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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
—First Amendment to the United States Constitution
People should watch what they say. —White House spokesman Ari Fleischer, October 2001
We were wearing T-shirts, exercising our free-speech rights in the public square. And we were arrested? If you cede this, there’s nothing left. —University of Houston law student Jeff Rank, February 2007
It’s July 4, 2004.
The temperature is in the mid-nineties, the humidity is high, the crowd on the West Virginia capitol grounds numbers three, or four, or six thousand, depending on the media source. George W. Bush is in a tight race with John Kerry. And a growing number of voters have already gone south on Bush’s war in Iraq.
After Representative Shelley Moore Capito introduces the president, he thanks her for serving as his state campaign chair. Then takes ten more minutes to make it through the acknowledgments and howdies in his twenty-five-minute speech. He thanks the Boy Scouts. And the Girl Scouts. He thanks Charleston’s Republican mayor, Danny Jones. He thanks country and western singer Aaron Tippin. He thanks the minister of Bible Center megachurch, whose service he missed that morning because of a mechanical problem on Air Force One. He thanks no one in particular for the “coal found in West Virginia.” He thanks the Almighty a few times. He even thanks the West Virginia Coal Association president, whom he describes as “my friend,” for getting the coal out of the ground and into the nation’s power plants. He doesn’t thank the coal miners, but the president is doubled over with gratitude.
The party dignitaries, Bush’s state campaign chair, the planned stop at a big-box evangelical church, the Bush T-shirts worn by enthusiastic supporters, all suggest that the Fourth of July visit to Charleston is a campaign event.
It’s not. It’s an official visit of the president of the United States, with taxpayers picking up the tab for Air Force One, the president’s security detail, and the weeks of work by the White House Advance Team. But political strategist Karl Rove is in charge, the Iraq war in question, and John Kerry slightly ahead in national polls. So the president delivers his well-rehearsed keep-fear-alive campaign stem-winder, written to drive home the message he hopes will close the deal in November: The terrorists who were plotting to attack us again are hard on the run in Afghanistan and Iraq.
Our immediate task in battlefronts like Iraq and Afghanistan and elsewhere is to capture or kill the terrorists. That’s our immediate task. We made a decision. You see. We will engage these enemies in these countries around the world so we do not have to face them at home. (Applause) After the attacks of September the eleventh, 2001, the nation resolved to fight terrorists where they dwell. (Applause) You can’t talk sense to them. You can’t negotiate with them. You cannot hope for the best with these people. We must be relentless and determined to do our duty. (Applause)
But it’s the Fourth of July, and just as a good country and western song requires the mention of Mama, trains, trucks, prison, and gettin’ drunk, there are certain de rigueur requirements of a good Fourth of July speech. Bush touched on most of them: the Founders, George Washington (“I call him George W.”), God, the Troops, abstractions like Democracy and Freedom.
On this Fourth of July, we confirm our love of freedom, the freedom for people to speak their minds, the freedom of people to worship as they so choose. (Applause) Free thought, free expression, that’s what we believe. But we also understand that that freedom is not America’s gift to the world. Freedom is the Almighty God’s gift to each man and woman in this world. (Applause) And by serving that ideal, by never forgetting the values and the principles that have made this country so strong 228 years after our country’s founding, we will bring hope to others and at the same time make America more secure. (Applause)
Nicole Rank had moved from Bush’s home state to Charleston, West Virginia, to work on a FEMA flood control project. When agency employees were offered tickets to the president’s Fourth of July event, she filled out an online application for herself and her husband, Jeff, who had followed her from their home in Corpus Christi. Neither of them was a George W. Bush supporter. But that question didn’t appear on the form the Secret Service required of anyone attending the official presidential visit. Both, in fact, were opponents of the war in Iraq. Both received tickets to the event.
The Ranks showed up for the president’s visit to the capitol, made their way through the security checkpoint and to a place near where Bush was to speak. Then they took off their shirts to uncover homemade T-shirts with the international symbol over the word “Bush.”
A bold gesture in a rabidly pro-Bush crowd.
Team Bush believes it only takes a few antiwar protesters to muck up a pro-war speech. A sixteen-year-old volunteer spotted the Ranks and ran to warn Tom Hamm that two people were creating a problem. Thomas Donald Hamm was an unemployed thirty-year-old event volunteer who had worked on Shelley Moore Capito’s campaign and in her congressional office. He’s young, but he’s decisive. He surveyed the situation and summarily suspended the First Amendment, telling the couple the T-shirts had to go or they had to leave.
When Jeff Rank told Hamm he was breaking no law and refused to take off his shirt, Hamm called for backup: Aaron Spork, who actually was working in Capito’s D.C. office. Together they made it clear: no First Amendment protections on the Fourth of July in Charleston, West Virginia. Hamm called a capitol police officer and told him the Ranks’ tickets were revoked.
At which point, the revoking got under way.
Nicole Rank was nimble enough to whip out her disposable camera and photograph everyone who confronted her. Then the Ranks sat on the ground, to indicate they were not leaving. At approximately 11:00 a.m. they were handcuffed and led from the capitol grounds by the capitol police officer who first responded and a state trooper and protective services officer who showed up as an “arrest team.” Reporters who tried to speak to them were waved off by Hamm, who told them if they followed the couple out, they would not be allowed back in and would miss the president’s speech.
As Jeff Rank recalled, the band on the platform played “America the Beautiful” as the Ranks were frog-marched to the police van that would take them to the Charleston municipal jail.
President Bush started speaking at exactly 12:57. By the time he got to the constitutional rights properly enshrined in the First Amendment—“our love of freedom, the freedom for people to speak their minds. . . . Free thought, free expression, that’s what we believe”—Jeff and Nicole Rank already had their handcuffs removed and were sitting in separate cells in Charleston’s police department building. “It was chickenshit,” said Nitro, West Virginia, lawyer Harvey Peyton. “I mean these young kids, these twenty-somethings, just told the officers, ‘Their tickets are revoked, get them off the capitol grounds.’ ”
It was one of several varieties of chickenshit expressly prohibited by the First Amendment, even if it took the Congress and the courts a while to make that prohibition clear. Law professor Geoffrey Stone begins his book Perilous Times: Free Speech in Wartime with a description of the first fight over the First Amendment. It occurred less than ten years after the Bill of Rights was ratified, during what Stone refers to as the “half war” with France, which almost happened in the 1790s after the American government stiffed the French. France had stepped in and salvaged the American Revolution. When the U.S. government refused to support the French in their war against Britain, the government in Paris declared all U.S. sailors pirates and began boarding U.S. ships.
President John Adams responded by putting the nation on war footing, adding eighteen new divisions to the Army, and calling George Washington back from Mount Vernon to take command. Adams’s Federalist majority in Congress singled out immigrants, suspending jury trials and allowing indefinite detention of foreigners when the nation was at war. Then they turned their attention to American citizens, passing a sedition act that provided for a two-year sentence and $2,000 fine for anyone who would “write, print, utter, or publish” scandalous, untrue, or malicious comments against either house of Congress or the president.
Vermont congressman Matthew Lyon was the first person tried under the Sedition Act. He said that under President Adams “every consideration of the public law [was] swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”
Lyon got no jail time for that when he said it. But he made the mistake of quoting himself after Adams signed the Sedition Act into law. He was prosecuted by Secretary of State Timothy Pickering, fined $1,000 plus $60.96 in court costs, and jailed four months in conditions we today associate with Donald Rumsfeld’s extraordinary rendition. Lyon described a damp, freezing cell, which included a “necessary” with the stench “equal to the Philadelphia docks in the month of August.”
Since Matthew Lyon was locked up in 1798, the notion that a citizen can be arrested for offending the president has given way to free-speech protections that are almost as sacrosanct as high school football in Texas. James Madison declared the Sedition Act unconstitutional because it returned American citizens to the status of subjects—reinstating the “exploded doctrine that ‘the administrators of the Government are the masters, and not the servants, of the people.’ ”
Law professor Leonard Levy—who seems to do little else but think and write about the Constitution—says that seditious speech is an alien concept to American democracy. It only exists “where people are subjects rather than sovereigns and their criticism implies contempt of their master.”