The Destruction of Dissent: First Amendment Rights in the Post-September 11 Period

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Rallies, marches, sit-ins, pickets, vigils, leafleting, and street theater. For decades, labor unions, educational, arts and immigrants’ rights groups have relied on these forms of lawful expression to share their viewpoints with the public at large. Yet in the span of six months the climate in which cause-oriented organizations can carry out this public part of their mission has been significantly altered. After the events of September 11, 2001, the federal government and many states enacted new legislation that will have an overarching impact on the nonprofit sector. Local police departments, often in cooperation with the FBI or other branches of federal government, are using a heavier hand to deal with organizations wanting to take dissent to the streets.

Nonprofit groups are experiencing, firsthand, several crackdowns on their First Amendment rights to lawful expressive activity. Recent trends include pre-emptive strikes to curb First Amendment activity such as the denial of demonstration permits based on content, harsher treatment of protestors (including the use of pepper spray and potentially lethal force), enhanced sentences for low-level offenses, and interrogation based on political viewpoint.

Granting permits for street parades or large demonstrations based on content is constitutionally impermissible, but local police departments appear to be more conscious of content for such gatherings. Traditionally, local police departments follow local regulations when issuing permits. The application process typically tries to identify characteristics that may require increased police security measures—such as the gathering’s expected size. It usually is a clear and simple process.
In several cities since September 11 police have said that they are no longer issuing permits at all or are doing so on a case-by-case basis. Many cities are cracking down on organizers of demonstrations who do not obtain permits when previously they may have simply allowed demonstrations to occur without permits.

Months after September 11, for example, the city of Cambridge, Massachusetts, raised obstacles for Harvard Living Wage campaign organizers to obtain a demonstration permit. The group contacted the city manager and was told that he was not issuing any permits until further notice because a September 20 demonstration had, as he described it, “gotten out of hand.” Inquiry calls from others revealed that permits would be issued on a case-by-case basis. When representatives from the ACLU, Cambridge Women’s Commission, National Lawyers Guild and Abortion Access Project later met with the city manager, police commissioner and other city officials to clarify the application process, they were told that the city was using a “special events permit” procedure that would require $500 surety bonds for demonstrations.

In New York, members of the National Lawyers Guild observed firsthand that many small, spontaneous peace actions were treated more harshly than before September 11. Representatives of the New York City Police Department denied a permit for a group of Afghan women. Police subsequently told the women that they would not deploy police officers to the scene of the protest and that the demonstration participants would therefore be in danger from opposing political groups. Such actions may intimidate groups that have not had previous experience negotiating with the police.

In another instance of changed police attitudes toward protestors, 18 people were arrested at a peace rally in Hartford, Connecticut. Several of the “Hartford 18” were charged with conspiracy to incite a riot, even though protestors claim that they were targeted and were merely mediating a discussion after initial arrests were made. At the peace rally the police used pepper spray on the crowd. The media reported that Hartford residents who had attended a larger rally in April 2001, that also did not have a permit, noted that the police’s reactions were noticeably different in the wake of September 11.

Anti-globalization protesters have documented cases of enhanced penalties and increased police scrutiny for the past two years. For example, an unprecedented $1 million bail was set for one demonstrator at the Philadelphia Democratic Convention whom police had identified as a “leader.” Now, post-September 11, there have been even more instances of charges for low-level offenses being ramped up. One of the Hartford 18, peace activist Adam Hurter, was charged with inciting a riot and faces a 10-year sentence if the Hartford prosecutor has his way. The police report called him a “ringleader” who was trying to recruit “radicals” to join him in his “violent plot” to attack an officer. Hurter and witnesses say that he sat in the middle of a circle of demonstrators on a sidewalk and led discussion about what to do after the police started arresting people.

In what was clearly an enhanced penalty based on the content of the offense, four protestors in San Francisco were arrested on felony charges for “wheat-pasting” dumpsters with posters of the Twin Towers with a plane flying into them, captioned “The Evil Empire.” Two of the offenders were each charged with felonies and held on $5,000 bail. In the rare instances in which anti-fliering ordinances are enforced, wheat-pasters are typically charged with a violation or misdemeanor, receive a citation and are released—since the property damage (usually a lamppost or wall) is not large enough for a felony.

Arrestees at the February 2002 World Economic Forum anti-globalization demonstrations in New York were extensively questioned about their politics while in custody. Women have been singled out for particularly harsh treatment, and many were held on a bus for up to nine hours or more, apparently without access to water, bathrooms, food, attorneys or medical treatment. “Such detention is strictly punitive and illustrates the state’s attitude toward dissent in the post 9-11 climate,” said Marina Sitrin, a member of the New York-based People’s Law Collective. “Questioning about political views is unconstitutional and shows that people are being singled out for their viewpoints.”

Local police have worked in tandem with the federal government prior to September 11 but tended to keep their cooperation quiet. Now, local officials are openly asking protestors to share personal information with federal officials—possibly to intimidate them. Protesters at the recent World Economic Forum (WEF) demonstrations in New York were put through the system for low-level violations and misdemeanors. “While in detention, police tried to forcibly remove them and told them it was for the purpose of being interrogated by the FBI,” said Sitrin. “Since 9-11, more activists have been stopped on the street and visited in their homes by FBI agents wanting to question them about their political views and affiliations,” she continued.

Political activists who criticize the government or maintain ties with international political movements are targets for being charged with the new crime of domestic terrorism created by the USA PATRIOT Act (see article, next page)—especially anti-globalization movements that had already been the target of enormous police zealousness since 1999. The Act defines terrorism so broadly that anyone who may have at some time participated in civil disobedience, or even a labor picket, may be targeted.

In addition to the federal anti-terrorism legislation, local laws similar to the USA PATRIOT Act are being passed. A pending bio-terrorism law in New York State would criminalize the throwing of certain liquids. Mandatory life would be the lowest penalty for acts such as animal rights activists throwing blood or an inmate throwing urine at guards. In early February Utah’s Senate Judiciary Committee unanimously recommended a bill that would create the crime of “commercial terrorism,” which would make it a felony to enter or remain unlawfully on the premises or in a building of any business with the intent to interfere with the employees, customers, personnel or operations of a business. This would outlaw many protests such as the ACT-UP or anti-apartheid protests of the 1980s and many organizational protests around sweatshop labor in the 1990s.

Given the police departments’ crackdown on groups that they perceive to be questioning of U.S. policy, some of the groups that can expect immediate increase in police attacks at rallies are anti-globalization groups, groups consisting of foreign-born students, groups protesting U.S. Middle East policy, and groups questioning corporate-sponsored U.S. foreign policy. Single-issue groups such as those protesting the bombing of Vieques may also find the newly expanded governmental powers turned against them. In general, any group of individuals engaged in protest that could be intended to influence the policy of government, such as labor unions, peace activists, educational organizations, arts organizations, or political parties, may find themselves unexpectedly facing severe criminal penalties.

The recent spate of anti-terrorism laws and the resulting policies—both official and unofficial—greatly exacerbate the national trend of chilling First Amendment expression. The right to form alliances with other groups is essential to coalition building and the right to organize. These new practices add to the continuing erosion of the fundamental right to free expression and free association that is a cornerstone of our democracy.

The Supreme Court established the standard for protected speech under the First Amendment to the Constitution in its 1969 Brandenburg v. Ohio decision: speech can only be suppressed if it is intended and likely to produce “imminent lawless action.” That leaves much speech that is protected by the First Amendment, including even vehement, uninhibited expressions against the government. Speech includes conveying ideas symbolically—for instance, flag desecration, music lyrics, artwork, and slogans on political buttons and T-shirts are all protected.

The government can intervene when a demonstration crosses the line from speech to action. So, for example, protestors can picket, march and debate, but cannot block building entrances or harass passersby. Historically, other times the right to freedom of speech has been curtailed has been to protect national security. In addition, the Immigration and Naturalization Service can target non-citizens for deportation because of their activities protected under the First Amendment, as long as it could deport them for other reasons.

The state cannot prohibit free speech rights in a public forum, such as parks and streets. But it can regulate such speech, using narrowly drawn statutes that give limited discretion to officials to ban speech at particular times and places and in particular ways as long as such prohibition is not content-related (see the section on Demonstration Permits in this article). The state is allowed to forbid speech near semipublic forums such as courthouses, schools and libraries, in order to prevent interference with government functions. The state can also forbid the exercise of First Amendment rights in areas closed to the general public, such as jails and private government offices. Finally, owners of private property can prohibit the exercise of speech on their property.

Heidi Boghosian is executive director of the National Lawyers Guild.