The First Amendment took a nasty hit here in early December in
the courtroom of Federal Magistrate Arnold C. Rapoport, when C.
Clark Kissinger was sent to jail for giving a speech. An activist
with Refuse & Resist!,
Kissinger has been leading that organization's international campaign
on behalf of a new trial for Pennsylvania Death Row inmate Mumia
Technically, Rapoport simply jailed the 60-year-old Kissinger for
violating the terms of his probation. However, it appears that the
judge really punished Kissinger for traveling from his home in New
York to Philadelphia in order to speak at a legally permitted rally
during the Republican National Convention. He was sentenced to 90
days in jail.
The basic issues of the case were not in dispute. Indeed, federal
Kissinger's attorneys stipulated at the start of the December 6 hearing
that they agreed on those facts: Kissinger was placed on one year's
probation for a minor misdemeanor last April (refusal to leave the
Liberty Bell park site on orders of a park ranger), and, under terms
of that probation, he was barred from leaving the New York City area
without permission from his probation officer or the judge. In July,
Kissinger had asked for and was denied permission to attend the anti-death
penalty rally in Philadelphia.
C.Clark Kissinger's speech
at a rally during the Republican Convention landed him in
REFUSE & RESIST!
Believing that his travel restriction was an unconstitutional denial
of his free speech, Kissinger ignored the ban and came to Philadelphia,
delivered the speech and returned to New York. Kissinger explained
to the court that over the course of his probation, he had made
six requests for permission to travel. Three of these, he said,
were not political in nature and involved visiting his ailing mother
in Massachusetts. All of these were readily granted by his probation
officer. Three other requests, all involving political rallies or
events at which Kissinger, in his professional capacity, was to
participate and speak, were referred to and then denied by the judge,
an act which Kissinger claims is clear evidence that he was being
barred from speaking, not from traveling.
Initially, Judge Rapoport refused defense requests to explain why
he had denied Kissinger's request to come to Philadelphia, saying,
"I denied it because I denied it." But when National Lawyers Guild
attorney Andrew F. Erba noted that a recent appellate court decision
had established that judges should clearly state the reasons for
any sentence in probation violation cases, the judge relented. His
subsequent explanation made it disturbingly clear that Kissinger's
words were precisely the issue. "Past behavior shows that his speech
ends in civil disobedience," Rapoport said combatively. "You want
to know why? There's your answer. Do you want to know anything else?"
Kissinger, who came to the hearing with a toothbrush protruding
from his jacket pocket, seemed to have anticipated the outcome.
But his attorney Ron Kuby was shocked. "I can't believe I would
ever sit in an American courtroom and actually contemplate the notion
of a defendant being sent to jail for giving a speech," he said,
shaking his head.
Assistant U.S. Attorney Richard Goldberg, who prosecuted the case
and requested the 90-day sentence, argued that the case was not
about speech, but simply about violation of the terms of probation.
The judge, however, made the reality very clear: Kissinger was denied
permission to travel because of fears about what he might say.
The harsh sentence is only the latest in a series of heavy-handed
legal assaults on dissidents in the city that calls itself the "Cradle
of Liberty." After mass arrests during the Republican Convention,
several hundred activists were jailed by city, state and federal
law enforcement authorities and slapped with unusually high bail--in
some cases in the six-figure range--for offenses that were often
just misdemeanors. Most of those cases have been thrown out for
lack of evidence, and bail has been reduced to zero or a pittance
in others. But attorneys for the ACLU and National Lawyers Guild
charge that the city practiced preventive detention in what amounts
to conspiracy to prevent protest.
Kuby, a protege of the late civil rights attorney William Kunstler,
argues that the sentence handed down against Kissinger is part of
the same strategy. "You have to remember that Philadelphia is ground
zero for the Mumia case," he explains. "This is clearly an attack
on Mumia and on Mumia's supporters. It is aimed at preventing Clark
and others from doing any support activities at all."
While he remains locked up in a federal prison in New York City,
Kissinger's probation is being appealed in federal court on constitutional
grounds as a violation of his First Amendment rights. The sentence
for probation violation is also on appeal on the same grounds.
Dave Lindorff is currently working on a book on the Mumia
Abu-Jamal case for Common Courage Press. This story was researched
with the help of a grant from the Fund for Constitutional Government.