So blatantly did this violate the First Amendment that the American Civil Liberties Union quickly got it reversed with a phone call or two, and Silver was given his own booth a couple of days later near restrooms—an ignominious but well-trafficked spot.3 As he was setting up, Silver recalled, a policeman who had not been involved in the arrest strolled by, looked around to make sure nobody was listening, and then “stopped and said, ‘You beat the Nazis.’ ”
In Washington, Gael Murphy’s “crime” was no worse, nothing more than a lack of decorum, if that. She had committed no violence, had made no threat, and had not even disrupted the committee’s hearing. Code Pink activists had shouted down witnesses in the past, but they hadn’t done so this time, and Murphy deliberately sought to avoid arrest by sitting quietly during testimony by Secretary of State Condoleezza Rice. Satirical stunts are Code Pink’s trademark, and that day Murphy and others wore pink police-style hats and pink shirts labeled “Pink Police,” and they appeared here and there to “arrest” war criminals. She waited until the hearing was adjourned and Rice and the senators were walking out before she reached for the banner. She didn’t even get it unfurled before police officers took her and a colleague away.
When Republicans were in charge, unfurling a banner got a person ejected but rarely arrested, and sometimes not even ID’d by the police, Murphy said. But as antiwar pressure increased after the Democrats won majorities in the House and Senate, pressure also built on the Capitol Police to keep order. They did so dramatically when a second-grade teacher and Code Pink member, Desiree Fairooz, dyed her hands blood red and waved them inches from Rice’s face just before another hearing. The rattled cops lost their cool, video shows. They grabbed others dressed in pink—who were not protesting, just sitting quietly wearing pink crowns reading “Shame”—and twisted their arms while hauling them roughly out of the room. As Fairooz was led away, she yelled at Rice, “War criminal! War criminal!” and then as she disappeared out the door, “Take her to The Hague!”
As the police ratcheted up their response and got judges to issue stay-away orders, a sense of unpredictability overcame the protesters. “All of a sudden we were being arrested for things we’d done for six months,” Murphy said. “We’ve been given permission to unfurl banners in hearings. We’ve struck deals with chairmen and staffers.” The protests had settled into such a routine that in a skit on Saturday Night Live, a chairman formally announced the next item on the agenda: a six-second disruption by Code Pink, and a few women in pink then chanted for precisely six seconds, before the hearing resumed. In real life, Murphy said, chairmen lost their tolerance or their influence over the police, and activists grew uncertain about the threshold that would trigger arrest.
The consequences of civil disobedience could be serious. If you went limp or questioned a cop, you got charged with “assault on a police officer,” which sounds as if you threw a punch but covers anyone who “opposes, impedes, intimidates, or interferes with a law enforcement officer.”4 The charge was invariably dropped or reduced, she noted, but it was scary. Even a misdemeanor such as “unlawful conduct,” the accusation against Murphy and two fellow protesters, ended up in a database that prevented her two colleagues from entering Canada.5
“It is unpleasant that every time you’re arrested now, you’ll spend a night in central cell block, in pretty ugly conditions,” she said. “Once you enter the [federal] marshal system you are absolutely guilty. That’s how you’re treated. They have a row of stainless steel cages, and that’s where they keep you.” And when you’re released, you have to walk to a Capitol Hill police office to pick up your wallet and money. “You have nothing,” she said. “Some people are let out late at night.”
The methods became a deterrent. “I’m obviously much more careful,” Murphy said. “I’m very wary of being arrested, that’s for sure. If I felt I was moved to do something in a hearing, like unfurl a banner, or stand up and challenge a lie, I would most likely be arrested and held overnight. But it would make me think whether being arrested is worth it. I look more carefully at actions and what the consequences would be. I’m more discerning.”
There is a narrow line between free expression and disruptive conduct, especially in a congressional hearing, so Murphy’s stay-away order may or may not have survived a constitutional challenge, had there been one.6 In this and other areas, demonstrators and police jostle each other through a legal landscape with too few signposts, and those that exist are often ignored by the authorities.
On the grounds outside the Capitol and other federal buildings, police periodically evade the courts’ rulings. There, as in flag burning, the same First Amendment principle has to be defended repeatedly: demonstrations around monuments are clearly protected speech, provided they don’t obstruct entrances, disrupt passersby, interfere with government business, or deface buildings. This has been codified in a line of cases since 1972, when the Supreme Court affirmed a D.C. Court of Appeals opinion striking down a statute prohibiting demonstrations on the Capitol grounds, and in 1983, when the justices declared that sidewalks around their own Supreme Court building, like those elsewhere, were “areas of public property that traditionally have been held open to the public for expressive activities.” The Court could hardly have done otherwise in that case, which involved the arrest of a nun, Sister Mary Grace, for carrying a sign bearing the words of the First Amendment.7
But even in a system devoted to the rule of law, it seems, the police skate past decisions of the courts; even in a judiciary that values precedent, the battles have to be fought again and again. Even after the rulings from 1972 to 1983, police banned leafleting and demonstrations on the sidewalk at a Capitol entrance. When an artist, Robert Lederman, refused to move 250 feet away, he was arrested. He held a sign reading “Stop Arresting Artists” as he handed out leaflets about a pending lawsuit to secure artists’ rights to sell their works on New York City’s sidewalks.
In 2002, a unanimous three-judge panel of the federal Court of Appeals for the District of Columbia found the prohibition unconstitutional. Although the Capitol sidewalks had been declared a “no demonstration zone” by the Capitol Police, Judge David Tatel, writing for the court, ruled them a “public forum,” citing the thirty-year line of cases. He derided the government’s argument that the broad ban was legitimately aimed at facilitating access. Only those who expressed viewpoints were cleared from walkways, he noted wryly: “If people entering and leaving the Capitol can avoid running headlong into tourists, joggers, dogs, and strollers—which the Government apparently concedes, as it has not closed the sidewalk to such activities—then we assume they are also capable of circumnavigating the occasional protester.… We likewise reject the proposition that demonstrators of any stripe pose a greater security risk to the Capitol building and its occupants than do pedestrians, who may come and go anonymously, travel in groups of any size, carry any number of bags and boxes, and linger as long as they please.”8
The “public forum” designation is critical to determining where free speech rights exist. Since demonstrations involve speech plus conduct, government’s right to regulate the conduct is repeatedly tested. Beginning in 1939, the concept of a “public forum” was introduced by the Supreme Court,9 and then it was expanded from streets and meeting halls to a state capitol’s steps,10 the streets around a capitol building and a courthouse,11 the sidewalks and streets near a school,12 and the vicinity of embassies.13 The Court refused to grant “public forum” status to buses,14 areas near jails,15 military bases,16 sidewalks on U.S. Postal Service property,17 and airport terminals.18 The label is significant, because government restrictions on “expressive activity” in public forums “survive only if they are narrowly drawn to achieve a compelling state interest,” as Chief Justice William H. Rehnquist wrote in the 1992 airport case, while in nonpublic forums the limits need only “satisfy a standard of reasonableness.”
It was deemed “reasonable,” then, for officials to block Jesse E
thredge several times during more than three decades as a civilian employee at Robins Air Force Base in Georgia—not a public forum. He liked to adorn his truck with stickers denouncing various Republican commanders in chief. He was admonished by base authorities in 1984 for one reading “To Hell with Reagan.” In 1990 he was given a ticket for “provoking speech on a truck” after driving onto the base with a sticker saying “Read My Lips Hell with Geo. Bush.” When he got a letter from the deputy base commander in 1991 warning him not to enter the base with “bumper stickers or other similar paraphernalia which would embarrass or disparage the Commander in Chief,” he sued and lost in the Eleventh Circuit. Then, just before September 11, 2001, the Secret Service paid him a call about his stickers reading “Thief, Liar, Two Faced Murderer Geo. W. Bush,” and “Hell with Bush and All Damn Republicans.” The agents decided he was not threatening the president.19
Since 1941, the Court has upheld “reasonable” limits on the “time, place, or manner” of demonstrations that stop short of censorship, affirming the convictions of Jehovah’s Witnesses who defied a town’s permit requirement and carried signs while they marched along a street, albeit single file.20 Reasonable does not always mean sensible, though. In 1967, the Court affirmed the decision of an Alabama judge to enjoin a civil rights march in Birmingham, which had taken place in 1963, and to hold Martin Luther King Jr. in contempt of court for violating the order. In a South that used the courts and the police to enforce segregation, the Supreme Court split hairs over the failure of the demonstrators to apply for a permit, to file motions in higher courts, and to play in a rigged game of legalities that they would surely have lost.21
POLICE SURVEILLANCE
One of the easiest intelligence operations for police departments and federal agencies is spying on peaceful opponents of government policies, as if the most serious threats were posed by dissenting citizens rather than dangerous terrorists. Hardly any protest groups are secretive, and they’re eager for volunteers, so intelligence officers who want to follow the path of least resistance can readily watch and infiltrate the antiwar community. As a result, the dossiers contain a lot of peace activists who raise their voices, not their fists.
The specter of surveillance intimidates would-be demonstrators, it is argued, inhibiting free expression. When a volunteer turns out to be an undercover cop, trust and cohesion disintegrate, some people get scared, and effective organization deteriorates. So goes the reasoning.
Captain Jeffrey Herold thought otherwise and portrayed the watchfulness as essential and benign. His uniform was perfectly pressed, his hair was meticulously trimmed, and he presented himself as a precise thinker with balanced priorities. He had a demanding job: head of intelligence for the Washington, D.C., police department’s Office of Homeland Security and Counterterrorism. But he spent most of his time in front of a computer screen, he said, checking what he could learn from protest groups’ open sources. Since they advertise to garner public support, they usually plan overtly. He noted that they had been targeted by more undercover officers back in the 1970s and 1980s, before the window provided by the Internet.
To assemble the right equipment and manpower at a demonstration, he explained, the police need to know whether illegal acts are likely and what tactics might be used. Making that assessment also requires direct surveillance, he conceded, and gave as an example preparations for the protests in 2000 against the International Monetary Fund. “We asked Home Depot, ‘If you get people who don’t look like plumbers buying a bunch of PVC pipe, give us a call.’ They called. We started surveilling Home Depot.” Police stakeouts saw people buying huge amounts of PVC, which protesters use for “sleeping dragons” to lock themselves together, so the cops knew to take the necessary tools to the march: Jaws of Life, bolt cutters. Separating demonstrators to arrest them can be tricky. They sometimes fasten bike locks around their necks, Herold said, so you have to exercise great care when cutting them off. “Some put ropes around necks so if you pull, you strangle them.”
In addition to monitoring Web sites and doing stakeouts, “there is undercover work,” he added. “But there’s got to be a criminal predicate there,” meaning a preceding indication of a crime. “I wouldn’t see wasting police resources going into Code Pink, for example.”
Gael Murphy and her Code Pink colleagues felt under close scrutiny, though, maybe not by the city’s police, but certainly by the Capitol Police before and after her ban. “Everywhere on Capitol Hill we’re followed. When we go to lunch, a table of policemen are next to us. I’m assuming my phone is tapped. I wouldn’t be surprised if our group is infiltrated. They’re on our e-mail list.” As she and her colleagues walk through hallways, they can hear the crackle of police radios: “Pinks in the house.”
The surveillance fires indignation in some activists, resignation in others. Murphy seemed nonchalant. “We come from a premise that we don’t have anything to hide,” she explained. “We’re not doing anything illegal; we’re not doing anything violent.”
Her group does take precautions if it wants to pull a surprise. “When we’re planning some civil disobedience, we are careful about not using cell phones or discussing it over e-mail—even landlines if we can help it,” she said, then added: “Usually, we come to find out that the police are fully aware of our plans. That’s how we know that there’s likely infiltration,” as it seemed one day when activists quietly organized a little guerrilla theater to stage a mock die-in on the west terrace of the Capitol. There’s a rule against lying down on non-grassy areas, to prevent that kind of demonstration, and by the time protesters approached, the area was sealed off with “bicycle rails and layers and layers of police,” she recalled, “so it was impossible to even get near the terrace.”
If activists suspect one or another of being an undercover cop, doesn’t that taint relationships within the movement? “Not really,” Murphy said. “It makes you wonder sometimes about people, I mean, where do they come from? Sometimes some odd people show up, and you don’t really expect them. So it makes you wonder.”
You wonder also who doesn’t join a protest, who keeps silent, who is intimidated by the very belief that surveillance is active. You wonder whether that is precisely the objective when the government gets heavy-handed, as it did with Drake University in Iowa. The school was served with a federal subpoena demanding the names of leaders, annual reports, and details of a forum held in 2003 by the campus chapter of the left-wing National Lawyers Guild, including names of attendees and issues discussed. The subpoena contained a gag order on college administrators, caused a public uproar nonetheless, and was withdrawn as the American Association of University Professors issued a defiant declaration: “To demand the naming of all persons who attended a lawfully registered campus conference will undoubtedly chill protected expression, and deter participation at similar events in the future.”22
That seems logical. “An individual planning to attend a political meeting or a rally protesting the war in Iraq, for example, will be much more hesitant to attend if he knows FBI agents may be taking names,” writes the constitutional scholar Geoffrey R. Stone. “Such surveillance, whether open or surreptitious, can have a significant chilling effect on First Amendment freedoms.”23
Yet when nothing comes of the information gathering, citizens may not feel the chill. If police don’t disrupt or arrest in advance, does the mere suspicion of surveillance inhibit free speech and organizing? “The only thing I think it inhibits is illegal activity,” said Herold, the police intelligence officer. “That argument sounds good, that it’s going to scare people. But I’ve seen officers standing next to protesters who are right in your face, screaming and yelling at you, using words you wouldn’t bring home with you.” Had it happened to him? “Yes, and I’ve been standing there in uniform.”
Still, there are the non-zealots, the citizens in the gray areas between conformity and activism, the folks who might feel a quiet apprehension tugging against their impulse to step out.
They are unseen, they may prefer to remain that way, and as long as they do so, they cannot be counted.
Furthermore, intelligence gathering itself contributes to a mind-set among officers about protesters as adversaries and lawbreakers, as documented by internal police files that have been made public. If you stand back and list the threats facing the society, and how we’d be smartest deploying the limited resources of law enforcement—to combat terrorism, drugs, guns, sophisticated white-collar crime, and so on—conducting surveillance on nonviolent peace movements would hardly rank as a priority. Yet if dissent is tarred with the brush of danger, which it often is, then license is given to monitor, infiltrate, and gather intelligence as if the protest group were preparing an attack. The Maryland State Police logged nearly three hundred hours of undercover surveillance aimed at opponents of the death penalty and the Iraq war and found no criminal activity, yet entered some of the names in a database of suspected terrorists and drug traffickers.24
From 2001 through at least 2006, the FBI devoted untold man-hours to monitoring and investigating the Religious Society of Friends (Quakers), Greenpeace, The Catholic Worker, and People for the Ethical Treatment of Animals (PETA). According to a book-length report by the inspector general of the Justice Department, an FBI agent was dispatched to an antiwar rally in Pittsburgh to look for suspected international terrorists, but without any indication that any would be there. Before leaving his office, he glanced through a book of faces but, once at the demonstration, found that he couldn’t remember them well enough to do matches.25
The Pennsylvania Office of Homeland Security hired a contractor to do bulletins on possible terrorist threats, which included upcoming meetings of an environmental group opposing the use of hydraulic fracturing to drill for natural gas. The contractor’s uncorroborated reports sent state police chasing false leads.26
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 32