The week of Feb. 4, multiple places in Burlington — Ohavi Zedek Synagogue, the Pride Center of Vermont and Outright Vermont — were hit by flyers and stickers from a national white supremacist group named Patriot Front. The stickers and flyers read “Better Dead Than Red” and “America First.” It’s likely no coincidence that this group, and groups like them, were emboldened earlier this year as they were essentially given permission to continue to incite fear on people in Vermont without the risk of prosecution. It makes Vermont a firm target.
We feel safe here because we see ourselves as liberal, progressive and free of hate, but we are far from free of it. We are now being targeted by national white supremacist groups. The permission given was on the basis of “free speech” to harass former representative Kiah Morris and her family.
I don’t know if a prosecution would have been successful in this case, but, it would have begun to break down the systemic and structural racism by which our state runs. We need to stop standing behind being the second whitest state as a reason for not making meaningful change. At the press conference in which Attorney General Donovan announced that he would not prosecute, it is imperative to ask why he did not come to the table with suggestions of laws that may have helped him prosecute? While I love free speech, free speech does have tested limits in our country and I would offer that the only reason those limits do not protect people of color is because we live in a racist country that is riddled with racist systems and policies. This system protected Max Misch to hurt Kiah’s family.
In Kiah’s own words, it was “death by 1000 paper cuts.” Had Max Misch yelled “fire” in a movie theater, he would have been swiftly removed and prosecuted. We have to ask ourselves why do the limits of free speech leave marginalized communities to fend for themselves? In Beauharnais v. Illinois, the Supreme Court upheld the constitutionality of the state of Illinois hate speech laws. Illinois’s laws punished expression that was offensive to racial, ethnic and religious groups. If free speech is also a form of harassment, what protections does an individual have for the quiet enjoyment of their home and lives? Is this issue worth testing?
In a later forum, the AG said that to prosecute can cause negative precedent, as well. I disagree, these things change because folks are willing to fight and lose. There are many situations in our state and nation’s history in which precedent did not favor a positive outcome and progress would never have been made if brave attorneys had refused to challenge previous precedent.
Yes, to fight this systemic racism, means losing more than I assume any attorney wants to, especially if that attorney has political aspirations but, sometimes right is right and not only is what happened to Kiah’s family not right but, it has consequences that we are seeing now in Vermont. It is the brave among us who fight anyways.
One famous example of an issue that had to overcome precedent is discrimination on the basis of gender. There were a number of laws that were created and upheld by the Supreme Court, often citing the Constitution as the reason why this discrimination was legal. Were it not for one strong woman, Ruth Bader Ginsburg, and many women who were willing to fight and lose before her, these laws would still exist. She saw the need to keep trying because she had experienced the impact of those laws and this, too, showed her the angle by which to fight. She and others then went on to chip at the fiber that allowed this discrimination.
Another case is one that many of us are familiar with, Brown V. Board of Education, where school segregation was ruled unconstitutional and Plessy V. Ferguson was effectively overturned. It created new precedent and also says that because the 14th Amendment, which holds that no state can “deny to any person within its jurisdiction the equal protection of the laws,” that school segregation was inherently unconstitutional. Does Kiah enjoy equal protection if her family cannot enjoy peace and safety while in their own community or anywhere in our state?
Civil rights attorney Alexander Polikoff fought 50 years for a resolution in the landmark “Gautreaux Case” that addressed discriminatory housing. In fact, we would not have Section 8 housing were it not for the willingness of Polikoff to fight. This slowly and over time eroded the purposeful overcrowding of public housing tenants (which were predominantly people of color) into low income neighborhoods. The court determined it was a violation of their civil rights. The impact of Section 8 housing vouchers is widespread and my own family along with many others in Vermont are comfortably in stable homes because of his willingness to fight.
Assuming that Vermont’s law on harassment carries the intent to include digital offenses, we can then assume that one could be prosecuted under Vermont’s harassment law. In Representative Morris’s case, self-described white nationalist Max Misch’s actions of “tagging” her in posts online and using racist threats could, in theory alone, be considered harassment. Max Misch himself, however, has admitted publicly and to the press while being recorded, that he harrasses her and her family for “fun.” I was standing there when I heard him say to the press “Yeah, I harass her. But that is legal, right? I am allowed to do that.”
Recently, when Max Misch was found to have illegally purchased a high capacity magazine, it was also reported that the Bennington Police Department had information that they did not forward to the attorney general or State Police who were in the middle of an active investigation. When pressed by the Vermont chapters of the NAACP and the ACLU, AG Donovan declined to investigate this failure and, instead, suggested that the same police department with bias practices, or town with bias practices, or states attorney with bias practices, hire an “independent” firm to investigate themselves.
For this reason, I take issue with the creation of a “Bias Incident Reporting System” that requires people of color to rely on police to report the incidents of bias. This is the same police that, try as we may, still have bias that leads to disproportionate traffic stops for communities of color, in the same state in which one in 14 black men is put in prison and in which the racial disparity in our prisons is in the top five in the country; the same systems that have failed people of color just as the police in Bennington did; the same system that allowed the AG to let off the hook, the state’s attorney and police who have a pattern of biased behavior in Bennington.
As an alternative, a direct line for folks who experience or witness bias to directly report it should be created. This should include a position (perhaps several positions) to make sure that these reports are looked into and followed up on.
It is essential to bring marginalized communities to the decision making table. In the attorney general’s office, how many people of color, how many black attorneys have been hired? In our governors’ administration, how many people of color have been hired in leadership roles? In our State House, how many people of color have been hired? To all of us, how hard have we tried to diversify our systems, our businesses, our boards, so that those marginalized voices, the ones who might see that better angle, who might be willing to fight this inherently bias system, are at the decision-making table?
Ruth Bader Ginsburg was told time and time again that it was not possible, that the laws were constitutional and that the mountain of precedent would ensure that these changes never happen. She didn’t listen, she fought. Imagine where we would be if she and the women before her gave up. Imagine where we would be where there was no one willing to fight the precedent of Plessy v. Ferguson, if Alexander Polikoff hadn’t spent 50 years chipping at the surface of an extremely biased system. These changes happen because we fight.
We lose. We stand up and fight again. Eventually, we win. I want our elected leaders to do that. I want them to make change. I do not accept that we can do nothing. Our only black female legislator had to step down. The time is now. Instead of emboldening national white supremacist groups to use Vermont as a target, this must be where we pivot.
It is time to be willing to put our bodies and careers on the line to let rise the voices of marginalized communities. I ask you Vermont, do we pivot? Or do they win?
Brenda Siegel is a former Democratic candidate for governor. She is an anti-poverty activist and single mom from Newfane.