FacebookTwitterGoogle+RedditEmail

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.

 

More articles by:
May 25, 2016
Eric Draitser
Obama in Hiroshima: A Case Study in Hypocrisy
Ryan Mallett-Outtrim
Does Venezuela’s Crisis Prove Socialism Doesn’t Work?
Dan Arel
The Socialist Revolution Beyond Sanders and the Democratic Party
Marc Estrin
Cocky-Doody Politics and World Affairs
Sam Husseini
Layers of Islamophobia: Do Liberals Care That Hillary Returned “Muslim Money”?
Susan Babbitt
Invisible in Life, Invisible in Death: How Information Becomes Useless
Mel Gurtov
Hillary’s Cowgirl Diplomacy?
Kathy Kelly
Hammering for Peace
Dick Reavis
The Impeachment of Donald Trump
Wahid Azal
Behind the Politics of a Current Brouhaha in Iran: an Ex-President Ayatollah’s Daughter and the Baha’is
Jesse Jackson
Obama Must Recommit to Eliminating Nuclear Arms
Colin Todhunter
From the Green Revolution to GMOs: Living in the Shadow of Global Agribusiness
Binoy Kampmark
Turkey as Terror: the Role of Ankara in the Brexit Referendum
Dave Lindorff
72-Year-Old Fringe Left Candidate Wins Presidency in Austrian Run-Off Election
May 24, 2016
Sharmini Peries - Michael Hudson
The Financial Invasion of Greece
Jonathan Cook
Religious Zealots Ready for Takeover of Israeli Army
Ted Rall
Why I Am #NeverHillary
Mari Jo Buhle – Paul Buhle
Television Meets History
Robert Hunziker
Troika Heat-Seeking Missile Destroys Greece
Judy Gumbo
May Day Road Trip: 1968 – 2016
Colin Todhunter
Cheerleader for US Aggression, Pushing the World to the Nuclear Brink
Jeremy Brecher
This is What Insurgency Looks Like
Jonathan Latham
Unsafe at Any Dose: Chemical Safety Failures from DDT to Glyphosate to BPA
Binoy Kampmark
Suing Russia: Litigating over MH17
Dave Lindorff
Europe, the US and the Politics of Pissing and Being Pissed
Matt Peppe
Cashing In at the Race Track While Facing Charges of “Abusive” Lending Practices
Gilbert Mercier
If Bernie Sanders Is Real, He Will Run as an Independent
Peter Bohmer
A Year Later! The Struggle for Justice Continues!
Dave Welsh
Police Chief Fired in Victory for the Frisco 500
May 23, 2016
Conn Hallinan
European Union: a House Divided
Paul Buhle
Labor’s Sell-Out and the Sanders Campaign
Uri Avnery
Israeli Weimar: It Can Happen Here
John Stauber
Why Bernie was Busted From the Beginning
James Bovard
Obama’s Biggest Corruption Charade
Joseph Mangano – Janette D. Sherman
Indian Point Nuclear Plant: It Doesn’t Take a Meltdown to Harm Local Residents
Desiree Hellegers
“Energy Without Injury”: From Redwood Summer to Break Free via Occupy Wall Street
Lawrence Davidson
The Unraveling of Zionism?
Patrick Cockburn
Why Visa Waivers are Dangerous for Turks
Robert Koehler
Rethinking Criminal Justice
Lawrence Wittner
The Return of Democratic Socialism
Ha-Joon Chang
What Britain Forgot: Making Things Matters
John V. Walsh
Only Donald Trump Raises Five “Fundamental and Urgent” Foreign Policy Questions: Stephen F. Cohen Bemoans MSM’s Dismissal of Trump’s Queries
Andrew Stewart
The Occupation of the American Mind: a Film That Palestinians Deserve
Nyla Ali Khan
The Vulnerable Repositories of Honor in Kashmir
Weekend Edition
May 20, 2016
Friday - Sunday
Rob Urie
Hillary Clinton and Political Violence
FacebookTwitterGoogle+RedditEmail