Was It Something He Said?



Speak No Evil: A federal prosecution officer says C. Clark Kissinger must keep his mouth shut and stay put when it comes to politics. photo: Hiroyuki Ito

A speech during the Republican convention may land a top Mumia advocate in jail.

by Noel Weyrich

Can someone be imprisoned in Philadelphia for making a speech? Lawyers for one of Mumia Abu-Jamal’s key supporters say a federal judge might do just that to their client next month.

On Dec. 6, Brooklyn-based journalist and author C. Clark Kissinger will be hauled up in front of Philadelphia Federal District Court Judge Arnold C. Rapoport for violating the conditions of his federal probation. An Abu-Jamal confidant and frequent spokesperson for the convicted cop-killer’s legal team, Kissinger admits that although his probation officer denied him permission to visit Philadelphia during the Republican National Convention this summer, he came here anyway and spoke at an anti-death penalty rally.

Kissinger had been placed on federal probation earlier this year following a civil disobedience conviction. Under the law, probation violations allow a judge to revoke probation and sentence a defendant to the maximum allowable under his original conviction — in Kissinger’s case, up to six months in a federal lockup. Richard Goldberg, the assistant U.S. Attorney who originally prosecuted Kissinger, confirms he will represent the government at the upcoming hearing but won’t disclose what penalty his office will seek. "I can’t comment on anything that hasn’t been in court yet," he says.

"Nobody else can think of a case recently where they’re threatening to put somebody in jail for giving a speech," says Kissinger, 60, a soft-spoken man with the demeanor of a grandfatherly academician. "Of course, they will claim, No, no we’re not arresting you for speaking, we’re arresting you for violating the terms of your probation."

One of Kissinger’s attorneys, veteran New York civil rights attorney Ronald Kuby, says, "I’ve never seen anything like this before. There is no basis in any body of law since the revolution that justifies incarcerating someone for giving a lawful speech. It is singularly and uniquely outrageous."

Kissinger’s legal problems began on July 3, 1999, when he and about 90 other people were arrested during a pro-Mumia protest held at the Liberty Bell. Earlier this year, Kissinger and six other defendants pled not guilty in federal court to charges of "failing to obey a lawful order to disperse." Judge Rapoport found all seven guilty and gave them one-year probationary sentences.

The specific terms of the probation, which defense lawyers have since denounced as needlessly onerous, include restrictions on Kissinger’s travel and a requirement to disclose his sources of income. Both provisions are violations of his First Amendment freedom of speech, Kissinger contends.

"I’ve complied with a lot of it," he says of the probation terms. "I paid my fine, I reported in. I gave them my passport. But I drew the line at the First Amendment."

Travel restrictions on probationers are fairly common, but usually exceptions are granted in order to allow people to make a living. However, Kuby points out that Kissinger’s probation officer has turned this concept completely on its head.

"Clark has repeatedly asked to travel for purposes of political association, and it’s always been denied," says Kuby. "The probation department has repeatedly said you can travel for personal reasons, but not for political ones, which is, of course, exactly the opposite of the free speech protections in the Bill of Rights."

According to the parole violation notice, Kissinger submitted a request on July 26 to visit Philadelphia from July 31 to Aug. 1 in order to "speak at a rally opposing the death penalty [and] the pending execution of Mumia Abu-Jamal and to work as a journalist reporting events at the Republican National Convention."

The request was denied by the Philadelphia federal court on July 31. No reason was given.

On Aug. 1, Kissinger was one of the speakers at an anti-death penalty rally on the plaza near the Municipal Services Building. Among the rally’s stated objectives was to "unmask the executioners" and "highlight the murderous record[s]" of Gov. George W. Bush and Gov. Tom Ridge. On Aug. 2, Kissinger’s probation officer found an account of Kissinger’s speech on a protest website, and submitted it as evidence that Kissinger had violated his probation.

"Why is the government is acting so harshly against Clark? I don’t know," says Kissinger’s Philadelphia attorney Andrew Erba. "Clark is not a lawbreaker. There’s nothing about Clark that suggests he is some nefarious criminal that one has to keep under a tight leash. What do you gain from making Clark the focal point of this action? I don’t understand it."

Ironically, the criminal justice advocates who arranged the rally had scrupulously planned the event so that probationers and parolees wouldn’t get in trouble just for being there. "Many of the people most directly affected by [these issues] would be at much greater risk if they were arrested," explains Amy Dalton of Pennsylvania Abolitionists United Against the Death Penalty. The group went to great lengths to secure a demonstration permit for the site, she says. "We decided that it was important to have a way for people to participate in that protest without putting themselves in direct threat of arrest."

But for Kissinger, the mere fact he had not received permission of the court to travel has landed him in legal hot water. His adamant refusal to disclose his income sources to the court, as required by the probation terms, is now only exacerbating his perilous situation.

"His position is that as a journalist who’s working on behalf of Mumia Abu-Jamal, he receives contributions from people who wish to support Mumia Abu-Jamal," says Kuby of Kissinger. "To disclose those contributions would have a chilling effect on those contributors." Kuby concedes that financial disclosures may make sense involving someone convicted of financial fraud, but not for someone who was arrested for one simple act of civil disobedience.

In other words, financial disclosure would put Kissinger in the McCarthyite position of naming names — unmasking financial patrons who expected to remain anonymous.

"There’s no purpose for obtaining this information," Kuby insists, "except either an improper one, to conduct the very political harassment that Clark is alleging, or a bureaucratic one. You know, We have twelve boxes on the page and all twelve must have information."

Kuby and Erba have filed motions asking the court to drop the travel restrictions and income disclosure requirements in Kissinger’s probation terms. But those motions are likely to be still pending when Kissinger appears before Judge Rapoport.

"I’ve grown utterly cynical about this work," says Kuby. "After doing this shit for 17 years, if I meet one more guy who was caught in the process of a rape, and [claims he] is a political prisoner because he didn’t get his Miranda rights, I’m going to jump off a fucking bridge.

"But this," he adds, "is like, ‘Wow, this is really happening? Judge Rapoport might be the first judge in the modern era to incarcerate a defendant for making a legal speech — in the Cradle of Liberty, of all places.’"