“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The reason the framers made this the first one, without it you’re not a free country. Franklin and Madison and Jefferson and the boys had been through plenty dealing with King George and his enforcers and they knew what happened when the government could shut you up or keep you out of the public square.
Pretty soon, the rest of us are going to know what happens, too.
It’s been on the way for some time. In Seattle, at the WTO conference, tens of thousands of demonstrators were routed by the police. At national political conventions, police began to designate something called ‘free speech zones’ in which protesters were penned, far away from the center of things. The removal of people from any chance to express themselves so they might be heard, the statutory prohibitions against petitioning in any meaningful sense for a redress of grievances, is now commonplace.
At Occupy scenes across America, cops and government agents force confrontations with mostly peaceful protesters, beating them, shooting them with ‘non-lethal’ ammunition, dousing them with chemical agents, and arresting them, and nobody –– nobody –– in the government seems to think there’s anything wrong here.
“Congress shall make no law...”
Once upon a time, freedom of speech was inviolate. There were exceptions. The Supreme Court famously drew the line at ‘shouting fire in a crowded theater,’ where one could not by the exercise of speech immediately endanger the lives and safety of others.
Otherwise, speech was protected and its protectors took that seriously. The central point was, obviously, unpopular speech. Popular speech does not require protecting. Speech which supports the powerful, which aligns with the government, which offends virtually no one –– that’s not what the framers were getting at. ‘Hooray for the king’ does not need any guarantees.
Over the last hundred years or so, the federal government, state governments, and local governments, as governments will, have whittled away at the First Amendment. They have worked on convenient ‘exceptions’, situations and circumstances in which their right to control what you say is more important than your right to say it.
The feds have at various times passed such noxious junk as the ‘Alien and Sedition Act’ of 1798, designed by President Adams and the Federalists to silence supporters of the French Revolution and damage Jefferson and the Republican Party. Numerous people were charged and some convicted, but Jefferson’s party swept the elections of 1800 and the four provisions of which it consisted were permitted to expire.
Tack on the 1917 Espionage Act and the 1918 Sedition Act, and the Alien Registration Act of 1940, and you get a pretty fair picture. “Congress shall make no law...” unless the government wants to go to war and keep the people from complaining about it.
State and local governments have relentlessly tried to shut people up as well. For the most part, the Supreme Court has been on the side of free speech, striking down the transparent ruses localities have used to silence dissent or make it less messy.
Colleges and universities, too, have not always been bastions of free speech, though they like to claim that they are. Fortunately, students are not often as readily manipulated as their elders and have the energy to fight back. This has led to signal revolts such as Berkeley’s 1964 Free Speech Movement, which brought down the Chancellor and overturned the Regents’ attempt at prior restraint.
But the Supreme Court, over the years, opened the door for oppressive government by approving ‘time, place, and manner’ restrictions. As the Court became less vigilant in protecting the rights of the people, governments at all levels became bolder in trying to shut us up.
Take the case of Dearborn, Michigan, and the crazy pastor from Gainesville, Florida, Terry Jones. Jones rolled into Dearborn with the idea of demonstrating across the street from a local mosque on Good Friday. Dearborn police did not think this was a good idea and refused to issue him a permit, required under local law. The court agreed with the cops. Jones, the mayor said, was welcome to demonstrate in one of the city’s “free speech zones.”
Granted, Jones is an asshole, but that’s precisely the point of the First Amendment. The authorities in Dearborn argued that his plans would not only be disruptive but were likely to lead to violence against him.
The ‘free speech zones’ of Dearborn were created after a court struggle in 2003. The city had an ordinance which required demonstrators to obtain a permit thirty days in advance. The imposition of permit requirements is, of course, a classic tactic of the government to prevent people from responding with public demonstrations to ugly official acts, and also to give authorities a handy code section for use in arresting anybody participating in such festivities.
When an appeals court struck down the Dearborn time requirement, the city imposed so-called ‘free speech zones’.
The use of these zones has spread across America like a malignancy. If they are not stopped, they will kill their host.
They have been used by both parties to keep protesters away from political conventions, and away from appearances by public figures.
The general public has been brought to accept the practice. Civil liberties, the actual cornerstone of democracy, are often seen as confusing or unimportant by people who believe their ‘freedom’ is secured by troops and military campaigns. Tyranny depends on such ignorance.
On December 6, 2001, George Bush’s Attorney General John Ashcroft gave a carefully-prepared statement to the Senate Judiciary Committee. “To those who scare peace-loving people with phantoms of lost liberty,” he said, “your tactics only aid terrorists, for they erode our national unity and … give ammunition to America’s enemies.”
Shortly thereafter, the Secret Service ordered local police to set up ‘free speech zones’ in advance of any presidential visit. These zones were to be outside the view of the President and outside the view of the media, too. Anyone wanting to demonstrate against the President’s policies might just as well go to a different city, or stay home altogether.
That’s what they are telling us now: protesters are “aiding terrorists” because “they erode national unity.” Exercising free speech, the foundation of a free people, “gives ammunition to America’s enemies.” This is an evil declaration, an Orwellian proclamation. Patriotism is sedition.
Thirty-five years prior, President Lyndon Johnson was forced to speak almost entirely on military bases to avoid angry antiwar demonstrators. Now, however, in the new world order, it was the demonstrators who would be moved, to ‘protest’ zones where they would be seen and heard by no one.
The Bush policy suppressing free speech was challenged successfully on more than one occasion. On a Labor Day visit to Pittsburgh in 2002, the Secret Service had designated a ‘free speech zone’ on a baseball field, behind a chain-link fence, nearly half a mile from the President’s speech. People with pro-Bush signs were admitted to line the President’s route but those opposing his policies were kicked out. One man, a 65-year-old retired steelworker named Bill Neel refused to go to the designated ‘protest’ area and was arrested for disorderly conduct. Neel said, “As far as I’m concerned, the whole country is a free speech zone.”
At Neel’s trial, a police detective told the court that they had acted on the orders of the Secret Service, that they were to confine “people that were there making a statement pretty much against the President and his views.” A top official of the Allegheny County cops testified 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.”
Astoundingly, the district judge threw out the disturbing the peace charge, saying “I believe this is America.”
But not all judges have agreed and, in any case, judicial rulings had no effect on either the Secret Service or local police departments. Throughout the entirety of Bush’s terms in office, people were arrested for trying to assert meaningful public dissent. At a Bush rally in St. Petersburg, Florida, in 2001, three demonstrators, two of them grandmothers, were arrested for holding up handwritten protest signs outside the designated zone. Seven more were arrested for refusing to be cordoned off hundreds of yards from a Bush rally at the University of South Florida, including a 62-year-old man with a sign reading “War’s good business. Invest your son.” All seven were charged with trespassing, obstructing, and disorderly conduct.
The practice was expanded during Bush’s first term. In St. Louis, on January 22, 2003, more than a hundred people carrying signs were removed from the site of his speech to a location so far away no one would be aware of their protest; not only that, police prevented reporters from entering the zone and kept protesters from leaving it to speak to reporters. On the same trip, when Bush stopped by a Boeing aircraft plant, police arrested a young mother who disobeyed orders to leave the area, taking her and her five-year-old daughter away in separate squad cars.
In Columbia, South Carolina, the cops arrested one Brett Bursey who was standing among a crowd of Bush supporters. Bursey’s crime was failing to take his protest sign, “No War For Oil” to the designated zone half a mile away. Although Bush supporters could line the route, critics such as Bursey were prohibited to occupy the same space.
Bursey said later that he had already moved 200 yards from where Bush was supposed to speak, but “the restricted area kept moving. It was wherever I happened to be standing.”
Bursey was charged with trespassing, but five months later the charge was dropped because South Carolina law prohibits arresting people for trespassing on public property. But the federal government was not done with him. Lest anyone tempted to exercise their right of free speech think they could get away with it by hiding behind a technicality, the Justice Department then charged Bursey with violating a rarely-enforced federal law of ‘entering a restricted area around the President of the United States.’
Penalty for violating this law was a maximum fine of $5,000.00 and six months in prison. Bursey’s request for a jury trial was denied by federal judge Bristow Marchant, who said that his crime was merely a ‘petty offense’ not warranting a jury. The U.S. Attorney charged that Bursey’s actions “threatened the President.” At the court trial, he was found guilty and fined $500.00.
As we shall see, the Bursey case is important today, nine years later.
At the time these policies were first being implemented, with people being shunted into usually enclosed areas literally out of view of the President and the media, and with the inevitable arrests of some demonstrators who mistakenly believed that the First Amendment to the Constitution applied to them, there was some public protest. Newspaper editorials raised objections, usually tepid, and the ACLU raised a howl. Even a judge or two could be found who would throw out the charges. But the policy stuck and no one with any power to confront it, meaning the Congress and the Supreme Court, would interfere.
The Secret Service, meanwhile, pretended that the rules had nothing to do with dissent, free speech, or political policies. As agent Brian Marr explained on 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.”
Hey, you know what? Why don’t you stay home and protest there? You can make a sign and hold it up in front of your television set. Same right of free speech and no chance of being injured.
In 1966, a U.S. Senate subcommittee held hearings in California’s Central Valley on the issue of the farm workers and their attempts to organize the UFW. A local sheriff testified that he had arrested some farm workers in order to protect them from the threats of violence from the growers. One of the Senators, Robert Kennedy, suggested that the sheriff use the luncheon recess to read the Constitution of the United States.
But the Kennedys are dead, and so is the First Amendment. Free speech is now just another empty expression, like the presumption of innocence.
Under the Bush regime, dissent was not permitted even on his foreign travels. In a visit to Australia, according to the Sydney Morning Herald, “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.”
And on a trip to England, where he prattled about freedom in Baghdad thanks to the horrific U.S. invasion, the White House demanded a complete shut down of the city’s center and a prohibition of protest marches. There were no ‘free speech zones,’ but ‘exclusion zones’ in which no protesters were permitted.
Legal challenges in the U.S., mostly brought by the ACLU, failed to stop the Bush or the Secret Service. Even a 2003 case filed in Pennsylvania federal district court and citing instances of constitutional rights violations in a dozen states, did not end the practice. In fact, over the past nine years, especially including the Obama presidency, it’s gotten much worse.
The Democrats hopped aboard the Mussolini Special in 2004, at their national convention in Boston. Protesters were confined to a fenced area –– topped with razor wire –– outside the Fleet Center. The party justified it by making public safety claims, citing the ‘time, place, and manner’ qualifications now commonly accepted thanks to a comatose Supreme Court, and objections were confined to the usual ‘leftists.’
The corralling of demonstrators made normal under Bush has continued and expanded under Obama. He, like Bush, is protected from having to see the signs and the faces of dissent. No wonder he remains oddly unaware of the depths of fury his policies have engendered among those who feel betrayed.
Free speech zones are now routinely used by mayors and chiefs of urban police forces to deal with the Occupy movement. Permits, rules about what you can carry, what you can have on your person. In New York City, Mayor Bloomberg managed some sweet words about constitutional rights while trying to force Occupy Wall Street to occupy some other place. In Oakland, there is no right to peacefully assemble to petition for redress of grievances, and freedom of speech is honored in its absence.
Police sweeps are common, and confrontations, whether instigated by police agents or by the police themselves, are now inevitable. This is becoming a nationwide phenomenon. Also being widely accepted with little objection is the active participation in anti-protest planning by the Department of Homeland Security.
In an article on free speech zones before the age of Obama, James Bovard, author of Terrorism & Tyranny: Trampling Freedom, Justice, and Peace to Rid the World of Evil, noted with some alarm the May, 2003, ‘Terrorist Advisory” in which Homeland Security “warned local law enforcement agencies to keep an eye on anyone who “expressed dislike of attitudes and decisions of the U.S. government.”
Bovard cites a Senate report describing 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.” The Bureau is also “urging local police to report suspicious activity by protesters to the Joint Terrorism Task Force, which is run by the FBI.”
Now, with government agencies engaging in massive electronic surveillance, all of it formerly against the law, and with the passage of the Patriot Act and the NDAA, which authorizes, incredibly, the arrest and detention without charges or trial, in clear and dramatic contravention of the most basic rights of Americans, any citizen the government doesn’t like, we are on the threshold of something deeply sinister.
Freedom, unlike the moronic bleating of right wing fools, does not depend on military might but on adherence to fundamental principles. The framers of the United States Constitution and Bill of Rights knew exactly what they were doing. It is the Bill of Rights which distinguishes America from other empires. It is the only thing between us and fascism.
Remember the Bursey case? The man was actually prosecuted for ‘entering a restricted area around the President of the United States.’
Two days ago, the House of Representatives voted 388-3 in favor of H.R. 347, a new federal law which will allow the federal government to bring charges against anyone, anywhere in America, who enters a building without permission or with the intent to disrupt a government function. Under the law, any building or grounds where the president is visiting — even temporarily — is covered, as is any building or grounds “restricted in conjunction with an event designated as a special event of national significance."
It will shortly be, after Obama signs it, a federal offense to disrupt, even accidentally, an event involving not only a President but anyone else accorded Secret Service protection, including cabinet members and presidential candidates. Three members of the House voted 'no.'
It will be against the law to create a disturbance, in the opinion of the police, Secret Service, FBI, or any other law enforcement agency, at or in the vicinity of any of these personages, or at a designated ‘National Special Security Event’, a category of public gatherings invented by President Clinton, and which have included Super Bowl XXXVI, the Reagan and Ford funerals, State of the Union addresses, and the Democratic national Convention.
The protesters who arrive in Chicago in a couple of months for the G8 and NATO summits will be present at a National Special Security Event. Disruptive activity will be a federal offense. And ‘disruptive activity’ can, as experience has shown, be anything.
Piece by piece, the foundation of America’s freedom is being chipped away.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Freedom of speech. The right of the people peaceably to assemble... When those are gone, we may wonder how it happened. Of course, it will be too late to matter.