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Ron Jacobs
The
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August 21, 2003
Robert Fisk
The US
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Virginia Tilley
The Quisling Policies of the UN in Iraq: Toward a Permanent War?
Rep. Henry Waxman
Bush Owes the Public Some Serious Answers on Iraq
Ben Terrall
War Crimes and Punishment in Indonesia: Rapes, Murders and Slaps
on the Wrists
Elaine Cassel
Brother John Ashcroft's Traveling Patriot Salvation Show
Christopher Brauchli
Getting Gouged by Banks
Marjorie Cohn
Sergio Vieira de Mello: Victim of Terrorism or US Policy in Iraq?
Vicente Navarro
Media
Double Standards: The Case of Mr. Aznar, Friend of Bush
Website of the Day
The Intelligence Squad
August 20, 2003
Robert Fisk
Now No
One Is Safe in Iraq
Caoimhe Butterly
Life and Death on the Frontlines of Baghdad
Kurt Nimmo
UN Bombing: Act of Terrorism or Guerrilla War?
Michael Egan
Revisiting the Paranoid Style in the Dark
Ramzi Kysia
Peace
is not an Abstract Idea
Steven Higgs
NPR and the NAFTA Highway
John L. Hess
A Downside Day
Edward Said
The Imperial Bluster of Tom Delay
Jason Leopold
Gridlock at Path 15: the California Blackouts were the "Wake
Up Call"
Website of the Day
Ashcroft's Patriotic Hype
August 19, 2003
Jeffrey St. Clair
Blackouts Happen
Gary Leupp
"Our Patch": Australia v. the Evil Doers of the South
Pacific
Sean Donahue
Uribe's Cruel Model: Colombia Moves Toward Totalitarianism
Matt Martin
Bush's Credibility Problem on Missile Defense
Juliana Fredman
Recipe for the Destruction of a Hudna
John Ross
Fox Government's Attack on Mexican Basques
Sasan Fayazmanesh
What Kermit Roosevelt Didn't Say
Website of the Day
Tom Delay's Dual Loyalities
August 18, 2003
Uri Avnery
Hero in War and Peace
Stan Goff
The Volunteer Military and the Wicked Adventure
Cathy Breen
Baghdad on the Hudson
Michael Kimaid
Fight the Power (Companies)!
Jason Leopold
The California Rip-Off Revisited: Arnold, Milken and Ken Lay
Matt Siegfried
The Bush Administration in Context
Elaine Cassel
At Last, A Judge Who Acts Like a Judge
Alexander Cockburn
Judy Miller's War
Harvey Wasserman
The Legacy of Blackout Pete Wilson
Website of the Day
Fire Griles!
Congratulations
to CounterPuncher Gilad Atzmon! BBC Names EXILE Top Jazz CD
August 16 / 17, 2003
Flavia Alaya
Bastille
New Jersey
Jeffrey St. Clair
War Pimps
Saul Landau
The Legacy of Moncada: the Cuban Revolution at 50
Brian Cloughley
What Has Happened to the US Army in Iraq?
William S. Lind
Coffins for the Crews: How Not to Use Light Armored Vehicles
Col. Dan Smith
Time for Straight Talk
Wenonah Hauter
Which
Electric System Do We Want?
David Lindorff
Where's Arnold When We Need Him?
Harvey Wasserman
This Grid Should Not Exist
Don Moniak
"Unusual Events" at Nuclear Power Plants: a Timeline
for August 14, 2003
David Vest
Rolling Blackout Revue
Merlin Chowkwanyun
An Interview with Sherman Austin
Adam Engel
The Loneliest Number
Poets' Basement
Guthrie, Hamod & Albert
Book of the Weekend
Powerplay by Sharon Beder
August 14, 2003
Peter Phillips
Inside
Bohemian Grove: Where US Power Elites Party
Brian Cloughley
Charlie Wilson and Pakistan: the Strange Congressman Behind the
CIA's Most Expensive War
Linville and Ruder
Tyson
Strike Draws the Line
Jim Lobe
Bush Administration Divided Over Iran
Ramzy Baroud
Sharon Freezes the Road Map
Tom Turnipseed
Blowback in Iraq
Gary Leupp
Condi's
Speech: From Birgmingham to Baghdad, Imperialism's Freedom Ride
Website of the Day
Tony Benn's Greatest Hits
August 13, 2003
Joanne Mariner
A Wall of Separation Through the
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Donald Worster
The Heavy Cost of Empire
Standard Schaefer
Experimental Casinos: DARPA and the War Economy
Elaine Cassel
Murderous Errors: Executing the Innocent
Ralph Nader
Make the Recall Count
Alexander Cockburn
Ted Honderich Hit with "Anti-Semitism" Slur
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Ron Jacobs
Revisionist History: the Bush Administration, Civil Rights and
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Josh Frank
Dean's Constitutional Hang-Up
Wayne Madsen
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Ray McGovern
Relax,
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J.B.
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The Unbearably Grim Aftermath of War:
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Francis Boyle
Impeach
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August
23, 2003
The Case of Faith
Fippinger
A
First Amendment Right to be a Human Shield
By JULIE HILDEN
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.
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
practiced First Amendment law at the D.C. law firm of Williams
& Connolly from 1996-99. Currently a freelance writer, she
published a memoir, The
Bad Daughter, in 1998. Her great new novel Three
was just published by Plume. This column originally appeared
on Findlaw's Writ.
She can be reached at: julhil@aol.com.
Julie's new
website is a lot of fun. Have a look.
Weekend
Edition Features for August 16 / 17, 2003
Flavia Alaya
Bastille
New Jersey
Jeffrey St. Clair
War Pimps
Saul Landau
The Legacy of Moncada: the Cuban Revolution at 50
Brian Cloughley
What Has Happened to the US Army in Iraq?
William S. Lind
Coffins for the Crews: How Not to Use Light Armored Vehicles
Col. Dan Smith
Time for Straight Talk
Wenonah Hauter
Which
Electric System Do We Want?
David Lindorff
Where's Arnold When We Need Him?
Harvey Wasserman
This Grid Should Not Exist
Don Moniak
"Unusual Events" at Nuclear Power Plants: a Timeline
for August 14, 2003
David Vest
Rolling Blackout Revue
Merlin Chowkwanyun
An Interview with Sherman Austin
Adam Engel
The Loneliest Number
Poets' Basement
Guthrie, Hamod & Albert
Book of the Weekend
Powerplay by Sharon Beder
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