The American Conservative, December 15, 2003
Headline: “Free-Speech Zone”
Byline: James Bovard

On Dec. 6, 2001, Attorney General John Ashcroft informed the Senate Judiciary Committee, “To those who scare peace-loving people with phantoms of lost liberty … your tactics only aid terrorists, for they erode our national unity and … give ammunition to America’s enemies.” Some commentators feared that Ashcroft’s statement, which was vetted beforehand by top lawyers at the Justice Department, signaled that this White House would take a far more hostile view towards opponents than did recent presidents. And indeed, some Bush administration policies indicate that Ashcroft’s comment was not a mere throwaway line.

When Bush travels around the United States, the Secret Service visits the location ahead of time and orders local police to set up “free speech zones” or “protest zones” where people opposed to Bush policies (and sometimes sign-carrying supporters) are quarantined. These zones routinely succeed in keeping protesters out of presidential sight and outside the view of media covering the event.

When Bush came to the Pittsburgh area on Labor Day 2002, 65-year-old retired steel worker Bill Neel was there to greet him with a sign proclaiming, “The Bush family must surely love the poor, they made so many of us.” The local police, at the Secret Service’s behest, set up a “designated free-speech zone” on a baseball field surrounded by a chain-link fence a third of a mile from the location of Bush’s speech. The police cleared the path of the motorcade of all critical signs, though folks with pro-Bush signs were permitted to line the president’s path. Neel refused to go to the designated area and was arrested for disorderly conduct; the police also confiscated his sign. Neel later commented, “As far as I’m concerned, the whole country is a free speech zone. If the Bush administration has its way, anyone who criticizes them will be out of sight and out of mind.”

At Neel’s trial, police detective John Ianachione testified that the Secret Service told local police to confine “people that were there making a statement pretty much against the president and his views” in a so-called free speech area. Paul Wolf, one of the top officials in the Allegheny County Police Department, told Salon that the Secret Service “come in and do a site survey, and say, ‘Here’s a place where the people can be, and we’d like to have any protesters put in a place that is able to be secured.’” Pennsylvania district judge Shirley Rowe Trkula threw out the disorderly conduct charge against Neel, declaring, “I believe this is America. Whatever happened to ‘I don’t agree with you, but I’ll defend to the death your right to say it’?”

Similar suppressions have occurred during Bush visits to Florida. A recent St. Petersburg Times editorial noted, “At a Bush rally at Legends Field in 2001, three demonstrators—two of whom were grandmothers—were arrested for holding up small handwritten protest signs outside the designated zone. And last year, seven protesters were arrested when Bush came to a rally at the USF Sun Dome. They had refused to be cordoned off into a protest zone hundreds of yards from the entrance to the Dome.” One of the arrested protesters was a 62-year-old man holding up a sign, “War is good business. Invest your sons.” The seven were charged with trespassing, “obstructing without violence and disorderly conduct.”

Police have repressed protesters during several Bush visits to the St. Louis area as well. When Bush visited on Jan. 22, 2003, 150 people carrying signs were shunted far away from the main action and effectively quarantined. Denise Lieberman of the ACLU of Eastern Missouri commented, “No one could see them from the street. In addition, the media were not allowed to talk to them. The police would not allow any media inside the protest area and wouldn’t allow any of the protesters out of the protest zone to talk to the media.” When Bush stopped by a Boeing plant to talk to workers, Christine Mains and her five-year-old daughter disobeyed orders to move to a small protest area far from the action. Police arrested Mains and took her and her crying daughter away in separate squad cars.

The Justice Department is now prosecuting Brett Bursey, who was arrested for holding a “No War for Oil” sign at a Bush visit to Columbia, S.C. Local police, acting under Secret Service orders, established a “free speech zone” half a mile from where Bush would speak. Bursey was standing amid hundreds of people carrying signs praising the president. Police told Bursey to remove himself to the “free speech zone.”

Bursey refused and was arrested. Bursey said that he asked the policeman if “it was the content of my sign, and he said, ‘Yes, sir, it’s the content of your sign that’s the problem.’” Bursey stated that he had already moved 200 yards from where Bush was supposed to speak. Bursey later complained, “The problem was, the restricted area kept moving. It was wherever I happened to be standing.”

Bursey was charged with trespassing. Five months later, the charge was dropped because South Carolina law prohibits arresting people for trespassing on public property. But the Justice Department—in the person of U.S. Attorney Strom Thurmond Jr.—quickly jumped in, charging Bursey with violating a rarely enforced federal law regarding “entering a restricted area around the President of the United States.” If convicted, Bursey faces a six-month trip up the river and a $5000 fine. Federal magistrate Bristow Marchant denied Bursey’s request for a jury trial because his violation is categorized as a “petty offense.” Some observers believe that the feds are seeking to set a precedent in a conservative state such as South Carolina that could then be used against protesters nationwide.

Bursey’s trial took place on Nov. 12 and 13. His lawyers sought the Secret Service documents they believed would lay out the official policies on restricting critical speech at presidential visits. The Bush administration sought to block all access to the documents, but Marchant ruled that the lawyers could have limited access. Bursey sought to subpoena John Ashcroft and Karl Rove to testify. Bursey lawyer Lewis Pitts declared, “We intend to find out from Mr. Ashcroft why and how the decision to prosecute Mr. Bursey was reached.” The magistrate refused, however, to enforce the subpoenas. Secret Service agent Holly Abel testified at the trial that Bursey was told to move to the “free speech zone” but refused to co-operate. Magistrate Marchant is expected to issue his decision in December.

The feds have offered some bizarre rationales for hog-tying protesters. Secret Service agent Brian Marr explained to National Public Radio, “These individuals may be so involved with trying to shout their support or non-support that inadvertently they may walk out into the motorcade route and be injured. And that is really the reason why we set these places up, so we can make sure that they have the right of free speech, but, two, we want to be sure that they are able to go home at the end of the evening and not be injured in any way.” Except for having their constitutional rights shredded.

Marr’s comments are a mockery of this country’s rich heritage of vigorous protests. Somehow, all of a sudden, after George W. Bush became president people became so stupid that federal agents had to cage them to prevent them from walking out in front of speeding vehicles.

The ACLU, along with several other organizations, is suing the Secret Service for what it charges is a pattern-and-practice of suppressing protesters at Bush events in Arizona, California, Connecticut, Michigan, New Jersey, New Mexico, Texas, and elsewhere. The ACLU’s Witold Walczak said of the protesters, “The individuals we are talking about didn’t pose a security threat; they posed a political threat.”

The Secret Service is duty-bound to protect the president. But it is ludicrous to presume that would-be terrorists are lunkheaded enough to carry anti-Bush signs when carrying pro-Bush signs would give them much closer access. And even a policy of removing all people carrying signs—as has happened in some demonstrations—is pointless, since potential attackers would simply avoid carrying signs. Presuming that terrorists are as unimaginative and predictable as the average federal bureaucrat is not a recipe for presidential longevity.

The Bush administration’s anti-protester bias proved embarrassing for two American allies with long traditions of raucous free speech, resulting in some of the most repressive restrictions in memory in free countries. When Bush visited Australia in October, Sydney Morning Herald columnist Mark Riley observed, “The basic right of freedom of speech will adopt a new interpretation during the Canberra visits this week by the US President, George Bush, and his Chinese counterpart, Hu Jintao. Protesters will be free to speak as much as they like just as long as they can’t be heard.” Demonstrators were shunted to an area away from the Federal Parliament building and prohibited from using any public address system in the area.

For Bush’s recent visit to London, the White House demanded that British police ban all protest marches, close down the center of the city, and impose a “virtual three day shutdown of central London in a bid to foil disruption of the visit by anti-war protesters,” according to Britain’s Evening Standard. But instead of a “free speech zone”—as such areas are labeled in the U.S.—the Bush administration demanded an “exclusion zone” to protect Bush from protesters’ messages.

Such unprecedented restrictions did not inhibit Bush from portraying himself as a champion of freedom during his visit. In a speech at Whitehall on Nov. 19, Bush hyped the “forward strategy of freedom” and declared, “We seek the advance of freedom and the peace that freedom brings.” Regarding the protesters, Bush sought to turn the issue into a joke: “I’ve been here only a short time, but I’ve noticed that the tradition of free speech—exercised with enthusiasm—is alive and well here in London. We have that at home, too. They now have that right in Baghdad, as well.”

Attempts to suppress protesters become more disturbing in light of the Homeland Security Department’s recommendation that local police departments view critics of the war on terrorism as potential terrorists. In a May 2003 terrorist advisory, the Homeland Security Department warned local law enforcement agencies to keep an eye on anyone who “expressed dislike of attitudes and decisions of the U.S. government.” If police vigorously followed this advice, millions of Americans could be added to the official lists of “suspected terrorists.”

Protesters have claimed that police have assaulted them during demonstrations in New York, Washington, and elsewhere. Film footage of a February New York antiwar rally showed what looked like a policeman on horseback charging into peaceful aged Leftists. The neoconservative New York Sun suggested in February 2003 that the New York Police Department “send two witnesses along for each participant [in an antiwar demonstration], with an eye toward preserving at least the possibility of an eventual treason prosecution” since all the demonstrators were guilty of “giving, at the very least, comfort to Saddam Hussein.”

One of the most violent government responses to an antiwar protest occurred when local police and the federally funded California Anti-Terrorism Task Force fired rubber bullets and tear gas at peaceful protesters and innocent bystanders at the port of Oakland, injuring a number of people. When the police attack sparked a geyser of media criticism, Mike van Winkle, the spokesman for the California Anti-Terrorism Information Center told the Oakland Tribune, “You can make an easy kind of a link that, if you have a protest group protesting a war where the cause that’s being fought against is international terrorism, you might have terrorism at that protest. You can almost argue that a protest against that is a terrorist act.” Van Winkle justified classifying protesters like terrorists: “I’ve heard terrorism described as anything that is violent or has an economic impact, and shutting down a port certainly would have some economic impact. Terrorism isn’t just bombs going off and killing people.”

Such aggressive tactics become more ominous in the light of the Bush administration’s advocacy, in its Patriot II draft legislation, of nullifying all judicial consent decrees restricting state and local police from spying on those groups who may oppose government policies.

On May 30, 2002, Ashcroft effectively abolished restrictions on FBI surveillance of Americans’ everyday lives first imposed in 1976. One FBI internal newsletter encouraged FBI agents to conduct more interviews with antiwar activists “for plenty of reasons, chief of which it will enhance the paranoia endemic in such circles and will further service to get the point across that there is an FBI agent behind every mailbox.” The FBI took a shotgun approach towards protesters partly because of the FBI’s “belief that dissident speech and association should be prevented because they were incipient steps towards the possible ultimate commission of act which might be criminal,” according to a Senate report.

On Nov. 23 news broke that the FBI is now actively conducting surveillance of antiwar demonstrators—supposedly to “blunt potential violence by extremist elements,” according to a Reuters interview with a federal law enforcement official. Given the FBI’s expansive defintion of “potential violence” in the past, this is a net that could catch almost any group or individual who falls into official disfavor.

The FBI is also urging local police to report suspicious activity by protesters to the Joint Terrorism Task Force, which is run by the FBI. If local police take the hint and start pouring in the dirt, the JTTF could soon be building a “Total Information Awareness”-lite database on those antiwar groups and activists.

If the FBI publicly admits that it is surveilling antiwar groups and urging local police to send in information on protestors, how far might the feds go? It took over a decade after the first big antiwar protests in the 1960s before the American people learned the extent of FBI efforts to suppress and subvert public opposition to the Vietnam War. Is the FBI now considering a similar order to field offices as the one it sent in 1968, telling them to gather information illustrating the “scurrilous and depraved nature of many of the characters, activities habits, and living conditions representative of New Left adherents”—but this time focused on those who oppose Bush’s Brave New World?

Is the administration seeking to stifle domestic criticism? Absolutely. Is it carrying out a war on dissent? Probably not—yet. But the trend lines in federal attacks on freedom of speech should raise grave concerns to anyone worried about the First Amendment or about how a future liberal Democratic president such as Hillary Clinton might exploit the precedents that Bush is setting.

[Professor’s note: Brett Bursey, the man featured holding the “No War for Oil” sign was convicted and fined $500, a relatively lenient sentence given the fact that he could have been jailed for up to six months and fined $5000 for his offense. In explaining his decision, The U.S. Magistrate said he had taken into account the fact that Bursey’s protest was of a peaceful nature. Bursey’s conviction and fine were later upheld in July, 2005 by the Circuit Court of Appeals. On January 17, 2006, the Supreme Court of the United States rejected Bursey’s appeal and refused to hear the case.[

[Additional information related to the article

The following are excerpts from an official document written October, 2002 by President George Bush’s staff. A redacted (that is, censored) version of this manual was produced as a result of a lawsuit by the ACLU and revealed to the public in August, 2007.

Presidential Advance Manual:

Always be prepared for demonstrators, even if the local organization tells you that there will not be any. It is the responsibility of the Lead Advance to have in place an effective plan for dealing with demonstrators.

Preventing Demonstrators

As mentioned, all Presidential events must be ticketed or accessed by a name list. This is the best method for preventing demonstrators. People who are obviously going to try to disrupt the event can be denied entrance at least to the VIP area between the stage and the main camera platform. That does not mean that supporters without tickets cannot be given tickets at the door and gain entrance to the event. It is also not the responsibility of the Secret Service to check the tickets of the people entering. They are concerned whether the person is a threat physically to The President and not a heckler. It is important to have your volunteers at a checkpoint before the Magnetometers in order to stop a demonstrator from getting into the event. Look for signs that they may be carrying, and if need be, have volunteers check for folded cloth signs that demonstrators may be bringing to the event.

Preparing for Demonstrators

There are several ways the advance person can prepare a site to minimize demonstrators. First, as always, work with the Secret Service and have them ask the local police department to designate a protest area where demonstrators can be placed, preferable not on view of the event site or motorcade route.

The formation of “rally squads” is a common way to prepare for demonstrators by countering their message. This tactic involves utilizing small groups of volunteers to spread favorable messages using large hand held signs, placards, or perhaps a long sheet banner, and placing them in strategic areas around the site.

These squads should be instructed always to look for demonstrators. The rally squad's task is to use their signs and banners as shields between the demonstrators and the main press platform. If the demonstrators are yelling, rally squads can begin and lead supportive chants to drown out the protestors (USA!,USA!,USA!). As a last resort, security should remove the demonstrators form the event site. The rally squads can include, but are not limited to, college/young republican organizations, local athletic teams, and fraternities/sororities.]

For larger rallies, the squads should be broken up into groups of approximately 15-25 people. A squad should be placed immediately in front of the stage, immediately in front of the main camera platform, close to the cut platform, immediately behind the stage area (if people are being used as the backdrop), and at least one squad should be 'roaming' throughout the perimeter of the event to look for potential problems.

Questions:

1. In what ways does James Bovard allege that political dissent is being stifled in contemporary America? Discuss the reasons why someone like Attorney General Ashcroft might believe that dissent to America’s tactics in the war against terrorism “gives ammunition to America’s enemies.” Is unlimited freedom of speech compatible to the needs of a nation at war?

2. Identify the civil liberties issues that are involved in free speech zones and in the steps taken by advance teams to suppress dissent. Should people have a right to protest at Presidential public addresses? Does the President have a right to stage public events in which he is the featured speaker? What is gained and lost by current policies?