An Affront to the First Amendment

By Michael Avery, TruthOut.org. Posted July 26, 2004.

Demonstrators who want to be within sight and sound of the delegates entering and leaving the Democratic National Convention at the Fleet Center in Boston this coming week will be forced to protest in a special "demonstration zone" adjacent to the terminal where buses carrying the delegates will arrive. The zone is large enough only for 1000 persons to congregate safely and is bounded by two chain link fences separated by concrete highway barriers. The outermost fence is covered with black mesh that is designed to repel liquids. Much of the area is under an abandoned elevated train line. The zone is covered by another black net which is topped by razor wire. There will be no sanitary facilities in the zone and tables and chairs will not be permitted. There is no way for the demonstrators to pass written materials to the convention delegates.

The federal judge who heard a challenge to the demonstration zone by protest groups on July 22d stated in open court, "I, at first, thought before taking the view [of the site] that the characterizations of the space as being like an internment camp were litigation hyperbole. I now believe that it's an understatement. One cannot conceive of what other elements you would put in place to make a space more of an affront to the idea of free expression ..." Despite that, the judge denied the groups' challenge to the conditions and ruled that they were justified by concerns about the safety of the convention delegates. The hearing on the case and the judge's ruling contain important lessons about what has happened to freedom of speech during the War on Terror.

Following the lead of Attorney General Ashcroft, law enforcement officials in the United States have taken two steps that have been devastating to the exercise of free speech rights. First, principles and tactics that arguably, but only arguably, may sometimes be appropriate with respect to the conduct of war or the prevention of terrorism are now routinely employed with respect to ordinary law enforcement. Second, the focus has shifted from the punishment of people who have committed crimes to a strategy that pretends to be able to prevent crime.

Taken together, these steps mean that not only those who have committed crimes are subject to control by law enforcement. Those who fall into general categories of people who are suspected of having the potential to commit criminal acts may also be monitored, physically controlled, and in certain cases detained by law enforcement.

In Boston the police have no specific information that individual people or groups plan to assault convention delegates. Of course, if such acts did occur, the number of law enforcement agents scheduled to take the streets in Boston is more than sufficient to apprehend and prosecute anyone who would commit such an assault. The justification for the demonstration zone, however, is that such assaults must be prevented before they happen. There is no evidence that they may happen beyond what the judge characterized as the "generic experience of the past several years at such events." Everyone who plans to protest is assumed to be someone who may throw rocks and urine at delegates, or who would break up tables and chairs to obtain weapons to attack delegates or police.

On three occasions during the hearing, and once again while announcing his decision, the Judge referred to the plaintiffs who brought the case to complain about the demonstration area as the "defendants." It does not take a psychoanalyst to know that this slip of the tongue has meaning. The fact is that with no evidence whatsoever those who would protest close to the site of the Convention have already been convicted of being up to no good.

This approach represents a major shift in values in our criminal justice system and the principles that protect rights of free expression. The criminal justice issues were appreciated by my twelve year old daughter who attended the court proceedings with me. "Dad," she whispered during the hearing, "I thought you were innocent until proven guilty. That doesn't seem to be what the judge is doing here."

The shift in First Amendment law can be appreciated by comparing the judge's ruling on the DNC demonstration zone with the Supreme Court's decision in 1969 in the Tinker case, where it upheld the right of children to wear black arm bands to school to protest the Vietnam War. The school officials had argued that the arm bands would lead to disruption of the educational process. The Supreme Court rejected the argument, holding that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." In Boston, as in the Tinker case, the authorities have no evidence beyond an "undifferentiated fear" of trouble.

In other cases the Supreme Court has recognized that the First Amendment requires "breathing room." Where the government is forced to interfere with free expression in order to further other legitimate state interests, the interference should be as limited as possible in order to avoid "chilling" the willingness of people to engage in free speech. The demonstration zone in Boston, on the other hand, is a walk-in freezer for free speech. Experienced protestors will avoid the humiliation of being subjected to the conditions in this zone, and less experienced citizens who might wish to convey some message to convention delegates will be too terrified by the netting and razor wire to go anywhere near the site. I shudder to think what message is conveyed to children like my daughter about the possibilities for free expression in this country.

In his decision the judge said that he found it "irretrievably sad" that circumstances required the conditions in the demonstration zone. Of course, the court was free to decide that the government had not proven that the conditions were necessary and a more intrepid judge would have done so. What is genuinely "irretrievably sad" is that the judicial branch has accepted so uncritically the demands of the security arm of the state. One of the lessons of this convention is that the First Amendment is now in urgent need of a life support system to survive.

Michael Avery is the President of the National Lawyers Guild and a constitutional law professor at Suffolk Law School in Boston.

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