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A Constitutional 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.

 

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