Are Bushwacking lyrics a form of free speech - or a felony?
Kaseen Smith felt a chill the moment he answered the door -- and not because he was standing there in just a bathrobe. It was an early afternoon in the first week of March when two agents from the U.S. Secret Service appeared at his Winooski home. They flashed their badges and asked the 27-year-old man if he was the Kaseen Smith who produces the TV show, "KA Live," which airs each week on Vermont Community Access Media Channel 15. He is.
The agents then informed Smith they were investigating a possible felony under 18 U.S.C. 871. That's the federal law making it a crime to threaten the life of the president of the United States. The offense carries a maximum penalty of five years in prison.
"KA Live," an unedited hodge-podge of music, caller chit-chat and banter about race and politics, has been on the air for nearly two years with nary a peep from viewers objecting to its content. Like most public-access stations, Channel 15 doesn't have the staff, time or inclination to pre-screen shows for potentially illegal content. This time, however, something uttered by the show's African-American producer grabbed the attention of federal authorities. With the nation on the brink of war abroad and bracing for possible terrorist attacks at home, even an offhand remark may have been enough to trip the alarms.
Smith's girlfriend, Ariana Kitchin, who also appears on the show, says the couple was stunned as the agents questioned them separately for about 30 to 45 minutes. Smith recalls being asked about his family, past employers, criminal record and whether he is lonely, on medication or "has a problem with authority." They asked Kitchin: Does Smith own a gun? Have you ever seen him do anything violent? Do you think he would travel long distances to see the president? And, do you share his opinions of George W. Bush?
Neither Smith nor Kitchin was told the exact reason for the complaint or who had lodged it, except that it had come from "a concerned citizen" somewhere in New York. ("KA Live" also airs on Public Access Channel 6 in Binghamton, N.Y.) However, the agents reportedly focused a lot of attention on the lyrics of one of Smith's songs that played during the show. The song, "Hmmm Ha," appears on Smith's new self-released CD, a hip-hop styled album he calls Mentel Musik, or M2.
"They had a whole transcript of it, pages and pages, with pieces highlighted, and stuff that was on our Web site," recalls Kitchin. "They said, 'Change it or there's going to be a problem. If we come back, we will take it to trial, you will be convicted and you will serve time.'"
"It was kind of like a threat," agrees Smith. "If I didn't change my ways, basically I'm not going to win. It kind of messed us up in the head."
Among the highlighted lyrics were the lines "I got a sword from GOD so thats [sic] what makes me leathal [sic]," and "I wanna burn a Bush." Smith, a bearded, taciturn man who answers most questions in a few words, denies the song has any violent connotations. He says it's about "skin color, race, stuff like that."
"A 'sword' basically means the Bible. That's Bible talk. If you're with God, you can see the truth," Smith explains. "Bas-ically, 'I wanna burn a Bush' is, I want to expose him to the truth, not actually burn him."
Smith and Kitchin laugh at the suggestion that someone might interpret the song literally. Still, fearing another visit from the Secret Service, they pulled from their Web site, http://www.basically.us , anything that might be construed as threatening. One sentence in particular, "I'd like to beat the life out of Bush" was changed to "I'd like to give Bush a box of pretzels." Kitchin claims one agent even told her, "If you have any questions of what you think is questionable, give me a call."
"They had me thinking a bit, 'cause I got kids and stuff," says Smith. "That's more important than me getting locked up."
Before the agents departed, Smith was photographed and asked to sign some papers. What did he sign? Smith shrugs. They didn't leave him a copy -- or even a business card, for that matter.
Timothy Kirk is one of the Vermont-based Secret Service agents who interviewed Smith and Kitchin. He says he's not at liberty to discuss the specifics of his investigation with Seven Days, calling it a "protected intelligence case." Nor can he say whether the complaint was based on remarks Smith made during his show, the lyrics of his song, the contents of his Web site or all three. He did say, however, that "It's more than one avenue being investigated." But he denies that either he or his partner gave Smith specific instructions about what he can say, sing or write about.
"No, we can't do that," says Kirk. "We may have said, 'This will continue to come to our attention if it remains,' but that's not saying, 'Hey, you've got to remove this.' We're not in that business. It's either 'cuff-and-stuff' or leave you alone. We're not counseling anyone here." Kirk would not comment on what papers Smith had signed, calling it "privileged information."
Threats on the life of the president are as old as the presidency itself. Most are nothing more than idle talk, jests, satire or political hyperbole. That doesn't mean an ill-chosen comment made in anger or haste won't land someone in trouble. At the Washington Monument in 1966, during a rally against the Vietnam War, 18-year-old Robert Watts was heard saying, "If they [the U.S. Army] ever make me carry a rifle, the first man I want to get in my sights is LBJ [then-President Lyndon John-son]." Watts was subsequently arrested, prosecuted and convicted for his remark.
In 1969, however, the U.S. Supreme Court reversed Watts' conviction, ruling that the offending utterance had not been evaluated in the context in which it was made. "The language of the political arena, like the language used in labor disputes... is often vituperative, abusive, and inexact," the Court stated. "We agree with petitioner [Watts] that his only offense here was a kind of very crude offensive method of stating a political opposition to the president."
Bob Hemley, a First Amendment attorney in Burlington who read the lyrics of Smith's song, says chances are slim he would be indicted for them. If he were, Smith would have a strong defense, Hem-ley believes. "To me, it looks clear from the context -- and you're supposed to look at context -- that this was not a serious threat," he says. "This was hyperbole and just intended to express a point of view about the current political leadership."
Needless to say, some threats against the president, vice president or other Secret Service "protectees" are real, and the Secret Service has a duty to investigate every one. Kirk, who oversees all Secret Service activities in Vermont, says he conducts face-to-face interviews like the one with Smith and Kitchin at least once a month. Beyond that, Service officials won't comment on how many threats the president receives each year. In fact, they say next to nothing about protective methods or investigative tactics.
That said, the Secret Service has a written policy emphasizing that it "does not desire or solicit information pertaining to individuals or groups expressing legitimate criticism of, or political opposition to, the policies and decisions of the government or government officials."
Despite those assurances, stories like Smith's can be troubling to civil libertarians, especially when they occur at a time in which civil rights are being eroded in the name of national security. Ben Scotch, executive director of the American Civil Liberties Union Vermont chapter, says federal agents need to exercise extreme caution when investigating complaints that fall within the purview of legitimate free speech. "It is intimidating enough to hear from the Secret Service, and I would say with the times we now live in, it might feel particularly intimidating," he says.
Unfamiliar with Smith's case, Scotch speaks only in general terms. "The danger of converting a comment on the president's conduct in office into a threat is a very considerable danger," he says. "In countries other than this, the way the government exercises control is to lower the bar and keep lowering that bar until any criticism of the leader is considered a threat. And once that bar is lowered, it's very hard to get it back up again."
As "KA Live" airs for the first time since Smith was visited by the feds, the show opens with several minutes of electronic music playing over a black screen. The words "KA LIVE" dissolve into the words "IMPEACH BUSH." As the titles fade, Smith and Kitchin, both dressed in black, are seated at microphones and an engineer's console. With no formal introduction, they begin taking phone calls from viewers. The sound quality is poor and several callers complain they can't hear the show -- until a station technician enters the studio and shows them how to operate the controls.
Over the next hour the couple takes a dozen or so phone calls on topics ranging from definitions of terrorism to UVM's first appearance in the NCAA basketball tournament. One caller admits he's home smoking pot, then cuts the conversation short. "Hey, man, gotta run," he says. "My mom is coming upstairs and I've got to freshen up the room a bit."
Smith makes a few wisecracks about the Secret Service agents -- "I thought it was Inspector Gadget or something" -- but otherwise is coolly indifferent about his recent run-in with the law.
The following day, Smith still sounds unperturbed. He says he's not afraid of the Secret Service and has no plans to pull his CD from the shelves at Borders in Burlington. But Kitchin sounds more uneasy about Big Brother watching them.
"We kind of backed off. We didn't know what we could say," she admits, referring to the show. "We didn't want to go too far because they said they'd come back and get him... and next time it wouldn't be pretty."