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Shirting the issue

It would be wrong, and probably unconstitutional, to sentence Boston mayor Tom Menino to mandatory First Amendment sensitivity training — but one is tempted. Fresh from a free-speech drubbing in federal court in which the city’s harsh restrictions on street performers were found unconstitutional (See "Killjoy Was Here," News and Features, September 3, 2004, and "Street Musicians, One; Boston Police, Zero," January 7, 2005), Menino is now courting another potential legal disaster. Last Thursday, the mayor chaired an emergency City Hall meeting to come up with a strategy for combating the worrisome increase in Boston’s violent crime. Focusing on one aspect of the problem — the difficulty state prosecutors have convincing witnesses to step forward — the mayor came up with another of those zany solutions that make covering him so interesting: he wants to send city Inspectional Services agents into stores to seize T-shirts being sold, and worn, with the now-infamous STOP SNITCHIN’ logo. (Another version of the program features police officers stopping in such stores to "suggest" they discontinue carrying the shirts.) There are already reports of merchants "voluntarily" taking the shirts off their shelves. However, a 1963 Supreme Court decision (Bantam Books v. Sullivan) cuts through the "voluntariness" of such programs and deems them unconstitutionally coercive. The ACLU of Massachusetts has warned the city of this glitch in its program.

The Boston Herald reported that the shirts had popped up earlier this year at the trial of a man charged with the murder of 10-year-old Trina Persad. The defendant’s mother wore the garment, perceived by some as a plea — others would say an admonition or even a threat — that neighborhood residents not testify against her son, a reputed gang member. The T-shirts — some sporting a stop sign peppered in bullets — are now a hot item at local stores. Merchants view them as "novelty" items, but some law-enforcement officials see them as a not-so-subtle effort to intimidate witnesses and informants.

There’s no question that some are wearing the T-shirts to send a message that people should not cooperate with the fuzz. But that’s precisely why the shirts are protected by the First Amendment — they convey a message and do so without resort to what the law would define as an illegal threat. Few law-abiding citizens would agree that legitimate witnesses to a crime should be intimidated into refusing to cooperate. Yet it’s also true that there is a long history of abusive law-enforcement practices, in which witnesses are pressured by police and prosecutors to "sing" their way to less severe punishments — not to mention those taught to "compose" false testimony. As a result of using some of those tactics on witnesses, Massachusetts has seen a rash of false convictions in recent years, particularly in Suffolk County (See "Let Us Now Praise Framed-up Men," News and Features, April 9, 2004). Hence, there’s legitimate controversy surrounding the social benefits of "snitchin’," where witnesses are subject to improper pressures and suggestions as to what they should be testifying.

Still, the mayor has a point. Testifying truthfully to criminal conduct — especially the kind of gratuitous violence that has increasingly wracked Boston’s neighborhoods — is indeed a civic obligation that should be taken seriously. But so is a public official’s duty to enforce rather than trample the First Amendment. Instead of wasting the city’s limited resources paying inspectors to conduct unconstitutional raids on T-shirt vendors (only to have to pay the court judgment when the city loses the inevitable lawsuit that would soon follow), the mayor should pay homage to the Supreme Court’s admonishment that the answer to speech you detest is more, not less, speech. Menino might even consider having the city distribute for free — or for half the price charged for the "Stop Snitchin’" shirts — its own T-shirt emblazoned with the slogan: SAVE A LIFE — REPORT VIOLENT CRIME. Fight fire with fire, T-shirts with T-shirts.

Issue Date: December 9 - 15, 2005
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