Robert J. Feldman, the attorney for Lt. Dan Choi, has said that Lt. Choi's trial is comparable to the US Supreme Court case of Shuttlesworth v. Birmingham. Who is the Reverend Fred Lee Shuttlesworth, and why is this an important comparison? Lt. Choi is on trial for failing to obey D.C. Park Police, who ordered him to "get off the sidewalk" during a peaceful demonstration in which Choi and 12 others chained themselves to the White House Fence to protest inaction on the anti-gay military policy of Don't Ask, Don't Tell.
Choi's lawyers have made the point that, by bringing federal charges against Choi, the government was treating him differently from other people who have protested in front of the White House in previous years. Feldman referred to the testimony of one witness, a 22-year veteran of the Park police, who said Choi's case was the first time he had been to federal court, rather than D.C. Superior Court, to testify against a protestor he had arrested. Unlike local misdemeanor charges in D.C. Superior court for disobeying an officer, which carry a fine of $100 to $1000, the federal charges carry a six month jail term and a $5,000 fine.
FireDogLake reports that Department of Interior attorneys had contacts with Park Police in the hours before the Choi incident, recommending federal charges rather than local misdemeanor charges. That contact may have been improper under Department of Justice rules.
Rev. Fred L. Shuttlesworth
According to Wikipedia, Fred L. Shuttlesworth is an African American minister who helped lead 52 African Americans in an orderly civil rights march in Birmingham, Alabama, in 1963.
According to the Supreme Court's opinion, written by Justice Potter Stewart:
"On the afternoon of April 12, Good Friday, 1963, 52 people, all Negroes, were led out of a Birmingham church by three Negro ministers, one of whom was the petitioner, Fred L. Shuttlesworth. They walked in orderly fashion, two abreast for the most part, for four blocks. The purpose of their march was to protest the alleged denial of civil rights to Negroes in the city of Birmingham. The marchers stayed on the sidewalks except at street intersections, and they did not interfere with other pedestrians. No automobiles were obstructed, nor were traffic signals disobeyed. The petitioner was with the group for at least part of this time, walking alongside the others, and once moving from the front to the rear. As the marchers moved along, a crowd of spectators fell in behind them at a distance. The spectators at some points spilled out into the street, but the street was not blocked and vehicles were not obstructed.
At the end of four blocks the marchers were stopped by the Birmingham police, and were arrested for violating § 1159 of the General Code of Birmingham."
Section 1159 of the city's General Code was an ordinance which made it unlawful to participate in any procession or public demonstration on the public ways of the city, unless a permit therefor had been secured from the city.
Section 1159 permitted the city commission to refuse a parade permit if its members believe "the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused." Shuttlesworth had previously been given to understand by a member of the Commission that under no circumstances would he and his group be allowed to demonstrate in Birmingham.
Reverend Shuttlesworth was sentenced to 90 days' imprisonment at hard labor and an additional 48 days at hard labor in default of payment of a $ 75 fine and $ 24 costs. Imprisonment at hard labor was not a physical fitness regimen. It was a devastating punishment intended to cause physical injury and ruin the health of inmates permanently.
Ordinances such as the Birmingham ordinance are basically "anti-loitering" laws, sometimes known as "catch-all" provisions, which permit police to arrest anyone found on the street. Unlike disorderly persons offenses and vagrancy laws, these require a "procession," but basically two people walking together can be a procession, and probably one is also fine in a pinch. The First Amendment claim comes in when the defendants say they were attempting to communicate a message. However, not any message will do in any public forum, as the defendant in the "Bong Hits 4 Jesus" case found out a few years ago.
According to the Alabama African-American History Calendar, the Reverend Fred Lee Shuttlesworth was born on March 18, 1922 in Montgomery County, Alabama. Shuttlesworth was raised by his mother, Alberta Robinson Shuttlesworth, and his stepfather, William Nathan Shuttlesworth, a farmer in rural Oxmoor, Alabama.
"An alumnus of Selma University (1951) and Alabama State College (1952), Shuttlesworth later became pastor of Bethel Baptist Church in Birmingham, where he led mass meetings and established the Alabama Christian Movement for Human Rights (ACMHR). When the United States Supreme Court ruled that bus segregation in Montgomery, Ala., was illegal, Shuttlesworth immediately announced that the ACMHR was going to test segregation laws in Birmingham. His plans angered local leaders of the Ku Klux Klan, who bombed his home. Shuttlesworth, his family and a guest emerged unharmed from the blast. He led a protest rally the next day.
Always at the forefront of the fight for equality, Shuttlesworth suffered physically for his efforts. In 1957, he was beaten by an angry mob for trying to enroll his daughters in an all white school. That same year, he joined with Dr. Martin Luther King Jr., Ralph David Abernathy, Bayard Rustin and others to form the Southern Christian Leadership Conference (SCLC). He also assisted the Congress on Racial Equality (CORE) in organizing the Freedom Rides. Shuttlesworth was hospitalized in 1963 as a result of being attacked by Commissioner Eugene "Bull" Connor's water cannons as he led a mass non-violent demonstration.
Shuttlesworth persuaded King to focus civil rights efforts in Birmingham. The subsequent protests drew national attention and helped to set the stage for legislation that later became the 1964 Civil Rights Act, which effectively ended segregation of public facilities in the United States.
In 2001, Shuttlesworth received the Presidential Medal of Freedom from President William J. Clinton and in 2004, the Jefferson Award for Humanitarian Service, constituting the two highest awards bestowed upon an American citizen by the federal government.
In July 2008, the Birmingham Airport Authority voted to honor Shuttlesworth by renaming the city's airport, the largest in the state of Alabama, in his honor. His alma mater, Alabama State University, also named its main cafeteria the Fred L. Shuttlesworth Dining Hall, in his honor."
The Choi Case And The Shuttlesworth Principle
While it is obvious that the experiences of the Rev. Shuttlesworth are vastly different from those of Lt. Dan Choi, and that the African-American civil rights movement comes from quite different soil than the LGBT civil rights movement, the same principles of the First Amendment that protect protest against social injustice from being shut down by an overbearing governmental authority apply.
The Alabama Supreme Court in 1967 upheld Rev. Shuttlesworth's arrest and conviction, saying that the law was an objective, even-handed traffic regulation. The case was taken to the U.S. Supreme Court, where Shuttleworth was represented by the prominent African-American civil rights attorney James Nabrit.
Justice Stewart struck down the ordinance:
"There can be no doubt that the Birmingham ordinance, as it was written, conferred upon the City Commission virtually unbridled and absolute power to prohibit any... "demonstration"...[A]n ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -- as by requiring a permit or license which may be granted or withheld in the discretion of such official -- is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license."
It should be noted that the order of the officer to Lt. Dan Choi to "get off the sidewalk" came after he was shackled to the White House fence, standing on a ledge off the sidewalk, and he did not possess the key. Was Lt. Choi guilty for not obeying the officer's command? Was Lt. Choi's First Amendment right to freedom of speech and protest subject to "the uncontrolled will of an official" when the officer ordered him to "get off the sidewalk"?
You might be wondering -- can I ignore any police command if I simply say I'm exercising my right to free speech? Of course not. Here is what Justice Stewart had to say about that.
"[O]ur decisions have also made clear that picketing and parading may nonetheless constitute methods of expression, entitled to First Amendment protection. "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied."
Was the officer who ordered Lt. Choi to "get off the sidewalk" concerned about blocking traffic? Was he concerned about the "general comfort and convenience" of passers-by?
Based on the evidence presented so far, and there are many news articles reviewing that evidence in great detail, I would say that the answer must be a resounding no to all of these questions. Lt. Dan Choi wasn't blocking traffic -- he was blocking the view of the White House, where many people didn't want to see the likes of Lt. Dan Choi making a big fuss about Don't Ask, Don't Tell.