DEFENDING THE BOAT ROCKERS

The chill of late December pierces the skin as sunrise waits. Four figures pass without detection into a military base, carrying hammers inscribed with biblical phrases, baby bottles filled with their blood, and a huge wooden rosary. They begin to hammer on two warplanes, one with the rosary now hung from its nosecone, intending on beating swords into plowshares. They pour their blood on the planes, symbolizing the blood of Jesus. They keep hammering away. They've hung a banner from one of the planes, and have left leaflets decrying these planes and the depleted uranium bullets that they fire. Military security takes awhile to arrive.

These are the Plowshares radical peace activists -- Susan Crane, Stephen Kelly, Elizabeth Walz, and Philip Berrigan. They heed not any warnings against rocking the boat. That is not what life is about for them.

Nor is it what I am about. The unrocked boat will keep the passengers drier, safer and more comfortable, but the trip will be blander, and likely will have accomplished less.

Countless boat rockers cry out for vigorous legal defense. They are radical activists, allegedly obnoxious students, libel defendants, obscenity defendants, and adult entertainment industry members. Some are loveable, some not. Defending their rights is exhilarating and reaffirms the very reasons we became lawyers in the first place.

The Plowshares were my first boat rocking clients. They and Plowshares activists worldwide target selected armaments, then hammer on them, and pour their blood on them. Like the Catonsville Nine, who waited around to be arrested, they expect to be arrested, and do not try to avoid arrest. Their trials can become a second effort to spread their message of peace. Sometimes they get acquitted; sometimes they get harshly sentenced.

With radical activists, an acquittal is not necessarily the primary goal. Getting their message out to the jury and the public often is their paramount interest. With that in mind, I resolved during the Plowshares case to take a page from George Costanza, by doing the opposite of my ordinary inclinations with criminal defense clients. As a result, my co-counsel Ramsey Clark, Anabel Dwyer and I did not file bond reduction motions, did not advise anybody to remain silent, and did not try to get our clients back in their seats once they put the brakes on their participation in the trial after the judge sustained every question I asked of our depleted uranium expert, other than getting his name, rank and serial number. Our clients did not want to do otherwise, and they admitted their actions from the very beginning, while denying that their actions were criminal, and while asserting that their actions were as just as the Underground Railroad members who helped free slaves. Meanwhile, our efforts obtained a pretrial dismissal of the sabotage charges and a dismissal of the trespass charges during the motion for judgment of acquittal. This reduced the defendants' sentencing exposure by twenty years.

When representing boat rockers, we can come up against kangaroo quasi courts. That can be particularly true when representing students for disciplinary matters. On the university front, matters of political correctness, administrative overreaching, and just plain myopia often railroad students through Star Chambers whose results can lead to expulsion, suspension, and probation, all of which can severely damage a student's career and graduate school prospects.

A case in point is an American University junior I represented after he was manhandled by university security and then hauled before a secret disciplinary tribunal for taping Tipper Gore's on-campus speech and for refusing to hand over the tape to plainclothes purported security, even though the only public warning was to refrain from flash photography, when my client had no flash. The defendant had no real procedural or substantive due process. The campus judicial office enforced the university discipline code's refusal to allow the presence of an attorney representative at the hearing, even though the Star Chamber tribunal consisted of the head of the university's judicial office (an attorney), her law clerk, and another student, and even though the complainant public safety office was represented by a law student. After several hours of testimony, argument and deliberation, the panel rubber-stamped just about all allegations, including allegations of creating a danger to campus safety and theft (despite uncontroverted testimony of a copyright law professor showing that the alleged action was not theft, and not even a violation of copyright law).

Such university Star Chambers are more often the reality than we might imagine. We can make a difference to reverse this situation. We can review our alma maters' disciplinary codes, and can insist that the codes be overhauled. We can call our local university student counsels' offices to offer our pro bono representation for the legions of defendants hauled before these Star Chambers. We can volunteer our time to the Foundation for Individual Rights in Education (www.thefire.org), which matches pro bono lawyers to students and professors who are denied even fundamental fairness in disciplinary proceedings.

High school disciplinary proceedings can also be Star Chambers, where zero tolerance often rules the day, and where acting any differently than a Stepford child can bring on disciplinary charges. Once again, lawyers for justice can help smoothe this uneven playing field by singing from the rooftops that they will do their share of pro bono work for these disciplined students. Lawyers who take on student discipline cases pro bono can turn to the FIRE and me for brainstorming.

School, of course, is not the end of oppressive tribunals. Many litigants freely and excessively bring libel charges, whether as individual lawsuits, or as sideshow counts or counterclaims. Although true defamation can cause real harm, it is not possible to permit libel suits without weakening the First Amendment at the same time. Moreover, libel suits are often used by the mighty to silence the underdog; witness the SLAPP suits that corporations repeatedly bring against such activists as the animal rights crusaders. We as lawyers can fight back. We can tell our potential clients, as I do, that we will not bring libel causes of action, even if a libel claim were to be a sideshow count or part of a counterclaim. We can band together with libel defense attorneys by joining the Libel Defense Resource Center (www.ldrc.com). We can talk to our colleagues to sensitize them that permitting libel suits puts an unacceptable strain on the First Amendment.

People can face threats to their First Amendment rights even when they are not defaming anybody. That's the case with obscenity prosecutions. Nobody knows what material is obscene until the jury says it is obscene. That ambiguity alone chills free expression and makes our society more plain vanilla than it ever should be. One of my favorite poems, Allen Ginsberg's "Howl" was the subject of an obscenity prosecution only a few decades ago. Although the First Amendment ultimately prevailed, it was at a high price, likely chilling the very distribution of "Howl" until the resolution of this case.

Today, obscenity suits focus more on visual images. Until George H.W. Bush was voted out of office, the federal government spiritedly prosecuted obscenity, often leading to long prison terms. The Clinton administration did an about face and barely prosecuted any obscenity cases, preferring to focus on child pornography and adults seeking out sex with minors. The George W. Bush administration continues on a similar path, but for how long?

State-level obscenity prosecutions continue. Fortunately, many prosecutors refrain from bringing many such suits, for fear that juries will decline to convict. Obscenity suits can be won on the facts. The more that the allegedly obscene material can be shown as a potential aid to putting spark back into a marital relationship the more a jury might be willing to acquit, by finding that the material has socially redeeming value. If the allegedly obscene material is nothing that could arouse a married couple, the defense lawyer might argue that the material, therefore, does not appeal to the prurient interest, and thus does not satisfy that essential prong of the definition of obscenity.

Criminal proceedings are not the only arena where governments go to try to limit adult entertainment. Legions of municipal regulations try to put adult entertainment businesses out of business under the guise of traditional zoning practices, and enforcement of public safety codes. The Supreme Court has not helped matters much, by creating the Orwellian concept that First Amendment rights are not violated so long as a municipality (1) reasonably relies on studies – even unscientific, selectively chosen, and barely applicable studies – showing negative secondary effects of adult entertainment and (2) permits for adult entertainment to be provided in alternative locations, even if the cost of operating in the new location means lost business through geographical uprooting, and extraordinarily higher space costs that can result from being forced to no man's lands and to places where the only rentable space is an industrial building many times the size that is needed.

Fortunately, municipalities can make substantial mistakes in enacting and enforcing ordinances geared towards eliminating adult video stores, theaters, and exotic nightclubs. The best place to put the brakes on such ordinances is before the ordinance ever becomes law. When that fails, often it is best to engage in proactive litigation than to wait for enforcement action to start. Even if the municipality prevails, adult video stores, at least, can often find ways to adapt their store inventory and layout to avoid having to close or relocate, but often at a high price. However, the same flexibility is not as available to adult nightclubs and theaters.

Boat rockers are not always the most popular people and businesses on the block. However, without boat rockers, we would not have the Declaration of Independence, the end of official segregation, and the reversal of centuries of gender discrimination. Besides, practicing law should have nothing to do with being popular.

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