Eliot Lee Grossman
An expanded version of a speech delivered at a public forum on “Cops vs. Free Speech” organized by the Labor Action Committee to Free Mumia Abu-Jamal at La Peña Cultural Center, Berkeley, California, on 5 December 2014. Eliot Lee Grossman was a member of Mumia’s legal team in 2001 when they convinced a federal judge in Philadelphia to overturn Mumia’s death sentence.[1]
On October 5, 2014, radical journalist and political prisoner Mumia Abu-Jamal, delivered the commencement address to the Fall graduating class at Goddard College in Vermont via a telephone call from his cell at a Pennsylvania state prison recorded by Prison Radio. In that address, after sharing memories from his own years as an undergraduate at Goddard in the 1970s, Mumia noted the college’s fame for its “non-traditional” teaching methods derived from the work of the esteemed American philosopher, psychologist and educational reformer, John Dewey, and quoted Dewey’s observation that “Education is not preparation for Life. It is Life itself.” Mumia then said:
“Dear graduates, never have words such as these been truer to the hour that is upon us. For the nation is in deep trouble – largely because old thinking, both domestically and globally, has led us into the morass that the nation now faces. Which may be encapsulated by references to place names that ring in our minds: Gaza, Ferguson, and Iraq – again! These are some of the challenges that abide in the world, which it will be your destiny to try to analyze and resolve …”
Referencing the importance of Paulo Freire’s educational theories in Freire’s groundbreaking work, Pedagogy of the Oppressed, Mumia went on to say:
“We need new questions for the world of the 21st Century. But more importantly we need new answers. We live in a world where massive wars can be launched by rumors and innuendo. Where the material interests of corporations are superior to the interests of working people, and remember – corporations are people – so sayeth the Supreme Court. Where the ecological threats to fresh water supplies, clean air, and the environment in American cities, poses challenges that seem beyond arcane.”
After speaking of his own intellectual growth at Goddard, and in later continuation of his studies at-a-distance while on Death Row, Mumia concluded his commencement address with the following advice and challenge for the new graduates:
“Your job isn’t how to get a job. It’s to make a difference.… Now take what you know and apply it in the real world. Help be the change you’re seeking to make.”
While Mumia’s right to give this speech, and his audience’s right to hear it, should clearly be protected from governmental interference under the First and Fourteenth Amendments to the United States Constitution, Fox News and other “mainstream” media viciously attacked Goddard for inviting Mumia to deliver the address, the Fraternal Order of Police tried to force the college to withdraw its invitation, Goddard’s administration received numerous death threats, and 20 police officers picketed the graduation ceremony.[2] Rather than follow Voltaire’s maxim “I disagree with what you say, but will defend to the death your right to say it,” these self-proclaimed guardians of democracy “American-style” evidently adhere to the principle “I disagree with what you say and will defend to the death my right to keep you from saying it.”
These forces of reaction, together with cynical and opportunistic politicians, pushed through the Pennsylvania state legislature, by a vote of 197-0 in the House and 37-11 in the Senate, a new law specifically designed to silence Mumia and generally designed to keep any Pennsylvania prisoner from having any media or internet access to express their opinions on any matter of public concern or any possibility of publishing or being quoted in a book, newspaper or magazine article, or otherwise speaking out on any issue in any manner.[3]
This new legislation was gleefully signed into law by Pennsylvania Governor Tom Corbett on October 21, 2014,[4] just 16 days after Mumia delivered his commencement address. It is is officially titled the “Revictimization Relief Act,[5] but since this is a euphemistic neologism whose purpose is to obfuscate the true nature of the law, I shall refer to it by the term with which it is accurately described by its many critics, namely the “Anti-Mumia Gag Law.”
The Anti-Mumia Gag Law takes effect immediately. It amends Pennsylvania’s Crime Victims Act[6] to add a new Section 1304 which provides that a “victim of a personal injury crime” (defined as the direct victim or their family members in the case of a homicide) may sue the “offender” who committed the crime for any “conduct which perpetuates the continuing effect of the crime on the victim,” including “conduct which causes a temporary or permanent state of mental anguish” and may seek damages and injunctive relief[7]. The law further provides that the district attorney of the county in which the crime took place, or the state attorney general, may also file such a lawsuit. Had this law been in effect before Mumia gave his commencement address, Maureen Faulkner, the widow of Police Officer Daniel Faulkner, whom Mumia was wrongfully convicted of killing, or the District Attorney or Pennsylvania Attorney General, could have requested a court order to prohibit him from delivering the speech and/or prohibiting Prison Radio from recording and broadcasting it. Or they could have sued Mumia for money damages for any “mental anguish” suffered by Faulkner as a result of Mumia giving the address.
Mumia has issued a statement, broadcast by Prison Radio, in which he denounces Governor Corbett, and the Pennsylvania legislators who voted for the new law, as the real “outlaws” because the Governor’s signature on a clearly unconstitutional bill proves that they, in Mumia’s words, “don’t give one whit about their own constitution of the Commonwealth of Pennsylvania, nor the United States Constitution.”[8]
On November 10, 2014, Mumia, two other Pennsylvania prisoners who are prolific writers and human rights activists, Robert L. Holbrook and Kerry Shakaboona Marshall, Prison Radio, the Human Rights Coalition, and Educators for Mumia filed a lawsuit in the United States District Court for the Middle District of Pennsylvania requesting the law be invalidated under the freedom of speech provisions of the First and Fourteenth Amendments to the United States Constitution and Article 1, § 7 of the Pennsylvania Constitution. They are represented by attorneys from the Abolitionist Law Center in Pittsburgh, the Amistad Law Project in Philadelphia, and a professor at Northwestern University School of Law in Chicago.
Before we proceed to analyze the legal issues raised by the Anti-Mumia Gag Law we should first consider the rhetorical context within which it was enacted. The “mainstream” media refers incessantly to Mumia as “convicted cop-killer Mumia Abu-Jamal” as if that were some kind of official title for him. They could refer to him, instead, as “award-winning journalist Mumia Abu-Jamal,” or “radical journalist Mumia Abu-Jamal,” or “wrongfully-convicted political prisoner Mumia Abu-Jamal,” or “honorary citizen of Paris, Mumia Abu-Jamal,” or just “Mumia Abu-Jamal,” but they persist in hanging “convicted cop killer” around his neck to poison public opinion against Mumia, dehumanize him, and delegitimize his counter-hegemonic discourse.
Mumia has insisted on his innocence ever since his frame-up trial and continues to do so up to this very day. When Chicago attorney Marlene Kamish, London Barrister Nick Brown, Philadelphia lawyer Michael J. Farrell, Chicago paralegal and community organizer Tracy Kostenbader, and I had the honor of representing Mumia in post-conviction proceedings in state and federal court, he wrote and signed a declaration under penalty of perjury specifically proclaiming his innocence and giving his account of the events which left him shot and seriously wounded and Police Officer Daniel Faulkner dead.
Although the courts have never given serious consideration to any of the evidence that proves that Mumia is innocent, including the confession of another man, Arnold Beverly – who says that he, and not Mumia, shot Officer Faulkner – the prosecution’s theory of the case, and the so-called “evidence” they used to construct their frame-up, have been thoroughly discredited over the years that have passed since Mumia’s trial.
There is inadequate space within this article to analyze the frame-up or prove that Mumia is innocent, but there is a wealth of material available in print and on the internet which does so. See, for example, International Bolshevik Tendency, The Case of Mumia Abu-Jamal; Wolkenstein, “The Fight to Free Mumia”; Grossman, “From Sacco and Vanzetti to Mumia Abu-Jamal: Is Innocence Irrelevant?”. There is also an excellent documentary film about Mumia’s case by Stephen Vittoria, Manufacturing Guilt.
The lawsuit brought against the Anti-Mumia Gag Law by Mumia and his fellow plaintiffs charges that this law directly violates their rights to freedom of speech as well as being “vague” and “overbroad.”
If a law is so “vague” that persons “of common intelligence must necessarily guess at its meaning,” it violates the “due process” clause of the Fourteenth Amendment because it fails to provide adequate notice of what the law prohibits.[9] Pennsylvania’s “Anti-Mumia Gag Law” is impermissibly “vague” because it presumes to regulate any conduct by an “offender” that causes “mental anguish” to their “victim,” but it is impossible to know beforehand all of the possible conduct on their part which might have such a consequence, particularly conduct unrelated to the crime they committed against the victim. An “offender” would have no way to comply with the new law because they could never know what innocent or innocuous conduct might cause mental anguish to their particular “victim.”
There are existing “tort” laws which provide that someone who negligently causes emotional distress to another may be sued and that someone who intentionally causes emotional distress to another by “extreme” and “outrageous” conduct may be sued, but the Anti-Mumia Gag Law does not require “negligence” or “extreme and outrageous” intentional conduct. The Anti-Mumia Gag Law imposes strict liability for any conduct by an “offender” which causes mental anguish to their “victim” regardless of whether or not the “offender” acts negligently or intentionally engages in conduct which is extreme and outrageous.
While it would be reasonable to assume that extreme and outrageous conduct would cause emotional distress to the person against whom it is directed, and that careless or negligent conduct would cause mental anguish to someone who would be a foreseeable object of such conduct, there is no way for an “offender” to reasonably foresee what conduct on their part, unrelated to their crime, would be likely to cause emotional distress or mental anguish to their victim. The Anti-Mumia Gag Law is, therefore, too “vague” to provide adequate notice as to what conduct it prohibits and what conduct it permits.
Since any conduct by an “offender” might possibly cause mental anguish to their “victim” the law is also impermissibly overbroad. As the Harrisburg Patriot newspaper notes in an editorial critical of the new law: “Some victims of terrible crimes will be in a ‘state of mental anguish’ as long as the person who did it to them is alive and breathing. Does ‘breathing’ qualify as ‘conduct’ that’s now subject to court action?”[10]
The legal test to determine whether a law is impermissibly “overbroad” is whether it is likely to be applied in a substantial number of cases to activity protected by the First Amendment even if it might also properly be applied to some other unprotected activities. The rationale for this “overbreadth” doctrine is explained by the United States Supreme Court in Broadrick v. Oklahoma as follows:
“It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.… Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.
“Such claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate "only spoken words." In such cases, it has been the judgment of this Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.”[11]
The Broadrick court’s succinct statement of its “overbreadth” rule, that “the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep,” has been restated and relied upon in more recent Supreme Court decisions in Washington State Grange v. State Republican Party,[12] and United States v. Stevens.[13] If we apply this test to the Anti-Mumia Gag Law it should become rather clear that it is impermissibly overbroad. The “legitimate sweep” of this statute, for example, would be to a situation where a convict sends a letter to his victim reminding her of how he stabbed and robbed her and taunting her about how she cried and begged for mercy. This would surely be conduct that would “perpetuate the effect of the crime” and cause “mental anguish” to the victim. Such a communication, on a purely “personal” matter between “offender” and “victim,” would not be entitled to First Amendment protection and would, therefore, be within the “legitimate sweep” of the statute.
But there readily spring to mind a number of likely applications of the Anti-Mumia Gag Law to activity by an “offender” that is clearly within the protection of the First Amendment even though it might cause mental anguish to their “victim.” For example:
(1) A convict sends a letter or an “op-ed” piece to the editor of a newspaper on the subject of whether prison should solely be for punishment or whether rehabilitation should also be one of its purposes. The “victim” of that particular “offender” reads the letter and suffers mental anguish remembering the crime committed against him.
(2) A convict who has a mystical vision while imprisoned is interviewed by a graduate student who includes an account of the convict’s experience in her dissertation on the psychological effects of solitary confinement. The dissertation is published as a book and the “victim” of this particular “offender” happens to read a review of the book in which the convict is identified by name. She suffers “mental anguish” on recognizing the name and remembering the crime.
(3) A convict is invited to provide a recording of a commencement speech to be played at a graduation ceremony at his alma mater. The “victim” of the “offender” happens to attend the ceremony because his niece is in the graduating class, hears the speech, and suffers “mental anguish.”
(4) An ex-convict writes a book for young people urging them not to join gangs and uses his own life experiences as examples of the negative effects of gang membership. One of his “victims” reads the book and suffers “mental anguish.”
The list of likely “overbroad” applications of the Anti-Mumia Gag Law to protected First Amendment activity goes on and on. It should be evident that there are a substantial number of potential instances where the Anti-Mumia Gag Law is likely to be applied to suppress and/or punish free speech. These outnumber by a substantial margin the potential instances in which application of the law would be confined to its “legitimate sweep.”
An additional reason why the Anti-Mumia Gag Law is “overbroad” is that it applies not only to anything an “offender” might do or say, it also applies not only to convicted criminals, but to anyone who “committed” any of the crimes which it enumerates regardless of whether or not they were ever convicted or even charged with such an offense; or whether they served their sentence and/or completed their parole and, thereby, “paid their debt to society.”
The Anti-Mumia Gag Law has this additionally “overbroad” application because neither it, nor the Crime Victims Act of which it forms a part, define the term “offender,” while the former specifically grants a right to sue to any “victim” against whom a specified criminal act has been committed. It should be noted that, in Simon & Schuster v. Crime Victims Board,[14] New York’s “Son of Sam” law, which provided for the confiscation of profits from a criminal’s publication of an account or his or her crime, was found to violate the First Amendment on “overbreadth” grounds because it applied to works on any subject provided that they expressed the author’s thoughts or recollections about their crime and its definition of “person convicted of a crime” applied to an author who admitted in their work to having committed a crime whether or not he or she was ever actually charged or convicted. Pennsylvania’s “Anti-Mumia Gag Law” suffers from the very same infirmity.
Since Pennsylvania’s law would apply not only to current prisoners, but also to those who have completed their sentence and/or parole, its official name should really be the “Revictimization Act” rather than the “Revictimization Relief Act” because many, if not most or possibly all, prisoners of bourgeois justice are victims themselves of the capitalist system which provides them with no means of livelihood other than a life of crime. Indeed, this very point was made by the great criminal defense attorney, Clarence Darrow, in a brilliant speech he delivered to the inmates at Cook County Jail in 1902.[15]
The Supreme Court’s decision in the Simon & Schuster case makes it pretty clear that a law, like the “Anti-Mumia Gag Law,” which regulates or prohibits First Amendment activity because of its effect on others is necessarily overbroad and invalid. In Simon & Schuster the court notes that New York’s Crime Victims Board, in defending the “Son of Sam” law in that case, “disclaims, as it must [emphasis added], any state interest in suppressing descriptions of crime out of solicitude for the sensibilities of readers.”[16] The Supreme Court goes on to explain why the Board may not defend the law on the basis of concern for those who might be disturbed by reading a criminal’s account of their crimes:
“As we have often had occasion to repeat, ‘[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988) (quoting FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978)). “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” United States v. Eichman, 490 U.S. 310, 319 (1990)(quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)). The Board thus does not assert any interest in limiting whatever anguish Henry Hill’s victims may suffer from reliving their victimization.”[17] [emphasis added]
It is important to note not only what the Supreme Court says in this portion of the Simon & Schuster case, but also from what particular court cases it culls these statements of First Amendment jurisprudence. The Hustler Magazine case, from which it quotes the principle that speech may not be suppressed because it is “offensive,” was a defamation, invasion of privacy, and infliction of emotional distress action brought by a notorious right-wing fundamentalist minister, Jerry Falwell, against Larry Flynt’s Hustler Magazine for publishing a parody of an ad by Campari, an Italian aperitif.
Campari, at that time, was running a national advertising campaign featuring fictional interviews with celebrities recounting their “first time.” The real ads initially appeared to discuss the star’s first sexual experience before revealing that the interview actually concerned the first time they drank Campari. The Hustler parody, entitled “Jerry Falwell talks about his first time,” featured a picture of Falwell and a fictional interview in which he says that his first sexual experience was with his mother in an outhouse while both were “drunk off our God-fearing asses on Campari.” The fictional ad quotes Falwell saying that he was so drunk that, “Mom looked better than a Baptist whore with a $100 donation,” and he decided to have sex with her because she, “showed all the other guys in town such a good time.” When asked if he had tried Campari since, Falwell was quoted as saying, “I always get sloshed before I go out to the pulpit. You don’t think I could lay down all that bullshit sober, do you?”[18]
In an opinion authored by Chief Justice Rehnquist, a dyed-in-the-wool conservative, the Supreme Court described the case as one which presents “a novel question involving First Amendment limitations upon a State’s authority to protect its citizens from the intentional infliction of emotional distress.” Rehnquist posed the issue before the court as “whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most.” Rehnquist noted that Falwell’s position was that “a State’s interest in protecting public figures from emotional distress is sufficient, to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved.”[19]
Yet, the Supreme Court ruled 7-0 against Jerry Falwell in this case and overturned the $150,000 jury verdict he had obtained against Flynt’s magazine. The Court effectively held that such parodies directed against “public officials or public figures” were exempt from liability for intentional infliction of emotional distress. The court ruled that public officials or public figures have to meet the same standard of proof to sue for intentional infliction of emotional distress as required of them in an action for defamation under New York Times v. Sullivan,[20] i.e., that defendant made a false statement of fact with knowledge of its falsity or reckless disregard for the truth.[21]
There is multiple significance of the Hustler Magazine case for the Anti-Mumia Gag Law. Interestingly, it exposes the stated purpose of the law (to give Maureen Faulkner, the widow of Police Officer Daniel Faulkner, whose murder was wrongfully pinned on Mumia, the right to silence Mumia through a lawsuit for “mental anguish”) as an outright fraud since Ms. Faulkner, who is clearly a “public figure” given her frequent public attacks on Mumia in her role as spokesperson for the “Fry Mumia” campaign of the FOP and its allies, would clearly have to meet the “actual malice” standard in any such lawsuit, which could never be met because Mumia’s public statements are always on political issues of public concern and never on his own case. And it is precisely Mumia’s statements on matters of “public concern” which the proponents of this unconstitutional gag law wish to suppress.
It is noteworthy that, in reaching its decision in the Hustler Magazine case, the Supreme Court quoted from its earlier decisions in Street v. New York[22] (“It is firmly settled that … the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”) and FCC v. Pacifica Foundation[23] (“[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection …”). The latter quotation, originally from FCC v. Pacifica Foundation and cited in Hustler Magazine v. Falwell, is repeated in the Supreme Court’s decision in Simon & Schuster v. Crime Victims Board. This is particularly significant given the subject matter of the FCC v. Pacifica Foundation case.
Pacifica Foundation was a case in which the Supreme Court upheld the authority of the FCC to sanction a public radio station, Pacifica’s WBAI in New York, for airing comedian George Carlin’s “Seven Words You Can Never Say on Television” routine during an afternoon time slot when it might be heard by children. The Court held that Carlin’s routine was “indecent” although it was not “obscene.” Although Carlin might not be prosecuted for obscenity for performing the routine in public, the FCC could require the radio station to broadcast it in a time slot when it would be unlikely that it would be heard by children. The basis for the Court’s ruling was that radio broadcasts “intrude” into the home and might be overheard by impressionable young children whose parents would not want them to hear vulgar language relating to sexual or excretory functions.
The famous “seven words” in Carlin’s routine are: shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Anyone unfamiliar with Carlin’s performance can read the transcript of the routine found in the appendix to the majority opinion in FCC v. Pacifica Foundation,[24] or watch Carlin perform the routine on youtube.[25] The importance of this case is that even where the Supreme Court upheld a limitation on First Amendment rights it still made clear that the “offensiveness” of speech does not, in and of itself, provide a basis to suppress it.[26]
Going back to the Simon & Shuster case, the Supreme Court also quoted from its decision in United States v. Eichman in support of the principle that “the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”[27] That was a “flag-burning” case in which the court, for the second time, invalidated a federal law purporting to prohibit the burning, damage or destruction of an American flag.
Additional support for the proposition that the Anti-Mumia Gag Law’s prohibition of conduct that causes “mental anguish” to a crime victim violates the First Amendment is provided by the case of Snyder v. Phelps.[28] In that case, Rev. Fred Phelps’ Westboro Baptist Church picketed the funeral of an American Marine, Lance Corporal Matthew Snyder, killed in Iraq in the line of duty. The pickets carried signs that read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.”[29] The signs expressed the congregation’s dislike for the Catholic Church and its contention that God is punishing the United States by causing the death of its soldiers because of the nation’s tolerance for the gay life style.
Corporal Snyder’s father sued Phelps, his daughters, and the Westboro Baptist Church for intentional infliction of emotional distress, defamation, and other torts and was awarded 2.9 million dollars in compensatory damages and 8 million dollars in punitive damages. Snyder testified that that he is unable to separate the thought of his dead son from his thoughts of the picketing and that he often becomes tearful, angry and physically ill when he thinks about it. Expert witnesses testified that Snyder’s emotional anguish had resulted in severe depression and had exacerbated his pre-existing health conditions.
Nonetheless, the Supreme Court upheld the Court of Appeal’s decision overturning the judgment in an 8-1 decision authored by Chief Justice Roberts, a dyed-in-the-wool conservative. The court held that the picketing constituted protected speech on matters of “public concern.” The court explained its ruling thusly:
“Westboro’s choice to convey its views in conjunction with Matthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father. The record makes clear that the applicable legal term – “emotional distress” – fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street.…
“Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to ‘special protection’ under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable … [cite omitted] Indeed, ‘the point of all speech protection … is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.’”[30] [cite omitted]
Given that the First Amendment has been found to bar a lawsuit by the father of a United States Marine killed in combat for picketing at his funeral with “outrageous” signs which caused the father extreme emotional distress, it is inconceivable that it could be found that speech by a purported criminal on an issue of public concern which happens to cause mental anguish to an alleged victim of their alleged crime may be suppressed. The Supreme Court decision in Snyder v. Phelps, as well as the other legal precedents discussed above, should mandate a finding that Pennsylvania’s Anti-Mumia Gag Law is unconstitutional.
When it comes to any legal proceeding concerning Mumia Abu-Jamal, however, we should be cautious not to place our faith in the bourgeois courts. In too many instances the courts have chosen to “interpret” the law in an inconsistent and irrational manner when it comes to anything affecting the life or liberty of Mumia Abu-Jamal and thereafter these decisions are used to limit or eviscerate the rights of other defendants.
When it was argued that Mumia’s death sentence was invalid because the prosecutor was permitted to cross-examine him with regard to his statement to the jury during the penalty phase of his trial, the court reinterpreted the law to effectively “delete” his previously-recognized right to “allocution.” When Mumia’s death sentence was challenged on the basis of a subsequent appellate decision invalidating a virtually identical charge to the jury in another case, that decision was held not to apply retroactively to Mumia. And when a court stenographer came forward and swore that she overheard Judge Sabo say, during a discussion in his chambers at the time of Mumia’s trial, that he was going to “help ’em fry the nigger,” the Pennsylvania state courts and the federal courts refused to even consider the issue of whether Sabo’s racism violated Mumia’s right to a fair trial.
The Anti-Mumia Gag Law should be declared unconstitutional by the courts, but it must be recognized that, like Mumia’s battle for his life and for his freedom, this is a political case which must be won politically, in the streets, in the high schools and universities, in the black and brown and other minority communities, and in the factories and other workplaces throughout this country, in order to win in the courtroom. The legal struggle and the political struggle must go hand-in-hand, each supporting and strengthening the other. We need to follow the same general policy carried out in its political defense campaigns in the 1920s by the International Labor Defense under James P. Cannon. As Cannon explained:
“… [Our] policy is the policy of the class struggle. It puts the center of gravity in the protest movement of the workers of America and the world. It puts all faith in the power of the masses and no faith whatever in the justice of the courts. While favoring all possible legal proceedings. It calls for agitation, publicity, demonstrations – organized protest on a national and international scale. It calls for unity and solidarity of all workers on this buring issue, regardless of conflicting views on other questions …”[31]
In order to fully understand the political significance of the legal issues raised by the Anti-Mumia Gag Law we must place this measure in the context of Mumia’s ongoing struggle for freedom, and place both within the context of the particular political, economic and historical conjuncture in which we find ourselves. New York attorney Rachel Wolkenstein, who was on Mumia’s first legal team for post-conviction proceedings in her capacity as an attorney for the Partisan Defense Committee, provided a succinct summary of the political context and significance of Mumia’s case in a speech delivered in 2006:
“We need to examine why Mumia’s case is such an issue for the bourgeoisie. Mumia’s case is a microcosm of American capitalism – its vindictiveness and its racial oppression and class exploitation. And the particulars of the prosecution, conviction and legal appeals demonstrate again and again that this case epitomizes the injustices that exist every day under the capitalist legal system. At the very same time, it is a special case of political persecution, intended by the capitalist rulers to be a lesson for any who dare to speak out against the injustices and iniquities of American capitalism.
“… [T]he fight for Mumia’s freedom is also a part of the fight for black liberation and part of the broader fight for socialist revolution, and therefore for the liberation of us all. The fight for Mumia must begin with an understanding of the capitalist state and its legal institutions. The state is a machine for the oppression of one class by another. It’s a repressive machine made up of the army, the cops and the courts, which all exist to defend the class rule and profits of the capitalists against those whose labor they exploit. The state exists to prevent those who produce the wealth of society, the working class, from collectively owning it – to keep those who profit from that labor, the bourgeoisie, in power.”[32]
The Anti-Mumia Gag Law should be understood not only in its particularity with regard to Mumia, but in its universality as well, as an integral part of an escalating trend to stifle dissent in general and to suppress critical voices of oppressed minorities in particular. Mumia is frequently referred to as “the voice of the voiceless” and it is not merely personal animosity to him on the part of the Philadelphia power structure, its corrupt police force, and the erstwhile storm troopers of the FOP that is responsible for the enactment of this blatantly unconstitutional measure, but a desire to silence his voice and any other voice that attempts to speak for the voiceless as well as those heretofore voiceless who attempt to stand up and speak for themselves.
The Anti-Mumia Gag Law is directed not only against Mumia, but against other prison activists like Robert L. Holbrook and Kerry Shakaboona Marshall, as well as being directed against political organizations like Prison Radio, the Human Rights Coalition and Educators for Mumia who are organizing around issues of civil and political rights and humane treatment for prisoners and against the increasing criminalization and incarceration of oppressed minority youth and workers displaced by the ever-increasing exportation of production by American corporations who are de-industrializing this country to take advantage of the low wages and high rates of exploitation in the Third World.
The Anti-Mumia Gag Law is an integral part of a much wider effort to suppress any critical voices or dissent from the increasingly repressive policies of the American bourgeoisie, the 1% of the nation that owns the means of production of all that human life depends upon in modern society and makes 100% of the decisions on the critical issues facing our so-called democracy, like waging imperialist wars, ignoring climate change, approving the Keystone Tar Sands pipeline, refusing to raise the minimum wage, privatizing social security, and failing to indict killer cops for murdering Black people like Michael Brown and Eric Garner.
The Anti-Mumia Gag Law should also be seen within the context of the NSA spying revealed by Edward Snowden, the push to disarm the working class and the middle class through so-called “gun control” while the 1% militarizes the police and surrounds itself with armed body guards and private security, the waste of trillions of dollars on imperialist war while whipping up popular hysteria for a “holy crusade” against Islam, and increasingly pervasive efforts to suppress any criticism of U.S. imperialism’s “junior partner” in the Middle East, the Zionist State of Israel, for its murderous actions against the Palestinian People, including the notorious firing of Professor Steven Salaita by the University of Illinois and the neo-McCarthyite witch hunt against Professor Rabab Abdulhadi at San Francisco State University.
The demonization of Mumia, other prison activists, Black and Brown youth, Arabs, and other minority communities is intimately connected to the demonization of immigrants from Mexico, Central America and other parts of the Third World to construct a convenient scapegoat to blame for the deepening economic crisis of global capitalism.
The Anti-Mumia Gag Law, and other repressive measures being implemented by the ruling class in this country, must be defeated in the courts, in the streets, in the schools and workplaces throughout this country, by militant political strike action by the multi-national and multi-racial American working class and our allies here and throughout the world.
The Anti-Mumia Gag Law was passed with “bipartisan” support from the Democratic and Republican parties, with a unanimous vote in Pennsylvania’s House of Representatives. This is one more proof – after 6 years of Obama betraying every constituency that voted for him other than the 1% – that it is a serious mistake to believe that the “do nothing” Democrats are a “progressive” alternative to the “know nothing” Republicans. We need an independent workers’ party, with a program of social revolution, to fight for a workers’ government!
From Ferguson to Gaza, from Philadelphia to Ayotzinapa, “An injury to one is an injury to all.” (¡Daño a uno es daño a todos!) The struggle to overturn the Anti-Mumia Gag Law and to free Mumia is an integral part of all of these interconnected struggles against imperialist war, racism, exploitation and oppression, and for peace, freedom and justice.
¡Mumia vive, la lucha sigue! Mumia lives, the struggle continues!
¡Mumia es inocente, libertád para Mumia! Mumia is innocent, free Mumia!
1 © Eliot Lee Grossman, Attorney-at Law. Grossman has been a practicing attorney for 37 years. In the 1990s, he and Chicago attorney Marlene Kamish, working with an attorney from the Illinois Public Defender's Office, convinced the Illinois Supreme Court to overturn the conviction and death sentence of Chicano artist Manuel Salazar who had been wrongfully convicted of murder of a police officer. In 2001, Grossman, Kamish, London barrister Nick Brown, and Philadelphia lawyer J. Michael Farrell convinced a federal judge in Philadelphia to overturn the death sentence of Mumia Abu-Jamal, wrongly convicted of murder of a police officer. Grossman has held the position of Visiting Research Professor at the Permanent Seminar for Chicano and Border Studies, a research center of the National Institute of Anthropology and History in Mexico City. He has taught at the University of California, Irvine, the United States International University and the University of the Americas in Mexico City, and Peoples College of Law in Los Angeles. He holds a J.D. from Hastings College of the Law, a B.S. in General Studies from Portland State University, and a B.A. in Philosophy from Swarthmore College.
2 http://my.firedoglake.com/blog/2014/10/23/94337/.
3 Goddard faculty member Jan Clausen responded to the threats and adverse “mainstream” media coverage: “Abu-Jamal represents a tradition of uncompromising progressive activism within grassroots African-American communities, a political lineage relentlessly marginalized in the current political environment. Meanwhile, Goddard's own roots in a radical educational philosophy that values critical dialogue and social engagement don't make sense to a public encouraged to see higher education as job market training, worthwhile only when ‘learning’ can be quantified and monetized.”
4 https://www.insidehighered.com/views/2014/10/09/essay-why-goddard-college-invited-mumia-abu-jamal-deliver-commencement-speech
5 http://kersplebedeb.com/posts/the-gag-mumia-law/.
6 The Act is codified at 18 P.S. § 11.1304.
7 P.L. 882, No. 111.
9 Coates v. City of Cincinnati (1971) 402 U.S. 611, 614 (quoting Connally v. General Construction Co. (1926) 269 U.S. 385, 391.
10 http://www.media-alliance.org/article.php?id=2453.
11 Broadrick v. Oklahoma (1973) 413 U.S. 601.
12 Washington State Grange v. State Republican Party (2008) 552 U.S. 442, 449, n. 6.
13 United States v. Stevens (2010) 559 U.S. 460, 130 S.Ct. 1577, 1587.
14 Simon & Schuster v. Crime Victims Board (1991) 502 U.S. 105, 121.
15 See “Crime and Criminals, Address, Chicago, 1902,” in Weinberg, ed., Attorney for the Damned: Clarence Darrow in the Courtroom (New York: Simon & Schuster, 1957).
16 Id., at 118.
17 Ibid.
18 Hustler Magazine, Inc. v. Falwell (1988) 485 U.S. 46, 48. See also http://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell.
19 Hustler Magazine v. Falwell, 485 U.S. at 50.
20 New York Times v. Sullivan (1964) 376 U.S. 254.
21 Hustler Magazine v. Falwell, 485 U.S. at 56.
22 Street v. New York (1969) 394 U.S. 576, 592.
23 FCC v. Pacifica Foundation (1978) 438 U.S. 726, 745-746.
24 FCC v. Pacifica Foundation, 438 U.S. at 751-755.
25 https://www.youtube.com/watch?v=kyBH5oNQOS0.
26 Justice Brennan wrote a blistering dissent in FCC v. Pacifica Foundation, joined in by Justice Marshall, in which he excoriated the majority for what he saw as their undermining of the First Amendment and their effete, snobbish and implicitly racist ethnocentricity:
“… I find the Court's misapplication of fundamental First Amendment principles so patent, and its attempt to impose its notions of propriety on the whole of the American people so misguided, that I am unable to remain silent. (438 U.S. at 762)
“It is quite evident that I find the Court's attempt to unstitch the warp and woof of First Amendment law in an effort to reshape its fabric to cover the patently wrong result the Court reaches in this case dangerous as well as lamentable. Yet there runs throughout the opinions of my Brothers POWELL and STEVENS another vein I find equally disturbing: a depressing inability to appreciate that in our land of cultural pluralism, there are many who think, act, and talk differently from the Members of this Court, and who do not share their fragile sensibilities. It is only an acute ethnocentric myopia that enables the Court to approve the censorship of communications solely because of the words they contain.” (438 U.S. at 775-776)
“… The words that the Court and the Commission find so unpalatable may be the stuff of everyday conversations in some, if not many, of the innumerable subcultures that compose this Nation.… As one researcher concluded, ‘[w]ords generally considered obscene like “bullshit” and “fuck” are considered neither obscene nor derogatory in the [black] vernacular except in particular contextual situations and when used with certain intonations…’ Cf. Keefe v. Geanakos, 418 F.2d 359, 361 (CA1 1969) (finding the use of the word ‘motherfucker’ commonplace among young radicals and protesters).” (438 U.S. at 776)
“Today’s decision will thus have its greatest impact on broadcasters desiring to reach, and listening audiences composed of, persons who do not share the Court’s view as to which words or expressions are acceptable and who, for a variety of reasons, including a conscious desire to flout majoritarian conventions, express themselves using words that may be regarded as offensive by those from different socio-economic backgrounds. In this context, the Court’s decision may be seen for what, in the broader perspective, it really is: another of the dominant culture’s inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking …” [cite omitted] (438 U.S. at 776-777)
“Pacifica, in response to an FCC inquiry about its broadcast of Carlin’s satire on ‘the words you couldn't say on the public … airways,’ explained that ‘Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words … In confirming Carlin’s prescience as a social commentator by the result it reaches today, the Court evinces an attitude toward the ‘seven dirty words’ that many others besides Mr. Carlin and Pacifica might describe as ‘silly.’ Whether today’s decision will similarly prove ‘harmless’ remains to be seen. One can only hope that it will.” (438 U.S. at 777)
27 Simon & Shuster v. Crime Victims Board, 502 U.S. at 118.
28 Snyder v. Phelps (2011) 562 U.S. _______, 131 S.Ct. 1207.
29 Snyder v. Phelps, 562 U.S. _______, 131 S.Ct. at 1216-1217.
30 Snyder v. Phelps, 562 U.S. _______, 131 S.Ct. at 1217-1218, 1219.
31 Cannon, “Who Can Save Sacco and Vanzetti?” Labor Defender, January 1927; reprinted in Cannon, Notebook of an Agitator (Pathfinder Press, 1958).
32 Wolkenstein, “The Fight to Free Mumia” (July 2006). See also Lenin, The State and Revolution.