Killing the messenger

William Harvey discovered the limits of free speech when he paraded a block away from ground zero with a poster of Osama bin Laden.

Topics: ACLU, First Amendment,

Killing the messenger

The crowd surrounded William Harvey. They cursed him, they told him to get the fuck out — about 20 men and women on a street where you could smell the rubble of the fallen towers. The disaster was just a block away. William Harvey did not move. He held a sign that showed a picture of the World Trade Center and the face of Osama bin Laden hovering, superimposed. Harvey tried to hand out leaflets. He told the crowd: “America is getting paid back for what it’s doing to Islamic countries.”

“Fuck this guy, lock that fucking guy up before I kill him!” yelled one man, and a chorus of obscenity followed. Their faces turned ugly, and still William Harvey stood his ground, even as the crowd swelled to over 60 people and spilled into the street. Traffic came to a halt; horns blared, sirens sounded. The police showed up, elbowed in, surveyed the situation and arrested the offending parties — William Harvey and his leaflets. Incredibly, Harvey was charged with disorderly conduct, though he apparently did nothing more than speak his mind.

That was Oct. 4, 2001, when the wounds from Sept. 11 were still fresh. Harvey now faces a criminal trial in Manhattan because he pissed off a lot of freedom-loving people who didn’t like the fact that he had the freedom to speak his mind. Of course, the case should have been thrown out immediately on free speech grounds, but in the post-9/11 bizarro world, patriotism trumps the First Amendment.

Consider the 9/11-inflected opinion of the judge who struck down Harvey’s motion to dismiss in mid-February. “The defendant chose to disseminate his message at a location near Ground Zero at a time shortly after Sept. 11,” wrote Judge Neil Ross of the Criminal Court of the City of New York. “[A]t the very least, he was aware of and consciously disregarded a substantial and unjustifiable risk that public inconvenience, annoyance or alarm would result.”

Judge Ross then went on to stretch himself very thin. He argued that the charge of disorderly conduct is generally defined by “the reaction which speech engenders, not the content of the speech. The angry, threatening of the large crowd that stopped to read this defendant’s message” created a volatile situation. This is a ridiculous line, and it upholds the patently unconstitutional argument known as the “hecklers veto.” If someone doesn’t like what you’re saying, and commits a crime as a result, your speech is liable and you go to jail.



Not surprisingly, free speech advocates are rallying to Harvey’s cause. “The Harvey case is a threat to the First Amendment and it cannot be allowed to stand,” says Donna Lieberman, executive director of the New York Civil Liberties Union. “It’s wrong in the law, it’s wrong in the precedent and it defies logic. It would rewrite unpopular speech out of the Constitution.”

If Harvey wants to howl on the street corner that we’re forcing Islamic countries to eat pork on the sly, then that’s his American prerogative. Perhaps Harvey is a man of deep principle; arguably he has a good point about U.S. policy in the Middle East. Whatever his motives — which we should learn more about once his trial begins on April 25 — you have to laud him for the sheer ballsiness of his caper, for his willingness to test the strength of one of our Constitution’s core principles.

“This could be a historic case,” says Lieberman, “in that here is a court pandering to a politically correct line and popular pressure.”

Harvey’s attorney, Thomas O’Brien of the Legal Aid Society, says there is clear legal precedent that will vindicate his client. “The key decision,” says O’Brien, “is the Terminiello vs. Chicago case of 1949, which is to free speech what the Pentagon Papers case was to freedom of the press.”

In 1946, Arthur Terminiello, a defrocked Catholic priest and devotee of a notorious anti-Semite, stood before the Christian Veterans Hall in Chicago, which was located in a heavily Jewish neighborhood. Terminiello had heinous things to say. He denounced the Jews and Communists and Democrats who were trying to destroy America. He praised Hitler: The “Communistic Jews” are the problem, he said, and Hitler had the solution.

This came just after tens of thousands of Americans had put their lives down to topple Hitler; millions of Jews had been slaughtered by the Nazi regime, and here was this creepy priest siding with the German madman. It was no surprise that a crowd of Jewish protesters gathered outside the Veterans Hall, howling and surging, throwing bricks through windows, trying to break into the auditorium, tearing the clothes off those who dared to enter to hear Terminiello speak.

“Terminiello was arrested,” says O’Brien, “and he got a conviction of disorderly conduct, which was a statute pretty similar to the one we have here. But the Supreme Court reversed. The idea is that speech is provocative and produces unrest — that’s the heart of free speech.”

Ironically, in the 1960s, the Terminiello decision was cited in the major Supreme Court reversals on behalf of civil rights demonstrators in the South — Cox vs. Louisiana and Edwards vs. South Carolina. In those cases, peaceful demonstrators were arrested for inflaming the crowd that gathered. But the language of the Terminiello ruling was clear — speech is supposed to provoke disturbance.

It’s language that should be held dear in these times when grim and ugly government spokesmen (in this case, White House press secretary Ari Fleischer) are telling us to “watch what you say”; Attorney General John Ashcroft, our highest lawman, testifies before Congress that “those who scare peace-loving people with phantoms of lost liberty … only aid terrorists.”

Ashcroft’s bunkum stands in sharp contrast to the majority opinion in Terminiello vs. Chicago, written by the great Justice William O. Douglas, who would go on to serve the court for 37 years,longer than any other justice in history.

“The vitality of civil and political institutions in our society depends on free discussion,” Douglas wrote. “It is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected.”

Douglas begins with the obvious, but he goes on to make a frank challenge to the American people, and one is tempted to let out whoops as his argument crescendos. “Accordingly, a function of free speech under our system of government is to invite dispute,” he wrote. “It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

As for the thorny legal thicket of how to define disorderly conduct, the conclusion in Terminiello vs. Chicago is clear, and the precedent it sets should send People vs. Harvey out the window and into the dumpster. Free speech, wrote Douglas, “may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest.”

Speech is battle, and the First Amendment is designed to help keep the playing field level. To test the right to free speech, William Harvey was right to choose the venue he did, as distasteful as this may seem to some. Free speech is tested where people will glower or cry out or scream in hatred at what they hear. That is where free speech becomes sacrosanct.

Christopher Ketcham is a freelance writer living near Moab, Utah. You can find more of his work at ChristopherKetcham.com.

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 11
  • Close
  • Fullscreen
  • Thumbnails

    Ten spectacular graphic novels from 2014

    Beautiful Darkness by Fabien Vehlmann & Kerascoët
    Kerascoët's lovely, delicate pen-and-watercolor art -- all intricate botanicals, big eyes and flowing hair -- gives this fairy story a deceptively pretty finish. You find out quickly, however, that these are the heartless and heedless fairies of folk legend, not the sentimental sprites beloved by the Victorians and Disney fans. A host of tiny hominid creatures must learn to survive in the forest after fleeing their former home -- a little girl who lies dead in the woods. The main character, Aurora, tries to organize the group into a community, but most of her cohort is too capricious, lazy and selfish to participate for long. There's no real moral to this story, which is refreshing in itself, beyond the perpetual lessons that life is hard and you have to be careful whom you trust. Never has ugly truth been given a prettier face.

    Ten spectacular graphic novels from 2014

    Climate Changed: A Personal Journey Through the Science by Philippe Squarzoni
    Squarzoni is a French cartoonist who makes nonfiction graphic novels about contemporary issues and politics. While finishing up a book about France under Jacques Chirac, he realized that when it came to environmental policy, he didn't know what he was talking about. "Climate Changed" is the result of his efforts to understand what has been happening to the planet, a striking combination of memoir and data that ruminates on a notoriously elusive, difficult and even imponderable subject. Panels of talking heads dispensing information (or Squarzoni discussing the issues with his partner) are juxtaposed with detailed and meticulous yet lyrical scenes from the author's childhood, the countryside where he takes a holiday and a visit to New York. He uses his own unreachable past as a way to grasp the imminent transformation of the Earth. The result is both enlightening and unexpectedly moving.

    Ten spectacular graphic novels from 2014

    Here by Richard McGuire
    A six-page version of this innovative work by a regular contributor to the New Yorker first appeared in RAW magazine 25 years ago. Each two-page spread depicts a single place, sometimes occupied by a corner of a room, over the course of 4 billion years. The oldest image is a blur of pink and purple gases; others depict hazmat-suited explorers from 300 years in the future. Inset images show the changing decor and inhabitants of the house throughout its existence: family photos, quarrels, kids in Halloween costumes, a woman reading a book, a cat walking across the floor. The cumulative effect is serene and ravishing, an intimation of the immensity of time and the wonder embodied in the humblest things.

    Ten spectacular graphic novels from 2014

    Kill My Mother by Jules Feiffer
    The legendary Pulitzer Prize-winning cartoonist delivers his debut graphic novel at 85, a deliriously over-the-top blend of classic movie noir and melodrama that roams from chiaroscuro Bay City to Hollywood to a USO gig in the Pacific theater of World War II. There's a burnt-out drunk of a private eye, but the story is soon commandeered by a multigenerational collection of ferocious women, including a mysterious chanteuse who never speaks, a radio comedy writer who makes a childhood friend the butt of a hit series and a ruthless dame intent on making her whiny coward of a husband into a star. There are disguises, musical numbers and plenty of gunfights, but the drawing is the main attraction. Nobody convey's bodies in motion more thrillingly than Feiffer, whether they're dancing, running or duking it out. The kid has promise.

    Ten spectacular graphic novels from 2014

    The Motherless Oven by Rob Davis
    This is a weird one, but in the nervy surreal way that word-playful novels like "A Clockwork Orange" or "Ulysses" are weird. The main character, a teenage schoolboy named Scarper Lee, lives in a world where it rains knives and people make their own parents, contraptions that can be anything from a tiny figurine stashable in a pocket to biomorphic boiler-like entities that seem to have escaped from Dr. Seuss' nightmares. Their homes are crammed with gadgets they call gods and instead of TV they watch a hulu-hoop-size wheel of repeating images that changes with the day of the week. They also know their own "death day," and Scarper's is coming up fast. Maybe that's why he runs off with the new girl at school, a real troublemaker, and the obscurely dysfunctional Castro, whose mother is a cageful of talking parakeets. A solid towline of teenage angst holds this manically inventive vision together, and proves that some graphic novels can rival the text-only kind at their own game.

    Ten spectacular graphic novels from 2014

    NOBROW 9: It's Oh So Quiet
    For each issue, the anthology magazine put out by this adventurous U.K.-based publisher of independent graphic design, illustration and comics gives 45 artists a four-color palette and a theme. In the ninth issue, the theme is silence, and the results are magnificent and full of surprises. The comics, each told in images only, range from atmospheric to trippy to jokey to melancholy to epic to creepy. But the two-page illustrations are even more powerful, even if it's not always easy to see how they pertain to the overall concept of silence. Well, except perhaps for the fact that so many of them left me utterly dumbstruck with visual delight.

    Ten spectacular graphic novels from 2014

    Over Easy by Mimi Pond
    When Pond was a broke art student in the 1970s, she took a job at a neighborhood breakfast spot in Oakland, a place with good food, splendid coffee and an endlessly entertaining crew of short-order cooks, waitresses, dishwashers and regular customers. This graphic memoir, influenced by the work of Pond's friend, Alison Bechdel, captures the funky ethos of the time, when hippies, punks and disco aficionados mingled in a Bay Area at the height of its eccentricity. The staff of the Imperial Cafe were forever swapping wisecracks and hopping in and out of each other's beds, which makes them more or less like every restaurant team in history. There's an intoxicating esprit de corps to a well-run everyday joint like the Imperial Cafe, and never has the delight in being part of it been more winningly portrayed.

    Ten spectacular graphic novels from 2014

    The Shadow Hero by Gene Luen Yang and Sonny Liew
    You don't have to be a superhero fan to be utterly charmed by Yang and Liew's revival of a little-known character created in the 1940s by the cartoonist Chu Hing. This version of the Green Turtle, however, is rich in characterization, comedy and luscious period detail from the Chinatown of "San Incendio" (a ringer for San Francisco). Hank, son of a mild-mannered grocer, would like to follow in his father's footsteps, but his restless mother (the book's best character and drawn with masterful nuance by Liew) has other ideas after her thrilling encounter with a superhero. Yang's story effortlessly folds pathos into humor without stooping to either slapstick or cheap "darkness." This is that rare tribute that far surpasses the thing it celebrates.

    Ten spectacular graphic novels from 2014

    Shoplifter by Michael Cho
    Corinna Park, former English major, works, unhappily, in a Toronto advertising agency. When the dissatisfaction of the past five years begins to oppress her, she lets off steam by pilfering magazines from a local convenience store. Cho's moody character study is as much about city life as it is about Corinna. He depicts her falling asleep in front of the TV in her condo, brooding on the subway, roaming the crowded streets after a budding romance goes awry. Like a great short story, this is a simple tale of a young woman figuring out how to get her life back, but if feels as if it contains so much of contemporary existence -- its comforts, its loneliness, its self-deceptions -- suspended in wintery amber.

    Ten spectacular graphic novels from 2014

    Through the Woods by Emily Carroll
    This collection of archetypal horror, fairy and ghost stories, all about young girls, comes lushly decked in Carroll's inky black, snowy white and blood-scarlet art. A young bride hears her predecessor's bones singing from under the floorboards, two friends make the mistake of pretending to summon the spirits of the dead, a family of orphaned siblings disappears one by one into the winter nights. Carroll's color-saturated images can be jagged, ornate and gruesome, but she also knows how to chill with absence, shadows and a single staring eye. Literary readers who cherish the work of Kelly Link or the late Angela Carter's collection, "The Bloody Chamber," will adore the violent beauty on these pages.

  • Recent Slide Shows

Comments

0 Comments

Comment Preview

Your name will appear as username ( settings | log out )

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>