Saturday, April 29, 2006

I fought the law and...

As my partner Jeff is fond of saying, the court system works in mysterious ways.

In November 2002, Jeff and I got arrested with our good friend Joe Redner protesting against protest zones at a George W. Bush rally for FL Gov. Jeb Bush.

Here's an account of the incident by brilliant syndicated columnist Robyn Blumner. Blumner is one of the sharpest legal minds out there, and we were all honored to have her write about us:

Elend and Marks were arrested in 2002 outside a "Jeb Bush for Governor" rally in the University of South Florida Sun Dome at which President Bush was also in attendance. They had come to protest the distant cages - known euphemistically as "First Amendment zones" - into which dissenters are corraled at every presidential visit.

The video they made of the arrest is pure political theater. Here is the awesome power of the state amassed to rid the USF campus of a dire threat: messages critical of the president. If you didn't know better, you'd think the scene was something out of Castro's Cuba.

As Elend taped, Marks, along with fellow protester Joe Redner, held signs reading "War is good for business . . . invest your sons!!!" and "Why do you let these crooks fool you?" They were holding the signs - sans poles - across a frontage road from the arena entrance where a long line of people had a clear view. (The men are seen rather stoically absorbing insults lobbed from the crowd.)

That's when police approached. (To the cheers of the waiting Bush supporters, who obviously relished the idea of someone getting arrested for disagreeing with them.)

Knowing this confrontation was inevitable, the men had brought copies of relevant U.S. Supreme Court decisions to prove they had a right to dissent against the government in close proximity to their targeted audience. But no one in uniform was interested. Instead, the men were directed to the First Amendment zone hundreds of yards away - so far that it wasn't visible. They were arrested after they refused to comply.

As the scene unfolds, the video captures Bush supporters streaming into the arena, some carrying signs reading "Jeb!". No one in authority has any problem with those.

The charges of trespassing against Elend and Marks were eventually dismissed by a judge. The point, after all, wasn't to put them in jail; it was to shut them up while the president was around. Mission accomplished.

The rest of the story is that we sued the secret service and the USF police in federal court for violating our first amendment rights. The whole point of our protest exercise was, of course, to challenge the notion of protest zones because they are by any rational account a fundamental constitutional violation. You can tell me where I can't protest for security reasons, but you can't create a cage for me to protest in and let the rest of the world (or the campus, in this case) become a no free speech zone.

Just like a similar case brought by the ACLU in Pennsylvania, our case was dismissed. In 2003 the ACLU was trumpeting their case as one of the centerpieces of their counter attack against the assault on free speech. To look at their website now, after the dismissal, you'd think they never brought it.

In a particularly infuriating hearing before he dismissed our case, the Federal Magistrate lectured us about how things had changed since 9-11 (he really said that in open court!). Now I'm no policy expert, but I understood that the first amendment was one of those things we do right that the terrorists "hate" us for. As an example of how things had changed, he told us that he had sat for a case earlier that week where a man actually wanted to kill the president! I'm no history expert either, but I think that John Wilkes Booth and John Hinkley might dispute the assertion that killing the president is a post-9-11 mentality.

But alas, our case was left to languish on appeal like day old fois-gras in the 11th Circuit (you know, the court that recently ruled that Florida's gay adoption ban was constitutional because there's not yet enough evidence out there to say that gay parents don't harm children.)

Until this week... out of the blue, Joe called us up on Monday and told us that the 11th Circuit had ordered mediation in our case. In a mediation assesment phone call, the mediator told the secret service that from the looks of the case, they'd better write a policy banning the use of protest zones! The lawyer for the secret service told her that he didn't have the authority to agree to that, and the mediator told him to get people on the phone who did.

Then the mediator told us that our case against USF was flawed (there's this thingy called the 11th amendment that stops you from suing state agencies in federal court. In some parts of the country, the state's 11th amendment right is less important than a citizen's first amendment right, but in the South, the 11th amendment is king.) USF said, "yeah, and anyway - the secret service forced us to create the protest zone and put it a half a mile from the protest."

So the mediator said, "sounds like you need to join the other side," and USF said, "yeah, sounds like it."

So now our lawyer is going to drop the suit against USF and they're going to testify for us... and, without even getting back to court there's a good chance that we can get the secret service to END the policy of creating protest zones. UNBELIEVABLE.

The whole point of our law suit was not to get damages or anything like that, it was to beat back the most important way that the government attacks first amendment rights - by making you afraid to express yourself.

If you fear that you're going to be arrested for exercising your rights, you don't exercise them. When you think you might be silenced, or shoved around by the cops, or even injured, you just don't go. It's not worth it

That's why tanks rolling through the streets of Miami during the FTAA protest, or hundreds of NYPD cops with M-16s and riot gear lining the halls of Penn Station during the RNC are so incredibly damaging to the first amendment rights of not only the people they arrest, but of all people who want to express themselves.

In the 1930s, the Supreme Court ruled that requiring pamphleteers to give their names before receiving permission to pass out their pamphlets was an undue burden on their first amendment rights (308 US 147). The court recognized that governments that want to end free speech don't have to put everyone who speaks in jail. They just have to set an example and make the populace fear being arrested as a consequence of speaking. That is, historically the most effective way to silence us.

In our lawsuit, we assert that protest zones are fundamentally unconstitutional, and that the secret service has an ongoing policy of allowing and even ordering protest zones at presidential appearances- events for which they have the legal obligation to make sure that the security plans don't violate the constitution. We assert that this policy was the reason that our first amendment rights were violated at the USF Sundome, and that this ongoing policy puts an undue burden on our first amendment rights. We ask for the court to order the secret service to put in place measures to prevent protest zones.

When we protested that day, we had printed on our signs a quote from the Supreme Court case Tinker v. DesMoines (393 US 503). I think this says all that needs to be said about protest zones:

Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots.

I hope we win. We need a win in this fight. The whole country has pretty much accepted free speech zones. Jeff and I passed by a group of protesters in NY stuck inside a cage a few months ago, and asked them why they stayed inside. They got ANGRY with us, and acted like we were counter protesters.

I like a quote I heard somewhere - I think it speaks to what we're trying to do... "freedom is something you have, then you wait for someone to take it away from you. The extent to which you resist is the extent to which you are free."


Anonymous Anonymous said...

The 11th Amendment came about as a result of Chisholm v. Georgia, 2 U.S. 419. This is a Constitutional Amendment and has nothing whatsoever to do with southern states likes or dislikes. Your statements are simply without merit.

There are very good reasons why your suit failed. What puzzles me more about your protest zone suit, and I have read it all, is the blatant duplicity of the plaintiffs in the case. You had no standing and the case looks put up. The case looks contrived and not a single one of your lawyers seems to know anything about Civil Procedure or professional responsibility. How could you even have thought to pull off this scam and then to be disgruntled? Also your case was not simply dismissed. It was dismissed with prejudice. This essentially means the Court saw right through you. When you show up to a court of equity, you are expected to show up with clean hands and a real case in controversy. You don’t need a free speech zone, you need a free scam zone. Justice was served. How dare you clog up the court system with your absurd politics and theater.

1:40 PM  
Blogger Adam said...

There are good reason why your comment is a waste of space in my comments section. What puzzles me more is how you can spend two paragraphs calling me duplicitious and my case "put on" without providing any factual basis or case law to support your accusations. If you're going to piss on my comment box, don't be a coward. At least put your name.

I said: "there's this thingy called the 11th amendment that stops you from suing state agencies in federal court. In some parts of the country, the state's 11th amendment right is less important than a citizen's first amendment right, but in the South, the 11th amendment is king.)"

The 11th Circuit routinely interprets the 11th Amendment far more broadly than any other DCA in the Country. That's why in the South, the 11th Amendment is king.

It seems intellectually dishonest... duplicitious even, to try to make a point of the fact that our case was dismissed with prejudice. If it was dismissed without prejudice, I wouldn't have mentioned that it was dismissed in my post, because it would not be germaine to the final resolution of the case. If it was dismissed without prejudice we wouldn't be appealing to the 11th because the case would not have been resolved in the lower court. We'd still be in District Court.

It's amusing that you call our case "put up" when we were arrested and prosecuted for peacefully protesting on public property. I would love to hear exactly what you think is put up by us. Did we put up the part where we were charged with a crime and prosecuted?

We were enganging in protected activities, we were wrongfully arrested for those activities, the proximate result of that arrest was the cessation of our protected activities. We sued for damages based on that due process violation.

Furthermore, our arrest and prosecution was part of an unconsitutional plan for regulating speech at the 2002 presidential appearance. That unconsitutional plan was part of a pattern of unconstituional plans enacted by te Secret Service for regulating speech at presidential and vice presidential appearances across the country, in both the Clinton and Bush presidencies. The plaintiffs have found themselves restricted by such plans in several instances, and allege that the ongoing pattern amounts to an unwritten policy. We sued the secret service for injunctive relief because of the chill to our freedom of speech that this policy causes.

Our argument is fairly simple and absolutely consistent with the article three standing requirements. The judge who dismissed our case said on the record that he did not recognize a chill to one's first amendment rights to be a valid harm. That is inconsistent with binding precedent in the 11th and in the Supreme Court.

The Lyons standard (which you didn't even address in your comment - no substance, remember?) is bad law in my opinion. But regardless of that, it is inapplicable in the context of our case. I would love to debate the merit of our standing with you, but you didn't make an argument worthy of that kind of response. You just called me duplicitous and didn't really back it up with anything but a stupid comment about the nature of the dismissal by the Magistrate.

The next time you want to leave a comment like this, at least make me look something up.

12:34 PM  

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