In the absence of political pressure to do otherwise, there’s very little to stop a court from honoring or ignoring precedents capriciously. Therefore, the partiality the state shows white supremacists means precedents set on their behalf need have no meaningful effect on any group the state indulges less. What good did Brandenberg do Samir Khan, executed without trial for publishing al-Qaeda’s English-language magazine? What good did it do Tarek Mahenna, imprisoned for translating and posting radical Islamist documents? Magic Paper Theorists meet these objections with blather about justice being imperfect etc, but really, how many exceptions are required to show how ahistoric and counterintuitive their theory is?
Twenty-seven years after Skokie, a court upheld the NYPD’s denial of a permit for an anti-war march in 2003 with encouragement from Mayor Bloomberg and a brief from the Department of Justice. When DOJ lawyers come all the way from D.C. to file a brief against your local anti-war march, you can wave Magic Paper at them until your arm falls off, but it likely won’t do you a bit of good. After much wrangling, the NYPD issued a permit for just a rally in Dag Hammarskold Plaza and on the day it took place, created conditions for would-be participants that subjected hundreds of them to arrest.
Which brings us around to how in practical terms, the arbiters of civil liberties are less the courts than the cops. They can issue the permits or not. They can block streets or not. They can pepper spray protestors or not. The Bill of Rights, if it matters at all, frequently applies retroactively. It’s very nice that a lot of the The Occupy protestors who were pepper-sprayed, beaten, sexually molested and jailed won court judgments in their favor, but it didn’t do anything to revive the movement the brutality intended to crush or relieve the chilling effect their experience might have on their political expression in future. The cops will do it all over again when social conditions require it and cities will pay the court costs and legal settlements with public money budgeted for that very purpose.
We see this at work in Ferguson, Missouri when, after a cop murdered Mike Brown, police fought protests with curfews, sound cannons, mass arrests, brutality, and the harassment and incarceration of journalists. It’s great that the ACLU and so many media liberals wring their hands over the First and Fourteenth Amendment violations — and there may be some successful lawsuits, too — but in the absence of any political leverage to radically change conditions on the ground, and the absence of recognizing the need for such leverage, all the outrage is just vanity, fundraising and brand-building. It’s also toxically disinformative to the extent it depicts not-really-unusual police conduct as some horribly new “constitutional crisis” that can be resolved with Member alerts, opinion columns and court briefs.
Finally, the really heavy lifting of political repression is done extrajudicially by both cops and members of the Intelligence Community. There’s a useful lesson in the timing of Fred Hampton’s COINTELPRO murder by Chicago police, which took place only six months after The Supreme Court handed down its sacred Brandenberg decision. The COINTELPRO – like Greensboro Massacre took place just two years after Skokie.
The ghosts of COINTELPRO now hover over Ramsey Orta, who narcotics cops arrested on two counts of criminal weapons possession less than a month after he captured Eric Garner’s suffocation by police on video. In August, shortly after his wife had complained in a television interview that police were harassing her and her husband, NYPD police arrested her for assault. Then in February of this year, Orta, his brother and his mother were arrested and accused of peddling heroin, marijuana, crack cocaine and pills to an undercover officer, proof of which police claim to have captured on video.
It may well be that Orta possesses a handgun and that his family deals drugs, but it seems almost certain he and his family have been followed and stung, just as Fred Hampton was when he was sentenced to two to five years for stealing $71 worth of Good Humor Bars. A police source suggested as much to The New York Daily News: “He took the video. Now we took the video.”
A system with too many laws, too many jails, unaccountable police and unaccountable prosecutors provides infinite opportunities for repressing dissidents in ways that make proving Constitutional violations extremely difficult. The drug sting on Orta’s family is particularly problematic, since four others got caught in the same operation. Perhaps this is why the NYCLU has yet to wave Magic Paper on Orta’s behalf, though to be fair, the organization did tweet a link to the Pussy Riot music video about Garner’s death, “I Can’t Breathe.”
Next: 6. Putting the Libertarian in Civil Libertarian
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