BILL OF WRONGS -- THE EXECUTIVE BRANCH'S ASSAULT ON AMERICA'S FUNDAMENTAL RIGHTS
Chapter 2: A ZONE OF THEIR OWN
I'm all in favor of a free-speech zone. I think it should be the United States of America. This notion that there should be places where you can engage in free speech and places where you can't is totally antithetical to the Constitution. -- Congressman BARNEY FRANK, May 2003
Rifle in hand, pistol tucked in his belt (legal 'cause "we're Texas"), and holding a sign that reads HERE TO SHOOT THE PRESIDENT (admittedly problematic), a reporter set out to road test his theory that the designated "free-speech zone" in Crawford, Texas, was so remote it was invisible. Ten miles from G. W. Bush's Prairie Chapel Ranch, the reporter would stand like a desert stylite in silent protest for one hour. After no one noticed, he would return to his office to bang out 1,000 words about the absurdity of a "free-speech zone" so isolated that any free speechifying was inaudible.
Despite reassurances that neither gun would be loaded, and an offer to use toy weapons, his editor considered the reporter's idea irresponsible, if inspired. So "The Best Little Free-Speech Zone in Texas" was never reported, written, or published.
Odds are he would have pulled it off.
Not because such an offensive act would have been tolerated by the citizens of Crawford. Crawford adores its favorite favorite son, even if he didn't adopt the hard-bitten Central Texas town until the second year of his second term as governor. The love is understandable. He was our governor. He's our president. We're a patriotic state. And, until George and Laura bought the ranch, in 1999, commerce was a town in Hunt County, almost two hundred miles from Crawford. Only after the Western White House was up and going did some pulse of retail commerce return to Crawford's moribund Main Street.
Maybe it's because nobody ever opened a souvenir shop to sell Bill of Rights T-shirts, but for whatever reason, the citizens of Crawford (pop. 789) and their elected officials are not so devoted to the First Amendment. Critical comments are redacted from guest books in gift shops selling GWB memorabilia. High school students are warned about clothing that implies disrespect for the president. And protest, if it has to happen, is confined to the "free-speech zone" situated between the Crawford Pirates football stadium and the school district bus barn.
Texas towns have a tradition of turning their dislikes into city ordinances: no liquor in Lubbock; no dancin' in Anson; no blacks in the white sections of public housing in Vidor. But the extent to which Crawford would go to shield the president from all dissent was extreme even by the standards of the Great State. Two years after Bush took office, Crawford's protective bubble for the president was challenged, putting the Constitution to a test before a Texas jury that was a sure bet to pick order over law.
The trouble started, as it often does in Texas, with a foreigner. On May 3, 2003, Australian prime minister John Howard became "the first foreign leader to actually visit the people of Crawford in the business district," according to the town website. Howard bought a "Friends and Allies" coffee mug at the Western White House Gift Shop, for Tony Blair's fiftieth birthday. While the prime minister of Australia was buying the prime minister of England a cheap gift that would only remind him of his canine fidelity to the president of the United States, an antiwar protest was under way in Austin. As the rally broke up, a small group decided to drive north and continue the protest near the entrance to the president's sixteen-hundred-acre ranch. Austin middle school teacher Ken Zafiris said they hoped to take advantage of the press pack following the Australian prime minister. "We were going to go out to the gate of Bush's ranch and make our statement and put up our signs, then go home."
To get to the ranch, a dozen cars traveling north from Austin had to drive through Crawford. There they ran into a blockade of ten police cars and fifty state and local law enforcement officers. All under the command of Crawford's chief of police, Donnie Tidmore. As the out-of-towners got out of their cars, the police chief warned that they were in violation of Crawford's parade ordinance and allowed them three minutes to get back into their cars, turn around, and get the hell out of Crawford.
Several members of the group approached the chief's car and reassured him they had no intention of stopping in Crawford and less interest in moving to the "free-speech zone" behind the bus barn. They were in Crawford because the town is situated between Austin and George Bush's Prairie Chapel Ranch. The chief turned on his bullhorn and began a countdown punctuated by dips into a chewing tobacco pack and warnings that anyone not in a car and prepared to leave town when three minutes was up was going to jail. Across the street from the blocked cars, a group of George Bush supporters -- mostly' boys in their teens and early twenties -- waved Texas, American, and Confederate flags and shouted at the protesters. The scene was so Southern Gothic that a day-tripper down from Dallas might have confused it with a movie shoot.
When the police chief gave the order at the end of his three-minute countdown, four people who hadn't returned to their cars were arrested, along with a long-haired man who had walked down the street from the Crawford "Peace House" to check out the blockade. All five were held in a police van for about an hour, then driven to Waco, where they spent eighteen hours in jail. The following day, they were charged with protesting without a permit, told that a date would be set for them to appear in municipal court in Crawford, and released with instructions not to go back to Crawford.
In Austin, they contacted James Harrington, the legal director of the Texas Civil Rights Project. Harrington is a constitutional lawyer who teaches at the University of Texas law school. He's been trying First Amendment cases since he was the ACLU's staff attorney in Austin twenty years earlier. He has a lined, bearded face and wears a perpetual scowl that belies a wry sense of humor. The trial in municipal court in Crawford would be one of his more memorable (and humorous) cases.
"The crowd was so big that they moved it from the municipal courtroom to the city auditorium," Harrington said. "It was packed. When we walked in, you could hear the soft thud of kangaroos bouncing around."
Harrington described the trial as a day of "political theater." The municipal judge recused himself because he had been involved in drafting the anti-protest ordinance Harrington would have to challenge in order to defend his clients. He was replaced by a local sportscaster with a rich baritone and a poor grasp of the law, who also served as justice of the peace. The substitute judge compensated for his lack of experience by consulting the city attorney, who eagerly answered his questions regarding law and procedure.
The case was so controversial that the substitute judge summoned sixty prospective jurors to impanel a jury of six, and a security detail of almost as many Crawford city police officers and county sheriffs. "They were convinced the terrorists were on trial," said Harrington. During voir dire, the process by which lawyers screen and select a jury, several prospective jurors shouted at the defense attorney, complaining that Harrington was wasting the taxpayers' money.
"When I asked how many of them had an opinion that [my protesting clients] shouldn't have been doing this, about half the people in the room raised their hands," said Harrington. "And then, there was this minister sitting in the front row, who was wearing his collar. I asked him, 'Do you think you can be fair?' And he said, 'Well, I really don't think so.'"
At issue was a city ordinance Harrington described as a throwback to the pre-civil-rights era -- prohibiting any "procession, parade, or demonstration" without fifteen days' notice and the approval of the police chief. The ordinance had been selectively applied to Harrington's clients. Shortly after the five antiwar protesters were locked in the police van, the local kids, waving Confederate, Texas, and U.S. flags, fell into a bedraggled parade behind a police car driving down one of Crawford's main thoroughfares. None of the flag-waving locals taunting the protesters was arrested.
As the trial unfolded, the chief of police testified that one person walking down a Crawford street while wearing a political button could be "a sign of a demonstration." If such a person did not have a valid permit issued under Crawford's parade ordinance, he would be subject to arrest. Under cross-examination, the chief struggled to define a parade or procession but concluded that fifteen cars and a bus, or twenty cars without a bus, driving together through Crawford without a permit would constitute an illegal parade. He agreed that the Crawford Pirates' homecoming caravan, which came through town every fall without a permit, was subject to arrest -- even if he would never actually subject the homecomers to arrest.
The jury found nothing wrong with the facts as explained by Chief Tidmore or the law as explicated by the city attorney. Six jurors quickly found five defendants guilty. Four were fined the five-hundred-dollar maximum allowed by the ordinance. The local peace hippie, who wore an anti-Bush button as he walked down the street to check out the roadblock, was fined three hundred dollars. Perhaps because he was a guilty innocent bystander. Or because the police denied him his medication while he was jailed for eighteen hours, after ignoring his entreaties to use a bathroom while he was locked in the van (causing him to relieve himself in his pants).
Harrington said he would appeal, and the city council promptly repealed the statute. If the handwriting wasn't on the wall (also illegal in Crawford), it was spelled out in more than one case handed down by the U.S. Supreme Court. On point was a civil suit in which the National Park Service was slapped down for denying a permit to antiabortion protesters who wanted to express their opposition to President Bill Clinton during his second inauguration parade down Pennsylvania Avenue: "The government cannot exclude from a public gathering in a public forum on no other basis those citizens whose views it fears or dislikes or prevent their peaceful expression of those views."
The "Crawford Five" case was scheduled for review by a county court at law, the standard appellate venue for municipal courts in Texas. In his appeal, Harrington described an unconstitutional ordinance that had "mutated from a 'mild' example of content-based regulation to an extraordinary vehicle for suppression of political belief and expression unpopular with the Crawford police chief." When Harrington subpoenaed Police Chief Tidmore, the city of Crawford folded. To avoid another trial with the chief on the stand, Crawford's lawyers agreed to send the municipal court transcripts to the county court and conduct the trial on motions.
Harrington had also filed a civil suit in federal court in Waco, alleging the Crawford police had subjected his clients -- a church secretary, a middle school teacher, an AmeriCorps volunteer, an employee of the nonprofit Texas Criminal Justice Coalition, and a Crawford peace activist -- to illegal arrest and had violated their First Amendment rights. The suit was dismissed pending the outcome of the criminal trial. When the county court at law judge overturned all five guilty verdicts, Harrington refiled his civil suit. Judge Michael Smith, a Ronald Reagan appointee to the federal bench, quickly ruled in favor of Harrington's clients.
The conservative federal judge had little choice. Crawford had all but admitted guilt by repealing its unconstitutional parade and protest ordinance. A state judge had overturned all five guilty verdicts reached under the statute. And the constitutional "right-to-assemble and free-speech" issues were clear. Each defendant was awarded $10,000 and the city was required to pay $84,000 in legal fees -- a big bite out of Crawford's municipal budget. Crawford was also stuck with the tab for the private counsel brought in to help the city attorney through the three trials.
Beyond the cost was collateral damage to Crawford's bruised reputation. The Houston Chronicle reported that, four months before the big bust, the Texas town had gone begging for help protecting the first family. Two cities in Delaware and one in Massachusetts had responded, donating a used ambulance, a used fire rescue truck, and a 1960s vintage fire engine. The president's hometown was taking handouts from northeastern liberal states -- in other words, states where individuals and corporations are taxed to pay for essential services -- anathema in Texas. We were a low-tax state with meager government services long before George Bush was governor. As governor, Bush made a poor state poorer, cutting into the revenue that would have funded police and fire services and ordering a rare budget surplus "returned to the taxpayers who know how to spend their hard-earned money better than the government does."
But the real bad news for Crawford was the gradual understanding that the free-speech zone behind the football stadium was moot. Federal judge Michael Smith inadvertently killed it when he ruled in favor of Harrington's plaintiffs. By denying Crawford cops the right to deny citizens free speech, Judge Smith started the entire county down a slippery slope toward the unencumbered free expression guaranteed by the First Amendment. "We expanded the free-speech zone to the entire county," Harrington said. "We brought McLennan County under the purview of the Bill of Rights."
Suddenly, free speech was happening everywhere. In the summer after Harrington's plaintiffs prevailed in federal court, antiwar activist and Gold Star mother Cindy Sheehan acquired a small parcel of land near the Bush ranch and turned it into "Camp Casey"- -- a protest encampment dedicated to the memory of her son who was killed in Iraq. Sue Niederer (see Chapter 1), whose son Seth Dvorin died in Iraq, came down from New Jersey to join the protest. Jim Harrington drove up from Austin to monitor the situation. He found McLennan County sheriff's deputies doing their own monitoring -- to ensure no one's First Amendment rights were violated. Protesters remained in Camp Casey for the duration of the president's August vacation.
The political theater Jim Harrington described was Texas Grand Guignol, complete with Gendarme Flageolet and the requisite grisly conclusion that included garroting the framers of the Constitution.
The big trial in Crawford had been a laugh riot. Yet five American citizens had been arrested, tried, and convicted for driving through an American town. Veterans of the civil rights movement in this country have been down this road (some never made it back). They can explain what life is like when the Constitution provides no safety net.
In President Bush's hometown, that safety net disappeared. In a nation that claims the first written constitution establishing rule of law over rule of man, a small-town cop carved out a constitutional exclusion zone. Not only was the rule of man displacing the rule of law, but it was the rule of one man backed by a jury that had no interest in reconciling local law with the Constitution of the United States.
The Constitution was vindicated only because a public interest law firm, defending something larger than five clients guilty of exercising their free-speech rights, went to court.
Not all First Amendment violations are so sweetly vindicated.
On October 24, 2002, Brett Bursey stood on the side of the road outside the Columbia, South Carolina, airport, holding a NO MORE WAR FOR OIL sign and waiting for President Bush to arrive. Two Secret Service agents, an airport police officer, and a state trooper approached him. One of the federal agents told Bursey he could (1) go home; (2) get in line [to see the president] if he had a ticket; (3) go to the designated demonstration area; or (4) suffer the consequences of being arrested.
Bursey picked option number 4.
He would not be moved unless they moved him.
Bursey was standing on both public property and a thirty-year-old legal precedent. He knew he was right even as airport police sergeant James Campbell handcuffed him, loaded him into a police van, and took him to the county jail. Thirty years earlier, while protesting a visit of President Richard Nixon, Bursey had been arrested on the same road and convicted on the same charge. The South Carolina Supreme Court had overturned his trespassing conviction. Bursey told the Secret Service agents and airport cop that, since the state supreme court decided South Carolina v. Hanapole in 1970, there is no such thing as a state trespass charge on public property. (It does seem like something of an oxymoron if you are the public.)
Jailers at the Lexington County jail handed Bursey an orange jumpsuit and told him they'd been instructed not to send him to the afternoon arraignment; he wouldn't be arraigned until the following day. Overnight detention is extreme by Lexington County standards, at least for a sober misdemeanor defendant who resided and owned property in the county. On the following afternoon, Bursey was charged with trespassing, arraigned, and released on a personal recognizance bond.
Brett Bursey isn't a virgin.
At fifty-four, the amiable and persistent activist with graying hair pulled back into a short ponytail was well known in local law enforcement circles. The October 2002 visit was Bush's third trip to South Carolina. Brett Bursey was there waiting for the president each time. He had protested the visits of the six presidents who preceded Bush -- that would be every president to hold office since LBJ. In the early seventies, he served two years in jail for painting HELL NO, WE WON'T GO on the wall of his draft board. When he was arrested at the airport in 2002, he was the director of the South Carolina Progressive Network and about as close as one gets to being a full-time professional dissenter.
Brett Bursey might be the Gunga Din of presidential protest in the Carolinas.
He was not, however, guilty of trespassing.
When other dissidents arriving at the airport saw Bursey handcuffed and walking to the police van, they retreated to the designated free-speech zone about a half mile from where the president was speaking.
"Primarily, this is about clearing dissent from the camera shot," said Bursey's attorney, Lewis Pitts. "So the message communicated through the land is that everybody here is part of the cheering masses supporting the president."
Lewis described a "Barney Fife plan" used by the Secret Service and White House Advance Team. "The feds come to town a couple of days ahead of the president's visit and they bring in the local police. Then the Secret Service gets Barney all jacked up about how patriotic this is. 'We got to defend our president,' they say. And they actually tell them, don't let anyone that's protesting be anywhere but in a free-speech zone. 'We're all Americans and want people to protest and we're giving them their own separate place to do it.'
"If you're the general public and you're a fan, you're allowed in. If you're not a fan, they do what they did in Brett's case. They send in Barney Fife and Barney says you're going to be arrested for trespassing or subject to a disorderly conduct order."
Then Barney's left behind in Mayberry, holding a criminal defendant on charges that won't stand up in court. "The Secret Service and the president fly off," Pitts said. "So there's no federal trace of repression. What you've got maybe is a little fight between Barney Fife and the local ACLU. Which looks a lot less totalitarian."
Secret Service agent Holly Abel didn't go with the Mayberry metaphor, yet what she told the judge suggests Pitts is onto something: "That's just something we usually do. It facilitates the whole process if local law enforcement handles it as opposed to us.... That way if the locals are handling the arrest, we won't be coming back to South Carolina to testify and fill out paperwork."
It took the "locals" five months to drop the state trespass charges against Brett Bursey. They finally came around to what he told them when they handcuffed him in October: the South Carolina Supreme Court had established thirty years earlier that there is no such crime as trespassing, on public property.
That's where the story would normally have ended.
But as soon as state trespass charges were dropped, U.S. attorney J. Strom Thurmond, Jr., filed federal criminal charges. Bursey was the first person ever prosecuted under USC Tide 18 Section 1752(a)(I)(ii). The statute was passed in response to the JFK assassination and makes "entering or remaining in an area the Secret Service has restricted for the security of the president of the United States" a federal misdemeanor.
Bursey requested a jury trial. But because the charge was a misdemeanor, he was tried before a federal magistrate.
Magistrate judge Bristow Marchant had little sympathy for Lewis Pitts's argument that his client wasn't warned that he was in a restricted presidential zone and that the zone was not clearly marked. Bursey had been told to move by federal and state police, even if they didn't tell him he was violating a federal law. The statute under which Bursey was charged requires cordoning off restricted areas -- in this case roughly one hundred acres around the airport. Judge Marchant ruled that law enforcement officers posted at the ends of the road directing traffic, and bicycle racks set up to mark a perimeter, were a cordon.
Nor did the fact situation work in Bursey's favor. He testified that there were hundreds of people standing in line to get into the hangar while he was being arrested and that many of them carried pro-Bush signs. He also said the airport police officer told him he was being arrested because he was carrying an anti-Bush sign. A Secret Service agent, a South Carolina Law Enforcement Division officer, and the airport cop contradicted Bursey's testimony. Under oath, each of them testified that the area was shut down, no one was in the president's line of sight, and Bursey's sign was never an issue.
A trial is a swearing match, and Brett Bursey lost. The federal magistrate found "more than sufficient evidence ... to establish that Bursey had the requisite specific intent to violate 18 U.S.C. 1752(a)(I)(ii)." Bursey faced a maximum five-thousand-dollar fine and six months in prison. Judge Marchant was lenient, observing that Bursey had demonstrated no intent to harm the president and fining him five hundred dollars.
Bursey said he regrets he had no videotape of his arrest to impeach the credibility of police and Secret Service testimony. Pitts insists the trial turned on the false witness of the cops and federal agents. It wouldn't be the first time a law enforcement officer lied under oath. In fact, charges against defendants arrested in mass roundups near the end of Nixon's second term were dismissed because the ACLU dispatched videographers to document what actually happened -- which didn't square with what police said happened.
But let's assume the witnesses for the government got the facts right and Brett Bursey was doing what many criminal defendants do: telling a version of the truth he hoped would exonerate him. That doesn't explain why the U.S. attorney reached for a statute enacted thirty years earlier and never before used -- not even when Richard Nixon was routinely surrounded by angry protesters and the memory of the Kennedy assassination that had informed the passage of the law was so fresh it was painful. Pitts, who has practiced law in South Carolina since about the time Strom Thurmond, Jr., was born, has a theory.
Karl Rove had gone forum shopping.
Pitts believes the president's senior adviser (who dodged a subpoena when Pitts tried to have him served in Washington) saw an opportunity to apply a federal statute that would create a protest-free zone around the president. If they could pull it off in the Fourth Circuit, they would create a legal precedent that would put the statute in play across the country.
"They did this in what they knew was their home court, South Carolina, with Strom Thurmond, Jr., as United States attorney and Senator Strom Thurmond's appointees on the federal bench," Pitts said. "The Fourth Circuit is the most conservative appeals bench in the country."
The case did go up the appeals ladder, first to a district court judge, who affirmed the magistrate's decision. "The district judge said this is an era of terrorist plots and terrorist bombings," Pitts said. "That's the context that they were thinking about and even made reference to." At the court of appeals, the presiding judge on the Fourth Circuit panel opened the hearing by saying: "This is an uncommonly silly prosecution." Then she voted with the majority to uphold the ruling against Bursey.
When the U.S. Supreme Court refused to hear the case, as Pitts sees it, Karl Rove and Attorney General John Ashcroft achieved their objective. They gamed the legal system and won an appellate court review of a draconian law that would silence dissent wherever the president traveled. They have a license to arrest anyone carrying a sign or wearing a T-shirt authorities find offensive and to corral dissidents in small redoubts where they are free to exercise their First Amendment rights.
Strom Thurmond, Jr., who moved on to a private law practice in South Carolina after four years as U.S. attorney, says his decision was made with no input from Washington. "I made the decision to prosecute Mr. Bursey after consultation with my management team, the prosecutors assigned to the case, and the United States Secret Service, and no one else.... Although the charge levied against Mr. Bursey was a misdemeanor, the charge reaffirmed the important premise that no citizen should be permitted to disregard lawful orders of Secret Service agents whose duty is to protect the president of the United States." Thurmond added that Bursey's case was heard in three federal courts in South Carolina and his appeal turned down by the U.S. Supreme Court.
In other words, Brett Bursey, with his First Amendment complaint, was a three-time loser.
The Bush administration wasn't the first to suppress dissent in this country. Confiscating signs and rounding up protesters was a fairly common practice during Richard Nixon's second term. (It reached a disturbing excess when an assistant attorney general named William Rehnquist justified the arrest of thirteen thousand antiwar protesters in Washington in 1971 by declaring something he creatively described as "qualified martial law.") Police also harassed protesters during the eight years Ronald Reagan was in the White House, and to some extent during Bill Clinton's presidency.
But the Bush administration goes at it with an unprecedented totalitarian zeal. Bush operatives were mugging the First Amendment even before William Rehnquist's Supreme Court shut down the Florida recount and called the 2000 election. As part of their agreement to hold the national convention in Philadelphia in August 2000, the Republican Party demanded a two-week lease on all public property. By temporarily taking title to the streets and other public places, Bush political operatives could limit dissent to a "protest pit" a safe distance from the South Philadelphia sports complex where the convention was held. Protesters were required to apply for permits to enter the designated area for fifteen minutes of unrestricted free speech. When political free speech occurred outside the designated area, Philadelphia police stopped it, often using phalanxes of mounted officers to herd and corral protesters.
It was inspired repression of free speech, more than a year before the terrorist attacks of 9/11 and at a time when George W. Bush couldn't tell al-Qaeda from Al Pacino. And it caught on. Early on in the country's first Public Relations Presidency, the Secret Service began working to ensure that no offensive signs or placards would ever be tolerated in the presence of the president. The notion that the Bush-Cheney administration's assault on the Bill of Rights was a response to the terrorist attacks of September 2001 doesn't square with the historical record.
At Brett Bursey's trial, Lewis Pitts introduced trial transcripts from two other states where defendants were prosecuted for essentially "carrying a sign that might offend the president." The first sign arrest was made two months after George W. Bush delivered his January 2001 maiden inaugural address, when he visited Western Michigan University in Kalamazoo. Waiting for him was Antoine Jennings. A political science major in his senior year, Jennings carried a sign that read WELCOME TO WESTERN MICHIGAN, GOVERNOR BUSH. Perhaps the young African American student got course credit for the lesson the Bush entourage provided him on the power of the executive branch. And the diminished function of the First Amendment.
Jennings was confronted by WMU police, arrested, and charged with trespassing. In an interview later the same day, he told a reporter that a campus police officer informed him he was being placed under arrest because he was carrying a protest sign.
In this excerpt from Jennings's trial, Campus police captain Wesley Carpenter leaves no doubt about what got the WMU senior booked, mugged, and fingerprinted on the campus he had called home for four years.
Carpenter is being questioned by Jennings's attorney.
Q: And what did you and the Secret Service do to prepare for the President's arrival?
A: They arrived approximately three days prior to his arrival, and we set up the established area surrounding inside and outside of the facility for the security of the arrival of the President. They established areas that public were not allowed to enter. They established areas for demonstrators. They established areas for the press, the news media and the public who ha -- -ticket holders to actually enter the venue.... And we had specific instructions from the Secret Service that any demonstrators would have to demonstrate from that established area.
Q: And, again, what did the defendant say to this?
A: He became argumentative and wanted to argue about if he could -- why he couldn't go into there and that it was his campus, and he kept saying, you're only doing this because I'm carrying a sign or I'm demonstrating, and I kept telling him that this was a secured area, and it was for the protection of the President, and he had to comply with the rules that had been sent up by the Secret Service.
Q: Okay. And so they could have stayed on the south side of Oliver Street? That was all open to the public?
A: As long as they weren't demonstrating.
Q: Ah. And that -- that gets to the heart of the matter, I guess.
Q: This was all open to the public here (indicating)?
Q: And anybody could have gone down to this area (indicating) and stood and watched --
Q: -- the President?
Q: But what happens if somebody comes into this area and they hold up a sign?
A: If it's on sticks or wooden -- anything that could be used as a weapon, then they have to go back to the demonstration area. They're not allowed to bring them down there into that area.
Q: And a sign without a stick?
A: It was my understanding the Secret Service said all demonstrators had to be in this area (indicating).
Q: So, even if they don't --
A: That were -- that were -- that was our instructions.
Q: Even if they don't have sticks --
Q: -- they can't go in the area that's otherwise open to the public?
A: That was the instructions we were given.
Q: And a sign without a stick is no threat to anyone, is it?
A: That's correct.
Q: Okay. But the Secret Service didn't want anybody -- and this was your understanding and the rule that you were enforcing --
Q: -- nobody who was critical of the President could be seen in this area; they had to go behind the building?
A: That's correct.
Q: And this was an order that you -- or not an order -- this was the request of the Secret Service?
A: It was an order of the Secret Service.
Pitts also introduced the transcript of the trial of retired steelworker Bill Neel in Coraopolis, Pennsylvania. Neel, sixty- six, and his sister had been standing with a large group of Bush supporters lined up along a residential street in Neville Island, Pennsylvania, waiting for the presidential motorcade. Neel didn't quite fit in with Bush admirers holding up signs that read WE [heart] BUSH, GOD BLESS U.S., GO GEORGE!
County detective John Ianachione spotted Neel's THE BUSHES MUST LOVE THE POOR -- THEY'VE MADE SO MANY OF US sign and told him to take it to the free-speech zone. During Bush's Labor Day 2001 visit to Pennsylvania, free speech was allowed on a baseball field where protesters stood behind a chain-link fence out of sight of the president. Neel refused. He was handcuffed and arrested, and his sign was confiscated. His sister had no protest sign, but when she protested her brother's arrest, she was arrested with him.
Both were charged with disorderly conduct.
Neel's trial began with Detective Ianachione telling Judge Shirley R. Trkula how he came to arrest John Neel and his sister Joyce Lynn Neel:
Magistrate Trkula: Okay, Detective, let me hear what you have to say.
The Witness: Yes, Your Honor. On September 2nd, President Bush was coming to town, and over on Neville Island there, and I was assigned to a uniformed detail, and I was specifically assigned to the firehouse area along the main route of travel into town. There was an assembly permit established for the memorial park area for protesters at that site. My duties were pretty much to guide protesters into the assembly area, made sure that all the protesters went into the assembly area. It's a large fenced-in baseball field.
Magistrate Trkula: Who applied for the permit? The protesters --
The Witness: It was the protest group, yes.
Magistrate Trkula: -- applied for the permit --
The Witness: Yes, Your Honor ...
Magistrate Trkula: Okay. So does that mean all protesters had to go in the park?
The Witness: Yes. That was my --
Magistrate Trkula: If they belonged to that group. What if they didn't belong to that group? What if they lived on the island?
The Witness: Well, it was my understanding if they were exhibiting themselves as a protester, they were to go in that area.
Magistrate Trkula: Who told you that?
The Witness: My supervisors.
Magistrate Trkula: Okay.
The Witness: And also the Secret Service. Like I said, I was there. We were guiding -- All the protesters went in except for Mr. Neel and his sister at that time, Joyce Lynn Neel. They were asked numerous times over and over to go into the area. They were exhibiting this sign here.... But anyways, we continued to, you know, ask them to go in there. They refused. They were arrested at that point. They were taken right into the adjacent firehouse, and myself and Detective Mett sat there with Mr. Neel and Mrs. Neel until the President was done and he left town.
Neel's lawyer, Thomas J. Farrell, followed Judge Trkula, cross-examining the defendant.
Q. But your directions were only those folks with signs critical of the President needed to be in the protest area?
A. Yes, sir, people as I would understand to be in protest.
Q. Okay. And you were given those directions by who?
A. My direct chain of command was Sergeant Gorcheck and the Secret Service. I'm sorry, I don't know the names of the Secret Service.
Q. Were you at a meeting before [September] 2nd with the Secret Service?
A. There was a brief meeting. People were detailed to different areas and it was explained the assembly area was there, and the people protesting were to go into the assembly area where there was a permit obtained for that area for that purpose.
Q. And you were told that by both Sergeant Gorcheck and the Secret Service at this briefing before the protest?
A. Yes, sir.
Q. Okay. And you say the Secret Service. Was it the Secret Service or were these folks White House staff? Do you know?
A. Primarily, as I understood, they were Secret Service that gave the briefing.
Q. Did they identify themselves as being from the Secret Service?
A. Yes, sir.
Fifteen minutes into the trial, the judge interrupted Farrell's cross-examination and began to question the detective. Judge Trkula had seen a news photo of a local woman enthusiastically awaiting Bush's arrival and wanted to know why Neel was treated differently. When the detective said Neel was singled out because he was "in protest," the judge stopped the proceeding.
Magistrate Trkula: Okay. All right. Yeah, I understand. I understand where you're coming from, and I understand where you're coming from, because it's a critical time. And I guess because of 9/11 they're a little more careful than before.
But I do not believe that this rises to the charge of disorderly conduct. And I believe this is America, and that's why our forefathers came here, for freedom of speech. And I don't -- Once you stop that, whatever happened to "I may not agree with what you say, but I'll defend to my death your right to say it"?
The Witness: Your Honor, I was just --
Magistrate Trkula: So I'll dismiss this, and good luck to you [Neel]. And maybe the next time find a different way to protest. I don't know. So you don't have to end up in here.
Charges against Joyce Lynn Neel were also dropped, and Detective Ianachione walked across the courtroom and handed Bill Neel his sign, which had been confiscated and locked in an evidence vault.
The Neels got a better deal than Brett Bursey because there was no federal statute deployed against Bill Neel. And because the arrest of a sixty-six-year-old man for standing on a public street with a sign that might offend the president engaged the gag reflex of a judge who didn't even feel compelled to cite the Constitution to rule that this sort of repression has no place in a democracy.
Most Americans won't be shocked to read that the Secret Service is secretive -- even if the earpieces and sunglasses are a giveaway. But Secret Service secrecy is expected to serve the purpose of protecting the president of the United States, not violate First Amendment rights of citizens of the United States. Though they did Lewis Pitts no good in federal court, the transcripts he introduced are on-the-record-under-oath accounts of Secret Service agents ordering local police officers to arrest dissenters engaged in constitutionally protected free speech. (In a country founded by dissenters.)
Pitts even found agents breaking their own rules. A U.S. Secret Service procedures manual section entitled "Demonstrations" stipulates: "In the absence of specific fact or observable actions which would indicate a demonstration may pose a risk to a USSS protectee, protected facility, or to public safety, demonstrators are to be treated as members of the general public."
That's unequivocal bureaucratic English. Not as eloquent as the First Amendment, but complying with it in letter and spirit.
The paper trail Lewis Pitts turned up suggests that all roads lead to Rome. So Secret Service policy isn't likely to change until the emperor returns to his ranch in Texas. In fact, it will get worse. In December 2005, Senator Arlen Specter made a technical adjustment to the revised USA Patriot Act. The provision the moderate Republican from Pennsylvania inserted with no debate seems to render moot the federal misdemeanor charge for which Brett Bursey was prosecuted. Henceforth, anyone caught in a restricted zone will now be subject to felony charges under the Patriot Act, punishable by one year in jail and a fine. "Restricted zones" will include National Special Security Events -- such as the Olympics, the Super Bowl, and anyone of President Ronald Reagan's many funerals. The zones -- themselves designated as protectees -- can be shut down for days before and after the president's scheduled arrival.
No reasonable American would oppose increased security for places and events that are likely terrorist targets. Congress identified 160 potential sites for terrorist attacks in 2003. By 2005 there were 77,769 possible targets. Not all were National Special Security Events or sites. But for an administration that has criminalized dissent, each of them -- including the Illinois Apple and Pork Festival -- is an enforcement opportunity.
But no reasonable American who understands the Bill of Rights would support the novel defense of two private security guards who threw a couple out of a Bush Social Security Town Hall in 2005 in Denver because they arrived in a car with a NO BLOOD FOR OIL sticker on the bumper.
"The president may constitutionally make viewpoint-based exclusionary determinations in convening his own message," the attorneys representing the Republican Party volunteers who threw the couple out of the president's forum said in court filings. "So in following the instructions of the White House, [the security guards who escorted the couple from the taxpayer-supported Bush event] did not violate any of the plaintiffs' constitutional rights."
Viewpoint-based exclusionary determinations?
It's a concept.
But not one that the framers of the Constitution would have recognized.