning Why We’re Americans

The Constitution needs renewal and understanding each generation or it’s not going to last.

Supreme Court Justice Anthony Kennedy

In many, if not most schools, our history is on the back burner. You can have amnesia of society, which is just as detrimental as the amnesia of an individual.

Historian David McCullough, author of 1776

——-

In this city, and around the country, reforming school systems has become a ceaseless process as more and more youngsters are left behind. New York’s chancellor Joel Klein is now extensively restructuring the reforms he’s been intensely involved with since he and the mayor took office.

Klein’s new approach is intended to lessen the excessive classroom rigidities he imposed as well as give principals more autonomy, and most important, the performance of individual students will be tracked as they advance, if they do, from grade to grade—more useful than grading whole grades and whole schools.

But in all of these efforts, including expensive consultants, a crucial omission, especially in the myriad of mandates in Bush’s No Child Left Behind law, is teaching students their individual liberties under the Constitution and what it has taken during more than two tumultuous centuries to rescue those liberties in periods like the present, when they are acceleratingly endangered.

In a war against terrorism with no discernable end, precedents by this president can be harder to dislodge by his successors than at any time in our history. Harvard law professor Laurence Tribe charts the grim future:

“The more people grow accustomed to a listening environment in which the ear of Big Brother is assumed to be behind every wall, behind every e-mail, and invisibly present in every electronic communication, telephonic or otherwise.” The Constitution will be mummified. (Editor’s note: This paragraph has been clarified. See note below.)

But even now, far too many Americans, including the next generation, are ignorant of why they are Americans—or to use the president’s mantra, what basic “American values” are.

In a national study last year, Future of the First Amendment, funded by the Knight Foundation, more than 100,000 high school students were interviewed on what they know of the First Amendment. Seventy-three percent either had no opinion or took the First Amendment for granted, whatever that may mean. More than a third believed that the First Amendment goes too far in its guarantees.

Thirty-six percent of these high school students say that newspapers must obtain government approval before publishing!

And this year, the McCormick Tribune Freedom Museum poll of 1,000 adults revealed that only
one
of them could name the five freedoms in the First Amendment. Can you name all five freedoms?

Adds Jack Dvorak, director of the High School Journalism Institute at Indiana University: “Even professional journalists are often unaware of all five freedoms.”

In that McCormick Tribune poll, by contrast with its First Amendment tally, 40 percent could name two of the three judges on
American Idol and 25 percent could name all three!

Moreover, in a survey of college students in Buffalo, nearly half had no idea who George Pataki is. (I can’t entirely fault them for that.) But 80 percent were clueless in defining communism, and nearly the same number were at a loss to describe capitalism.

Especially alarming—in view of George W. Bush’s warrantless surveillance, his approval of CIA “renditions” and torture, and his conviction that Congress and the courts get in his way as commander in chief—is an American Bar Association poll last summer in which barely half of the respondents could name the three branches of our federal government. And less than half knew the meaning of the “separation of powers.”

In talking with schools chancellor Joel Klein in the past, I know he recognizes the need for teaching students why they’re Americans, and by next week’s column, I’ll find out what he plans to do about insuring that civics—as it used to be called before it largely disappeared from many school systems around the country—comes alive in New York.

Meanwhile, Eva Moskowitz recently mentioned a hearing she had on civics education while she was on the City Council. In the many years I’ve covered the schools here, there has been no one in government as knowledgeable, penetrating, and perceptive about the needs of students as Moskowitz. She is now practicing what she has been preaching by starting the Harlem Success Academy charter school, about which I’ll be reporting in the Voice.

Recently, in a talk at the Center for Educational Innovation–Public Education Association, Moskowitz told of asking the Department of Education at her hearing on civics: “What should kids know on the workings of government? What should the civics curriculum look like?”

“Why,” she continued, “did we have a civics curriculum in 1950 and no longer have one now? Is someone making a clear, concerted policy decision, or is it just falling through the cracks?”

I have now asked the same questions of Joel Klein. I’ll have his answer here next week, and it will be a model for school systems around the country. Stories about why we have the Fourth Amendment, thanks to Samuel Adams and the committees of correspondence he helped form in Boston before the American Revolution, can start being told in the elementary grades. I’ve talked about the Bill of Rights in schools around the country, but one of the most involved audiences I’ve experienced was in a fifth grade public school class on New York’s West Side.

I found similar acute interest in a sixth-grade class years ago in Ocean Hill–Brownsville when the schools there were besieged during the citywide teachers’ strike. The kids kept wanting to know more as they discovered their liberties and rights.

And once, in Miami, I was asked to speak on the Constitution before a large audience of primarily black and Hispanic high schoolers. Before I went on, a teacher told me not to be disappointed in their indifference because, she said, “all they care about are clothes and music.”

After more than an hour of my stories on how we got the First, Fourth, and Fifth Amendments, I got a standing ovation, because they had discovered America.


Clarification

Because of a typing error, a quote by Laurence Tribe in this column was inaccurate. We originally quoted Tribe as saying, “The more people grow accustomed to a listening environment in which the ear of Big Brother is assumed to be behind every wall, behind every e-mail, and invisibly present in every electronic communication, telephonic or otherwise, the Constitution will be mummified.” The quote should have ended after “otherwise,” as it now appears. The phrase “the Constitution will be mummified” was Hentoff’s.

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To Gays: Don’t Mourn, Organize!

Students and faculty are free to associate to voice their disapproval of the military’s [“Don’t Ask, Don’t Tell”] message.
—Supreme Court Justice John Roberts, Rumsfeld v. Forum for Academic and Institutional Rights, March 6, 2006

A powerful association of 36 law schools and their faculties—representing many of the accredited such schools in the country—thought it had an eminently just and winning case in opposing a congressional mandate that any university barring military recruiters from its campus would lose hundreds of millions in federal funds.

The law schools in this case, Rumsfeld v. Forum for Academic and Institutional Rights, have, since 1991, required that all potential employers coming to campus sign a pledge to not discriminate on the basis of race, gender, religion, or sexual orientation.

These law schools, however, rightfully regard the military’s “Don’t Ask, Don’t Tell” policy—rejecting openly gay recruits— as blatantly, invidiously unfair discrimination. It was signed into law by President Bill Clinton in 1993. And I see nothing in the Constitution that permits such repugnant exclusion from employment because of sexual preference.

But Congress, in the Solomon Amendment, had decreed that law schools must offer military recruiters the same access to their students as they do to nonmilitary recruiters— or else the entire universities, not just their law schools, would lose all federal funds.

There is a certain irony to this draconian discrimination because annually the military has hired about 400 law students for its Judge Advocate General’s Corps. These military lawyers are supposed to adhere to our rule of law, including due process, in disciplinary and other matters involving the armed forces. A number of these JAGs, representing Guantánamo prisoners, blew the whistle at the president’s and Defense Department’s contempt for due process in the hearings by military tribunals and military commissions at that prison.

The law professors bringing the suit against the “Don’t Ask, Don’t Tell” ukase claimed that their own First Amendment rights were being violated because being forced to carry the government’s anti-gay message amounted to these professors’ “compelled speech” by the government. Moreover, their First Amendment freedom of expressive association was being violated by having to go along with the Solomon Amendment.

Agreeing with the professors, the Third Circuit Court of Appeals found the Solomon Amendment unconstitutional in forcing the law schools to choose between abandoning their First Amendment rights or causing the university to lose all federal funds.

But the Supreme Court has now voted 8 to 0 (Justice Samuel Alito had yet been on the court to hear oral arguments) to tell the protesting professor and law schools:

If you can’t abide by the Solomon Amendment, you and your university don’t have to take the money. You can keep the military recruiters out of your campus, but “Don’t Ask, Don’t Tell” is still the law. The new chief justice, John Roberts, spoke for the unanimous court, including the “liberal” bloc: John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer.

Roberts, it’s important to keep in mind, did not focus at all on the “Don’t Ask, Don’t Tell” government policy. He went after the claims of the law professors that their First Amendment rights had been violated by being compelled to be involved in the discrimination against gays if their universities allowed military recruiters, rather than refuse federal funds.

The chief justice made clear that the “Solomon Amendment neither limits what law schools (and their professors) may say, nor requires them to say anything” (emphasis added).

The Solomon Amendment, he stressed, “affects what law schools must do—afford equal access to military recruiters—not what they may say or may not say . . . Students and faculty are free to associate [under the First Amendment] to voice their disapproval of the military’s message.”

They could, he added, “put signs on the bulletin board” or “they could organize student protests.”

A law professor among the plaintiffs, Paula Johnson at Syracuse University, got the Supreme Court’s point right away: “This could be a very important galvanizing measure” for opponents of “Don’t Ask, Don’t Tell.”

Carl Monk, executive director of the law school association that brought the suit, says the law professors are not giving up their fight: “Ultimately our hope is that gay and lesbian students who want to serve their country by becoming military attorneys will be able to do so.”

As the legendary labor organizer Joe Hill urged—before being executed by a Utah firing squad on a murder charge based on very dubious evidence—”Don’t waste any time in mourning. Organize!”

That organizing consequence of the Supreme Court’s decision was ignored or obfuscated in much of the press coverage. An exception was a March 8 editorial in USA Today: “Time to Repeal ‘Don’t Tell’ ” :

“There’s opportunity . . . to raise awareness about the costs of ‘don’t ask, don’t tell’ and intensify efforts to overturn this wrongheaded law. Since 1993, about 10,000 otherwise qualified gay servicemembers have been forced out, including those in crucial occupations such as code-breakers, intelligence, and medical specialists, air controllers and translators.

“The U.S. ban on openly gay servicemen is an archaic and hurtful assault on people who want only to serve their country. The Supreme Court did what it had to do. Now it’s Congress’ turn to do what it ought to do and repeal the ban.”

This would take pressure on Democrats in Congress and on those libertarian conservative Republicans who have opposed the administration on civil liberties grounds. How can these libertarians justify banning gays and lesbians who want to be military lawyers? There’s time to mobilize before the midterm elections.

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The Spying Game

If you’ve seen or attended a recent protest in New York City about the war or the president or even rent guidelines, you have probably seen the cops with the video cameras. They aren’t making home movies. Instead, what they’re likely filming is political speech that, in an earlier day, might have been off-limits to police snooping thanks to the First Amendment. They are also staking out ground in a 34-year-old legal battle between the NYPD and civil libertarians—a dispute that is probably headed back to court yet again early next year.

The argument this time is about Interim Order 47, a police department directive issued in September 2004 setting out new rules for when officers can videotape and photograph political demonstrations.

The order tells cops that they can use cameras to make training tapes or analyze police procedures, as well as “when a reasonable belief exists that unlawful activity, terrorist activity, or arrest activity will occur.” No problem there. That language is in line with the 2003 version of the NYPD’s “Guidelines for Investigations Involving Political Activity.” A federal court approved those guidelines after the NYPD, citing “changed circumstances, based on the attacks and activities of international terrorists” after 9-11, asked to be freed from stricter rules that were part of the 1985 settlement in Handschu v. Special Services Division.

Handschu was a 1971 suit by activists who’d been targeted by the NYPD Intelligence Division; the case was named for one of the plaintiffs. It required cops who wanted to spy on political groups to get approval—within 48 hours of beginning their investigation—from a commission made up of two police officials and a mayoral appointee. Officers had to provide some rationale for why the surveillance was necessary.

Although NYPD brass did not cite an instance in which Handschu hamstrung an investigation of potential criminality, the city in 2002 went back to federal court to claim that the rules were too tight for the fight against terrorism. A judge agreed, and allowed the NYPD to adopt a new set of rules that still requires some “reasonable indication” of criminal activity or terrorist plotting before a probe can be launched, but gives police commanders—not the Handschu commission—the authority to green-light any inquiry into political groups.

Months after the 2003 rules were accepted, it emerged that the NYPD was questioning people arrested at demonstrations about things like their political party affiliation and their views on George W. Bush and Al Gore. So the judge formally included the new NYPD guidelines in his court order to make them enforceable.

Which brings us to what happened a couple weeks back when the lawyers who’ve shepherded Handschu for three decades asked U.S. District Judge Charles S. Haight to enjoin the NYPD from using Interim Order 47. Their beef is that the NYPD has unilaterally expanded the circumstances under which cops can videotape protesters, how long they can keep the tapes, and what they can do with them.

Interim Order 47 allows police to video- tape demonstrators not just when cops suspect criminal activity or need to make a training film, but also “during special events, disorder events, arrests, public assemblages or any other critical incident in which such accurate documentation is deemed potentially beneficial or useful.”

Whereas the 2003 guidelines allow the NYPD to retain material it has gathered from political events only if there’s suspected criminal or terrorist activity, Interim Order 47 requires that videotapes from demonstrations be retained for a year and allows the tapes to be kept indefinitely—not only if they become evidence, but merely if they are “deemed valuable for other purposes.” And the order also calls for the tapes to be summarized “to assist in indexing and retrieval.”

Rights lawyers shudder. “A consciousness on the part of demonstrators that dossiers are being made out of the films and the photos that are taken is extremely chilling,” says Paul Chevigny, one of the lawyers who has shepherded Handschu. He points to past cases where pictures of “known activists” have been erroneously linked to crimes, triggering investigations. “The second thing is it shows an assumption on the part of the police department that ordinary demonstrators that they’re dealing with may well be terrorists and that is an assumption that isn’t consistent with the guidelines. And I don’t think it’s consistent with the First Amendment.”

“I might also add it is an outrageous waste of resources,” Chevigny, a professor at NYU School of Law, tells the Voice.

Ever since the big anti-war protests of early 2003, city lawyers and Handschu plaintiffs have held a back-and-forth through the mail over the meaning of the 2003 guidelines. To the lawyers trying to quash it, Interim Order 47 seemed like a reaction to civil liberties complaints about videotaping and an effort to force the issue back into court. (Neither the NYPD nor the city’s law department responded to requests for comment.)

After the order emerged in 2004, there were even more letters. In one early this year, the city said it was willing to compromise on some—but only some—of the language.
In another, city lawyer Gail Donoghue said the arguments of the civil liberties lawyers would “totally undermine the authority given to the NYPD to gather information for the purpose of preventing or detecting terrorism when there is not yet a basis for an investigation.”

It’s worth remembering that the issue here isn’t whether the cops can surreptitiously investigate terrorist groups or potential plans for criminal activity by violent protesters like the window-smashing anti-globalization crowd. That’s all fair game under the rules approved by the court in ’03. Police may also film arrests at a demonstration or crimes in progress, as well as install closed-circuit cameras to patrol high-crime areas.

Interim Order 47 is about something else entirely: the filming and photographing of constitutionally protected protests.

Marching in a demonstration is different from voting, or reading political literature, or even sending a letter to your member of congress. Stepping out into the streets in political protest means that friends, neighbors, or co-workers could see you on the evening news. The media can film you doing it. But while a protester gives up his or her right to be strictly anonymous, “you’re not giving up the right to be free from being in a police file for the rest of your life,” says Jethro Eisenstein, another one of the Handschu lawyers.

It’s not clear that the police are creating such files. But it is clear that they are making videotapes. In one example, the cop cameras were present two weekends ago at a small protest in front of the mayor’s townhouse, where people were advocating that the city seek more control from Albany over rent control laws.

Of course, bigger protests also get taped. A report by the NYCLU contends that during the 2004 Republican National Convention, “countless numbers of police officers with video cameras filmed tens of thousands of people who were engaged in wholly lawful and peaceful activity.”