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What Not to Wear...on Election DayThe ACLU is strongly committed to protecting everyone's right to make their political opinions known, regardless of one’s viewpoint. This includes pro-life demonstrators protesting former President Clinton and opponents of the Iraq War calling for President Bush's impeachment (PDF). In addition, the ACLU is currently involved in numerous court challenges supporting political demonstrators who have been prevented from demonstrating in the presence of the president. With a new election, comes a new set of challenges. In one week we will decide the next president of the United States. This presidential campaign cycle has been the most costly and the longest in history. It has also been one where fashion and politics collided. I cannot remember an election where I saw more people wearing clothing or other paraphernalia supporting one candidate or another on a daily basis (I should confess that I am not that old; I can only clearly remember back to the 1996 election). It is not just that people are wearing the clothing, but that the clothing itself has become so diverse as to allow people to express both their political aspiration and their fashion sense at the same time. While this can be seen as a positive step in effort to increase participation in our political process, it also sets the stage for potential problems at the polls. As many of you know, the voting process for federal elections is determined at the state level. This means that each state sets the rules by which citizens exercise their right to vote. This decentralized process has led to some confusion among voters, as the voting rules differ from state to state, and sometimes county to county. One of the common problems stemming from this process has to do with state laws prohibiting campaigning at or near the polls. In some states this law extends to passive political speech (i.e. wearing political clothing, pins, stickers, etc.) near or at the polling place. This law permits voting officials to deny the right to vote to anyone wearing clothing or paraphernalia supporting a candidate or issue on the ballot. It would seem that government censorship of political speech is exactly the type of speech the framers sought to protect when they authored the First Amendment. As the First (and later Fourteenth) Amendment makes clear, Congress (and the States) “shall make no law … abridging the freedom of speech.” But, the U.S. Supreme Court has carved out an exception for the permissible prohibition of political speech near the polling place on election day. The plurality found, in Burson v. Freeman (1992), that “some restricted zone is necessary in order to serve the States’ compelling interests in preventing voter intimidation and election fraud.” Thus, a “minor geographic limitation” does not “constitute[ ] a significant impingement.” But, this case focused on the question of active political campaigning near the polling place and not passive political speech at the polling place. Unlike the U.S. Supreme Court, both the U.S. Court of Appeals for the D.C. Circuit and U.S. Court of Appeals for the Fifth Circuit have addressed the question of limiting passive political speech at the polling place. In Schirmer v. Edwards (1993) the Fifth Circuit found that a law prohibiting all campaign activity within 600 feet of a polling place on election day to be permissible under the First Amendment. And, in Marlin v. District of Columbia Bd. of Elections and Ethics (2001), the D.C. Circuit upheld an election board regulation prohibiting a voter from wearing a campaign sticker. While the reasoning differed in these two cases, the result was the same; passive political speech can be regulated during the voting process. While two U.S. appellate courts have found that such prohibitions are permissible under the U.S. Constitution, the highest courts in several states have found that such prohibitions violate state speech laws. The ACLU of Virginia has recently announced it plans to challenge Virginia’s prohibition on passive political speech in the hope of adding to the growing body of state law protecting passive political speech at the polls. Unfortunately, the question will not be decided during this election cycle. The confusion in the courts has placed the voter in a difficult position; can you wear your political clothing when you exercise your right to vote? Unless you know for sure, we suggest that you either refrain from wearing political clothing, or be prepared to cover up or remove such clothing. Though you may be permitted to vote with it on, you also risk losing your right to vote. In an election that has been described by many as the most important in our lifetime, we suggest that pragmatism carry the day.
A Free Press: The Latest Casualty in the "War on Terror"Beyond indefinite detention, numerous allegations of torture, and a massively deficient court system created by the Military Commissions Act, the case of Sami al Hajj, an Al Jazeera reporter, adds the prospect of uncovering a new and equally disturbing side of Guantánamo: its use as a mechanism to further silence the the press.
Sami al Hajj was arrested in December 2001 by Pakistani authorities as he tried to re-enter Afghanistan, the location of his news assignment. He was turned over to United States officials and arrived in Guantánamo in June 2002. Sami al Hajj was released six years later on May 1, 2008, without ever having been charged with a crime. Although the longterm detention and seemingly arbitrary release of so-called "enemy combatants" without charge is, quite disturbingly, not unique, what does make his case unique is the fact that he is a journalist, and the U.S. government has consistently failed to show that he was acting in any other manner when he was detained and sent to Guantánamo. The extremely troubling nature of Sami al Hajj’s case was highlighted in a recent article by Bob Egelko of the San Francisco Chronicle. The article cites allegations made by Sami al Hajj and his attorney, Clive Stafford Smith of the Londonbased human rights organization Reprieve, that assert that Sami al Hajj’s detention may have been due to the fact that he worked for Al Jazeera, the largest broadcaster in the Arab world and nothing more. Al Jazeera has been consistently attacked by the U.S. government for its alleged inaccurate coverage of the U.S.-led wars in Afghanistan and Iraq, as well as U.S. policy more broadly. This criticism has been countered by people across the Arab world, as well as here at home who view Al Jazeera’s coverage of the U.S. led wars as a welcome reprieve from the censored imbedded journalism conducted by the mainstream U.S. media. Al Jazeera English was also recently nominated for two Emmy Awards in the news and current affairs categories. Egelko’s article quotes Sami al Hajj’s human rights attorney, Clive Stafford Smith, stating that Sami al Hajj and he “calculated about 135 times [Sami had] been interrogated, and about the first 120 the only interest [his interrogators] had was Al-Jazeera.” Clive Stafford Smith was further quoted as stating that the interrogators of Sami al Hajj “told him that they thought Al-Jazeera was an al Qaeda front.” While we have no independent way of verifying the validity of this statement, the state of press freedom in the United States gives added weight to the seriousness of such allegations. As Reporters Without Borders’ most recent press freedom index shows, the United States’ rank is far from its rhetoric. The U.S. is ranked 48th in the world for press freedom, and 111th in the world for press freedom when viewing the U.S. extraterritorially. The freedom of the press is vital to the maintenance and security of our republic. Allegations such as Sami al Hajj’s, while unverifiable, should make us all more aware of both the importance of such a freedom and the ease with which the government can take it away.
Respecting Human Rights...At HomeSixty years ago today the United Nations Commission on Human Rights, chaired by Eleanor Roosevelt, adopted the draft of what would become the Universal Declaration of Human Rights (UDHR). The UDHR has since become the foundation of the modern human rights system, or in the words of Eleanor Roosevelt “the international Magna Carta.” The UDHR sprang from the death and destruction of World War II and the Holocaust. It sought to create a new system of rights protection; a system whereby certain rights could not be violated, regardless of where they occurred. In addition to the duty of states to refrain from violating the rights of individuals within their territory, this new system also placed positive obligations on states to provide all persons within their jurisdiction with certain basic rights, without distinction as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. The UDHR laid the foundation for a system of rights which are universal, indivisible, and interdependent. The UDHR does not differentiate between civil and political rights on one side and economic, social, and cultural rights on the other. It realizes that in order to properly enjoy one set of rights, you must also be able to enjoy the other. As is often noted, one cannot properly exercise their right to vote, think, or live if they have no food, housing, or basic health services. It is from these principles that the modern human rights treaty system (international human rights law) was born. Although the notion of universal rights to be enjoyed by all persons was a great step forward, the decisions of the U.S. government during the past 60 years have greatly hindered the ability of people to enjoy these rights, both abroad and at home. Beginning with the debate during and immediately following World War II over the creation of the international human rights system, the U.S. pushed for and ultimately succeeded in creating a non-binding declaration, instead of a binding covenant. This decision was taken to pacify the segregationists in the U.S. Congress. A further impediment to the realization of the UDHR is the view, by the U.S. government, that the UDHR and international human rights law are unnecessary at home, and are thus rightly used only as a tool of U.S. foreign policy. Beyond the historical impediments noted above, the U.S. government’s current policies, from its failure to adequately abide by its human rights treaty obligations, to its failure to ratify the majority of the U.N. human rights treaties, including the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women, just to name a few, continue to negatively impact the enjoyment of these basic rights and protections as well as U.S. standing in the world. While much of the focus on the human rights record of the U.S. government is in the context of foreign policy and the so called “war on terror,” including the rendition, torture, and indefinite detention of foreign nationals, and vis-à-vis its high rhetoric on spreading freedom and democracy throughout the globe, it is of equal importance to look at the state of human rights at home. From the government’s inadequate response in the wake of hurricanes Katrina and Rita; to pervasive discrimination against racial minorities in the areas of education, housing, and criminal justice, including death penalty; to imposing life sentences without the possibility of parole on juveniles; to abhorrent conditions in immigration detention facilities, it is clear that the U.S. government has failed to abide by its international obligations. While the struggle for universal human rights is far from over, there has been great improvement in the fight to bring human rights home. More and more non-governmental organizations (NGOs) and individual activists in the U.S. are utilizing the human rights framework in the domestic advocacy and litigation. At the latest session of the U.N. Committee on the Elimination of Racial Discrimination (the treaty body that monitors state compliance with the Convention on the Elimination of All Forms of Racial Discrimination), there were more than 120 representatives from U.S.-based nongovernmental organizations (NGOs) in Geneva, Switzerland, who briefed the Committee members and provided additional information to counter the misrepresentations and omissions of the official U.S. government report on the state of racial discrimination in the U.S. This information, in turn, led the Committee to conclude that the U.S. should make sweeping reforms to policies affecting racial and ethnic minorities, women, indigenous people, and immigrants. The Committee’s recommendations garnered domestic and international media attention, and were followed by a three week official visit to the U.S. by the U.N. Special Rapporteur on Racism. This visit by the Special Rapporteur further opened up opportunities for domestic NGOs to utilize the international human rights framework, as was evidenced by the successful public education and media outreach campaigns conducted by local NGOs throughout the US during this visit. As this shows, human rights advocacy has become an effective tool for social justice advocates in the U.S. to use to press for change and enhance the protection of basic human rights. To celebrate the 60th Anniversary of the UDHR, the ACLU will be engaging in an advocacy campaign to raise awareness of U.S. obligations and shortcomings under international human rights law. This campaign will culminate with day of action events throughout the country on December 10, 2008, the day when the UDHR was adopted by the Member States of the United Nations General Assembly. As part of this campaign, the ACLU Human Rights Program put together a short video on the UDHR. The video highlights the importance of the UDHR to both the international human rights system, as well as to the work of the ACLU at the local, state, and federal levels and features ACLU lawyers and advocates as well as internationally renowned human rights leaders. Please visit the homepage of the ACLU UDHR 60th Anniversary advocacy campaign, www.udhr60.org, to view the UDHR Anniversary video, find additional information on the UDHR, and find out how you can become a part of our campaign to raise awareness of the UDHR and the international human rights system. We hope that you will join us in this effort! Tags: UDHR |
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