The American Civil Liberties Union of Southern California sued the Veterans Administration today for denying a 67-year-old Army veteran his free-speech right to protest the agency’s failure to use part of its property in west Los Angeles for the benefit and care of veterans, particularly those who are homeless.

The ACLU filed the lawsuit in federal court in Los Angeles on behalf of Robert Rosebrock, who, along with other veterans, has protested the VA’s land-use policies every Sunday since March 9, 2008. During the protests, Rosebrock often displays the American flag upside down on a fence outside VA property in west Los Angeles as a distress symbol to draw attention to the group’s cause. On Feb. 28, VA police demanded that he remove the flag, and when Rosebrock refused, the police removed it themselves. A week earlier, VA police had allowed Rosebrock to display the flag right side up at the same site.

”The VA has shown a basic misunderstanding of the meaning of the First Amendment of the Constitution, the very document that Mr. Rosebrock and other veterans have served in the military to protect,” said Peter Eliasberg, managing attorney and Manheim Family Attorney for First Amendment Rights at the ACLU/SC. “The government cannot say it’s OK to hang the flag one way but not another just because the latter expresses a message that the government does not approve of.”

The recent harassment of Rosebrock by VA police continues a campaign by the VA of selective enforcement against him depending on how he displays the flag during his protests. For 66 weeks in a row, Rosebrock hung the flag right side up without any interference from the VA police. However, after he started hanging the flag upside down in June 2009, he was quickly cited six times for “unauthorized demonstration or service in a national cemetery or on other VA property.” Rosebrock also received an e-mail from Lynn Carrier, associate director of the Veterans Administration Greater Los Angeles Healthcare System, which said in part that he and his fellow demonstrators “may not attach the American flag, upside down, in VA property including our perimeter gates.”

The VA eventually dismissed the citations against Rosebrock, but the recent action of the VA police in removing a flag that Rosebrock had hung upside down makes it clear that the agency’s unconstitutional policy of denying him his free speech rights continues.

The VA complex was specifically deeded to the United States in 1888 as a home for disabled veterans. Rosebrock and his fellow veterans demonstrate in front of a portion of the complex that the VA is planning to lease for use as a public park. Another portion of the land is now leased to a nearby private school for tennis courts, which veterans are not allowed to access. Other buildings on the land are leased for use as theaters. Rosebrock was particularly incensed last year when the VA allowed a “celebrity carnival” to take place on the property, at a time when there are more than 6,500 homeless veterans in Los Angeles, including some who sleep on the sidewalk adjacent to the VA land that has been leased to build a public park.

“Our protest is an outcry that sovereign and sacred land deeded for the use and care of veterans is being stolen away and leased to private, special interest groups with no transparency or accountability for the money generated,” Rosebrock said. "The U.S. Flag Code allows for the flag to be displayed upside down when property is in danger. It’s clear to us that this property is in danger, and has been for a long time.”
 

RENEE MONTAGNE, host:
The nation's largest school system is reeling from a budget crisis, and the Los Angeles Unified School District is bracing for another round of layoffs. One school in Watts, Markham Middle School, has already lost half its teachers, and there may be more pink slips to come. That's where NPR's Ina Jaffe went for this story.
Mr. NICHOLAS MELVOIN (Teacher, Markham Middle School): Good morning, Maria. Good morning, Kyla(ph).
INA JAFFE: Students line up outside of Nicholas Melvoin's class as he greets each one of them by name.
Mr. MELVOIN: Morning, Ruby. Morning, Greg.
JAFFE: Melvoin teaches English as a Second Language in this school that's more than 70 percent Latino.
Mr. MELVOIN: Our class average for this test was a 86 percent. I still think we can do better, but I was proud.
JAFFE: Melvoin is just 24 years old. He's a Harvard graduate and began teaching right out of college.
Mr. MELVOIN: I was always interested growing up in education. I have a lot of teachers in my family, so I knew that I wanted to not only teach, but teach in a school like Markham in a community like Watts.
JAFFE: Which has four large public housing projects and dozens of gangs. A lot of the teachers who came here were, like Melvoin, young, idealistic and reform-minded. But because layoffs are decided on the basis of seniority, they were the first to go when the layoffs came last June. Melvoin is now one of about a dozen who came back to Markham as long-term substitutes.
Mr. MELVOIN: My job description didn't change. If anything, actually, my responsibilities increased. I became a department chair. So I came back and actually took on more leadership roles, even though I was being paid by the hour.
JAFFE: And getting no sick days or vacation pay. Markham Middle School has had to get by with a lot of subs this year, but not all are familiar faces like Melvoin.
Ms. CHERELLE REED(ph) (Student, Markham Middle School): In my history class this year, we had so many different substitutes, it was a blur. They write their name on the board, and the next day, it would be gone, and so were they.
JAFFE: That's Markham eighth grader Cherelle Reed. She's a plaintiff in a lawsuit that claims that teacher layoffs have had a far greater impact on schools that serve poor communities. She spoke at a news conference at the school.
Ms. REED: It's not fair for my school to lose so many teachers. It feels like we're at a lower-class school, and we're not thought about as much as other schools.
Mr. TIM SULLIVAN (Principal, Markham Middle School): When I came on board, I had a young individual come to me and ask me: So how long will be here? And that just hit me like a ton of bricks.
JAFFE: Tim Sullivan became principal of Markham in 2008. He was hired to lead a reform effort after the school became one of a dozen taken over by L.A. Mayor Antonio Villaraigosa. New teachers embrace reform, he says, and the school reinforced that with special training.
Mr. SULLIVAN: One of the things that hurts us again financially is we invest professional development - thousands of dollars into these teachers and programs, and that training goes right out the window. And then it's, you know, training a new batch.
JAFFE: And veteran teachers, says Sullivan, are not jumping at the chance to work at Markham.
Mr. SULLIVAN: As we started the school year, I still have open positions.
JAFFE: So, he hired teachers who'd been pushed out of their old jobs at other schools, but they changed their minds.
Mr. SULLIVAN: Because folks had gone home, looked up Markham on the Internet, did their research, they chose to send in letters of resignation, never even arriving on my campus.
JAFFE: It was almost Christmas before all the positions at Markham were filled with either full-time teachers or long-term subs.
Mr. MELVOIN: Who can raise their hand and remind me what genre means. What is genre?
JAFFE: Nichole Melvoin now counts as one of the full-time teachers. He was reinstated in January, but expects to be laid off again in June.
Ina Jaffe, NPR News.
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MONTAGNE: This is NPR News.

The Supreme Court heard argument earlier this week in Humanitarian Law Project v. Holder, an extremely important First Amendment case involving the criminal prohibition on so-called "material support" to designated terrorist organizations.

Although plaintiffs' attorney Professor David Cole did a superb job of focusing the Court's attention on how the law prohibits pure political speech, lurking not far in the background was the law's effect on humanitarian assistance. Justice Anthony Kennedy, who is often a key swing vote on the Roberts Court, devoted his first question to that issue, asking whether the government could "forbid any person from giving tsunami aid to one of these organizations."

This was not an abstract hypothetical; I spent several weeks in my ancestral home of Sri Lanka doing relief work in the immediate aftermath of the tsunami. While there I saw first-hand how humanitarian organizations could not help many of the victims because they lived in territory controlled by the Liberation Tigers of Tamil Eelam, or LTTE, one of the State Department's designated terrorist organizations. (I wrote about my experience in an ACS Issue Brief, "A Hungry Child Know No Politics:" A Proposal for Reform of the Laws Governing Humanitarian Relief and "Material Support" of Terrorism.)

As the questioning returned to that issue several times, at least some of the justices seemed open to Solicitor General Elena Kagan's argument that Congress could ban such humanitarian aid consistent with the First Amendment. As Justice Kennedy put it, "if you get tsunami money that frees up your other assets for terrorist money." Professor Cole countered by focusing on some of the obvious weaknesses in the argument: if Congress can ban any support that is "fungible" with money that a designated group might otherwise spend, then what about legal support? The answer, said Kagan, was "yes . . . to the extent that a lawyer drafts a brief for the PKK or the LTTE . . . that would be prohibited."

That response did not go over well. Justice Kennedy asked if Kagan would "stick" to that view, and when she did, Justice John Paul Stevens said that meant Professor Cole's activity in this very case must be unlawful. After Justice Sonia Sotomayor expressed yet more skepticism, Justice Stephen Breyer said what others were clearly thinking: "I'm more worried about the lawyer."

The specter of punishing people who form so intricate a part of the Court's daily activities obviously troubled several of the justices. As an attorney who represents people charged with terrorism offenses on a regular basis, I too am worried about us lawyers, and was glad to see that I'm not alone. Yet the Court's sympathy for that particular class of victims struck me as rather odd. I could not help but wonder if the justices, and Kagan for that matter, would have been so sanguine about allowing the government to ban pure humanitarian assistance if they had been as close to relief workers as they were to lawyers. Would they have accepted a proscription on vital assistance to tsunami victims if they had seen the devastation I saw the day after that giant tidal wave killed 30,000 Sri Lankans in a matter of minutes? Surely if they had looked into the eyes of the children who had lost their parents in the blink of an eye, or seen the desperation on the faces of refugees who needed drinking water at the camps I visited, they would not have allowed Congress to prohibit relief groups from giving aid to the people who could most efficiently deliver it to the victims, even if they happened to be humanitarian workers who were members of the LTTE. While the LTTE no longer controls territory in Sri Lanka, the material support laws at issue in Humanitarian Law Project continue to vex humanitarian groups around the world.

The American Civil Liberties Union (for whom I work as an attorney) filed an amicus brief on behalf of nine humanitarian organizations, including the Carter Center, the Christian Peacemakers, and Human Rights Watch. The groups teach conflict resolution, provide humanitarian aid, and engage in various other activities that require them to work with designated terrorist organizations. These groups told the Court that they may be forced to severely curtail many of their activities because of the material support laws, and asked the Court to recognize that the First Amendment protects their right to provide humanitarian assistance that is intended to promote non-violent, humanitarian purposes, even if it also constitutes "material support" to the designated terrorist groups under the broad language of the Patriot Act.

As I remembered the people I had seen suffer in Sri Lanka, it filled me with great sadness to watch President Barack Obama's hand-picked representative to the Supreme Court defend a position so blind to the needs of innocent civilians. Twenty years ago, President Reagan famously authorized food aid to the Communist dictatorship in Ethiopia at the height of the Cold War, proclaiming that "a hungry child knows no politics." He could just as easily have been referring to the children of Pakistan, Colombia, Iraq, or any number of other countries today, where humanitarian groups have sought to ameliorate the misery suffered by civilian victims of war and natural disaster. The Red Cross has enshrined that same principle in its own Code of Conduct, which states that "the humanitarian imperative comes first. The right to receive humanitarian assistance, and to offer it, is a fundamental humanitarian principle which should be enjoyed by all citizens of all countries."

We can only hope that Justice Kennedy and his colleagues will remember those widely-revered words, and those of the president who appointed him, as they consider how to resolve this important case.

This piece was originally written for the American Constitution Society.