WASHINGTON, D.C. — The U.S. Supreme Court has refused to hear the case of decorated Marine Brandon Raub, who was seized by a swarm of Secret Service, FBI and local police officials and involuntarily committed to a mental institution for a week after posting controversial song lyrics and political views critical of the government on his Facebook page. In asking the Supreme Court to hear the case, Rutherford Institute attorneys were seeking to overturn lower court rulings dismissing the case, which characterized concerns over government suppression of dissident speech as “far-fetched.” In rejecting the appeal, the Supreme Court also refused to establish standards to guide and constrain mental health professionals when they seek to commit individuals and to prevent commitment on the basis of a person’s exercise of his right to free speech.
“This case was about more than one Marine’s right to not be targeted for speaking out against the government. It was about whether Americans have the freedom to criticize the government without being labeled ‘domestic extremists’ and stripped of their rights,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Unfortunately, in refusing to hear this case, the Supreme Court has left us all vulnerable to the possibility that we can be declared mentally unfit, handcuffed, arrested and locked up against our will simply for exercising our right to speak truth to power.”
Brandon Raub, a decorated Marine who has served tours in Iraq and Afghanistan, uses his Facebook page to post song lyrics and air his political opinions. On Aug.16, 2012, Chesterfield police, Secret Service and FBI agents arrived at Raub’s home, asked to speak with him about his Facebook posts, and without providing any explanation, levying any charges against Raub or reading him his rights, handcuffed Raub and transported him to police headquarters, then to a medical facility, where he was held against his will for psychological evaluation and treatment.
In coming to Raub’s aid, Rutherford Institute attorneys challenged the government’s actions as a violation of Raub’s First and Fourth Amendment rights. On Aug. 23, Circuit Court Judge Allan Sharrett ordered Raub’s immediate release, stating that the government’s case was “so devoid of any factual allegations that it could not be reasonably expected to give rise to a case or controversy.” Rutherford Institute attorneys filed a lawsuit in May 2013, challenging the government’s actions as procedurally improper and legally unjustified. In February 2014, a U.S. District Court judge dismissed the lawsuit, rejecting concerns over government suppression of dissident speech as “far-fetched.” On appeal to the Court of Appeals for the Fourth Circuit, Institute attorneys claimed that the Chesterfield County mental health screener who recommended Raub’s seizure and commitment failed to exercise reasonable professional judgment in wrongly determining that Raub was mentally ill and dangerous, and that Raub’s seizure and detention were the result of a mental health screener’s dislike of Raub’s “unpatriotic” views on federal government misconduct, thereby violating the ex-Marine’s First Amendment right to freedom of speech. The appeals court subsequently affirmed the lower court judgment.
Attorneys William H. Hurd and Stephen C. Piepgrass of Troutman Sanders and Anthony Troy and Charles A. Zdebski of Eckert Seamens Cherin & Mellott assisted The Rutherford Institute in its defense of Brandon Raub.
Rutherford Institute Attorneys Present Oral Argument Before the 4th Circuit Court of Appeals in Defense of Marine Who Was Arrested & Locked Up in a Psych Ward for Criticizing the Government on Facebook
RICHMOND, Va. — Attorneys for The Rutherford Institute will present oral argument in Raub v. Campbell before the U.S. Court of Appeals for the Fourth Circuit on Jan. 28, 2015, asking the court to reinstate the lawsuit of a decorated Marine who was seized by a swarm of Secret Service, FBI and local police officials and involuntary committed for a week because of controversial song lyrics and political views he posted on his Facebook page. In a related matter, Rutherford Institute attorneys have filed an amicus brief with the U.S. Supreme Court in Elonis v. United States on behalf of a Pennsylvania man who was charged with making unlawful threats and sentenced to 44 months in jail after he posted allusions to popular song lyrics and comedy routines on his Facebook page.
“Whether it’s a Marine arrested for criticizing the government on Facebook or an ex-husband jailed for expressing his frustrations through rap lyrics on Facebook, the end result is the same—the criminalization of free speech,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “While social media and the Internet have become critical forums for individuals to freely share information and express their ideas, they have unfortunately also become tools for the government to monitor, control and punish the populace for behavior and speech that may be controversial but are far from criminal.”
Brandon Raub, a decorated Marine who has served tours in Iraq and Afghanistan, uses his Facebook page to post song lyrics and air his political opinions. On Aug.16, 2012, Chesterfield police, Secret Service and FBI agents arrived at Raub’s home, asked to speak with him about his Facebook posts, and without providing any explanation, levying any charges against Raub or reading him his rights, handcuffed Raub and transported him to police headquarters, then to a medical facility, where he was held against his will for psychological evaluation and treatment.
In coming to Raub’s aid, Rutherford Institute attorneys challenged the government’s actions as a violation of Raub’s First and Fourth Amendment rights. On Aug. 23, Circuit Court Judge Allan Sharrett ordered Raub’s immediate release, stating that the government’s case was “so devoid of any factual allegations that it could not be reasonably expected to give rise to a case or controversy.” Rutherford Institute attorneys filed a lawsuit in May 2013, challenging the government’s actions as procedurally improper and legally unjustified. In February 2014, a U.S. District Court judge dismissed the lawsuit, rejecting concerns over government suppression of dissident speech as “far-fetched.”
In appealing to the Fourth Circuit, Institute attorneys claim that the Chesterfield County mental health screener who recommended Raub’s seizure and commitment failed to exercise reasonable professional judgment in interviewing and in wrongly determining that Raub was mentally ill and dangerous, thereby violating Raub’s rights under the Fourth Amendment. The lawsuit also asserts that Raub’s seizure and detention were the result of a mental health screener’s dislike of Raub’s “unpatriotic” views on federal government misconduct, thereby violating the ex-Marine’s First Amendment right to freedom of speech.
WASHINGTON, D.C. — The U.S. Supreme Court will hear arguments today in a case that will significantly impact expression on Facebook, Twitter and other social networks. In filing an amicus brief in Anthony D. Elonis v. United States of America, The Rutherford Institute argues that the First Amendment protects even inflammatory statements that may give offense or cause concern to others unless the statements were a credible threat to engage in violence against another and made by the defendant with the intent to cause fear in the alleged victim. The case arises out of Facebook postings made by Anthony Elonis expressing his anger about events in his life, and which were based upon rap lyrics of artists such as Eminem and a comedy sketch of the group The Whitest Kids U’ Know. Elonis was charged with making unlawful threats (it was never proven that he intended to threaten anyone) and sentenced to 44 months in jail after he posted allusions to popular song lyrics and comedy routines on his Facebook page.
“Whether it’s a Marine arrested for criticizing the government on Facebook or an ex-husband jailed for expressing his frustrations through rap lyrics on Facebook, the end result is the same—the criminalization of free speech,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “While social media and the Internet have become critical forums for individuals to freely share information and express their ideas, they have unfortunately also become tools for the government to monitor, control and punish the populace for behavior and speech that may be controversial but are far from criminal.”
Anthony Elonis was an active poster on Facebook who often used references to popular culture to express his views, feelings and frustration about events in his life. In May 2010, after Elonis’ wife left him and took his two children, he began listening to rap music and alluding to the sometimes violent lyrics of rap songs on his Facebook page. Elonis would couple these postings with statements acknowledging that the lyrics were fictitious and that he was simply exercising his First Amendment right of expression. After his estranged wife obtained a protection order against him, Elonis posted a reference to a comedy sketch of The Whitest Kids U’ Know about threatening language that Elonis changed to include a reference about harming his wife. In another post, Elonis used the lyrics of Eminem in which the rap artist included fantasized thoughts about shooting up a school. After federal agents were alerted to some of his postings, an investigator was sent to speak with Elonis. In response, Elonis posted rap lyrics he wrote containing fantasized language about having a bomb strapped to his body and doing violence to the agent. In response to these postings, the federal government charged Elonis under a statute making it a crime to transmit in interstate commerce any communication containing a threat to injure another. Elonis was convicted on four counts of violating this statute but appealed his conviction, arguing that the government should have been required to prove that he intended to threaten the alleged victims, not simply that the victims could reasonably have believed the words were “true threats.”
In weighing in on the case before the U.S. Supreme Court, Rutherford Institute attorneys argue that “(i)n order to protect the First Amendment rights of speakers, courts must ensure that they are criminalizing more than just the unrealized and unrealizable fears of particularly sensitive listeners.” In a related case, The Rutherford Institute is also representing Marine veteran Brandon Raub, who was arrested, detained in a psychiatric ward, and forced to undergo psychological evaluations based solely on the controversial nature of lines from song lyrics, political messages and virtual card games which he posted to his private Facebook page.
“Police are specialists in violence. They are armed, trained, and authorized to use force. With varying degrees of subtlety, this colors their every action. Like the possibility of arrest, the threat of violence is implicit in every police encounter. Violence, as well as the law, is what they represent.”—Kristian Williams, activist and author
If you don’t want to get probed, poked, pinched, tasered, tackled, searched, seized, stripped, manhandled, arrested, shot, or killed, don’t say, do or even suggest anything that even hints of noncompliance. This is the new “thin blue line” over which you must not cross in interactions with police if you want to walk away with your life and freedoms intact.
“Stand on Guard” – via Jason Hargrove / Flickr
The following incidents and many more like them serve as chilling reminders that in the American police state, “we the people” are at the mercy of law enforcement officers who have almost absolute discretion to decide who is a threat, what constitutes resistance, and how harshly they can deal with the citizens they were appointed to “serve and protect.”
For example, police arrested Chaumtoli Huq because she failed to promptly comply when ordered to “move along” while waiting outside a Ruby Tuesday’s restaurant for her children, who were inside with their father, using the bathroom. NYPD officers grabbed Huq, a lawyer with the New York City Public Advocate’s office, flipped her around, pressed her against a wall, handcuffed her, searched her purse, arrested her, and told her to “shut up” when she cried out for help, before detaining her for nine hours. Huq was charged with obstructing governmental administration, resisting arrest and disorderly conduct.
Oregon resident Fred Marlow was jailed and charged with interfering and resisting arrest after he filmed a SWAT team raid that took place across the street from his apartment and uploaded the footage to the internet. The footage shows police officers threatening Marlow, who was awoken by the sounds of “multiple bombs blasting and glass breaking” and ran outside to investigate only to be threatened with arrest if he didn’t follow orders and return inside.
Eric Garner, 43 years old, asthmatic and unarmed, died after being put in a chokehold by NYPD police, allegedly for resisting arrest over his selling untaxed, loose cigarettes, although video footage of the incident shows little resistance on Garner’s part. Indeed, the man was screaming, begging and insisting he couldn’t breathe. And what was New York Mayor Bill De Blasio’s advice to citizens in order to avoid a similar fate? Don’t resist arrest. (Mind you, the NYPD arrests more than 13,000 people every year on charges of resisting arrest, although only a small fraction of those charged ever get prosecuted.)
Then there was Marine Brandon Raub, who was questioned at his home by a swarm of DHS, FBI, Secret Service agents and local police, tackled to the ground, handcuffed, and forcibly transported to a police station. Raub was then detained against his will in a psychiatric ward, without being provided any explanation, having any charges levied against him or being read his rights—all allegedly because of controversial song lyrics and political views posted on his Facebook page.
Incredibly, police insisted that Raub was not in fact under arrest. Of course, Raub was under arrest. When your hands are handcuffed behind you, when armed policemen are tackling you to the ground and transporting you across town in the back of a police car, and then forcibly detaining you against your will, you’re not free to walk away.
If you do attempt to walk away, be warned that the consequences will likely be even worse, as Tremaine McMillian learned the hard way. Miami-Dade police slammed the 14-year-old boy to the ground, putting him in a chokehold and handcuffing him after he allegedly gave them “dehumanizing stares” and walked away from them, which the officers found unacceptable. According to Miami-Dade Police Detective Alvaro Zabaleta, “His body language was that he was stiffening up and pulling away… When you have somebody resistant to them and pulling away and somebody clenching their fists and flailing their arms, that’s a threat. Of course we have to neutralize the threat.”
As I point out in my book A Government of Wolves: The Emerging American Police State, this mindset that any challenge to police authority is a threat that needs to be “neutralized” is a dangerous one that is part of a greater nationwide trend that sets the police beyond the reach of the Fourth Amendment. Moreover, when police officers are allowed to operate under the assumption that their word is law and that there is no room for any form of disagreement or even question, that serves to chill the First Amendment’s assurances of free speech, free assembly and the right to petition the government for a redress of grievances.
Frankly, it doesn’t matter whether it’s a casual “show your ID” request on a boardwalk, a stop-and-frisk search on a city street, or a traffic stop for speeding or just to check your insurance: if you feel like you can’t walk away from a police encounter of your own volition—and more often than not you can’t, especially when you’re being confronted by someone armed to the hilt with all manner of militarized weaponry and gear—then for all intents and purposes, you’re under arrest from the moment a cop stops you.
That raises the question, what exactly constitutes resisting an arrest? What about those other trumped up “contempt of cop” charges such as interference, disorderly conduct, obstruction, and failure to obey a police order that get trotted out anytime a citizen engages in behavior the police perceive as disrespectful or “insufficiently deferential to their authority”? Do Americans really have any recourse at all when it comes to obeying an order from a police officer, even if it’s just to ask a question or assert one’s rights, or should we just “surrender quietly”?
The short answer is that anything short of compliance will get you arrested and jailed. The long answer is a little more complicated, convoluted and full of legal jargon and dissonance among the courts, but the conclusion is still the same: anything short of compliance is being perceived as “threatening” behavior or resistance to be met by police with extreme force resulting in injury, arrest or death for the resistor.
The key word, of course, is comply meaning to obey, submit or conform. This is what author Kristian Williams describes as the dual myths of heroism and danger: “The overblown image of police heroism, and the ‘obsession’ with officer safety, do not only serve to justify police violence after the fact; by providing such justification, they legitimize violence, and thus make it more likely.”
John Crawford was shot by police in an Ohio Wal-Mart for holding an air rifle sold in the store that he may have intended to buy. Oscar Grant, age 23, unarmed and lying face-down on the ground, was shot in the back by a transit officer in Oakland, Calif., who mistakenly used a gun instead of a taser to further restrain him. Ordered to show his hands after “anti-crime” police officers noticed him adjusting “his waistband in a manner the officers deemed suspicious,” 16-year old Kimani Grey was fired at 11 times, and shot seven times, including three times in the back. Reportedly, the teenager was unarmed and unthreatening.
Even dogs aren’t spared if they are perceived as “threatening.” Family dogs are routinely shot and killed during SWAT team raids, even if the SWAT team is at the wrong address or the dog is in the next yard over. One six-year-old girl witnessed her dog Apollo shot dead by an Illinois police officer.
Clearly, when police officers cease to look and act like civil servants or peace officers but instead look and act like soldiers occupying a hostile territory, it alters their perception of “we the people.” Those who founded this country believed that we were the masters and that those whose salaries we pay with our hard-earned tax dollars are our servants.
If daring to question, challenge or even hesitate when a cop issues an order can get you charged with resisting arrest or disorderly conduct, you’re not the master in a master-servant relationship. In fact, you’re not even the servant—you’re the slave.
This is not freedom. This is not even a life.
This is a battlefield, a war zone—if you will—governed by martial law and disguised as a democracy. No matter how many ways you fancy it up with shopping malls, populist elections, and Monday night football, the fact remains that “we the people” are little more than prisoners in the American police state, and the police are our jailers and wardens.
“As we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live by them.”—John F. Kennedy
Just in time for Memorial Day, we’re once again being treated to a generous serving of praise and grandstanding by politicians and corporations eager to go on record as being supportive of our veterans. Patriotic platitudes aside, however, America has done a deplorable job of caring for her veterans. We erect monuments for those who die while serving in the military, yet for those who return home, there’s little honor to be found.
While President Obama has now declared that he “will not stand” for the mistreatment of veterans under his watch, the time for words is long past. As Slate political correspondent John Dickerson observed, these inexcusable delays represent “a failure of one of the most basic transactions government is supposed to perform: keeping a promise to those who were asked to protect our very form of government.”
Then again, as I detail in my book A Government of Wolves: The Emerging American Police State, the government has been breaking its promises to the American people for a long time now, starting with its most sacred covenant to uphold and defend the Constitution. Yet if the government won’t abide by its commitment to respect our constitutional rights to be free from government surveillance and censorship, if it completely tramples on our right to due process and fair hearings, and routinely denies us protection from roadside strip searches and militarized police, why should anyone expect the government to treat our nation’s veterans with respect and dignity?
Indeed, in recent years, military servicemen and women—many of whom are decorated—have found themselves increasingly targeted for surveillance, censorship, threatened with incarceration or involuntary commitment, labeled as extremists and/or mentally ill, and stripped of their Second Amendment rights, all for daring to voice their concerns about the alarming state of our union and the erosion of our freedoms.
For example, a Department of Homeland Security (DHS) program dubbed Operation Vigilant Eagle tracks military veterans returning from Iraq and Afghanistan, and characterizes them as extremists and potential domestic terrorist threats because they may be “disgruntled, disillusioned or suffering from the psychological effects of war.” Since launching Operation Vigilant Eagle, the government has steadily ramped up its campaign to “silence” dissidents, especially those with military backgrounds. Coupled with the DHS’ dual reports on Rightwing and Leftwing “Extremism,” which broadly define extremists as individuals, military veterans and groups “that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely,” these tactics have boded ill for anyone seen as opposing the government.
An important point to consider, however, is that the government is not merely targeting individuals who are voicing their discontent so much as it is locking up individuals trained in military warfare who are voicing feelings of discontent. Under the guise of mental health treatment and with the complicity of government psychiatrists and law enforcement officials, these veterans are increasingly being portrayed as ticking time bombs in need of intervention. In 2012, for instance, the Justice Department launched a pilot program aimed at training SWAT teams to deal with confrontations involving highly trained and often heavily armed combat veterans.
Unfortunately, as we’ve seen in recent years, the problem with depicting veterans as potential enemy combatants is that any encounter with a military veteran can escalate very quickly into an explosive and deadly situation—at least, on the part of law enforcement.
For example, Jose Guerena, a Marine who served in two tours in Iraq, was killed in 2011 after an Arizona SWAT team kicked open the door of his home during a mistaken drug raid and opened fire. Thinking his home was being invaded by criminals, Guerena told his wife and child to hide in a closet, grabbed a gun and waited in the hallway to confront the intruders. He never fired his weapon. In fact, the safety was still on his gun when he was killed. The SWAT officers, however, not as restrained, fired 70 rounds of ammunition at Guerena—23 of those bullets made contact. Apart from his military background, Guerena had had no prior criminal record, and the police found nothing illegal in his home.
John Edward Chesney, a 62-year-old Vietnam veteran, was killed earlier this year by a SWAT team allegedly responding to a call that the Army veteran was standing in his San Diego apartment window waving what looked like a semi-automatic rifle. SWAT officers locked down Chesney’s street, took up positions around his home, and fired 12 rounds into Chesney’s apartment window. It turned out that the gun Chesney reportedly pointed at police from three stories up was a “realistic-looking mock assault rifle.”
Thankfully, Ramon Hooks’ encounter with a Houston SWAT team did not end as tragically, but it very easily could have. Hooks, a 25-year-old Iraq war veteran, was using an air rifle gun for target practice outside when a Homeland Security Agent, allegedly house shopping in the area, reported him as an active shooter. It wasn’t long before the quiet neighborhood was transformed into a war zone, with dozens of cop cars, an armored vehicle and heavily armed police. Hooks was arrested, his air rifle pellets and toy gun confiscated, and charges filed against him for “criminal mischief.”
Although no toy guns were involved in Brandon Raub’s case, his fact scenario is even more chilling, given that he was targeted for exercising his First Amendment rights on Facebook. The 26-year-old decorated Marine actually found himself interrogated by government agents about his views on government corruption, arrested with no warning, labeled mentally ill for subscribing to so-called “conspiratorial” views about the government, detained against his will in a psych ward for standing by his views, and isolated from his family, friends and attorneys.
On August 16, 2012, a swarm of local police, Secret Service and FBI agents arrived at Raub’s Virginia home, asking to speak with him about posts he had made on his Facebook page made up of song lyrics, political opinions and dialogue used in a political thriller virtual card game. Among the posts cited as troublesome were lyrics to a song by a rap group and Raub’s views, shared increasingly by a number of Americans, that the 9/11 terrorist attacks were an inside job.
After a brief conversation and without providing any explanation, levying any charges against Raub or reading him his rights, Raub was then handcuffed and transported to police headquarters, then to a medical center, where he was held against his will due to alleged concerns that his Facebook posts were “terrorist in nature.” Outraged onlookers filmed the arrest and posted the footage to YouTube, where it quickly went viral. Meanwhile, in a kangaroo court hearing that turned a deaf ear to Raub’s explanations about the fact that his Facebook posts were being read out of context, Raub was sentenced to up to 30 days’ further confinement in a psychiatric ward.
Thankfully, The Rutherford Institute came to Raub’s assistance, which combined with heightened media attention, brought about his release and may have helped prevent Raub from being successfully “disappeared” by the government. Even so, within days of Raub being seized and forcibly held in a VA psych ward, news reports started surfacing of other veterans having similar experiences.
That the government is using the charge of mental illness as the means by which to immobilize (and disarm) these veterans is diabolically brilliant. With one stroke of a magistrate’s pen, these service men are being declared mentally ill, locked away against their will, and stripped of their constitutional rights. Make no mistake, these returning veterans are being positioned as enemy number one.
Indeed, Raub’s case, a prime example of the government’s war on veterans, exposes the seedy underbelly of a governmental system that is targeting Americans—especially military veterans—for expressing their discontent over America’s rapid transition to a police state.
A federal judge actually dismissed Raub’s lawsuit challenging the government’s “Operation Vigilant Eagle” campaign and its increasing view of veterans as potential domestic terrorists as “far-fetched.” Yet what may sound far-fetched to the courts is a grim reality to Americans who are daily being targeted for daring to exercise their constitutional rights to speak their minds, criticize the government, and defend themselves and their families against over-reaching government surveillance and heavy-handed police tactics.
It’s ironic, isn’t it, that we raise our young people to believe that it is their patriotic duty to defend freedom abroad by serving in the military, then when they return home, bruised and battle-scarred and suddenly serious about defending their freedoms at home, we treat them like terrorists. Then again, perhaps it’s not so much ironic as it is tragic and pathetic—a sad tribute, indeed, to those willing to put their lives on the line.
“The First Amendment was intended to secure something more than an exercise in futility.”—Justice John Paul Stevens, dissenting in Minnesota Board for Community Colleges v. Knight (1984)
Living in a representative republic means that each person has the right to take a stand for what they think is right, whether that means marching outside the halls of government, wearing clothing with provocative statements, or simply holding up a sign. That’s what the First Amendment is supposed to be about.
Unfortunately, as I show in my book A Government of Wolves: The Emerging American Police State, through a series of carefully crafted legislative steps and politically expedient court rulings, government officials have managed to disembowel this fundamental freedom, rendering it with little more meaning than the right to file a lawsuit against government officials. In fact, if the court rulings handed down in the last week of February 2014 are anything to go by, the First Amendment has, for all intents and purposes, become an exercise in futility.
On February 26, the U.S. Supreme Court in a 9-0 ruling, held that anti-nuclear activist John Denis Apel could be prosecuted for staging a protest on a public road at an Air Force base, free speech claims notwithstanding, because the public road is technically government property.
Insisting that it’s not safe to display an American flag in an American public school, on February 27, the Ninth Circuit Court of Appeals ruled that school officials were justified when they ordered three students at a California public high school to cover up their patriotic apparel emblazoned with American flags or be sent home on the Mexican holiday Cinco de Mayo, allegedly out of a concern that it might offend Hispanic students.
On February 28, a federal court dismissed Marine veteran Brandon Raub’s case. Despite the fact that Raub was interrogated by Secret Service agents, handcuffed, arrested, subjected to a kangaroo court, and locked up in a mental facility for posting song lyrics and statements on Facebook critical of the government—a clear violation of his free speech rights—the court ruled that Raub’s concerns about the government were far-fetched and merited such treatment.
There you have it: three rulings in three days, from three different levels of the American judicial system, and all of them aimed at suppressing free speech. Yet what most people fail to understand is that these cases are not merely about the citizenry’s right to freely express themselves. Rather, these cases speak to the citizenry’s right to express their concerns about their government to their government, in a time, place and manner best suited to ensuring that those concerns are heard.
The First Amendment gives every American the right to “petition his government for a redress of grievances.” This amounts to so much more than filing a lawsuit against the government. It works hand in hand with free speech to ensure, as Adam Newton and Ronald K.L. Collins report for the Five Freedoms Project, “that our leaders hear, even if they don’t listen to, the electorate. Though public officials may be indifferent, contrary, or silent participants in democratic discourse, at least the First Amendment commands their audience.”
The challenge we face today, however, is that government officials have succeeded in insulating themselves from their constituents, making it increasingly difficult for average Americans to make themselves seen or heard by those who most need to hear what “we the people” have to say. Indeed, while lobbyists mill in and out of the White House and the homes and offices of Congressmen, the American people are kept at a distance through free speech zones, electronic town hall meetings, and security barriers. And those who dare to breach the gap—even through silent forms of protest—are arrested for making their voices heard.
This right to speak freely, assemble, protest and petition one’s government officials for a redress of grievances is front and center right now, with the U.S. Supreme Court set to decide five free speech cases this term, the first of which, U.S. v. Apel, was just handed down. The case was based upon claims brought by John Denis Apel, an anti-war activist who holds monthly protests at Vandenburg Air Force Base near Lompoc, California. While the Court did not uphold his conviction for trespassing on military property, they doubled down on the notion that the public is subject to the whims of military commanders in matters relating to use military property, even when it intersects with public property. The Court refused to rule on Apel’s First Amendment claims.
The Supreme Court is also set to decide McCullen v. Coakley, which will determine whether or not a Massachusetts law which restricts protests on public sidewalks near the entrances, exits, and driveways of abortion clinics in the state is constitutional. The facts of the case indicate that the law does not abide by a reasonable time, place, and manner restriction, and places an undue burden on protestors. However, it’s unclear which way the Court will rule, especially with their refusal to clarify matters in Apel.
Free speech can certainly not be considered “free” when expressive activities across the nation are being increasingly limited, restricted to so-called free speech zones, or altogether blocked, including in front of the Supreme Court’s own plaza. If citizens cannot stand out in the open on a public road and voice their disapproval of their government, its representatives and its policies, without fearing prosecution, then the First Amendment with all its robust protections for free speech, assembly and the right to petition one’s government for a redress of grievances is little more than window-dressing on a store window—pretty to look at but serving little real purpose.
The case of Harold Hodge is a particularly telling illustration of the way in which the political elite in America have sheltered themselves from all correspondence and criticism.
On a snowy morning in January 2011, Harold Hodge quietly and peacefully stood in the plaza area near the steps leading to the United States Supreme Court Building, wearing a 3’ X 2’ sign around his neck that proclaimed: “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.” There weren’t many passersby, and he wasn’t blocking anyone’s way. However, after a few minutes, a police officer informed Hodge that he was violating a federal law that makes it unlawful to display any flag, banner or device designed to bring into public notice a party, organization, or movement while on the grounds of the U.S. Supreme Court and issued him three warnings to leave the plaza. Hodge refused, was handcuffed, placed under arrest, moved to a holding cell, and then was transported to U.S. Capitol Police Headquarters where he was booked and given a citation.
According to the federal law Hodge is accused of violating, “It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.” The penalty for violating this law is a fine of up to $5,000 and/or up to 60 days in jail.
With the help of The Rutherford Institute, in January 2012, Hodge challenged the constitutionality of the statute barring silent expressive activity in front of the Supreme Court. A year later, in a strongly worded opinion, District Court Judge Beryl L. Howell struck down the federal law, declaring that the “the absolute prohibition on expressive activity [on the Supreme Court plaza] in the statute is unreasonable, substantially overbroad, and irreconcilable with the First Amendment.”
Incredibly, one day later, the marshal for the Supreme Court—with the approval of Chief Justice John Roberts—issued even more strident regulations outlawing expressive activity on the grounds of the high court, including the plaza. Hodge’s case, along with a companion case challenging the new regulations on behalf of a broad coalition of protesters, is now making its way through the appeals process. Ironically, it will be the justices of the U.S. Supreme Court who will eventually be asked to decide the constitutionality of their own statute, yet they have already made their views on the subject quite clear.
This desire to insulate government officials from those exercising their First Amendment rights stems from an elitist mindset which views “we the people” as different, set apart somehow, from the citizens they have been appointed to serve and represent. It is nothing new. In fact, the law under which Harold Hodge was prosecuted was enacted by Congress in 1949. In the decades since, interactions with politicians have become increasingly manufactured and distant. Press conferences, ticketed luncheons, televised speeches and one-sided town hall meetings held over the phone now largely take the place of face-to-face interaction with constituents.
Additionally, there has been an increased use of so-called “free speech zones,” designated areas for expressive activity used to corral and block protestors at political events from interacting with public officials. Both the Democratic and Republican parties have used these “free speech zones,” some located within chain-link cages, at various conventions to mute any and all criticism of their policies.
Clearly, the government has no interest in hearing what “we the people” have to say. Yet if Americans are not able to peacefully assemble for expressive activity outside of the halls of government or on public roads on which government officials must pass, the First Amendment has lost all meaning. If we cannot stand silently outside of the Supreme Court or the Capitol or the White House, our ability to hold the government accountable for its actions is threatened, and so are the rights and liberties that we cherish as Americans. And if we cannot proclaim our feelings about the government, no matter how controversial, on our clothing, or to passersby, or to the users of the world wide web, then the First Amendment really has become an exercise in futility.
George Orwell, always relevant to our present age, warned against this intolerance for free speech in 1945. As he noted:
The point is that the relative freedom which we enjoy depends of public opinion. The law is no protection. Governments make laws, but whether they are carried out, and how the police behave, depends on the general temper in the country. If large numbers of people are interested in freedom of speech, there will be freedom of speech, even if the law forbids it; if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them… The notion that certain opinions cannot safely be allowed a hearing is growing. It is given currency by intellectuals who confuse the issue by not distinguishing between democratic opposition and open rebellion, and it is reflected in our growing indifference to tyranny and injustice abroad. And even those who declare themselves to be in favour of freedom of opinion generally drop their claim when it is their own adversaries who are being prosecuted.
Marine veteran Brandon Raub is not the first veteran to be targeted for speaking out against the government. However, his case exposed the seedy underbelly of a governmental system that is targeting military veterans for expressing their discontent over America’s rapid transition to a police state. Hopefully, by holding officials accountable, we can ensure that Brandon is the last to suffer in this way.
That’s why attorneys for The Rutherford Institute have just filed a civil rights lawsuit against law enforcement and other government officials on behalf of Raub. Last August, Raub was arrested by a swarm of FBI, Secret Service agents and local police and forcibly detained in a psychiatric ward for a week because of controversial song lyrics and political views posted on his Facebook page. The complaint, filed in federal court in Richmond, alleges that Raub’s seizure and detention were the result of a federal government program code-named “Operation Vigilant Eagle” that involves the systematic surveillance of military veterans who express views critical of the government. Institute attorneys allege that the attempt to label Raub as “mentally ill” and his involuntary commitment was a pretext designed to silence Raub’s speech critical of the government and that the defendants violated Raub’s rights under the First and Fourth Amendments.
Since coming to Raub’s defense, The Rutherford Institute has been contacted by military veterans across the country recounting similar incidents. In filing a civil suit against government officials, Rutherford Institute attorneys plan to take issue with the manner in which Virginia’s civil commitment statutes are being used to silence individuals engaged in lawfully exercising their free speech rights.
On Aug.16, 2012, Chesterfield police, Secret Service and FBI agents arrived at Brandon Raub’s home, asking to speak with him about his Facebook posts. Like many Facebook users, Raub, a Marine who has served tours in Iraq and Afghanistan, uses his Facebook page to post song lyrics and air his political opinions. Without providing any explanation, levying any charges against Raub or reading him his rights, law enforcement officials handcuffed Raub and transported him to police headquarters, then to John Randolph Medical Center, where he was held against his will. In a hearing on Aug. 20, government officials pointed to Raub’s Facebook posts as the reason for his incarceration. While Raub stated that the Facebook posts were being read out of context, a Special Justice ordered Raub be held up to 30 more days for psychological evaluation and treatment.
In coming to Raub’s aid, Institute attorneys challenged the government’s actions as procedurally improper, legally unjustified, and in violation of Raub’s First Amendment rights. On Aug. 23, Circuit Court Judge Allan Sharrett ordered Raub’s immediate release, stating that the government’s case was “so devoid of any factual allegations that it could not be reasonably expected to give rise to a case or controversy.” In asking the United States District Court for the Eastern District of Virginia to acknowledge the harm done to Raub and to rectify the violation of his First, Fourth, Fifth, and Fourteenth Amendment rights, Institute attorneys are requesting that Raub be awarded damages for the harm caused by the deprivation of his constitutional rights.
“I love America more than any other country in this world, and, exactly for this reason, I insist on the right to criticize her perpetually.”—James A. Baldwin
Just in time for Memorial Day, we’re being treated to a generous serving of praise and grandstanding by politicians, corporations and others with similarly self-serving motives eager to go on record as being pro-military. Patriotic platitudes aside, however, America has done a deplorable job of caring for her veterans. We erect monuments for those who die while serving in the military, yet for those who return home, there’s little honor to be found.
Despite the fact that the U.S. boasts more than 23 million veterans who have served in World War II through Korea, Vietnam, the Gulf War, Iraq and Afghanistan, the plight of veterans today, while often overlooked, is common knowledge: impoverished, unemployed, lacking any decent health benefits, homeless, traumatized mentally and physically, struggling with depression, thoughts of suicide, marital stress.
Making matters worse, thanks to Operation Vigilant Eagle, a program launched by the Department of Homeland Security in 2009, military veterans returning from Iraq and Afghanistan are also being characterized as extremists and potential domestic terrorist threats because they may be “disgruntled, disillusioned or suffering from the psychological effects of war.” As a result, these servicemen and women—many of whom are decorated—are finding themselves under surveillance, threatened with incarceration or involuntary commitment, or arrested, all for daring to voice their concerns about the alarming state of our union and the erosion of our freedoms.
An important point to consider, however, is that the government is not merely targeting individuals who are voicing their discontent so much as it is locking up individuals trained in military warfare who are voicing feelings of discontent. Under the guise of mental health treatment and with the complicity of government psychiatrists and law enforcement officials, these veterans are increasingly being portrayed as ticking time bombs in need of intervention. In 2012, for instance, the Justice Department launched a pilot program aimed at training SWAT teams to deal with confrontations involving highly trained and often heavily armed combat veterans.
In the four years since the start of Operation Vigilant Eagle, the government has steadily ramped up its campaign to “silence” dissidents, especially those with military backgrounds. Coupled with the DHS’ dual reports on Rightwing and Leftwing “Extremism,” which broadly define extremists as individuals and groups “that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely,” these tactics have boded ill for anyone seen as opposing the government.
One particularly troubling mental health label being applied to veterans and others who challenge the status quo is “oppositional defiance disorder” (ODD). As journalist Anthony Martin explains, an ODD diagnosis
“denotes that the person exhibits ‘symptoms’ such as the questioning of authority, the refusal to follow directions, stubbornness, the unwillingness to go along with the crowd, and the practice of disobeying or ignoring orders. Persons may also receive such a label if they are considered free thinkers, nonconformists, or individuals who are suspicious of large, centralized government… At one time the accepted protocol among mental health professionals was to reserve the diagnosis of oppositional defiance disorder for children or adolescents who exhibited uncontrollable defiance toward their parents and teachers.”
The case of 26-year-old decorated Marine Brandon Raub—who was targeted because of his Facebook posts, interrogated by government agents about his views on government corruption, arrested with no warning, labeled mentally ill for subscribing to so-called “conspiratorial” views about the government, detained against his will in a psych ward for standing by his views, and isolated from his family, friends and attorneys—is a prime example of the government’s war on veterans.
Raub’s case exposes the seedy underbelly of a governmental system that is targeting Americans—especially military veterans—for expressing their discontent over America’s rapid transition to a police state.
On Thursday, August 16, 2012, a swarm of local police, Secret Service and FBI agents arrived at Raub’s home, asking to speak with him about posts he had made on his Facebook page made up of song lyrics, political opinions and dialogue used in a political thriller virtual card game. Among the posts cited as troublesome were lyrics to a song by the rap group Swollen Members and Raub’s views, shared increasingly by a number of Americans, that the 9/11 terrorist attacks were an inside job.
After a brief conversation and without providing any explanation, levying any charges against Raub or reading him his rights, law enforcement officials then handcuffed Raub and transported him first to the police headquarters, then to a medical center, where he was held against his will due to alleged concerns that his Facebook posts were “terrorist in nature.” Outraged onlookers filmed the arrest and posted the footage to YouTube, where it quickly went viral. Meanwhile, The Rutherford Institute came to Raub’s assistance, which combined with heightened media attention, may have helped prevent Raub from being successfully “disappeared” by the government.
In a hearing on August 20, government officials pointed to Raub’s Facebook posts as the sole reason for their concern and for his continued incarceration. Ignoring Raub’s explanations about the fact that the Facebook posts were being read out of context, Raub was sentenced to up to 30 days’ further confinement in a psychiatric ward. While in the psych ward, Raub reported being interrogated by medical staff about his views about the government and threatened by a doctor with brainwashing. Raub’s legal team, provided by The Rutherford Institute, immediately began petitioning the courts for his release.
On August 23, Circuit Court Judge Allan Sharrett declared the government’s case to be lacking in factual allegations and ordered Raub immediately released. However, for the tens of thousands of individuals detained—wrongfully or otherwise—under civil commitment laws every year, regaining their freedom is nearly impossible, predicated as it is on a bureaucratic legal and judicial system.
Within days of Raub being seized at his Virginia home on August 16, 2012, and forcibly held in a VA psych ward, news reports started surfacing of other veterans having similar experiences.
That the government is using the charge of mental illness as the means by which to immobilize (and disarm) these veterans is diabolically brilliant. With one stroke of a magistrate’s pen, these service men are being declared mentally ill, locked away against their will, and stripped of their constitutional rights. Make no mistake, these returning veterans are being positioned as enemy number one.
Given the government’s increasing view of veterans as potential domestic terrorists, it makes one think twice about a new Michigan law that adds a veterans designation on Michigan driver’s licenses and state IDs. Hailed by politicians as a way to “make it easier for military veterans to access discounts from retailers, restaurants, hotels and vendors across the state,” it will also make it that much easier for the government to identify and target veterans who dare to challenge the status quo.
Particularly telling is a training exercise for the Explorers program, which trains young people for careers in law enforcement, in which teenaged boys and girls dressed like quasi-SWAT teams and armed with pellet guns attempt to take down “a disgruntled Iraq war veteran [who] has already taken out two people, one slumped in his desk, the other covered in blood on the floor.” As a side note: this Explorers program, an extension of the Boy Scouts, is unnervingly similar to the Hitler Youth program used by the Nazis to indoctrinate young people into a police state mindset, chillingly documented by H.W. Koch in The Hitler Youth: Origins and Development 1922-1945.
This brings me back to present-day America, with its penchant for endless wars that empty our national coffers while fattening those of the military industrial complex. Does anyone else find it heartbreaking and ironic that we raise our young people on a steady diet of violence and military action, sell them on the idea that defending freedom abroad by serving in the military is their patriotic duty, then when they return home, bruised and battle-scarred and suddenly serious about defending their freedoms at home, we treat them like criminal suspects?
Brandon Raub understands this all too well. While still serving with the Marines in Afghanistan in November 2011, Raub put pen to paper in order to flesh out some of his concerns about the dismantling of freedom in America. His concerns echo those of countless Americans like myself dismayed at the nation’s descent into authoritarianism:
America has lost itself. We have lost who we truly are… They are controlling your media. They have dumbed you down through your school systems. They have systematically dismantled the constitution. It is in rags. The bill of rights is being systematically dismantled. Men have spilled their blood for those rights. Your sons and daughters, your brothers and sisters, and America’s best young men and women are losing their limbs. They are losing their lives. They are losing the hearts. They do not know why they are fighting. They are killing. And they do not know why. They have done some extraordinary acts. Their deeds go before them. But these wars are lies. They are lies. They deceived our entire nation with terrorism. They have gotten us to hand them our rights… We gave them the keys to our country. We were not vigilant with our republic. There is hope. BUT WE MUST TAKE OUR REPUBLIC BACK.
WASHINGTON, D.C. — The U.S. Supreme Court has refused to hear the case of decorated Marine Brandon Raub, who was seized by a swarm of Secret Service, FBI and local police officials and involuntarily committed to a mental institution for a week after posting controversial song lyrics and political views critical of the government on his Facebook page. In asking the Supreme Court to hear the case, Rutherford Institute attorneys were seeking to overturn lower court rulings dismissing the case, which characterized concerns over government suppression of dissident speech as “far-fetched.” In rejecting the appeal, the Supreme Court also refused to establish standards to guide and constrain mental health professionals when they seek to commit individuals and to prevent commitment on the basis of a person’s exercise of his right to free speech.
In coming to Raub’s aid, Rutherford Institute attorneys challenged the government’s actions as a violation of Raub’s First and Fourth Amendment rights. On Aug. 23, Circuit Court Judge Allan Sharrett ordered Raub’s immediate release, stating that the government’s case was “so devoid of any factual allegations that it could not be reasonably expected to give rise to a case or controversy.” Rutherford Institute attorneys filed a lawsuit in May 2013, challenging the government’s actions as procedurally improper and legally unjustified. In February 2014, a U.S. District Court judge dismissed the lawsuit, rejecting concerns over government suppression of dissident speech as “far-fetched.” On appeal to the Court of Appeals for the Fourth Circuit, Institute attorneys claimed that the Chesterfield County mental health screener who recommended Raub’s seizure and commitment failed to exercise reasonable professional judgment in wrongly determining that Raub was mentally ill and dangerous, and that Raub’s seizure and detention were the result of a mental health screener’s dislike of Raub’s “unpatriotic” views on federal government misconduct, thereby violating the ex-Marine’s First Amendment right to freedom of speech. The appeals court subsequently affirmed the lower court judgment.
Rutherford Institute Attorneys Present Oral Argument Before the 4th Circuit Court of Appeals in Defense of Marine Who Was Arrested & Locked Up in a Psych Ward for Criticizing the Government on Facebook
Marine veteran Brandon Raub is not the first veteran to be targeted for speaking out against the government. However, his case exposed the seedy underbelly of a governmental system that is targeting military veterans for expressing their discontent over America’s rapid transition to a police state. Hopefully, by holding officials accountable, we can ensure that Brandon is the last to suffer in this way.
The case of 26-year-old decorated Marine Brandon Raub—who was targeted because of his Facebook posts, interrogated by government agents about his views on government corruption, arrested with no warning, labeled mentally ill for subscribing to so-called “conspiratorial” views about the government, detained against his will in a psych ward for standing by his views, and isolated from his family, friends and attorneys—is a prime example of the government’s war on veterans.
John W. Whitehead, Constitutional Attorney 