Cautionary Tales?
Freedom Spent.
by Richard Harris.
Little, Brown. 460 pp. $12.95.
The dust-jacket of Freedom Spent bears the subtitle, “Tales of Tyranny in America,” and the tone of the work is set in the prologue: “Congress is today blind to the people’s needs, the Presidency contains the power to bring about a personal form of despotism, and the judiciary nearly always serves the interest of the state rather than its citizens.” After reading this and other equally astonishing statements in the prologue, one might expect something like a Gulag Archipelago tour of the torture chambers of the FBI and the death camps of North Dakota. But what I actually find in Harris’s three “Tales of Tyranny” is one clear and two debatable examples of injustice and harassment, in two of which the protagonists were vindicated by that judiciary which “nearly always serves the interest of the state rather than its citizens.” In one the harassed citizen received substantial compensation for the wrong done him, and in another a suit for more than adequate damages—a round million dollars—is pending, with what I judge to be a fair chance of success.
Let us examine briefly the three examples of what Mr. Harris regards as tyranny.
In case number 1, “A Scrap of Black Cloth,” Charles James, a Methodist minister turned Quaker and teacher of high-school English, wore to class a black armband as a protest against the Vietnam war. He was told by the principals of the high school and the school district not to wear it in a class again but insisted on doing so. After some discussion and hesitation, the school board fired him, on the ground that “political acts” are prohibited in the public schools.
Ultimately the United States Court of Appeals for the Second Circuit, applying what Harris calls the “obnoxious” clear-and-present-danger test of Justice Holmes (i.e., under the First Amendment, expressions of opinion can be forbidden only if there is a clear and present danger that they will bring about substantive evils that the government has a right to prevent), held that James’s right to free speech outweighed whatever danger there was of improper political indoctrination of the students. After three years of casual employment—including teaching—and a period on welfare, he got his job back, though he lost it again a year later. He settled his suit against the school authorities for $56,000.
The core issue, of course, is whether the First Amendment commands that a teacher be allowed symbolically to express his political opinions to a captive audience of eleventh-graders, and it does not seem as simple to me as it does to Mr. Harris. The ACLU, at least, saw the issue very clearly: “[I]f you allow someone to wear an armband, where do you stop? Do you then have to let others wear swastikas . . . ?” It is extremely unlikely that the ACLU would in fact have come to James’s rescue if he had worn a scrap of black, white, and red cloth with a swastika; their problem was to insist on “free thought for those who agree with us” without conceding “freedom for the thought that we hate” (Holmes again). But the First Amendment fails to distinguish between nice and nasty opinions, and the difference between James’s armband and the Nazi variety is perhaps not so obvious as Mr. Harris seems to assume. The practical effect of James’s armband, though he probably did not realize it, was to express support for ugly totalitarian regimes which have, since their triumph, been responsible for deaths and brutal concentration camps on a scale worthy of Hitler and Stalin.
On balance, I think the Second Circuit was right in holding that it was unconstitutional to fire James for a comparatively unobtrusive effort to indoctrinate his eleventh-graders. But the question is not open-and-shut, and, considering all the circumstances, including the cash compensation for James’s hardships, his case does not raise my blood temperature to the boiling point.
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The second tale concerns a couple of tiresome but harmless radicals, Mr. and Mrs. McSurely, who were attempting to bring the Marxist-Leninist gospel to the unreceptive mountaineers of Appalachia. (Mr. Harris quotes their naive fulminations at unnecessary length, an unfortunate habit that mars his otherwise admirable ability to tell a story.) At the instigation of a local prosecutor then running (unsuccessfully) for Lieutenant Governor, they were arrested, their house searched, and all their papers seized, on a charge of violating Kentucky’s anti-sedition statute. (Apparently theirs was the second prosecution under that statute in the nearly half a century it had been on the books.) After a week in the Pike County jail, they were freed by a federal court which held the sedition law unconstitutional on its face, as plainly it was, and ordered their papers returned.
But the papers, which had been examined while in the possession of the state authorities, contained letters and a diary showing that Mrs. McSurely had been the mistress of Drew Pearson. Among those who saw the papers was an assistant to Senator John L. McClellan (D., Ark.); McClellan evidently perceived an opportunity to give Pearson (who had embarrassed many Congressmen in many ways, among them the publication of stolen letters) a horse doctor’s dose of his own medicine. He caused his Permanent Subcommittee on Investigations, which was supposed to be investigating the causes of the riots of the late 60’s, to subpoena the McSurelys’ documents. They refused to hand over the papers and were cited by the Senate for contempt of Congress; ultimately the United States Court of Appeals for the District of Columbia Circuit reversed their conviction. As noted above, they are presently suing the members of the Senate subcommittee and its counsel for a million dollars, with a fair chance of collecting at least part of that sum. All in all, the case clearly represents an invasion by various politicians, some of them unscrupulous, of the McSurelys’ Fourth Amendment right to be free from unreasonable search and seizure.
Although the “exclusionary rule,” which forbids the use in criminal prosecutions of evidence obtained in violation of the defendant’s constitutional rights, was not involved in the McSurelys’ case, Mr. Harris throws in a longish essay defending it. He concedes that it does little to deter police lawlessness, for it punishes the public (by turning loose criminals who would be convicted if the evidence were admissible) rather than the police, but argues that, weak as it is, it is the only way to enforce the Fourth Amendment. The argument is largely based on a gross error of law. Mr. Harris assumes that people whose constitutional rights are violated by law enforcers have no chance of collecting damages from the government. But more than two years ago Congress amended the Federal Tort Claims Act to make the government liable for assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution by investigative or law-enforcement officers of the United States. Trespass and intentional invasion of privacy were already actionable under the statute. Such liability may do no more than the exclusionary rule to deter misconduct, but it seems to me a better way to enforce the Bill of Rights than leaving predators at large.
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Mr. Harris’s last exercise in martyrology, “Taking the Fifth,” deals with a pair of young women named Ellen Grusse and Terri Turgeon who lived in an ambience of militant feminism, lesbianism, and more or less radical rhetoric. Grusse and Turgeon were innocuous enough, but some of their acquaintances may not have been. Two women, Susan Saxe and Katherine Power, whom they may or may not have known, were certainly guilty of bank robbery and possibly of murder and were, not unreasonably, the objects of an intensive search by the FBI. Questioned by agents of the Bureau, Grusse and Turgeon refused to give any answers. Thereafter they were subpoenaed by a federal grand jury and were granted immunity from prosecution based on any self-incriminating statement they might make. They still refused to answer any questions, each claiming her privilege under the Fifth Amendment not to be “compelled in any criminal case to be a witness against [her]self.” Judge Jon Newman of the United States District Court in Connecticut ordered them imprisoned for contempt until they decided to tell whatever they knew about the fugitives. They spent a little more than seven months in a prison cottage, until the term of the grand jury expired, and never answered the questions.
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There are substantial issues, which Mr. Harris argues at some length, concerning the use of grand juries as investigatory bodies, and concerning the constitutionality of the federal and state immunity statutes. But those issues were not clearly presented by this case. As Mr. Harris honestly says: “The primary question in the case—whether Turgeon and Grusse knew anything about Saxe and Power that might have helped the government in its search for them—can be answered only by the four women, perhaps their lawyers, and possibly some close friends.” Miss Turgeon herself says, “We haven’t committed any crime.” If that is so, their claim that their testimony might incriminate them was simply untrue, and there was no question of violating their Fifth Amendment rights. Their real reason for refusing to testify seems to have been unwillingness to appear in the role of informers. “Given the intense loyalty of the women’s movement,” says Mr. Harris, “any act of this kind would surely have closed all doors to the sanctuary that Grusse and Turgeon had found at last.” If one remembers that they were being asked to help in the capture of people accused of robbery and murder, this seems an inadequate reason.
What Mr. Harris appears to be arguing is that the Fifth Amendment confers not only a right not to testify against oneself, but a right not to testify against anyone else. Nothing in the language or the history of that amendment supports any such construction. It is true, as Mr. Harris irrelevantly points out, that “the duties of citizens are nowhere mentioned in the Constitution.” But neither does the Constitution provide that people may be punished for murder. It left such questions to the legislature and the courts, as it left the question of the citizen’s duty to tell what he knows about crimes committed by other people. If Grusse and Turgeon could not have subjected themselves to criminal prosecution by telling what they knew, there was no violation at all of their constitutional freedom.
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Mr. Harris’s three tales certainly do not show our state and federal governments at their wisest and best. In two of them, at least, there was unjust harassment of citizens, though they were vindicated in the end. But they certainly do not prove Mr. Harris’s thesis that in reality, despite the empty promises of the Bill of Rights, the citizens of the United States have no more personal freedom than those of despotisms. In about three-quarters of the world, Mr. Harris’s protagonists would have been lucky to get off with ten or twenty years in a corrective labor camp; there would have been no question of vindication or compensation for unjust treatment. What Freedom Spent really proves is that the Constitution of the United States works tolerably well and oftener than not manages to strike a reasonable balance between the laws of the majority and the rights of dissenters.
