The New York City Police Department now conducts random searches of bags on the Subway. There doesn't seem to be any legal precedent for such searches. Whether or not you believe this is a wise security precaution, I think there should be a public discussion of the meaning and purpose of the Fourth Amendment.
For your convenience, I'm providing files containing the text of the Fourth Amendment and a brief message. You can print it out, fold it, and carry it in your bag. The message is intentionally non-threatening, asking only that people discuss the meaning and purpose of the Fourth Amendment.
If you are afraid to carry such a piece of paper, you now understand the meaning of the phrase "chilling effect on speech."
If you are less graphically challenged than I am, and come up with variations of this idea, please send them to . Thanks to the person who sent me the PDF file.
On Saturday, July 24, I handed out copies of the flyer to my fellow subway riders. I walked up to people and asked "Would you like a copy of the Fourth Amendment to carry in your bag?" Outside a subway entrance in Jackson Heights, a neighborhood with a large immigrant population, nobody took my flyer. On the number 7 (Flushing Line) a young black man grinned and took it, while whites and those who appeared hispanic or asian or middle eastern declined. I was more successful on Manhattan's upper west side, known for its well educated upscale population. A few people were delighted to receive it, but I got one strange response from a white couple: the man replied "I sometimes carry the Constitution, but I won't carry just the Fourth Amendment." I wonder whether he confused it with the second amendment, guaranteeing to the right to bear arms. Anyone planning to repeat my experiment should add a phrase identifying the amendment, such as "the one regulating searches."
I found the experience exhilarating. I expected some hostile replies, but got either blank stares or polite responses in every case. I'm interested in hearing about your experiences.
One other thing happened as a result of handing out the flyer: I decided to get off my butt and join the ACLU.
John Gilmore explains better than I can:
You may have no secrets and no vices. But is everyone close to you a similar paragon? You have no siblings who are secret adulterers, no kids who have stolen from the neighbors, no college friends who support themselves selling drugs, no co-workers who beat their wives when they get drunk, no gay friends who would suffer if "outed"? No ex-roommates who ever donated to a Muslim charity? You haven't attended a Passover celebration? Your TV wasn't tuned to the Pope's last speech? Your kids don't hang around with the kids of people who went to anti-government or anti-globalization protests? You never attended an engineering school at the same time as a suspected terrorist? Some of these things shouldn't need to be secrets, but in various societies, each has been enough to get you locked up, discriminated against, killed, or exiled. What secrets do you have to hide for those who you love? Or for those you merely brushed up against in society?
-- John Gilmore
The critical question before the Committee was to determine how the fundamental liberties of the people can be maintained in the course of the Government's effort to protect their security. The delicate balance between these basic goals of our system of government is often difficult to strike, but it can, and must, be achieved. We reject the view that the traditional American principles of justice and fair play have no place in our struggle against the enemies of freedom. Moreover, our investigation has established that the targets of intelligence activity have ranged far beyond persons who could properly be characterized as enemies of freedom and have extended to a wide array of citizens engaging in lawful activity.
-- Introduction to Book II of the Church Committee final report on Intelligence Activities and the Rights of Americans (1976).
The following essay is a rant. It is evolving as I think the issues through. It was last revised on August 8, 2005.
The original reason for the Bill of Rights was to protect citizens from their own government. Today, that danger may seem remote, but each time this country has gone to war, a real threat has been used as a justification by the government to turn against its own citizens. The "emergency powers" seized by our government lasted longer than the threat and were difficult to remove.
In 1798, Congress passed the Alien and Sedition acts, discussed here. After the First World War, we had the sedition act of 1918, which made it illegal to speak out against the government. During the Second World War, we interned U.S. citizens of Japanese descent and confiscated their property. In the 1950's and 1960's we had Senator McCarthy's witch hunts.
Remember the 1960s and 1970s? We had a paranoid president, police riots in Chicago, and an FBI that ran an intelligence operation called Cointelpro against our own citizens. This wasn't the invention of conspiracy theorists -- it was fully documented in the Church Report quoted above. You can read the Church committee reports on Cointelpro at cointel.org, or read this discussion or you can just look at this old cartoon by Cobb to get the feel of what I'm afraid of.
Following the 1985 Consent Degree that settled the Handschu case, a judge monitored the New York City police department to prevent such abuses from happening again. That monitoring was relaxed in 2003, shortly before the invasion of Iraq, and the police department immediately began filming legally demonstrating citizens again. [I'm proudly on film, holding a sign saying "Who rules Iraq next?"] Now the Patriot Act has institutionalized the process of domestic intelligence gathering -- not just against external threats, but against vocal critics of the government in churches, libraries, and on the streets.
The parallels between these past events and the current administration's response to terrorism frighten me -- and that's why I handed out flyers of the Fourth Amendment on the subway and joined the ACLU. I'm not unconditionally opposed to random searches, but I fear my own government and feel I must act as a counter-weight to the excesses being committed in my name. My country, as a matter of policy, now commits torture: the U.S. Attorney General's office wrote memos redefining 'torture' to evade the law. Using the euphemism "extraordinary rendition," it secretly kidnaps and delivers people to countries where they will be tortured, as described in this London Times article or in this piece in The New Yorker. It detains people indefinitely without charges, access to council, or trial, lies about its reasons for going to war, and then threatens those who, like Ambassador Wilson, expose those lies.
They only way I can stop it is to remind people of their rights, and personally demonstrate that people can speak out in this society.
My experience has made me interested in other, more scientific surveys of attitudes towards the bill of rights.
A study commissioned by the John S. and James L. Knight Foundation polled more than 100,000 students, nearly 8,000 teachers and more than 500 administrators at 544 public and private high schools in early 2004.
"... When told of the exact text of the First Amendment, more than one in three high school students said it goes "too far" in the rights it guarantees. Only half of the students said newspapers should be allowed to publish freely without government approval of stories.
"Three in four students said flag burning is illegal. It's not. About half the students said the government can restrict any indecent material on the Internet. It can't.
The text of the study is available from http://www.firstamendmentfuture.org/.