Jailed for Speech

A major First Amendment case is ignored by the press

by Dave Lindorff

Extra magazine, March 2001 - FAIR


Something about the case of Pennsylvania death-row inmate Mumia Abu-Jamal-the former Black Panther and progressive Philadelphia journalist convicted in a highly controversial trial of killing a white Philadelphia cop-seems to make judges and journalists alike lose their basic sense of principle.

In an example of this peculiar phenomenon, C. Clark Kissinger, a leading activist in the battle to win a new trial for Abu-Jamal, was sentenced on December 6 to 90 days in the federal slammer for the crime of speaking at an anti-death penalty rally during the August GOP national convention.

In July 1999, Kissinger took part in a demonstration for Abu-Jamal at the Liberty Bell, which is on display in a federal park in downtown Philadelphia. Kissinger and dozens of other protesters were arrested for "failure to obey an order to move"-a minor, Class B misdemeanor. Most of those arrested pleaded guilty or no contest at their arraignments and were released with token fines. Kissinger and seven other activists, however, chose to plead not guilty.

Federal Magistrate Arnold C. Rapoport -who tried the case without a jury because the offense was so minor- found all the defendants guilty. Then, in apparent punishment for daring to seek redress in the courts, Rapoport imposed a one-year probation, the terms of which seemed designed to limit the defendants' political work.

Specifically, Kissinger and the others were ordered not to leave their home area-in Kissinger's case, New York City and Long Island-without permission from their probation officers or the judge. They were also ordered to surrender their passports, to provide detailed financial information on a monthly basis, and to avoid contact with "anyone convicted of a crime." A11 this for an offense about as serious as a traffic violation.

Kissinger refused to submit to the judge's onerous reporting requirements, which he said violated his (and his wife's) rights to free association and privacy, but he did seek permission to travel. He discovered that while non-political travel requests, such as visits to his ailing mother, were routinely granted, permission for political trips was routinely denied. Finally, when Rapoport refused to allow him to speak at a legally permitted anti-death penalty rally in Philadelphia's Center City during the Republican National Convention, Kissinger went anyway and gave the speech.

Dangerous content | For that infraction, Kissinger's probation office asked for a hearing to have L his probation revoked. Assistant U.S. | Attorney Richard Goldberg, who prosecuted the case and requested the 90- | day sentence, argued at the December 6 hearing that the case was not about speech but simply about a probation violation. The judge, however, made the reality very clear.

Judge Rapoport initially refused defense requests to explain why he had denied Kissinger's request to travel to Philadelphia, saying, "I denied it because I denied it," and later, "Unfortunately, I don't have to explain it." But when National Lawyers Guild attorney Andrew F. Erba pointed to a recent appellate court decision that did require judges to explain probation violation sentences, the judge's subsequent explanation made it disturbingly clear that Kissinger's words were indeed precisely what were at issue.

"Past behavior shows that his speech ends in civil disobedience," said Rapoport, adding combatively, "You want to know why? There's your answer. Do you want to know anything else?" Of course, Rapoport's rationale could just as easily have been used to silence Martin Luther King, Mahatma Gandhi or Henry David Thoreau.

Despite the serious implications for freedom of speech and movement- according to Kissinger attorney Ron Kuby, this was the first time since World War II someone had gone to jail for giving a speech-the story was apparently ignored by national mainstream media. Even the Philadelphia Inquirer did nothing on the story. The Inquirer can be a fierce defender of the First Amendment-when its own rights are in jeopardy; the paper recently stepped up to pay contempt fines of $100 per minute levied on two of its writers by a local judge seeking their notes of an interview with a murder suspect. But when a judge explicitly sentence a defendant because of the political content of his speech, that apparently wasn't even worth sending a reporter.

The Philadelphia Daily News (a tabloid owned, like the Inquirer, by Knight-Ridder) did send a reporter to the hearing, whose article ran the next day (12/7/00) under the inaccurate headline "Protesters Disrupt Hearing." (The street-level protest referred to in no way disrupted the fifth-floor hearing.) The story's lead focused on the demonstrators, whom it referred to as "anti-death penalty fans of convicted cop-killer Mumia Abu-Jamal," rather than the more newsworthy event of a federal magistrate sentencing someone to jail for a speech.

The Bull Connor precedent

Kissinger's supporters have called his treatment by Judge Rapoport "Southern justice," and there is an ironic truth to the charge. In a brief filed by the U.S. Attorney's office in the U.S. Court of Appeals in Philadelphia, where Kissinger's attorneys are trying to have his sentence and his probation overturned, U.S. Attorney Michael Stiles chose to cite Walker v. Birmingham, a 5 to 4 ruling by the U.S. Supreme Court upholding the right of a city to ban demonstrations.

That case involved the famous 1963 Easter civil rights march in Birmingham, Alabama, in which eight civil rights leaders were arrested while other marchers were set upon by police dogs. The ban on demonstrations had been ordered by the notorious Bull Connor, whose name in the 1960s became synonymous with racist police behavior.

At least back in 1963 the world got to watch images on TV of police dogs attacking peaceful protesters in Birmingham. At this writing, Kissinger sits in a federal lockup in Manhattan, and no one outside of Philadelphia who relies on the mainstream press even knows he's there. (The Nation and In These Times, as well as the Village Voice and Philadelphia's weekly City Paper, have run short pieces on the case.)

Kissinger, writing from his cell, quoted Stiles' brief-which says "Walker holds that Kissinger's constitutional challenges to the sentence he violated are irrelevant"-and commented acidly, 'We can only congratulate the U.S. attorney for grasping the close parallels between the government's position and that of Bull Connor."


Dave Lindorff, a Philadelphia-based journalist, is currently working on a book on the Mumia Abu-Jamal case for Common Courage Press. This article was researched with the help of a grant from the Fund for Constitutional Government.

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