Friday, October 24, 2003

Bush and the 'First Amendment zones'

Following up on the recent post about so-called "First Amendment zones"

I asserted in that post that these kinds of "First Amendment zones," in which protesters are segregated from supporters, are "purely a Republican enterprise." The picture is a good deal more complicated than that -- though, as you'll see, the point is not inaccurate. A number of readers have written in to point out -- quite accurately -- that "free speech zones" were used at both the Democratic and Republican conventions in 1996 and 2000.

Their use in Los Angeles, in fact, resulted in an ACLU lawsuit won by the plaintiffs, with a judge ruling not that the zones themselves were unconstitutional, but that placing them too far distant was; as a result, the protest zone was moved closer to the convention site. (Details on the fights in L.A. and Philadelphia over the zones can be found here.) There was also extraordinary police activity associated with the L.A. protests.

Indeed, the more I've delved the subject, the more it is clear that there is something of a history of the use of these "free-speech zones" that goes back some 30 years or more. For those old enough to recognize the distinctively Nixonian flavor to the zones, well, that's an accurate perception: they appear to have originated in fact with The Tricky One himself.

However, it's important to understand that what is distinctive about the Bush administration's use of the zones is their specifically anti-First Amendment purpose. The Bush "free speech zones" -- unlike most of their predecessors -- explicitly differentiate between kinds of demonstrations. It is a classic case of what free-speech experts refer to as "viewpoint discrimination," a term that is at the heart of most court rulings on the 1st Amendment.

In other words, pro-Bush demonstrators are given close access to the president. Anti-Bush protesters are shunted off to sites, some of them literally miles away where they never even see the man, let alone get a chance to voice their protest to anyone other than their fellow protesters.

This is qualitatively different from most of the "free speech zones" or "protest zones" that have been deployed since the mid-1990s at certain political events, which simply shunted all demonstrators, regardless of viewpoint, into the same restricted areas. Moreover, most of the time, those zones were within reasonable proximity of the main event.

I contacted Vic Walczak, legal director of the ACLU Pittsburgh chapter that has taken the lead in the national organization's lawsuit against the Secret Service in this matter. I wanted to get the history of these zones and what the ACLU saw occurring.

Here's what he told me:
"These zones have been used -- my first experience was around Klan rallies, where they set these up. In some ways it's the same -- to protect the speaker because you know, you have 12 goose-stepping, hooded folks on stage spewing their hatred and, you know, five thousand people trying to tear them apart. And so you set up these protest zones.

"There is a parallel there. What we found different in this case is that, whereas in the Klan cases, everybody had to go behind some kind of barrier, so they can't get to the speaker, what we found here is that you got what's known as viewpoint discrimination.

"So, if you're holding a sign saying, 'I love George,' you can go to five feet. If you're not holding any sign, you can go to twenty-five feet. If you're holding a sign that's critical, sorry, you've got to go a mile away. That's the part that is really insidious under the First Amendment. It really is suppressing dissent.

"In terms of presidents using this, there's a fair amount of case law during Nixon's time where they engaged in this and other anti-First Amendment practices. One was the use of these protest zones. The other is simply to have the cops go through the crowd, whether it's at an event, or along a motorcade route, and tear up people's signs and threaten people. It was pretty brazen during the late '60s and early '70s. There are a fair number of recorded cases there.

"There's also some evidence of excluding protesters from designated public forums during President Reagan's tenure -- the cases we've actually seen involved Vice President Bush. And then we've got one reported case involving President Bush out of Ohio, and then one documented instance during Clinton's administration involving an attempt at excluding anti-abortion protesters from the Inaugural parade route in January of 1997. And that was smashed by the court.

"Clearly the number of uses of this kind of protest zone by a presidential administration has increased dramatically under the current White House. It didn't start with them -- I think since Nixon, there were isolated examples of this. This is the first time where we've really had a sufficient number of complaints to say that there really appears to be a pattern here."

The ACLU, for those interested, has so far officially cataloged 12 definable cases where viewpoint discrimination occurred at Bush or Cheney appearances. But, as Walczak told me: "We really think we've just scratched the tip of the iceberg in terms of finding out about these protest zones. And we're interested in hearing from people who think they've been victimized by this."

To that end, Walczak forwarded a memo and a questionnaire I'm more than happy to include here, seeking information from anyone who witnessed similar discrimination when they attempted to protest at a Bush or Cheney appearance. It includes contact numbers and addresses.

If you have any information to forward to Walczak, be sure to do so. The importance of this matter in terms of preserving free-speech rights should be plain.



On September 23, 2003, The American Civil Liberties Union (ACLU) filed suit on behalf of four organizations -- ACORN, United For Peace and Justice, USAction and NOW -- against the U.S. Secret Service alleging a practice of discrimination against protesters at presidential and vice-presidential events. More information about the lawsuit can be found [here].

In sum, the problem is that the Secret Service and local police erect a "protest" or "demonstration zone" at events attended by President Bush, Vice-President Cheney and other federal officials protected by the Secret Service (e.g., Secretaries Ridge and Rumsfeld, Attorney General Ashcroft). Anyone displaying a message that criticizes the Administration or its policies is required to go inside the zone, and then to remain there. Meanwhile, people gathered to see the visiting federal government official (spectators), passers-by and people showing support for the Administration, are permitted to congregate closer to where the official will be and the event. In some instances the protest zones are created either so far away or in such a location that the official, guests and the press attending the event cannot see or hear the protesters and vice versa.

The ACLU believes that treating people differently and less favorably simply because they express dissent or criticize the Administration is unconstitutional. It does not promote security because anyone intent on harming the officials would simply carry a sign with a supportive message or no sign at all.

If your group has been subjected to a protest zone at a rally against the President, Vice-President or another federal government official, we would very much like to speak with you. We may not be able to represent you, but we may be able to advise you and we may be able to use your story as part of the evidence in our case. Please complete and return the attached questionnaire. You may also contact any one of the following four lawyers to discuss the situation:

Vic Walczak, Pittsburgh ACLU Legal Director,
Stefan Presser, PA ACLU Legal Director,
Art Spitzer, National Capital Area ACLU Legal Director,
Chris Hansen, ACLU senior staff counsel,

If you will be attending a protest involving the President, Vice-President or another federal governmental official, please read the attached "Protest Questionnaire" for information about what to look for. Then contact one of the above-listed lawyers after the event to discuss your experience or simply return the form to the person listed at the bottom of the questionnaire. Thank you.




If you are planning to protest against President Bush, Vice-President Cheney or another high-ranking federal government official (like Secretaries Ridge or Rumsfeld, or Attorney General Ashcroft) during a local appearance by one of them, here are some things we would like you to watch for.

1. Are protesters required to enter a designated "protest" or "demonstration zone"?

2. If so, where is the protest zone in relation to where spectators and others are allowed to gather? For instance, is it farther away from where the event is being held? Is it out of sight? Is it somehow a "worse" location than is given to other members of the public? If so, why is it worse?

3. How many people without any signs or pickets can you see outside the event? Where are they allowed to stand in relation to the protesters and to where the event is taking place?

4. Can you see any people with signs or buttons supporting the Administration?

4a. If the answer above is yes, are the pro-Administration people also required to stay in the protest zone? Or are they allowed to go outside the zone, closer to the event and the location of the visiting dignitary? Please describe.

5. What happens if protesters attempt to leave the zone and mingle with other spectators? Are they told they must stay in the zone or they will be arrested?

6. Was anyone arrested because he or she refused to go into the zone or because he or she left the zone or attempted to leave the zone? If so, please identify that person if you can. Even if you can't identify the person, please tell us as best you can when and where that person was arrested and which law enforcement agency made the arrest.

6a. Was anyone threatened with arrest if he or she refused to go into the zone or left the zone? If so, please identify that person if you can.

7. Finally, if you have observed any of the above restrictions, ask a police officer or any other law enforcement official who appears to be in charge of security about why you have to stay in the protest zone and who decided the protest zone location? Ask if the Secret Service is involved and if so, how. At all times, be polite and don't get yourself arrested. If you receive any information that the Secret Service is involved, be sure to get the name of the person giving you this information and what law enforcement agency he or she works for. Sometimes it’s the local police, other times it may the state or county police, or sheriffs.

Please return this completed form to the ACLU in one of the following ways:

Susan Tofte
125 Broad Street
New York, NY 10004

Or fax to: Susan Tofte, ACLU, 212-549-2651

Or e-mail to:

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