Monday, July 24, 2017

The 1st Amendment is More Than a Right: It's a Responsibility

The framers of the Constitution gave us the First Amendment for precisely the kind of situation we’re in now. By making our right to political expression so fully protected the founding fathers weren’t just allowing us to protest, they were practically demanding it. In both the amendment itself and other writings, they made it clear that free political speech wasn’t just the heart of democracy, but also its safeguard. And if you think the ability to protest still isn’t going to be enough, remember there’s over 300 million of us, and we’ve all got it.

Apart from the violent overthrow of the government, you can openly advocate just about any cause, say whatever you want, however you want, using whatever means are at your disposal to reach to as many of your fellow citizens as you possibly can. If your free speech breaks other laws you can still defend it in court, but only if they catch you. If it involves vandalism, violence or threatening people they’re probably going to come after you. If you’re violating traffic codes by putting signs on freeways, they’re probably not — at least that’s been my experience so far. By making my signs easily removable and putting them on the inside of fencing so they can’t fall into traffic, makes me relatively harmless so there’s little impetus to catch me. Also my ability to strike anywhere at any time and be gone in seconds makes me pretty damn difficult to catch. Nevertheless, given plenty of evidence and at least a dozen opportunities to arrest me, the State of California (and to a lesser extent, Arizona, Oregon and Washington,) has shown no interest in bringing me to court. I think that’s at least partly due to understanding the strength my constitutional rights have versus the relative insignificance of my infractions. 

Putting aside the whole signs-on-freeways thing, think about how much is covered by the scope of the First Amendment and how you might be able to take advantage of it. There’s an old saying that goes “It’s easier to ask forgiveness than permission...” meaning it’s better to just do something assuming you have the right than to forego the benefit of the doubt by first asking permission. While there’s a lot of things where that philosophy is probably both wrong and dangerous, the First Amendment isn’t one of them. The way I see it, pushing the free speech envelope isn’t just our privilege, it’s practically our responsibility. And so long as we’ve got a congress seeming blind to the mounting evidence that the President is acting as an agent of a hostile foreign government, it’s not just our responsibility but our goddam sacred duty as citizens to push that envelope as far as we possibly can.

Can protesting get you hassled and arrested? Damn right it can - happens every day at demonstrations. But it ONLY happens when you’re doing it in front of police. The disorderly conduct and  “failure to obey” charges police stick on demonstrators are understood by the courts as primarily as a form of crowd control and almost always thrown out. Still, in any kind of protest done in front of police exposes you to a dangerous, and in my opinion unnecessary, degree of hassle and risk, both legally and physically. I’m especially doubtful about getting arrested as a means of political expression. Although it makes a powerful statement, being held captive reduces your political agency to little more than just being a body, whereas freedom and the first amendment allow you to do practically any and everything your mind, hands and heart can come up with.. the sorts of things you should probably be thinking of right now.

I have at least a hundred reasons why I put so much time and effort into putting signs on freeways, but mostly it boils down to numbers. The ability to reach hundreds of thousands of drivers for so little cost would be irresistible even if it wasn’t so politically satisfying and so much goddam fun. Although I was first inspired by the Bush V. Gore decision in 2000, the real necessity of reaching that many people came from listening to talk radio after 9/11. For a week or two the bad guys were Bin Laden and the Taliban, but after that they went back to blaming the Real Enemies of America: The Liberals and Democrats. Although I always knew this was the case in talk radio, it was the first time I’d really listened to it and recognized how truly dangerous it was. Beyond the falsity and sheer evil of the rhetoric, what frightened me was how constant it was and the number of people that it reached. And it’s not hard to see the ubiquitousness of hate speech on the airwaves as largely responsible for the mess we’re in now..

I saw signposting on freeways as a way of evening the score, at least numerically, and was disappointed by what I’d seen done with it so far, which was “No War” or “Stop the something-I’m-not-quite-sure...” spray-painted on bedsheets. 
I thought that adding legibility to a medium that was mostly unreadable might help make it more socially acceptable as a means of political discourse. In other words, putting signs on freeways made more sense if people could read them. Beyond just the aesthetics: using a stiff medium allows you to put a sign up almost anywhere, quickly and securely, with the simplest of tools and the greatest of ease. Using a projector for the lettering allows far more thought and precision in your language, while spray, or even hand-painted messages can rarely go beyond polemics. The difference between white-washed cardboard over bedsheets is so profound and comprehensive I should, and will, write a whole post about it, but for now let’s just say it’s like the difference between the last President and the one we’ve got now.

Although I succeeded in some ways, my efforts were largely a failure. Although I’ve spent years contemplating all the reasons why, I won’t bore you with all of that now. I think the main reason it hasn’t caught on yet is because people are afraid it’s illegal, and I’ll be the first to admit that technically they’re right. Before I explain why that doesn’t matter to me and shouldn’t matter to you, I’d like to suggest that ultimately the legality of it isn’t really the problem. The thing that keeps people from doing things that others aren’t is probably little more than a fear of looking foolish. Short of physical limitations, whatever reasons you have for not putting a sign up today would probably melt away if you knew ten thousand people had just done it yesterday.

If what’s keeping you is the thought it’s somehow too difficult or strenuous, let me assure you that it’s not. Physically what I do amounts to little more than driving around and taking short walks. With tens of thousands of miles of fencing and infrastructure to choose from, it’s not that hard to find signposting spots that require no work at all to get to. If you live in Seattle, for example, there’s a fence that’s highly visible to a dozen lanes of heavy traffic, and signs I’ve put on it have lasted for hours and usually days. All it takes to get there is parking at the end of a cul de sac and walking 200 feet or so through Kobe Terrace Park. Spots like that can be found everywhere once you start to actually look for them.

Why freewayblogging is illegal and why that doesn’t matter: While George Washington, James Madison, Thomas Jefferson and people like that thought free speech was a sacred, untouchable right, there are thousands of police officers, city councils, homeowners associations and transportation boards who think they know better. So called “free” political speech is subject to all sorts of rules and regulations, and technically speaking, every sign, banner or flag, whether political or commercial, placed without permission within 600 feet of a California freeway is a criminal act and subject to a fine and/or prosecution. Fortunately, the State of California hasn’t shown much interest in enforcing these laws, which is lucky not just for me, but for every gun show, bridal expo and tattoo convention that papers the roadsides with their crappy little florescent advertisements. If I was ever brought to court, those signs would be Exhibit A in my defense. Selective prosecution of like crimes is one thing, but prosecuting political speech that’s Constitutionally protected while ignoring commercial speech that’s not begs at least a bit of explanation. 

The only argument that has any merit against freewayblogging is that of driver distraction, which is thoroughly undercut by the signs mentioned above and every billboard, advertisement and jumbotron screen visible to drivers on the freeway. Additionally I’m protected by every single flag that went up on overpasses after September 11th, as argued in the case Brown vs. the California Dept. of Transportation. That case was filed by two Santa Cruz activists, Amy Courtney and Cassandra Brown, who charged that their being denied the right to hold an anti-war message on an overpass was fundamentally unconstitutional for a lot of reasons, but especially so given the state was allowing the overpasses to be used for flags and other patriotic displays. This led to some back and forth where CalTrans said they’d take down all unauthorized displays, including flags, and were brought back to court by the women when they didn’t. Ultimately CalTrans determined that all displays were illegal with the punishment being that they would be taken down. Since, like all other state agencies, CalTrans is woefully undermanned and underfunded, the turnaround time between placement and removal of a sign can be days or even weeks. That means I can still get a million or more views for my nickel’s worth of cardboard and paint, which is fine by me.

If I ever do get taken to court, I expect the prosecution to argue as they did in Brown that the speed, danger and traffic density of freeways set them apart from other public spaces, and that extra regulations are required for safety. If someone wants to use public property to post their political opinions there are plenty of safer and more appropriate places to do it, like in front of the post office or in a city park. Thus prohibiting signs from freeways does not infringe on my first amendment rights so long as these other public venues are available. My defense would center on what the framers of the constitution intended when they gave us the right to free speech. If it was intended as a nicety or some sort of window-dressing for democracy where we’re all allowed to speak out so long as we kept it to a minimum, then yes: the difference between reaching a hundred thousand people or a dozen would be irrelevant and the park or post office would be just fine.

If however, the founding fathers intended the right to free speech to be more than just a nicety or gesture, and that it’s actual purpose was nothing short of being a failsafe for Democracy, then the difference in numbers means quite a lot. With that in mind the court should recognize what I’m doing is my patriotic duty, and rather than punish me they should join me in getting others to do the same. And furthermore, if the founding fathers could somehow appear and and see one of my signs over a planet-killing freeway, they’d say something had to go alright, but it wouldn’t be my sign. (You can probably tell I’ve fantasized this courtroom drama for awhile...)

For now that’s all I’ve got to say about the legal issues of signposting on the freeways. Even if you’re not ready to join me just yet, give some thought to what you can do with your right to free speech. Try to think of the First Amendment less as a right and more as a responsibility, and figure out how you can best live up to your end of the bargain. Go through your talents and find which ones might be useful in the situation we’re faced with. For the best results, pick something you’re good at and actually like doing. I’ve found the process of making signs to be quite enjoyable and relaxing no matter where I put them. Think of what you want to say and the best way of saying it, use a bit of artistry and then go hit that park. I’ll keep posting here to convince you all to join me on the freeways though, because I swear, it’d take less than a hundred of us to start turning this whole fucking thing around.

Signs Posted: 7,250
Arrests: 0

No comments: