Civil Liberties

He serves as the Institute’s president and spokesperson, in addition to writing a weekly commentary that is posted on The Rutherford Institute’s website (www.rutherford.org), as well being distributed to several hundred newspapers, and hosting a national public service radio campaign. His aggressive, pioneering approach to civil liberties issues has earned him numerous accolades, including the Hungarian Medal of Freedom.

Whitehead serves as a member of the Constitution Project, which seeks to formulate bipartisan solutions to contemporary constitutional and legal issues by combining high-level scholarship and public education. He also serves as a member of the advisory board for the Innocence Commission for Virginia, a nonprofit, nongovernmental, nonpartisan project dedicated to supplementing the ongoing work in Virginia through recommendations to strengthen the reliability of its criminal justice system and to reduce the likelihood of future wrongful convictions.

He has been the subject of numerous newspaper, magazine and television profiles, ranging from Gentleman’s Quarterly to CBS’ 60 Minutes. Articles by Whitehead have been printed in the New York Times, Los Angeles Times, the Washington Post and USA Today. He has also been interviewed by the following national and international media among others: Crossfire, O’Reilly Factor, CNN Headline News, the Wall Street Journal, USA Today, National Public Radio, BBC Newsnight, BBC Radio, British Sky “Tonight” and “Sunday,” TF1 (French TV) and Greek national television.

The author of numerous books on a variety of legal and social issues, as well as pamphlets and brochures providing legal information to the general public, Whitehead has also written numerous magazine and journal articles. In addition, he wrote and directed the documentary video series Grasping for the Wind, as well as its companion book, which focus on key cultural events of the 20th Century.

Whitehead has filed numerous amicus briefs before the U.S. Supreme Court. He has also been co-counsel in several landmark Supreme Court cases as well. His law reviews have been published in Emory Law Journal, Pepperdine Law Review, Harvard Journal on Legislation, Washington and Lee Law Review, Cumberland Law Review, Tulsa Law Journal and the Temple University Civil Rights Law Review.

Born in 1946 in Tennessee, John W. Whitehead earned a Bachelor of Arts degree from the University of Arkansas in 1969 and a Juris Doctorate degree from the University of Arkansas School of Law in 1974. He served as an officer in the United States Army from 1969 to 1971.

He is a vocal defender of the rights of others, transcending partisanship, and has written extensively in print media, while also speaking out frequently on radio and interviews. He has authored numerous articles and books, including most recently in 2009, Stand Up and Fight: It’s Time for a Second American Revolution and The Freedom Wars, published in 2010. In 1991, John Whitehead won the Hungarian Medal of Freedom. He is a participating member of the Constitution Project, which works to forge bipartisan agreement for solutions to legal and constitutional issues. He is also on the advisory board of The Innocence Project, which challenges wrongful convictions in the criminal justice system.

Having our voices heard is a closely held and cherished right of every American, going back to our founders and those hard-won freedoms that they made possible for all of us. All too often, however – and at our peril – we take freedom for granted, yet our Bill of Rights and in particular our First Amendment, with its vigorous emphasis on freedom of speech, the right of peaceable assembly, and our right to petition our government for redress of grievances, is increasingly on the mind of many citizens as we move ahead into the second decade of the 21st Century. As the inheritors of a democracy, with institutions intended to safeguard our rights and liberties, when and where do we draw the line between necessary institutional function and security and the rights of an individual to exercise his or her individual constitutional prerogatives. Speaking out – while at the same time not drowning out – the voice of our neighbors and fellow citizens, is often a precarious and delicate balancing act. This is something most parents teach their children, yet as adults we often lose sight of this idea of mutual respect as we strive to make ourselves heard. The rights of the many versus the few, this is the ground on which we have fought many battles throughout our nation’s history.

Our guest today has devoted his career to the principle of the protection of the individual’s right to free speech in all its forms: freedom of religion, freedom from harassment and discrimination, freedom of assembly, to name just a few. And we are very pleased to have him here with us for a conversation about renewing our commitment to freedom. Welcome again, Mr. Whitehead.

Jan Paynter: What brought you to your strong commitment to the issues of civil liberties and civil rights?

John Whitehead: I came out of the 1960s, where I was essentially a left-wing Marxist, and over a period of years I went to law school – just basically it was those early struggles and then some key mentors along the way, one being Nat Hentoff, who’s the legendary civil libertarian who wrote for the Village Voice. He’s still a good friend of mine. And a number of people that I would read and just research, and I don’t know – my parents, my mother was always standing up for people, and I think I modeled a lot off of my mother, who was always in the middle of some kind of brouhaha or argument with somebody over some kind of issue. So I’ve had mentors and people along the way. And just basically researching the history of America – I’m a big fan of Thomas Jefferson, whom I thought – you know, Thomas Jefferson had his faults, but a great civil libertarian. James Madison, people like that. And you know, my study of history – very, very influential – but just getting involved – I was an anti-war activist in the 60s, and I saw firsthand what a good movement can be and how effective it can be. The anti-war movement was very, very effective. It accomplished what it aimed to accomplish at that time, which was the end of the Vietnam War.

And I happen also to be a Christian, and I believe in the Good Samaritan Principle – which is, you help everybody, everybody’s your neighbor. You don’t distinguish between right wing and left wing or religion. I’ve helped all religions and all political persuasions. We were talking earlier, about 60% of the people that I defend, I would probably get indigestion over dinner because I wouldn’t agree with what they had to say. There’s that quote that’s attributed to Voltaire: “I may not agree with you but I’ll go to the death to fight for what you have to say.” I’m a free speech purist, so I believe free speech should reign with very few limitations. I don’t like what I’m seeing today with a lot of people who are getting arrested on street corners by police for handing out pamphlets and stuff – we see more and more of that kind of thing, which I don’t like, and we defend those kinds of people. So it’s that background, but just a mix of my religious viewpoints and my political persuasion and my history in the 60s I think really implanted something on me.

Jan Paynter: What led you to found – I mean, you’ve explained this a little bit, but if you would extend that – the Rutherford Institute, and how did the institute get its name?

John Whitehead: I originally worked with the ACLU very, very heavily in the 60s, and there were a lot of folks coming to me that couldn’t get help anywhere – even with the ACLU – a lot of them were religious folks. So originally, I started the institute to help people who couldn’t get help, and over the years that just broadened. I mean, it was the people who came to me and I saw right away that there’s a lot of civil liberties violations going on that no one group or no 20 groups or no 100 groups can handle. So, today we do as much litigation as anybody in the country. We have cases all over the United States, and we work through volunteer lawyers who give their time – which is really important for lawyers to give their time, because they’re given so much.

I named it after a fellow named Samuel Rutherford, who was a Scottish educator in the divine, who published a book called Lex, Rex. It was burned in the streets of London. He was accused of treason because he had attacked the divine right of kings and said the kings did not have a right to make law, they were subject to law, which of course as I said in England was treasonous, so I thought what a neat guy to name an organization after. But the thing was, on his deathbed too, he held out – he probably would have been executed but he died before they could get to him.

Jan Paynter: It’s ironic.

John Whitehead: It’s basically, everybody’s under the law even the President. I mean, I’ve been involved with some controversial cases – we sued President Clinton in the Paula Jones case, but the whole principle during the case was rule of law. It’s the Bob Dylan quote: “Even the President of the United States must sometimes have to stand naked,” and I believe that. I believe Presidents are just like you and me – they go to the bathroom, they put on pants – dresses if they happen to be a female – and we don’t treat Presidents like kings, they’re under the rule of law.

Jan Paynter: It’s an interesting point, because so often our lawmakers – going all the way up to Presidents – are sometimes the emperor with no clothes.

John Whitehead: They’re treated like emperors, and I object to that – the whole glamorous White House kind of thing… I like Abraham Lincoln, who came downstairs and greeted people with no shoes on. I’d like to see a President do that kind of thing again, but I don’t think you’re going to see that.

Jan Paynter: Probably not soon. So most of the work that you do is pro-bono.

John Whitehead: It’s all pro-bono, no one gets charged. We’ve had cases – a case to the Supreme Court will cost $100,000 in expenses, and we raise our money not from large corporations – we don’t have huge donors – our average donor is like $25.

Jan Paynter: John, you refer to yourself as a civil libertarian. For people who don’t know what that’s about, define that for us, if you would.

John Whitehead: A civil libertarian is for everybody’s rights. We have no political agenda, therefore I will defend people on the left, the right, the middle, Libertarian, Republican, Democrat. I am apolitical and the group’s apolitical – we don’t politicize our agenda – so, I’ve seen some groups do that where they want to be a Democrat or a Republican. That’s fine individually but when your group does that, all of the sudden you can’t defend a Republican or you can’t defend a Democrat or whatever – so, we don’t do that…. And it hurts my funding base occasionally, because people will get upset and say ‘How can you do such a thing?’ Well, I believe in the First Amendment.

Jan Paynter: In a democracy, how might citizens help maintain the balance between supporting institutions that guide and protect our liberties while challenging those very same institutions when they too often move to limit and constrain our Constitutionally-enumerated freedoms.

John Whitehead: Well one of my heroes – you asked who influenced me – was Martin Luther King. In fact, I’d say he probably has more influence over me than anybody. King’s idea was that you could support governmental institutions but when they were breaking the law – or what he called an “unjust law” – you could, as he did effectively, you could either disobey it – get on the steps with a picket sign. And right before he was assassinated, he was planning on going to Washington and occupying Washington basically – very strongly so with a shanty-town – and after he died Reverend Abernathy did it anyway. But I think that the way you support democratic government is oppose it when it does things that are unconstitutional. I would say every time I see something that’s wrong I either write about it, or if we have someone coming to us that needs help, or they’ve been oppressed by the government, you fight it legally. But I think citizens – again go back and look at Martin Luther King – what a tremendous impact he had because he was a great organizer, he spoke eloquently, his writings are amazing. And if you look at it, people accused him of being anti-government. He wasn’t really anti-government, he was anti-unjust government. And so if the government appears to be unjust – and you don’t have to be right, you could say government’s unjust and you may be wrong – but you still have a right to get out there and protest. And again, I’ve defended people who I don’t agree with, I think what they’re doing is probably weird if you want to say that – but they have a right to be on the street corner saying it and doing it.

Jan Paynter: You referred to King’s early occupying movements. What was the Bonus Army, and why was it of particular significance in our civil rights history?

John Whitehead: Yeah, the Bonus Army, early on they came out of the First World War, and they wanted pensions, et cetera, and the Congress was not agreeing with that. And so they basically occupied Washington early on, and that was – again I think some of that inspired Martin Luther King – and basically after that, General MacArthur by the way was the general that was put in charge of running them out of Washington, D.C., which he did pretty brutally. So the first Bonus Army was just people coming back from the war – veterans that thought they deserved some kind of benefits, and eventually we got those through the GI Bill. I think some of those early movements, they do have influence. They look like they’re defeated movements – like the Occupy Movement for example, the present Occupy Movement – it’s look like it’s a defeated movement, but it’s really not a defeated movement if its impact carries over, and I think some of its impact is going to carry over.

Jan Paynter: Well, it’s true, and as we all know in the 60s it took a while for momentum and for protests to build and for people to adjust themselves to what that means.

John Whitehead: I think strategy is important. One thing that Martin Luther King taught me was that strategy is really important – you need an identifiable leader, an identifiable agenda, and you need to have something that you’re going to eliminate that’s unjust, and accomplish the elimination.

Jan Paynter: It’s a good point, and obviously many people have cited the present Occupy Movement for not seeming to have a core. What kinds of things might the Occupy Movements do in order to make themselves more effective, in your view?

John Whitehead: Well, you have to be able to understand what their agenda is. A lot of people contact me and say, “What does the Occupy Movement object to?” One of the columnists in our local newspaper wrote and said they were full of envy, and I don’t think that’s true. I think that there are a lot of things you can object to. Locally here: cutting down all the trees that I see happening. I was hoping the Occupy Movement would go over and get in front of those places where I’m seeing the landscape go flat. Environmental causes are important. The cause of war – I mean President Obama now is reigning over the biggest military empire in the history of mankind, although he’s the “Nobel Peace Prize winner,” quote-unquote. There are a lot of issues that are really important that I think are life and death issues that the Occupy Movement could move toward, and it affects the economic thing that they supposedly are protesting. So there are a lot of things, and again, they came over and met with me and I said the same thing to them. What was good about King was he strategized, he pointed, he went to the location of the problem, and what he said in the last essay that was published right after he had been assassinated was that, “We’re going to Washington, and we’re not going to leave, and we’re going up to the capitol steps, and we’re going to stay there until they pass this bill and do what we want.” And he said, “I don’t expect anything out of Congress unless you force them to act,” and that’s true – you have to force politicians to act. So what he was saying was, “We’re going to go up on the steps of the Congress and we’re not going to move.” And what he did effectively was – and he said this – you have to make the system, the establishment, use a lot of energy. In other words, arrests – I mean, mass arrests, energy and stuff like that – which the Occupy Movement did for a while but then they kind of withered away. King though just kept the heat on all the time.

Jan Paynter: So eventually it cedes to your demands because it extends on and on, and they basically want to settle things.

John Whitehead: If your demands are really good demands – I mean, they’re honest, moral demands – you don’t give up, you just keep going. That’s the same with the Rutherford Institute. Over the years, I mean it’s a struggle to keep – it’s going to be 30 years old in June. I saw right away that if you really believe in what you do, you stay in until the end. You stay in until you’ve run the race.

Jan Paynter: What are “free speech zones,” and how do they affect our democracy, in your view?

John Whitehead: Free speech zones, basically after the 60s, early 70s, and into the 80s, started being erected. Free speech zones I think were a reaction to the successful movements of the 60s. The establishment as I call it – the political establishment – had to find a way to limit it, so the idea was to create free speech zones where you’d have a cordoned off or a gated area where people could go and they could have their free speech there. At the 2004 Democratic Convention, they actually put cages up and they had a free speech zone when Obama was speaking, and I wrote an article thing – he was a constitutional law professor – and I wrote him directly and said, “You can’t do this, you’re a constitutional law professor.” The problem with free speech zones is they create an area, but they’re so far away from the people you want to address that they’re not effective. Some colleges have actually – and we’ve written colleges and have gotten a few lawsuits – where they actually like will find an alleyway in the back of some university, and that’s the free speech zone. Well the people that they want to address, the people in the free speech zone, are going in the front door. Well that’s not free speech. So that’s what the zones are, they’re to put people away from the targets of their speech. And again, if you have celebrities – Cheney was going to speak here recently at Miller [Center] – and when he heard that there were protesters coming, he didn’t show up. If you create a free speech zone, then put them behind the Miller Center and Cheney could have come in the front door and he probably would have spoken. That’s why free speech is so effective. If you wanted to limit free speech, which you do is you create a zone or put people in a cage somewhere.

Jan Paynter: Well, it controls press coverage, which is key for communication of what’s going on. How in the aftermath of 9-11, John, did the Bush Administration affect our right to privacy, would you say?

John Whitehead: The U.S. Patriot Act was put into law within six weeks after 9-11. It’s an over 400-page bill, which means it was written before 9-11, there’s no way it was written after 9-11. So, it was a bill that was waiting to happen. The Patriot Act basically gutted the Bill of Rights. What the Patriot Act allowed the government was to do roving wiretaps. In other words, the law used to be that if you were going to wiretap somebody, you had to go to a judge, get a warrant, and the judge says, “You can tap that telephone.” Under the Patriot Act, you do roving wiretaps, or once they got their right to tap your phone, they did cell phones, internet, and all of those kinds of things, they could follow you wherever you go, so it bypassed the courts. The other thing is it allowed groups like the FBI to come into your home without a search warrant and do “sneak and peek” searches. In other words, come in, rifle through your materials – and by the way, the FBI has a new manual that we don’t know what’s exactly in it, but we do know it’s going to give agents the power to even go further – come into your home, go through boxes, track you wherever you go. So the U.S. Patriot Act is – anybody who studied the law knows it gutted the Bill of Rights. In other words, it allows the government to go to your internet site, download materials. It allows the government to come into your home and use magic lanterns, and put on your computer and download everything on your computer – but here’s the key: you never know they’re there, because they’re good at breaking and entering and leaving without you knowing it.

Jan Paynter: What are the expressed powers of the President under the Patriot Act? Is there anything in particular that he can do?

John Whitehead: Combined with the Patriot Act and the new National Defense Authorization Act – President Obama just signed the law – combined with that, gives the President ultimate power to basically detain any citizen or any non-citizen. It allows the military to come to your door, ostensibly for a non-citizen suspected of terrorism. However, if American citizens are present – and this is what the FBI Director Mueller said, it concerned him. If it concerns the FBI it should concern us – if American citizens are there, it can sweep in whoever’s in that house and they all go to military detention. If you follow the case of Bradley Manning, the young soldier who broke the WikiLeaks thing, and how he was basically tortured – he was put in a cell of isolation, he couldn’t see his family, and he had minimal communication with an attorney. He was smart enough to know people who had a lawyer. Well, if you’re swept into military detention – and the President can do this – you’re gone. You probably won’t see your family, and if you’re just an average citizen, you won’t see a lawyer.

Jan Paynter: You mentioned the FBI. Have the powers of the FBI expanded in recent years?

John Whitehead: They’ve expanded. There’s a new manual and we don’t know exactly what’s in that manual. All we know is what’s been released, and it will allow the FBI to use national security letters, which bypass search warrants – in other words, the FBI just shows up with letters and says, “I need these documents from you.” It also allows them to come into your home secretly and rifle through materials in your attic. In other words, if they don’t like what you’re doing they can go try to find evidence to convict you of something. We do know, and this is factually true, that the FBI has infiltrated different groups, pretended they’re part of a group, they even have infiltrated the Quakers in Baltimore, peace activists, to see what the Quakers are up to. If you know what the Quakers are, they’re a peaceful group of people. It becomes extremist and it becomes a little paranoid. Again, I don’t have any problem saying this, we have moved into a police state. The ability of surveillance is massive. The National Security Agency has a computer system called “Acquaint.” Several of the people who helped set up that computer resigned and said the government should not have the kind of power this computer gives the government. But what it allows the government to do is to sweep all computer systems, all text messaging, to see what you’re doing. The computer does it, so technology has become so awesome that they can collect any kind of information. I tell friends, don’t – I’ll get a weird text message like, “The movie bombed.” I’ll say, “Don’t use the word ‘bombed’ on a text message” because that computer is going to zero in on that word “bombed” and they’re going to feed you right into the computer and you’re a suspect at that point.

Jan Paynter: It’s very interesting, because I have some friends from other countries and they will sometimes be quite paranoid about the degree to which they are watched, and many people used to think that they were exaggerating, but no.

John Whitehead: There’s a great line in a Woody Allen movie, The Curse of the China Jade, some guy accused Woody Allen of being paranoid and the guy says, “Do you know what that means?” and Woody Allen says, “Yes, it means I’m very perceptive.”

Jan Paynter: I wanted to ask you about the Ninth Amendment because I had Professor Schauer on to talk about the Constitution in a prior program, and it was an interesting amendment to me because it is rather opaque and open-ended, but legal scholars tend to dismiss it. What are your thoughts as to the significance of this amendment?

John Whitehead: Well the Ninth and Tenth Amendment should be read together. What the objection to the Bill of Rights was, was this – and thank God Jefferson opposed this idea – but the idea was that if we list certain rights, the government’s going to assume that the things not listed there they had a right to invade. So the Ninth and Ten Amendments leave rights to the people and to the states, that are not listed in those amendments, so to protect every other right on the face of the earth. So that was the whole purpose of the Ninth and Tenth Amendment. And Jefferson argued, he said, “Hey if you get a half a loaf, it’s better than no loaf at all.” So people like Madison had enough foresight to provide in the Ninth and Tenth Amendments, which guarantees the people what rights not stated the people still retain, and the states retain certain rights. However, those are based on the concept of federalism, which means you have differentiated sources of power: the federal government – and again, it’s called the federal government because of federalism – the states had a certain amount of power, and the local communities. But that exists no more, because basically we have a centralized government in Washington, D.C., that, through funding of state governments and stuff, has an amazing amount of power, and the concept of federalism has basically gone away.

Jan Paynter: John, do you think that with the increasing – can protections of our rights, basically, keep pace with the speed at which technology is advancing?

John Whitehead: Not at this point. My belief is that technology now is driving everything. I mean, we’re not driving technology, it’s driving us because it has become so awesome. You know, what is it, “To the hammer, all the world looks like a nail?” So a technology system that’s used to survey people, everybody looks like a suspect, so we’re all suspects now. So again, you shouldn’t have to be looking over your shoulder all the time, but people do, and again – you used the word paranoia – you have to be concerned today what you say. For example, who was it, Scalia? One of the justices of the Supreme Court, I forget, when he was up for appointment, they actually had a record of all the books he had bought at Barnes & Noble.

Jan Paynter: I remember that.

John Whitehead: I thought, how absurd. This man has privacy rights, he should be able to read anything he wants to read. But it’s even worse than that now. Facebook, be careful what you say on Facebook. Text messaging. Now, I was told early on, “John, if you want to be a judge be sure you don’t write anything controversial” and I was going, but they don’t want to know what I really believe? They want me to hide everything I believe, be a politician?

Jan Paynter: Yeah, what kind of leaders will we have if you water it down to people who have no opinions and are afraid to state them?

John Whitehead: I think the current Republican debates show you what kind of leaders we get.

Jan Paynter: I get concerned about a very younger generation that has no fear of putting everything out there on the internet, because I think they’re used to it – and the rest of us that are a little bit older are a bit more circumspect about that. So I imagine over time, privacy law is going to become rather a burgeoning enterprise, yes?

John Whitehead: Yes. Young kinds are young kids, but I’m afraid some of the things young kids are doing on Facebook. We get in cases with Facebook where a young girl in gym class took a photograph of her gym teacher’s buttocks, and that was a big controversy. And I was going, oh, I hope that doesn’t haunt her in 20 years when she wants to…. They’re going to say, “She showed someone’s behind on Facebook.” But everything’s a record now. The computers don’t forget.

Jan Paynter: Turning to our schools. In what ways are they emblematic of the problems that we face in the nation as a whole?

John Whitehead: We handle a lot of cases in public school issues. Here locally, we’ve handled cases. What my great concern with public schools today is free speech is disappearing. We have a case out in California where some kids brought in on Cinco de Mayo day, they brought in some American flags on their shirts, and they were told to take the shirts off because it might offend some Hispanic kids. We got involved with a case that I thought was a pure free speech issue, but the thing about free speech is it does offend – but offensive speech is what’s protected in the First Amendment. People that don’t offend are never involved in First Amendment activities – it’s the people that get on the street corners and rile things up. But the idea that, “Oh, it might offend somebody, we’ve got to eliminate it.” Thomas Jefferson was offensive, Martin Luther King was really offensive, Nat Hentoff was really offensive, John Whitehead is considered offensive sometimes and maybe you’re considered offensive, but that’s what the free speech things protect, so we want to keep a robust debate. How to deal with a flag t-shirt, have an assembly where the students can meet two weeks before and debate the issue. Schools never think like that.

So what I feel we’re doing in our public schools, we’re raising a whole compliant citizenry in the future, and one way we’re doing that is the lack of proper civics teaching. All the studies show – and I’ve written on this, you can go to our website, Rutherford.org and read this – this is fact, it’s footnoted – kids graduating from high school don’t even know what’s in the First Amendment, and they have no idea what the Fourth Amendment is. This should shock you. I have law students, about 30 students come study with me every summer from all over the country – some of the finest schools, these are good students. When they walk in the door I ask them to give me the five freedoms of the First Amendment, each student. I have yet to find over my entire history any student who can give me the five freedoms of the First Amendment. These are law students. I spoke to the local bar association here in Charlottesville two years ago, and in the middle of my speech I stopped and said, “By the way – there’s 150 lawyers in the room – can any lawyer in this room give me the five freedoms of the First Amendment?” One guy raised his hand and I said, “Be careful, I’m going to call on you.” And he put his hand down. I walked out, shocked. This is America. We don’t know what’s in the First Amendment? Shocking.

Jan Paynter: Well, very often I think that people take the machinery of government and democracy for granted, and think that it will just keep chugging along, the train will keep running, and obviously we’re seeing examples all over the place – in banking, in environmental issues – where this isn’t the case. So the people need to pay attention.

John Whitehead: You need to know your rights. I often say the three most beautiful words in the English language are probably, “We the people.” The Constitution was written so we would participate, and you have to participate. Again, go back to Martin Luther King, he participated, that’s why he changed things. You can participate, but that means turning all your entertainment stuff off, occasionally going to local city council meetings. I’m surprised sometimes when I see footage of our local city council meetings, and it’s almost bare – no one’s there over an important issue. Thank God with the Occupy people, they crowded the room that night, you know, several times, and voiced their opinion – but that should be every night. Where are the people at?

Jan Paynter: One of the things that I’ve always been curious about, John, is how you strike a balance in the law – and I know this is a huge question – you need precedence, you need cases as guides for future litigation. How do you strike a balance between becoming enslaved to precedent or allowing people to be treated as individuals on a case by case basis?

John Whitehead: Precedent is good because it gives you guidelines, but it should not be carved in stone. Dredd-Scott, which basically approved slavery, was a Supreme Court decision. That should never have occurred, and it should have been overturned. Brown v. Board of Education advanced equal rights for all Americans. So as a lawyer I see precedent as a guide but should not be something carved in stone. It’s not Moses coming down from the mountain with the Ten Commandments. It’s infallible human beings who make mistakes, and we do make mistakes. My feeling is the courts are there to do justice – and people say, “Well, what do you mean by that?” – we’re there to protect human rights. Whenever human rights are in the balance, whoever’s on the other side should be fearing the courts are going to rule against them, and I’m talking about little people on the street corner, people with picket signs, the Occupy people, whoever out there is exercising their rights, because that’s what justice is all about. That scale should always be heavy on the side of individual freedom, because without that, the government becomes what it’s become today: a large, bureaucratic mess that’s filled with corruption.

Jan Paynter: What, in your view, are some of the greatest victories that you’ve experienced at the Rutherford Institute in your work for free speech.

John Whitehead: I think they’re all great. I mean, we’ve won Supreme Court cases. Sometimes the biggest victories are when we write a letter. For example, I told you about the case of the young boy who had oregano in his hand at school, and the teacher thought it was simulated marijuana, or whatever, and kicked him out of school. We intervened with a letter and said, “We’re going to sue you if you don’t put him back in school,” and they did. See, that’s a great victory for the family because the family was – to put it bluntly – freaking out. He was a good student, and he had to clean his record up. So any of those kind of things, I don’t put any particular case in front of another, they’re all together. Plus the other groups out there fighting – the ACLU, the groups like that doing good work – all the cases together are important.

Jan Paynter: Okay, since this program is about solutions, what are some of the things that individual citizens can do today to make their voices more heard? Of course, writing your Congressmen and Senators, but what are some other things that you would suggest?

John Whitehead: Well first, get educated. The Bill of Rights is only 462 words, so if you’re a slow reader it takes five minutes to read them. That’s the first ten amendments. So, get educated, we give out a free pamphlet called “Do You Know Your Bill of Rights?” They should know the Bill of Rights. Teach them to your kids in the home if the schools are not doing it, get your kids active. When kids go to school and they’re wearing a t-shirt that some teacher doesn’t like – and it’s usually a teacher, it isn’t the other students – and they do something that you feel violates their free speech rights, get behind them and stand up for them. Be involved in your local political structure. Affecting Washington, D.C., is very difficult, I know, because we sue people in Washington a lot. Even with lawsuits it’s tough. Local city government is where you can make your biggest impact.

I think Occupy, the Occupy Movement gave us a good example. They created a firestorm of media coverage, did some good, and if they continue they can do more good. But you have to be willing to sacrifice. I think that’s the key. You have to be willing to sometimes get arrested, get hit by a policeman, whatever it takes – and I’m not saying people should go out and do that, but what I’m saying is it takes sacrifice. It takes putting your principles on the line and standing up for freedom, and that’s the basis of it. I mean, if you go back to the founding – the 1776 Declaration of Independence, it was written right here in Charlottesville – I mean, you’re talking about people putting their lives on the line, not just their freedoms. They were putting their lives on the line. They were willing to die for freedom. And so, we should be willing to take a picket sign down to city hall even if we’re the only person with a picket sign, because Rutherford Institute will defend you if the police arrest you.

Jan Paynter: Well, at the very least, civil disobedience is not treason.

John Whitehead: No, no – Martin Luther King was correct. Standing against unjust law, that’s a moral thing to do.

Jan Paynter: Well, I think a lot of people in this community are aware of that, because we have the Occupy Charlottesville movement. In fact, there was just a piece in the paper today about their having to relocate and they’re taking a bit of a hiatus, but that gets people thinking about things. We had the Albemarle High School case of the young woman who was not allowed to put her piece in the paper because it might offend someone, and I know you weighed in on that.

John Whitehead: Yes, I weighed in on that. Free speech is really important.

Jan Paynter: So, it’s in the air, and I am so delighted that you were able to come and talk to us about this today, John.

Thank you at home for listening to our conversation. If you would like more information about the topic we have discussed today, we will be posting a number of books and articles on civil liberties concerns on our website at politicsmatters.org. You will also find there a comprehensive archive of all prior Politics Matters programs, which you may watch in their entirety at any time. We are very interested in hearing from you with any and all questions and concerns as well as ideas for future programs. We encourage you to email us info@politicsmatters.org. We air Tuesdays and Saturdays at 8 p.m. on Charlottesville’s Channel 13.

Thank you very much, and until our next broadcast I’m Jan Paynter, and this is Politics Matters.