February 20, 2006

Holy Fucking Moly

From Jesus' General a hair-raiser of DHS harassment (long, but worth it):

"Bottom line: My rights are very dear to me. I served my country to defend them," he says. "And one of the things I was defending was free speech. It's the First Amendment for a reason--not the last, not the middle. The first."

Once, last year, some conservative-minded ladies objected about the "BUSHIT" sticker in Scarbrough's passenger-side window. Scarbrough and his supervisor reviewed all the federal rules concerning bumper stickers on employee vehicles, and discovered that nothing he had displayed could be considered illegal. But for once, Scarbrough simply removed the sticker. Indeed, his current lineup is quite sparse by his standards, he says.

But on this day, apparently it was still too much.

Around 2:15 p.m., Scarbrough says, he answered his office phone and found himself talking to a man who identified himself as Officer R. of the Department of Homeland Security. (I'm withholding the officer's name; you know, what with Plamegate and all.) Scarbrough was told that he was in violation of the Code of Federal Regulations, the set of rules that govern all executive departments and agencies, and that he was in danger of being cited unless he came out to the parking lot or let the officer come up to his office. Scarbrough chose the first option, and took along a co-worker--also a veteran--and, being an experienced peace activist, a tape recorder. Downstairs, they found two armed officers with "Homeland Security" insignia patches on their shoulders, waiting for them in large white SUVs. Scarbrough informed the officers that he would record their conversation, and what follows is the transcript of that recording.

Officer: Step back here please.

Dwight Scarbrough: Let's have a seat.

O: I'd like to talk to you.

DS: Let's have a seat.

O: Sir, come over here please.

DS: I don't want to come over there. I want to sit down.

O: Let me tell you what's going on here. OK, there's a violation of the code of federal regulations.

DS: For what?

O: The CFR. 41, CFR, 102, 74, 415. Posting or affixing signs, pamphlets, handbills or flyers on federal property. Do you understand that?

DS: I'm not doing anything on federal property.

O: Yes, sir, you've got signs posted on your vehicle. I'm informing you that you're in violation.

DS: That's not illegal. That's not illegal.

O: You're posting ...

DS: I ... All right.

O: Would you like to listen to me before ... sir...

DS: [To his co-worker] Would you go get [their supervisor]?

O: I need you to listen when I'm talking, sir.

DS: [To co-worker]. Would you go get [him] please? [To officer] I'm listening.

O: Okay.

DS: You're at my place of work, first of all. And you're harassing me.

O: Sir, you're in violation of the code of federal regulations.

DS: I'm not in violation.

O: You're posting signs on this property.

DS: I am not posting signs. That's on a private vehicle.

O: Sir, I'm here to tell you now that you have to remove those signs.

DS: Was the law just changed?

O: No, there was no law just changed.

DS: Then it's not a violation.

O: I just told you what the law is, sir.

DS: It is not a violation. I've read the statutes already.

O: If you do not comply with my order to remove the signs from the property, I will cite you for it, OK? Do you understand that?

DS: You know what? This is harassment.

O: No, sir, it's not.

DS: Yes, it is.

O: No, it's not.

DS: Say it again, please. (Holds up microphone.) This is harassment.

O: Do you understand what I've told you?

DS: I understand what you've told me, but I've also read the statute that as a federal employee--

O: I've just given you an order and told you to remove those signs from the property.

DS: I will move my vehicle off the property.

O: That will be fine. That will comply with it, and we don't have to ...

DS: You know this is total B.S., though. Because--will you get [his supervisor], please?--I've already had this conversation once, and we've already looked up all the statues and laws covering personal vehicles with stick ... with anything on them on government property. And it is not illegal.

O: It's in 41 CFR. Look that up.

D: "Why don't you look it up?" I have.

O: 41 CF4 102--

D: What is the violation?

O: Posting of signs on--

D: Which one?

O: I just told you the violation.

D: Those are not signs.

O: Twice now I've told you.

D: Those are not signs.

O: Yes, sir, they are. What are they then?

D: So any vehicle that comes on with, like, a police sign, or with delivery or FedEx or something, that's not a sign?

O: All signs are prohibited--

D: You know you're harassing me. You know you're harassing me.

O: No, sir, I'm not.

D: You know the Department of Homeland Security is giving me harassment--

O: Sir--

D: --because I'm a person who happens to express my viewpoints on my vehicle.

O: I need you to comply with my order and remove the signs...

D: Who has filed a complaint?

O: ...you said you'd do that, that's fine ...

D: Who has filed a complaint? Who has filed a complaint?

O: No one has filed a complaint, sir.

D: Well, then what's the complaint?

O: It's law enforcement on federal property.

D: You know this is ... I would like my supervisor down here, please.

O: This doesn't concern him at all.

D: Yes, it does, because I've already had this discussion with him, and I've already been asked to change the signs, and I did. And I looked up all the statutes.

O: (Muffled)

D: Do you have a piece of paper with the number then, please?

O: I told you the number.

D: I would like to write it down, then.

O: I will give you a piece of paper ...

D: Just write it down. That's all I'm asking.

O: But I need you to comply with my instructions to remove the--

D: You're harassing me, in other words.

O: Sir, this is not harassment.

D: It's crap, and you know it.

O: No, sir, it is not.

D: It is. Okay, go ahead.

O: 41, C-F-R...

D: 41, C-F-R...

O: 102 ...

D: 102 ...

O: 74 ...

D: 74 ...

O: Subpart C ...

D: Subpart C ...

O: Paragraph 415.

D: Paragraph 415.

O: And they are posted at the entrances to federal facilities, as they are here, and it is referenced.

D: And this defines exactly what "signs" are, right?

O: It says "signs," sir.

D: Yeah. You're harassing me. I'll be back in a minute. I don't have my keys with me.

O: Sir--

D: I don't have my car keys with me.

O: Okay.

D: I had no clue what you were here to bother me about ... (walks toward door)... this is your buddy, your boss and my boss harassing people for expressing political viewpoints. And you know it. There's nothing illegal about it. (Door beeps).

Scarbrough moved his car to the parking lot in front of a nearby Goodwill store, a private property where it could legally be towed if the managers objected to his decorations. It wasn't towed, but according to his co-worker, Scarbrough was still "very distraught"--both by the accusations and by the way the officers maneuvered themselves between Scarbrough and his coworker, isolating them in a classic police crowd-control technique.

Revisiting the arguments expressed in this thread, among other places, this is one of those times where the ordinary citizen is right in standing up to defend the principles and values of this country, and not letting them be trampled for ideological authoritarianism.

Nice to know that our tax dollars are being spent to police bumper stickers, in violation of the first amendment. Oh, and if you want to track down where your tax dollars are going?

If you're unfamiliar with the Boise office of the Federal Department of Homeland Security, you're not alone. There's not a listing for it in the most recent federal government listings in the local phonebook. The representative from Idaho State Bureau of Homeland Security, located at the Gowen Field Air National Guard Base behind the Boise Airport, hadn't even heard there was an office when I contacted him. Neither had the receptionist at the local U.S. Marshal's office, though she was able to track down a number for the local office of the Federal Protective Service, the section of DHS in charge of protecting federally owned and leased facilities, after putting me on hold for a few minutes (It's (208) 334-9374, in case you're curious. Your taxes fund it, after all.).

I was only able to confirm the location of the office after asking the security officer at the Natural Resource Complex, whose job (ostensibly, at least) it is to enforce the rules concerning pamphlets, dogs and other controlled substances on federal property. He would not comment about the incident, saying, "If this is about what I think it's about, I'm not allowed to say nothing." He referred me to "FPS, Federal Courthouse, Department of Homeland Security," to find someone who would be able to comment. When I asked who I should say referred me, he covered his nameplate with his hand.

Go read the whole thing, and read about Scarbrough's background. Veteran, scientist and peace activist...no wonder they don't like him!

Posted by binky at February 20, 2006 06:23 PM | TrackBack | Posted to Free Speech | Liberty | The Ever Shrinking Constitution


wow, creeeeeepy. i'm surprised bush hasn't just decided to gut the civil service and all federal agencies of everyone who hasn't signed a loyalty oath. what, there were no NRA bumperstickers, or spoofs on the lewinsky affair, on any bumperstickers in any federal parking lots during his tenure? indeed, if the parking lot was sizable, what are the odds that it was devoid of pro-GOP bumperstickers? what about magnets calling for troop support, breast cancer, livestrong, whatehaveyou.

what's scary is the automaton, heller-esque tone to the whole thing. no, not heller. there's nothing farcical about this. kafke's more like it. is it 2008 yet?

Posted by: moon at February 20, 2006 06:43 PM | PERMALINK

The thing is, that when I first started reading it, every time I paged down, I was like, "this has to stop, this has to stop" and it just kept going and going.

Posted by: binky at February 20, 2006 06:55 PM | PERMALINK

So Moon - down the road, could you see the future ruling in Ceballos v. Garcetti (the one case the Supremes have so far decided to rehear now that Alito has replaced O'Connor - one dealing with speech rights when one is working in one's official capacity) having an effect on things like this? I'm not sure of the scope of what's at issue there.

Posted by: Armand at February 20, 2006 08:16 PM | PERMALINK

i don't know the case, but i do know the government can fairly seriously curtail a federal employee's speech rights as long as it does so on a viewpoint neutral basis. my point in making the above observations is that it would be impracticable to do so. inevitably, it will be applied in a flawed manner. unless the government wants to supply every employee with a car -- which of course would be cheaper than retaining halliburton for anything -- it's pretty hard to imagine them being able to preclude people from putting "baby on board" signs in their car windows.

Posted by: Moon at February 21, 2006 10:39 AM | PERMALINK

I'd take away your "fairly" modifier - my understanding is that currently there are very few speech protections at all for federal employees working in their official behavior. So given that, and that I presume there can be all kinds of rules about what you can put up in your office - well, is it such a stretch to think that you might be forced to alter your vehicle in order for it to be placed in a parking lot like this?

Posted by: Armand at February 21, 2006 11:22 AM | PERMALINK

is it such a stretch? no. but official capacity regulation -- pervasive and legally unassailable by now -- is very different than private capacity regulation. if the regulation in question was propertly represented, i doubt any court would read that to reach the interior or the bumper surfaces of a car. the language pretty clearly is intended to bar posting of bills and signs on government property, not the parking of cars that happen to reflect political speech on government property, and the cars themselves of course are not government property. my experience has been that government employees are free to have their own opinions. they typically are barred from active campaigning in partisan elections, but that's distinct from simply having a viewpoint, which is what this is about. putting a bumpersticker on your car is very different than giving $500 and vocal public support to a partisan candidate.

now, the courts would probably only object to the regulation as applied, because i think one can make a very strong argument that the plain language also precludes people using cars as a surrogate for posting campaign posters on a federal lawn. that is to say, if one built a large placard for the roof of his car, the courts likely would uphold application of this regulation to preclude that activity.

and it's no refutation to suggest that the lines are hard to draw. that sort of argument is the recourse of those unfamiliar with courts and constitutional law. courts draw difficult lines every day. indeed, that's most of what they do.

Posted by: moon at February 21, 2006 11:45 AM | PERMALINK
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