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Our Right to Dissent is Under Siege: Why the Protests in Pittsburgh Are a Victory For Free Speech

The rights to freedom of speech and protest are keystones of democracy. Since 9/11, however, protesting has become much more difficult.
 
 
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The recent decision of Federal Judge Gary Lancaster in Pittsburgh allowing protests at the upcoming G20 summit is an important one because, since 9/11, protesting against the government has become quite a bit harder.

Six peace and justice groups sued local state and federal government officials over severe restrictions on protesting at the gathering this month of the industrialized world's leading Finance Ministers and Central Bank Governors -- precisely the sort of public event that free speech rights were designed for. The case, brought by the Center for Constitutional Rights and the Pennsylvania ACLU, resulted in the government giving more permits to protest and the court allowing a tent city protest.

The First Amendment was enacted to allow challenges to political authority and protests were expected to be unpopular. The rights to freedom of speech and protest are keystones of democracy. Since 9/11, however, protesting has become much more difficult. The decision of Judge Lancaster is a step in the right direction.

I have litigated several cases and participated in dozens of protests across the country since 9/11. In every major protest exercising the right to dissent has been much more difficult than before 9/11 because the forces of government have been working overtime to limit protest and the right to dissent.

There are three main reasons that protesting is more difficult since 9/11. First, there is political advantage to keep fanning the fires of fear and insecurity and suggesting to the public that violence could well be a part of protests even though over 99% of protests and protestors since 9/11 have been completely non-violent (except for the right-wing gun toting folks at the healthcare forums -- can you imagine if African American protestors did that?) Second, government has poured billions into law enforcement with the result that their response to protests are in many cases no longer civil law enforcement but now quasi-military, a chance to both show off their new toys, and an opportunity for security forces to practice their mass response actions. Third, federal forces have taken over the leadership for security at any large protest so that local and state law enforcement have less and less to say in how the event is managed.

Since 9/11, there has been an insistent drumbeat from the highest offices in the U.S. on down that people have much to fear. This culture of fear has been used by the government as a rationale to refuse to allow protest. When protest is allowed, the same fears of violence and terrorist attacks are used to try to isolate the protestors into the infamous protest zones where government can isolate and limit protestors as was the case in New York City at the massive 2003 anti-war rally.

Additionally, local and state law enforcement forces have been given billions of extra dollars to fight terrorism. Hundreds of millions of these dollars have gone into special riot control and high tech security equipment. This means all police departments have lots of extra headgear, shin guards, shields, batons, pepper spray, tasers, bigger weapons and communication equipment. Most big city police departments have new armored vehicles and helicopters to fight terror. Every big police department has an anti-terrorism squad now. At big protests it is now common to see local police dressed up like and acting like military commandos. This militarization of law enforcement clearly inhibits the free exercise of the First Amendment right to protest.

After 9/11, the federal government was embarrassed and outraged by their lack of preparation. One of the changes made after 9/11 was to give federal officials more authority over protests which would have been handled by local and state law enforcement in the past. This means that protest organizers can no longer just talk with familiar local law enforcement to set up the ground rules for a protest, they must now deal with nameless faceless FBI and Secret Service bureaucrats who view every big gathering of people as a potential terrorist bomb opportunity.

Taken together these measures amount to what I believe is an unconstitutional assault on our freedom of speech. Judge Lancaster's decision is a step in the right direction but we must continue to be vigilant if we are to protect this essential fundamental right.