The Assault on Freedom

People should watch what they say. -White House spokesman Ari Fleischer, October 2001

We were wearing T-shirts, exercising our free-speech rights in the public square. And we were arrested? If you cede this, there’s nothing left.-University of Houston law student Jeff Rank, February 2007

July 4, 2004. The temperature is in the mid-nineties, the humidity is high, the crowd on the West Virginia capitol grounds numbers three, or four, or six thousand, depending on the media source. George W. Bush is in a tight race with John Kerry. And a growing number of voters have already gone south on Bush’s war in Iraq.

After Representative Shelley Moore Capito introduces the president, he thanks her for serving as his state campaign chair. Then takes ten more minutes to make it through the acknowledgments and howdies in his twenty-five-minute speech. He thanks the Boy Scouts. And the Girl Scouts. He thanks Charleston’s Republican mayor, Danny Jones. He thanks country and western singer Aaron Tippin. He thanks the minister of Bible Center megachurch, whose service he missed that morning because of a mechanical problem on Air Force One. He thanks no one in particular for the “coal found in West Virginia.” He thanks the Almighty a few times. He even thanks the West Virginia Coal Association president, whom he describes as “my friend,” for getting the coal out of the ground and into the nation’s power plants. He doesn’t thank the coal miners, but the president is doubled over with gratitude.

The party dignitaries, Bush’s state campaign chair, the planned stop at a big-box evangelical church, the Bush T-shirts worn by enthusiastic supporters, all suggest that the Fourth of July visit to Charleston is a campaign event.

It’s not. It’s an official visit of the president of the United States, with taxpayers picking up the tab for Air Force One, the president’s security detail, and the weeks of work by the White House Advance Team. But political strategist Karl Rove is in charge, the Iraq war in question, and John Kerry slightly ahead in national polls. So the president delivers his well-rehearsed keep-fear-alive campaign stem-winder, written to drive home the message he hopes will close the deal in November: The terrorists who were plotting to attack us again are hard on the run in Afghanistan and Iraq.

Our immediate task in battlefronts like Iraq and Afghanistan and elsewhere is to capture or kill the terrorists.

That’s our immediate task. We made a decision. You see. We will engage these enemies in these countries around the world so we do not have to face them at home. (Applause) After the attacks of September the eleventh, 2001, the nation resolved to fight terrorists where they dwell. (Applause) You can’t talk sense to them. You can’t negotiate with them. You cannot hope for the best with these people. We must be relentless and determined to do our duty. (Applause)

But it’s the Fourth of July, and just as a good country and western song requires the mention of Momma, trains, trucks, prison, and gettin’ drunk, there are certain de rigueur requirements of a good Fourth of July speech. Bush touched on most of them: the founders, George Washington (“I call him George W.”), God, the Troops, abstractions like Democracy and Freedom.

On this Fourth of July, we confirm our love of freedom, the freedom for people to speak their minds, the freedom of people to worship as they so choose. (Applause) Free thought, free expression, that’s what we believe. But we also understand that that freedom is not America’s gift to the world. Freedom is the Almighty God’s gift to each man and woman in this world. (Applause)

And by serving that ideal, by never forgetting the values and the principles that have made this country so strong 228 years after our country’s founding, we will bring hope to others and at the same time make America more secure. (Applause)

Nicole Rank had moved from Bush’s home state to Charleston, West Virginia, to work on a FEMA flood control project. When agency employees were offered tickets to the president’s Fourth of July event, she filled out an online application for herself and her husband, Jeff, who had followed her from their home in Corpus Christi. Neither of them was a George W. Bush supporter. But that question didn’t appear on the form the Secret Service required of anyone attending the official presidential visit. Both, in fact, were opponents of the war in Iraq. Both received tickets to the event.

The Ranks showed up for the president’s visit to the capitol, made their way through the security checkpoint and to a place near where Bush was to speak. Then they took off their shirts to uncover homemade T-shirts with the international no symbol over the word “Bush.”

A bold gesture in a rabidly pro-Bush crowd.

Team Bush believes it only takes a few antiwar protesters to muck up a pro-war speech. A sixteen-year-old volunteer spotted the Ranks and ran to warn Tom Hamm that two people were creating a problem. Thomas Donald Hamm was an unemployed thirty-year-old event volunteer who had worked on Shelley Moore Capito’s campaign and in her congressional office. He’s young, but he’s decisive. He surveyed the situation and summarily suspended the First Amendment, telling the couple the T-shirts had to go or they had to leave.

When Jeff Rank told Hamm he was breaking no law and refused to take off his shirt, Hamm called for backup: Aaron Spork, who actually was working in Capito’s D.C. office. Together they made it clear: no First Amendment protections on the Fourth of July in Charleston, West Virginia. Hamm called a capitol police officer and told him the Ranks’ tickets were revoked. At which point, the revoking got under way.

Nicole Rank was nimble enough to whip out her disposable camera and photograph everyone who confronted her. Then the Ranks sat on the ground, to indicate they were not leaving. At approximately 11:00 a.m. they were handcuffed and led from the capitol grounds by the capitol police officer who first responded and a state trooper and protective services officer who showed up as an “arrest team.” Reporters who tried to speak to them were waved off by Hamm, who told them if they followed the couple out, they would not be allowed back in and would miss the president’s speech.

As Jeff Rank recalled, the band on the platform played “America the Beautiful” as the Ranks were frog-marched to the police van that would take them to the Charleston municipal jail.

President Bush started speaking at exactly 12:57. By the time he got the constitutional rights properly enshrined in the First Amendment-“our love of freedom, the freedom for people to speak their minds. . . . Free thought, free expression, that’s what we believe”- Jeff and Nicole Rank already had their handcuffs removed and were sitting in separate cells in Charleston’s police department building. “It was chickenshit,” said Nitro, West Virginia, lawyer Harvey Peyton. “I mean these young kids, these twenty-somethings, just told the officers, ‘Their tickets are revoked, get them off the capitol grounds.’ ”

It was one of several varieties of chickenshit expressly prohibited by the First Amendment, even if it took the Congress and the courts a while to make that prohibition clear. Law professor Geoffrey Stone begins his book Perilous Times: Free Speech in Wartime with a description of the first fight over the First Amendment. It occurred less than ten years after the Bill of Rights was ratified, during what Stone refers to as the “half war” with France, which almost happened in the 1790s after the American government stiffed the French. France had stepped in and salvaged the American Revolution. When the U.S. government refused to support the French in their war against Britain, the government in Paris declared all U.S. sailors pirates and began boarding U.S. ships.

President John Adams responded by putting the nation on war footing, adding eighteen new divisions to the Army, and calling George Washington back from Mount Vernon to take command. Adams’s Federalist majority in Congress singled out immigrants, suspending jury trials and allowing indefinite detention of foreigners when the nation was at war. Then they turned their attention to American citizens, passing a sedition act that provided for a two-year sentence and $2,000 fine for anyone who would “write, print, utter, or publish” scandalous, untrue, or malicious comments against either house of Congress or the president.

Vermont congressman Matthew Lyon was the first person tried under the Sedition Act. He said that under President Adams “every consideration of the public law [was] swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”

Lyon got no jail time for that when he said it. But he made the mistake of quoting himself after Adams signed the Sedition Act into law. He was prosecuted by Secretary of State Timothy Pickering, fined $1,000 plus $60.96 in court costs, and jailed four months in conditions we today associate with Donald Rumsfeld’s extraordinary rendition. Lyon described a damp, freezing cell, which included a “necessary” with the stench “equal to the Philadelphia docks in the month of August.”

Since Matthew Lyon was locked up in 1798, the notion that a citizen can be arrested for offending the president has given way to free-speech protections that are almost as sacrosanct as high school football in Texas. James Madison declared the Sedition Act unconstitutional because it returned American citizens to the status of subjects-reinstating the “exploded doctrine that ‘the administrators of the Government are the masters, and not the servants, of the people.’ ”

Law professor Leonard Levy-who seems to do little else but think and write about the Constitution-says that seditious speech is an alien concept to American democracy. It only exists “where people are subjects rather than sovereigns and their criticism implies contempt of their master.”

It’s a bold, simple concept, spelled out in the First Amendment and shaped by two centuries of criminal and civil jurisprudence: George III was a master. George W. is a servant. On the 228th birthday of the United States, that principle got turned on its head in Charleston. In a scene that might have been lifted from a Mayberry R.F.D. script, an arrest team of officers from three jurisdictions-the city, capitol, and state-stood in earshot of the couple languishing in the jail cells, arguing over who was expected to charge them. And with what offense. It was the Charleston city jail, so the city of Charleston settled on criminal trespass. The real charge was the same one Matthew Lyon got popped for in 1798: seditious speech. The couple sitting in the Charleston jail were there because they insulted the president.

The Ranks were issued citations and released on their own recognizance-with instructions to go nowhere near the capitol grounds, where President Bush was speaking. It was a little late. By the time they got back to the hotel, the local TV news was already running a clip of the president’s speech-the passage where he described “free thought, free expression.” Nicole and Jeff Rank had been frog-marched from the capitol grounds in handcuffs, jailed, booked, released, and, as they walked from the jail to their hotel, recognized by people on the streets who had seen them on the TV news. “We were sitting in a hotel room rubbing our wrists and he’s talking about freedom of expression,” said Jeff Rank. “Is he kidding?”

It would get worse.

Monday, July 5, was a holiday for federal workers. On Tuesday morning, Nicole Rank was summoned from a 9:30 meeting by her supervisor’s administrative assistant. FEMA’s federal coordinating officer and his legal counsel were waiting for her. “They told me that, because of my actions, I had compromised FEMA’s mission in West Virginia,” she said. They reassured her that she wasn’t fired, then ordered to her clean out her desk, turn in her rental car, and check out of the hotel where she was living on a FEMA per diem account. She would be responsible for any hotel expense incurred after July 6.

It felt like fired.

That night the Ranks left West Virginia and drove to Philadelphia, where Nicole had worked in FEMA’s offices before being assigned to disaster relief in West Virginia. They spent a couple of days in a Motel 6, cleaning out their storage unit and loading what would fit in their Jeep station wagon-along with their dog and cat. Then they started the three-day drive back home to Texas. Before they drove too far south, they stopped in Virginia to phone the court clerk in Charleston. Their citation specified that fines could be mailed in if the infraction did not involve domestic violence or DUI. The clerk told Jeff Rank they would have to make a court appearance in two weeks: “She said, ‘I don’t care what the ticket says, you have to come in.’ ”

On the drive from Roanoke, Virginia, to Charleston, West Virginia, Jeff and Nicole Rank decided they had been pushed too far. “We were wearing T-shirts,” Jeff said in an interview in the couple’s Houston apartment. “Exercising our freedom of speech in a public square. . . . And they were treating us like criminals.”

“Our costs were mounting, we had to stay in Charleston until the fifteenth, so I picked up the phone and called the ACLU,” said Nicole. ACLU staff attorney Terri Baur began to explain that there was a two- to three-week process that began with submitting a written request for ACLU representation. Then something clicked. “She said, ‘Are you Nicole Rank? We’ve been looking everywhere for you.'”

Baur said that the West Virginia board members were at a meeting in San Francisco and upon their return would almost certainly vote to represent the Ranks. She even found the couple a cabin to stay in while they awaited trial. Out of work, money, and luck, Nicole Rank had made the right phone call.

Harvey Peyton was eager to take the case. The feds had trashed the Ranks’ First Amendment rights and done it in a cowardly way, using local law enforcement as the heavies. “One of them is a capitol policeman,” Peyton said. “One of them is a conservation officer. Two are Charleston policemen. And one is a West Virginia state trooper. They had no instruction, no training, no training about how to handle a protest. . . . So they give them to the Charleston Police Department, who don’t know what to do with them because they didn’t break the law.”

Peyton looked at the municipal code and concluded that the trespassing charge wouldn’t stick. “This wasn’t going to be the most difficult case I’d ever tried. It was like trespassing in the public library,” he said.

The Ranks’ trial was scheduled for 7:00 a.m. on July 15 in municipal court.

“I walked in the city courthouse that day,” Peyton said. “They got a real smart mayor in Charleston, West Virginia. His name is Danny Jones. Now he’s a Republican, but he’s not a Bush Republican. His knuckles don’t drag the ground. And I’m thinking, Well the mayor’s here. It’s seven o’clock in the morning. It’s municipal court. And the mayor’s here?”

So was the press. To get into a courthouse filled with DUI defendants, Jeff and Nicole Rank had to do a perp walk through a gauntlet of TV cameras and radio and newspaper reporters. “I felt like O.J.,” Jeff said. “And all we had done was exercise our First Amendment right of free speech.”

As soon as Peyton entered the courtroom, the assistant city attorney walked over and said the city would move to drop the charges. “The mayor told them to dismiss it,” Peyton said. “Then he went next Monday to the city council and had the council pass a motion apologizing to the Ranks. It took the sting out of it.”

But not enough.

Jeff Rank is short and stocky. His close-cropped brown beard and gold metal-frame glasses tend to focus an intensity that becomes more evident when he leans forward to listen or talk. Nicole is quieter and more pensive, her longer Byzantine icon face framed by dark hair. “She’s wicked smart,” says Jeff, as he describes his wife passing the written exam and making it through the round of interviews that qualified her for a position as a Foreign Service officer-only to be told that she failed her security clearance because she had been arrested in Charleston. (He admits he failed the written test, which they took together.)

Two and a half years after their arrest on free-speech charges, they moved on. To a small apartment ten miles from downtown Houston, crammed full of bookshelves and fish tanks. Nicole’s employer, FEMA, had brought her back on in Charleston. But both she and Jeff had other plans. Nicole enrolled in a master’s program in social work at the University of Houston; Jeff enrolled in the University of Houston law school; Abbie, their seven-month-old daughter, enrolled in the university day-care program.

They are saving frequent flyer miles to return to Charleston, where they have filed suit against Gregory Jenkins, the deputy director of the White House Office of Presidential Advance; Secret Service director W. Ralph Basham; and John Does 1 through 4, who have since been identified because Nicole photographed everyone involved in their arrest.

From his New York office, ACLU senior attorney Chris Hansen describes what seems like a perfect fact situation: “It was an official presidential visit. It was open to the public. Our clients got their tickets in the way they were supposed to get their tickets. It’s very clear that they were excluded because of the content of the message on their T-shirts.”

Hansen intends to “establish responsibility.” The federal government plays a shell game and is, he says, “coy about admitting that it excludes people who disagree with them, particularly from official presidential visits.”

Conforming to the cowardly behavior Harvey Peyton describes, the feds claimed qualified immunity and asked the judge to dismiss the charges against them. To continue the pretrial process of discovery and keep the case alive, the Ranks had to add local police officers as defendants. “They [the federal officials] were telling them to get these people out of here,” said Peyton. “And the officers had no bones about it. They were told the tickets had been revoked and the Ranks had to leave.” He describes the local cops as “victims” of federal officials who refuse to stand up and defend their policy.

Jeff Rank will be out of law school before the case is decided and Nicole perhaps enrolled in one of the “dream law schools” she’s applied to. Neither of the two seems inclined to back away from the lawsuit styled JEFFREY RANK and NICOLE RANK v. GREGORY J. JENKINS, Deputy Assistant to the President of the United States and Director of the White House Office of Presidential Advance, et al.

If we were writing Civic Beatitudes, we might begin with “Blessed are the litigators, for they teach their government the consequences of bad behavior.” None of the lawsuits filed against the president’s Secret Service and Advance Office has yet appeared in court. No decision has been handed down. But Greg Jenkins on the White House Advance Team is still waiting for a federal judge to decide if he is a defendant, so he is less inclined to push local authorities to be so thuggish during presidential visits. And when Secret Service agents leaned on him a second time, Charleston mayor Danny Jones, whose heart and head were never in the prosecution of Jeff and Nicole Rank, told them to shove it. President Bush would have to live with antiwar protesters lined up on the South Side Bridge on July 27, 2006- or he could find another route to a fund-raiser for Shelley Moore Capito. The event (and protest) was held one year and a week after the mayor supported a city council resolution apologizing to the Ranks, and the mayor wasn’t going to suppress freedom of expression just because the White House wanted him to. (At the event, the Secret Service sequestered the servers and bartenders in a closed, un-air-conditioned bus while the president spoke and worked the crowd.)

UPDATE

Three years after their First Amendment Rights were violated in West Virginia, Jeff and Nicole Rank were told the federal government wanted to settle. They were offered $80,000 plus an unspecified amount from local and state authorities. When the Ranks insisted that pages from the White House policy manual on presidential events be released to the public as part of the settlement, attorneys representing the federal government refused. Shortly after they returned to Houston, their attorneys called to tell them their terms had been accepted. The five unredacted pages in the 103-page Presidential Advance Manual establish that the Bush White House was engaged in the programmatic violation of First Amendment rights, with directives to Secret Service and Advance Team Agents including:

Proper ticket distribution is vital to creating a well-balanced crowd and deterring potential protesters from attending events.The formation of “rally squads” is a common way to prepare for demonstrators by countering their message . . .

These squads should be instructed always to look for demonstrators. The rally squad’s task is to use their signs and banners as shields between the demonstrators and the main press platform. If the demonstrators are yelling, rally squads can begin and lead supportive chants to drown out the protesters (USA!,USA!,USA!). As a last resort, security should remove the demonstrators form [sic] the event site. The rally squads can include, but are not limited to, college/young republican organizations, local athletic teams, and fraternities/sororities.

The Ranks asked the ACLU to post the manual on its website. Jeff Rank practices law in Houston, where Nicole is completing law school.

“The thing that we’re fighting for, the Constitution,” Rank said. “The Bill of Rights, it’s just too important to this country to lay down on something like this.” -LD

The foregoing is an excerpt from Bill of Wrongs: The Executive Branch’s Assault on America’s Fundamental Rights, the last book by the late Molly Ivins, nationally syndicated columnist and former co-editor of The Texas Observer, and her frequent co-author, Lou Dubose, also a former Observer editor. Bill of Wrongs will be published by Random House in paperback in early October.