Do Americans Have a First Amendment Right to Become Human Shields and to Criticize Their Government?

[Guest guest]

Do Americans Have a First Amendment Right to Become " Human Shields " and to

> Criticize Their Government?

> The Case of Faith Fippinger

> By JULIE HILDEN

> <julhiljulhil

> ----

> Thursday, Aug. 14, 2003

>

> Faith Fippinger, who is now sixty-two years old, was once a schoolteacher.

> More recently, during the Iraq War, she was a " human shield. " In Iraq, she

> was part of a large group of protesters - only about 20 of whom, she says,

> were Americans - who spread out across the country to protest the war.

>

> During the war, Fippinger spoke out against it. She told a reporter from

> The Christian Science Monitor, " The biggest shock is that America

continues

> to pursue war in this way, and that's just impossible to believe: to

choose

> war, to choose death, to choose murder ... killing hope, killing future. "

> And she told another reporter, " I may die here. But my death is no more or

> less important than the Iraqi lives that will be lost. "

>

> Now, the U.S. government is going after Fippinger with a vengeance, saying

> she owes at least $10,000 in fines for violating U.S. sanctions that

> prohibit " virtually all direct or indirect commercial, financial or trade

> transactions with Iraq. " But Fippinger has refused to pay the fines,

> claiming that the only money she spent while in Iraq was for food and

> emergency supplies - hardly major international trade.

>

> Fippinger has also - unwisely - invited the government to use the other

> available punishment for violation of the sanctions: imprisonment. Or, as

> Fippinger politely put it in her response to the government, since she

will

> never pay the fines, " perhaps the alternative should be considered. "

>

> But Fippinger shouldn't be so quick to give in - or to be jailed as a

> martyr. Powerful, though circumstantial, evidence suggests she has been

> targeted because of her choice to speak out about the recent Iraq War.

> Already under heavy criticism - in part for its failure to produce the

> weapons of mass destruction that were a major justification for the war -

> the Bush Administration cannot be happy that Fippinger and others are

> drawing on their firsthand knowledge of the war to add to the chorus.

>

> If so, then Fippinger is facing criminal charges largely because she

> availed herself of her First Amendment rights. Accordingly, she may be

able

> to convince a court to dismiss these charges on the ground that they

> violate the Constitution.

>

> A Court Would Be Unlikely to Hold that the First Amendment Protects Human

> Shields

>

> To begin, is there a First Amendment right for a citizen like Fippinger to

> protest war by traveling abroad and becoming a human shield? The answer a

> court would reach is almost certainly no.

>

> As Phillip Carter has explained in a column for this site, the military

> enjoys substantial judicial deference when it comes to First Amendment

> disputes, and other instances in which military objectives clash with

civil

> liberties. And it's hard to imagine a more acute clash that one between a

> military division trying to attack a target, and civilians standing in

> front of it as " human shields, " refusing to leave.

>

> In such a situation, a court would doubtless side with the military. In

> doing so, it could also invoke the speech/conduct distinction. Although

> becoming a human shield is a form of symbolic speech, it is also an

> obstructing action, getting in the way of military movements and attacks -

> and the First Amendment, fundamentally, protects speech, not action.

>

> Despite this argument's poor chances of prevailing in court, however, it's

> not as weak as it might seem. Being a " human shield " is a form of

> nonviolent political protest, in the tradition of sit-ins, and non-violent

> resistance generally. As such, it typically sends a symbolical political

> message. Fippinger's message, for instance, was the one she subsequently

> voiced: " [M]y death is no more or less important than the Iraqi lives that

> will be lost. "

>

> Such a message is inherently political. It threatens governments'

> distinctions between citizen civilians (who must be protected at all cost)

> and noncitizen civilians (who can't be directly targeted, but might be

> acceptable " collateral damage " ).

>

> Thus, becoming a human shield is virtually always a form of symbolic

> speech. It is also an exceptionally powerful one: One's very life is

> literally at stake, and that forces the media, and hopefully also the

> government, to take notice.

>

> Nevertheless, because the human shield's adversary is the military, and

> under U.S. law, the military almost always wins, the outcome of this First

> Amendment argument is a foregone conclusion: It's a loser.

>

> That doesn't mean, however, that Fippinger has no First Amendment case. To

> the contrary, she may have a strong one.

>

> Why It Seems Likely that the Government Is Bothered By Fippinger's Speech,

> Not Her " Trade "

>

> It seems extremely unlikely that the government is actually applying the

> Iraq sanctions to Fippinger based on her supposed " trade " with Iraq, as it

> claims. Her tiny purchases are simply not the kind of trade the sanctions

> contemplate.

>

> Rather, these sanctions were meant to be enforced against those who

> illegally exported to, imported from, and did business with Saddam

> Hussein's government, thus propping it up. They were meant, that is, to

> primarily target corporations, businesses, and business persons. Fippinger

> is none of these.

>

> The sanctions were also meant to primarily target transactions in

> significant amounts. If Fippinger is correct that all she bought was food

> and emergency supplies, then her supposed violation was de minimis legal

> jargon for " too small for the government to bother with. "

>

> To apply trade sanctions to Fippinger, therefore seems at best absurd, and

> at worst, pretextual. What really bothers the government can't be the few

> bandages or meals she bought. Instead, it must be what she said, and the

> fact that the media has listened to her.

>

> It's an irresistible story, after all: A retired schoolteacher - and a

very

> photogenic one, who resembles a cross between Katharine Hepburn and an

> old-time suffragette - felt so strongly about the Iraq War that she got on

> a plane, went there, and did what she could to help suffering people

there,

> risking her own life.

>

> Even worse - from the government's perspective - is that, in addition to

> speaking out as a human shield in Iraq, Fippinger kept right on speaking

to

> the media even after she returned to her home in Sarasota, Florida. In her

> interview with The Washington Post, she talked about conditions at Baghdad

> hospitals: " It's just sobbing doctors, " she said, " because there was so

> much death, so much horror. . . . It was just death after death after

> death. From babies to old men and women, the whole range. Amputees. Arms

> gone, legs gone. Children filled with shrapnel from cluster bombs. " She

> remarked, " I've never seen in all my life such horrors . . . . But I'm

sure

> I'll see them for the rest of my life. "

>

> More evidence that Fippinger is being targeted for speaking out comes from

> the poor fit between the sanctions invoked to go after her, and what she

> actually did. Whenever the government invokes a law that so poorly fits

the

> crime alleged, you can be sure that something else is going on.

>

> When the government went after Al Capone for tax evasion, it wasn't

worried

> about taxes; it simply knew it would have a hard time winning other cases

> against him. In going after Fippinger for trade sanctions violations, the

> government doesn't really care about her negligible " trade with Iraq " ; but

> it knows it can't directly go after her for speaking out, because that

> would be a blatant First Amendment violation (as well as terrible public

> relations.)

>

> U.S. citizens have a First Amendment right to criticize their government,

> whether they are in the U.S. or abroad. (Indeed, even enlisted soldiers

> have that right - as explained in a column by Dean Falvy for this site.)

> Fippinger should not be punished for availing herself of that right.

>

> Fippinger's Legal Battle Would Be Uphill, But Is One That Is Worth

Fighting

>

> Before packing her bag for prison, Fippinger should visit a lawyer. Her

> lawyer should then move to have the charges against her dismissed, among

> other reasons, because they violate the First Amendment. The government's

> treatment of Fippinger may well outrage a judge enough to grant that

motion.

>

> Fippinger might also have a claim against the government - either under

the

> federal civil rights statute that allows citizens to sue for damages when

> their constitutional rights are violated, or under the theory that she

> suffered from selective prosecution. Were other Americans who spent

minimal

> money in Iraq, and did not speak out against the government, pursued under

> the unconvincing " trade violation " theory? If not, then Fippinger may have

> a strong case against the government.

>

> Selective prosecution arguments are always hard to win. But this case

might

> be an exception: It seems so obvious that it's Fippinger's speaking out

> that has made her a target. Why else would the government bother to

enforce

> obsolete sanctions against a retired schoolteacher who did no real harm

> with her tiny purchases, and plainly lacks the money to easily pay the

fines?

>

> Many nonviolent protesters before this have gone to jail for their

beliefs.

> But Fippinger need not necessarily be one of them.

>

> Julie Hilden, a FindLaw columnist, practiced First Amendment law at the

> D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel,

3,

> was just released

>

<http://www.amazon.com/exec/obidos/tg/detail/-/0452284430/qid=1060805218/sr=

8-1/ref=sr_8_1/002-8386049-7510453?v=glance & s=books & n=507846>in

> the U.S. and the U.K.. It will also be published, in French translation,

by

> Actes Sud. Kirkus Reviews wrote about 3, " When tragedy intervenes, it's no

> surprise but shocking nonetheless -- testament to Hilden's rather uncanny

> abilities. " Hilden maintains a website at www.juliehilden.com that

includes

> MP3 and text downloads of the novel's first chapter.

>

> http://writ.news.findlaw.com/hilden/20030814.html

>